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2004 DIGILAW 638 (GAU)

Haladhar Talukdar v. Laskh Patowari and Ors.

2004-12-17

H.N.SARMA

body2004
H. N. SARMA, J.— By this Revision petition the petitioner tenant has challenged the legality and validity of the judgment and order dated 11.7.03 passed by the learned Ad-hoc Additional District Judge, Kamrup, Guwahati in title appeal No. 4 of 2001 dismissing the appeal of the petitioner upholding the Judgment and order dated 17.7.01 passed by the learned Civil Judge, Sr. Division No. 3 Guwahati in title suit No. 184 of 1999 decreeing the suit of the respondent for ejectment and recovery of compensation. 2. The facts relevant for disposal of this revision petition is that the landlord Respondents filed title suit No. 184 of 1999 in the court of learned Civil Judge, Sr. Division No. 3 Guwahati against the petitioner impleading them as Defendants praying for delivery of khas possession of the suit premises on ejectment of the petitioner, his servant, his employees etc. for decree of Rs. 28,0007- on account of arrear rents and other reliefs. The suit premises as mentioned in the plaint is a part of an Assam type house consisting of 3 rooms, which is described in the Schedule B of the plaint. 3. The case of the plaintiff, as pleaded in the plaint, is inter-alia that late Bhagwan Patowari, Predecessor in interest of the Opposite party plaintiffs was the owner in respect of an Assam Type house consisting of 5 rooms standing upon a plot of land measuring IK 1 /2 L and the defendant petitioner was a monthly tenant under late Bhagwan Patowari in respect of 3 rooms paying Rs. 500/- as monthly rent, which was subsequently enhanced to Rs. 800/- per month with effect from April 1989; the rent of each month was payable in the 1st week of subsequent month, that the petitioner tenant paid the rent till the month of December, 1989 but did not pay any rent since January, 1990 and the defendants have denied the title of late Bhagwan Patowari and on the death of their father the plaintiffs have inherited the suit property and became the owner thereof. That the petitioner tenant illegally mutated their names in the municipal record, that the plaintiff bonafide require the suit premises for their own use and occupation, that the tenant petitioner defendant is also liable to pay arrear rents amounting to Rs. 2 8,000/-. 4. That the petitioner tenant illegally mutated their names in the municipal record, that the plaintiff bonafide require the suit premises for their own use and occupation, that the tenant petitioner defendant is also liable to pay arrear rents amounting to Rs. 2 8,000/-. 4. Upon summons being served, petitioner appeared and filed his written statement controverting the allegations made in the plaint. It was stated interalia, in the written statement, that the tenant was never a tenant under the predecessor of the opposite party plaintiff in respect of any part of the Assam Type House, that there was no relationship of landlord and tenant with the predecessor of the plaintiff, that the opp. party plaintiff No. 1 did not look after and maintain Late Sorojbala Patowari who was the original owner of the land and house therefore the petitioner being the younger brother of late Sorojbala Patowari used to maintain her, that the petitioner had been residing in the suit house since 1962 with the predecessor of the opp. party plaintiff who was earlier living in his village and came to Guwahati in 1985 and approached the petitioner to allow him to reside in 2 rooms in the eastern portion of the schedule Assam type house and prayed for dismissal of the suit with costs. 5. Upon the pleadings, the learned trial court framed as many as 10 issues in the suit, out of which, issue No. 7 relates to defaulter in respect of payment of rent and issue No. 8 relates to bonafide requirement of the suit house of the plaintiff respondent. Issue No. 10 relates to nature of relief to which the plaintiffs are entitled. 6. During the course of trial the plaintiff Respondent examined 4 witnesses, whereas the tenant petitioner examined 3 witnesses including himself. The learned trial court heard the parties by his Judgment and order dated 17.7.01 passed in title suit No. 184 of 1999 decreed the suit of the plaintiff landlord. 7. Being aggrieved by the aforesaid Judgment and decree, the defendant preferred an appeal being title appeal No. 4 of 2001 in the court of learned District Judge, Kamrup, Guwahati which was later on transferred to the file of the learned Ad-hoc Additional District Judge for disposal. 7. Being aggrieved by the aforesaid Judgment and decree, the defendant preferred an appeal being title appeal No. 4 of 2001 in the court of learned District Judge, Kamrup, Guwahati which was later on transferred to the file of the learned Ad-hoc Additional District Judge for disposal. The learned Appellate court having heard the counsel of the respective parties vide judgment and order dated 11.7.03 dismissed the appeal upholding the Judgment and decree passed by the learned Trial Court. 8. The Present Revision petition is filed against the aforesaid Judgment and decree passed by the learned Ad-hoc Additional Judge, Guwahati in title appeal No. 4/01 dismissing the appeal filed by the petitioner. 