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2004 DIGILAW 468 (GAU)

Promod Hazarika v. Haren Das

2004-08-11

RANJAN GOGOI

body2004
JUDGMENT Ranjan Gogoi, J. 1. Aggrieved by the appellate judgment and decree dated 29.05.2001 reversing the decree of dismissal of the suit for eviction of the Defendants, the present proceeding under the provisions of Section 115 of the Code of Civil Procedure has been instituted at the instance of the Defendants. 2. The facts, in brief, may be noted at the outset: The Respondent in the present civil revision petition, as the Plaintiff, had instituted Title Suit No. 137 of 1991 in the Court of the learned Civil Judge (Senior Division) No. 1, Kamrup at Guwahati seeking a decree of eviction of the Defendants from the suit premises under the provisions of the Assam Urban Areas Rent Control Act, 1972. The case of the Plaintiff, as stated in the plaint, is that he had purchased the land described in Schedule-A to the plaint by means of a registered sale deed bearing No. 8660 dated 26.12.1967. According to the Plaintiff, after purchase, he developed the land and constructed a house with C.I. Sheet roof on the Schedule-A land. Holding No. 56 of Ward No. 27-A was allotted in respect of the said house by the Guwahati Municipal Corporation. In the month of August, 1988, the Defendants took one room of the said house covered by Holding No. 56 of Ward No. 27-A, measuring 12' X 12'. The aforesaid suit room, which has been described in Schedule-B to the plaint, was taken on a monthly rent of Rs. 350/- which according to the Plaintiff, was payable within the first week of the subsequent calendar month. According to the Plaintiff, though the Defendants had taken the suit room on rent @ Rs. 350/- per month, no rent was paid by the Defendants at any point of time and there being an apparent default on the part of the Defendants to pay the monthly rent, they were liable to be evicted on the ground of being defaulters. The Plaintiff also claimed bonafide requirement of the suit premises. It is on the aforesaid basis that the eviction of the Defendants from the suit premises was prayed for in the suit filed. 3. The Defendants contested the suit by filing a joint written statement denying the claims made by the Plaintiff and asserting that there was no relationship of landlord and tenant between the Plaintiff and the Defendants. It is on the aforesaid basis that the eviction of the Defendants from the suit premises was prayed for in the suit filed. 3. The Defendants contested the suit by filing a joint written statement denying the claims made by the Plaintiff and asserting that there was no relationship of landlord and tenant between the Plaintiff and the Defendants. According to the Defendants, the Plaintiff had no title to the property described in Schedule-A or in Schedule-B to the plaint. The Defendants asserted that the suit room including the house of which it is a part, was constructed by the Defendants out of their own funds. It was the further case of the Defendants that the Plaintiff had instituted the suit in question on the basis of some fabricated documents with a view to occupy the suit premises. 4. The learned trial Court dismissed the suit of the Plaintiff by holding that the Plaintiff had failed to prove the relationship of the landlord and the tenant, as pleaded. In coming to the said conclusion, the learned trial Court took the note of the fact that there was a variance between the description of the suit premises, as contained in the plaint and in Ext. 'Ka' i.e. the sale deed bearing No. 8660 dated 26.12.67, on the basis of which, the Plaintiff claimed title to the land on which the suit house was situated. The learned trial Court, however, taking the view that the question of title would not be relevant in a suit for ejectment of the tenant under the provisions of the Act, proceeded to consider the oral evidence on record and after taking into account the evidence of P.W. 1 though it proper to hold that the Plaintiff had not succeeded in proving the relationship of landlord and tenant. In doing so, the learned trial Court took into account the evidence tendered by P.W. 1 (Plaintiff) to the effect that he was not aware of the date from which the tenancy had commenced as well as the statement of the Plaintiff made to the effect that after the commencement of the tenancy in the month of August, 1988, the Defendants had paid rent for two months. The aforesaid evidence was taken to be self-contradictory as well as contrary to the pleadings and, therefore, the learned trial Court thought it proper to hold that the Plaintiff was not entitled to the reliefs claimed. 5. In appeal before the learned Court below, the Plaintiff sought leave of the Court to bring on record additional evidence by filing an application under Order 41, Rule 27 of the Code of Civil Procedure. The additional evidence sought to be brought on record by the Plaintiff were the certified copies of certain revenue records to the effect that the dag and patta numbers of the land covered by Ext. A had in the meantime been altered in the course of the resettlement operations. The prayer for adducing additional evidence by means of the certified copies of the relevant revenue records was allowed by the learned Court below and on a consideration of the said additional evidence, the learned first appellate Court took the view that the discrepancy/variance as noticed by the learned trial Court was satisfactorily explained. Proceeding, further, the learned first appellate Court took into account the evidence of the Plaintiff regarding the terms of the tenancy as well as nonpayment of monthly rent and coupled with the evidence of P.W. 2 who had deposed that the Defendants had taken the suit room on rent, the learned first appellate Court reversed the decree of dismissal of the suit passed by the learned trial Court. In doing so, the learned first appellate Court also took into account the pleaded case of the Defendants and taking note of the fact that there was a serious discrepancy in the evidence of D.W. 1 and D.W. 2 with regard to the claim of title set up by the Defendants, the learned first appellate Court took the view that the Plaintiff would be entitled to the decree, prayed for. Aggrieved, the present civil revision application has been filed. 