9.1 have heard Mr. C. K. Sarma Baruah, learned Sr. counsel for the petitioner as well as Mr.S. Sarma, learned counsel appearing on behalf of the Respondents. Mr. C. K. Sarma Baruah has not challenged any of the findings relating to bonafide requirement or defaulter as has been held by the learned courts below. What is challenged in the instant Revision Petition is the findings of the learned court below on issue No. 10 relating to amount of compensation at the rate of Rs. 307- per diem against the tenant petitioner payable to the plaintiff landlord for occupation of the suit premises from the date of institution of the suit till eviction of the tenant from the suit premises. Learned counsel has submitted that the learned courts below exceeded the jurisdiction in passing a decree for payment of compensation in a suit for eviction of a tenant filed by the landlord and that part of the findings of the courts below are not sustainable. In support of his contention Mr. C.K. SarmaBaruah, learned Sr. counsel has referred to a decision reported in AIR 1979 SC 1745 (V. Dhanapal Chettiar Vs. Yesodai Ammal). As against this Mr. S. Sarma, learned counsel appearing on behalf of the Respondents landlord has submitted that the tenant is liable to pay the rent to the plaintiff landlord so long he occupies and uses the suit house and this liability cannot be absolved under any circumstances. Yesodai Ammal). As against this Mr. S. Sarma, learned counsel appearing on behalf of the Respondents landlord has submitted that the tenant is liable to pay the rent to the plaintiff landlord so long he occupies and uses the suit house and this liability cannot be absolved under any circumstances. According to the learned counsel there might be mis-nomenclature of the word "compensation" directed to be paid by the tenant to the plaintiff for use and occupation by the tenant, but the petitioner is liable to pay the agreed rent to the landlord under the Provisions of the Urban Areas Rent Control Act. 10.1 have heard the arguments advanced by the learned counsel in respect of their contentions. In the instant case it is not disputed that the tenant petitioner is a tenant under the plaintiff landlord which the courts below categorically held so. It is also not disputed that the rent at the rate of Rs. 800/- payable by the tenant has not been paid since August, 1996 nor such rent has been deposited in the court of law. Dealing with the issue No. 7, the learned Appellate Court has specifically dealt with the aspect as regards the character of defaulter in payment of rent by the petitioner. Assam Urban Areas Rent Control Act is a self contained Code on the matters relating to landlord and tenant in Urban Areas. Under Section 5 of the said Act, it is obligatory upon the tenant to pay the monthly rent to the full extent allowable under the Act. The 'tenant' has not been defined under the Act. Section 2(c) of the Act defines the term 'standard rent'. The rent is a periodical payment made to the landlord and the liability to pay rent arises out of the contract of tenancy. The word rent came to be considered by the Apex court in the case reported in AIR 1963 SC 145 and at page 1463 in the following manner: "In its wider sense rent means any payment made for the use of land or building and thus includes the payment in respect of use and occupation of any land or building. In its narrower sense it means payment made by the tenant to landlord for property used by him." 11. In its narrower sense it means payment made by the tenant to landlord for property used by him." 11. Various provisions of the Assam Urban Areas Rent Control Act, makes it abundantly clear that a tenant is to pay lawful rent to his landlord to the full extent for use and occupation of the tenanted house. In AIR 1979 SC 1745 referred to by Mr. Sarma Barua, it has been held that even if the lease is determined by forfeiture under the transfer of property Act the tenant continues to be a tenant, that is to say there is no forfeiture in the eye of law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Control Act, not otherwise. Even after the termination of the tenancy, a tenant may continue to occupy the tenanted premises but that will not change the character of a tenant, whether he is a statutory tenant or otherwise, as the case may be. During the duration of the tenancy and even after expiry of the term, the tenant shall be liable to pay the rent and this liability will continue so long he occupies the house. In the instant case, there is no period of tenancy. The suit was filed for ejectment of the tenant on the ground of defaulter and bonafide requirement. The Act does not provide for payment of any compensation on account of use and occupation of the land. The law provides that tenant is to pay the agreed rent to the full extent to the landlord and the liability will continue so long the tenant remains in occupation of the tenanted premises. The learned courts acted illegally and in excess of jurisdiction in directing to pay compensation to the petitioner/tenant for use and occupation of the tenanted house. 12. In view of the aforesaid discussions the findings of the learned court below in issue No. 10 to the effect that the petitioner is liable to pay compensation at the rate of Rs. 307- per diem towards the use and occupation of the suit premises from the date of institution of the suit till eviction is not sustainable. Accordingly, same is set aside but the petitioner tenant will be liable to pay agreed rent to the Respondent at the rate of Rs. 307- per diem towards the use and occupation of the suit premises from the date of institution of the suit till eviction is not sustainable. Accordingly, same is set aside but the petitioner tenant will be liable to pay agreed rent to the Respondent at the rate of Rs. 8007 per month which the petitioner does not dispute. With the aforesaid modifications this revision petition is allowed to the extent indicated above. However, in the facts and circumstances of the case, there shall be no order as to costs.