6. I have heard Mr. C.K. Sarma Baruah, learned Counsel appearing for the Appellants and Mr. A.C. Sarma, learned Counsel appearing for the Respondents. 7. Aggrieved, the present civil revision application has been filed. 6. I have heard Mr. C.K. Sarma Baruah, learned Counsel appearing for the Appellants and Mr. A.C. Sarma, learned Counsel appearing for the Respondents. 7. The argument advanced on behalf of the Appellants that the learned Court below has erred on a substantial question of law in holding the tenancy claimed by the Plaintiff to be proved on the basis of the finding as regards the title of the Plaintiff to the suit property, must be answered in the negative. A mere reading of the judgment under challenge amply demonstrates that the question of existence of the tenancy between the parties was not determined by the learned trial Court on the basis of the finding with regard to title alone. The learned lower appellate Court, after recording the finding of title in favour of the Plaintiff, scrutinized the evidence of the witnesses examined by the Plaintiff as well as the Defendants and on consideration of the aforesaid evidence adduced by the parties, the finding as regards the tenancy claimed was reached in favour of the Plaintiff. In this regard, as already noted, the learned Court below came to the conclusion that the evidence of P.W. 1 and P.W. 2 amply demonstrated that the suit property was taken on rent by the Defendants and that as the Defendants had failed to prove the title claimed by them, the suit of the Plaintiff must be decreed. It has already been noted in an earlier part of the present order that on the evidence adduced by the parties, the learned trial Court had taken a particular view and appreciating the same evidence on record, the learned first appellate Court has taken a contrary view. It is not the province of the revisional Court embark upon a re-appreciation of the evidence to find out as to which appreciation of the evidence made by the two learned Courts below is a better appreciation. Unless the appreciation of the evidence by the learned Court below is patently wrong and the conclusion reached are unreasonably perverse, interference of the revisional Court exercising jurisdiction under Section115 of the Code of Civil Procedure will not be called for. Unless the appreciation of the evidence by the learned Court below is patently wrong and the conclusion reached are unreasonably perverse, interference of the revisional Court exercising jurisdiction under Section115 of the Code of Civil Procedure will not be called for. Looking at the judgment of the learned Court below, what is discernible is that the learned Court, on the evidence adduced, has taken a particular view and this Court finds the view taken to be a plausible and a possible view. If that is so, the matter must be allowed to rest and ought not to be carried any further in exercise of the jurisdiction under Section 115 of the Code of Civil Procedure. 8. An argument has also been made on behalf of the Appellants that the additional evidence adduced by the Plaintiff had been considered by the learned trial Court without formal proof of the said documents. The additional evidence introduced by the Plaintiff and relied on by the learned Court below is in the form of the certified copies of certain revenue records. The aforesaid revenue records are public documents under Section 74 of the Indian Evidence Act, 1872 and the certified copies of such documents can be used as proof of the contents of the public documents under the provisions of Section 77 of the Indian Evidence Act. In the aforesaid view of the matter, no infirmity giving rise to any substantial question of law can be said to have been occasioned by the judgment and decree passed by the learned Court below. The last argument advanced on behalf of the Appellants is that the learned Court below had decreed the Plaintiffs suit without recording any finding with regard to the terms of the tenancy. The argument need not detain the Court inasmuch as the tenancy was denied by the Defendants and once the title to the suit premises, as claimed by the Defendants was held to be not established, the uncontroverted oral evidence of the Plaintiff with regard to the specific terms of the tenancy would permit a decree of eviction to be passed against the Defendants. 9. For all the aforesaid reasons, I find no merit in this civil revision application, which stands accordingly dismissed. The judgment and decree dated 12.06.2001 and 18.06.2001 passed in Title Appeal No. 2 of 1998 stand affirmed. 9. For all the aforesaid reasons, I find no merit in this civil revision application, which stands accordingly dismissed. The judgment and decree dated 12.06.2001 and 18.06.2001 passed in Title Appeal No. 2 of 1998 stand affirmed. However, having regard to the facts and circumstances of the case, the parties are left to bear their own costs. Application dismissed