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2005 DIGILAW 696 (GAU)

Braja Mohan Sharma v. Benu Singh

2005-09-19

A.B.PAL

body2005
JUDGMENT A.B. Pal, J. 1. By this second appeal the Appellant has called in question the correctness and validity of the judgment dated 10.9.2003 passed by learned Additional District Judge, North Tripura, Dharmanagar in Title Appeal No. 2 of 2002 on the ground of res judicata and limitation. 2. The material facts giving rise to the present proceeding are as follows: The Appellant herein faced a proceeding as Defendant in Title Suit No. 2 of 1996 instituted by the Respondents herein, who are wife, sons and daughters of late Tambi Singha. The suit was for eviction of the Appellant being a tenant under them. Tambi Singha became the owner of certain lands including the suit land by way of purchase by registered sale deed executed by Chandra Badan Singha. Being approached by the Appellant herein, Tambi Singha leased out the suit land to the Appellant by a registered lease deed dated 10.6.1957 for a period of five years at an annual rent of Rs. 200/- only. The Appellant took possession of the land, constructed dwelling huts and motor workshop, but stopped payment of rent after the initial payment of Rs. 200/- for the first year. Tambi Singha filed Money Suit No. 28 of 1961 and Money Suit No. 56 of 1962 in the Court of learned Munsiff, Dharmanagar, North Tripura for realization of the rents and succeeded on 30.3.1962 and 31.5.1968, when both the suits were decreed. Aggrieved, the Appellant preferred Money Appeal No. 17 of 1962 and Money Appeal No. 6 of 1968, but lost. Thereafter, the wife of the Appellant herein Smti Tambi Nou Devi filed Title Suit No. 55 of 1967 in the Court of learned Munsiff, Dharmanagar for cancellation of the decrees passed in Money Suit Nos. 28 of 1961 and 56 of 1962, but the suit was dismissed. Tambi Singha filed Title Suit No. 66 of 1962 for eviction of the Appellant herein, which was decreed by the learned Munsiff, Dharmanagar after holding that the lease was determined under Section 111(a) of the Transfer of Property Act, 1882 (herein after referred to as 'the Act'), i.e. by efflux of the time limited by the lease document and therefore, no notice under Section 106 of the Act was necessary. It was further held that the Appellant herein took lease of the suit land from Tambi Singha deciding thereby the relationship between Tambi Singha and BrajaMohan Sharma with regard to the suit property. An appeal was filed assailing the said decision of the learned Munsiff, which was however, reversed by the learned appellate Court in Title Appeal No. 81 of 1973 after holding that the registered lease document being not signed by both the lessor and the lessee as required by Section 107 of the Act, the said lease cannot be said to be a lease for a term exceeding one year and it must be taken to be a monthly lease. Being a monthly tenancy, the said appellate Court held, Section 106 of the said Act comes into play, which provides that such a tenancy, which is not for agricultural or manufacturing purposes, is terminable on the part of either lessor or lessee by fifteen days' notice expiring with the end of a month of the tenancy. Thus the finding of the learned Munsiff that no notice under Section 106 of the Act was required as the tenancy had expired by efflux of time having been reversed the appeal of the Appellant herein was allowed. After the said judgment by the learned appellate Court on 19.1.1965 long period was allowed to pass silently and after about a period of 20 years, the legal heirs of Tambi Singha, the Respondents herein, filed Title Suit No. 2 of 1996 after issuing notice under Section 106 of the Act on 11.7.1995 proceeding from the position settled by the appellate Court that the lease is a monthly tenancy and the Appellant herein being the tenant under the Respondents, who issued notice under Section 106 of the Act, the lessee is liable to be evicted on the ground that he did not pay the rent for the entire period except the initial year, which is the admitted position. Several other issues were framed by the learned Civil Judge (Senior Division) for deciding the dispute in the said Title Suit, but it is not necessary for adverting to those issues for the purpose of disposal of the present second appeal. 3. Several other issues were framed by the learned Civil Judge (Senior Division) for deciding the dispute in the said Title Suit, but it is not necessary for adverting to those issues for the purpose of disposal of the present second appeal. 3. The Appellant, who was made Defendant in the said Title Suit contested the claim contending, inter alia, that the lease dated 10.6.1956 was intended to be a bayanapatra following an agreement between him and Tambi Singha for sale of the suit land for a consideration of Rs. 500/- only. He paid Rs. 200/- as part of the consideration, but the clever vendor converted it into a lease deed for a period of five years with yearly rent of Rs. 200/-. The deed was executed only by the Defendant-Appellant without knowing its contents as he being a Manipuri did not know to read or write Bengali, the language used in the said lease deed. He tried to raise several other contentions that the suit land was not at all owned by Tambi Singha and in fact his wife had purchased the land from another, but such alternative stand failed to inspire confidence as he admitted execution of the lease deed dated 10.6.1957. Ignorance about the language of deed was not legally acceptable and so, could not bring him any respite. The learned trial Court after elaborate discussion rejected all other contentions of the Defendant-Appellant and proceeding from the admitted position that he was a tenant under Tambi Singha and it was a monthly tenancy, it has been held that he was liable to be evicted for failure to pay the rent. The Defendant-Appellant having suffered a decree for eviction filed Title Appeal No. 02 of 2002 in the Court of Additional District Judge, North Tripura, which has been disposed of on 10.9.2003 dismissing the appeal and affirming the judgment and decree of the learned trial Court as aforesaid. Aggrieved, the present second appeal has been preferred. 4. This Court while admitting the second appeal framed the following substantial questions of law: 1. Whether the Title Suit No. 2/1996 is barred by Section 11 of the Code of Civil Procedure in view of the judgment and decree dated 28.9.1963 passed in Title Suit No. 66/1962? 2. Whether the suit is barred by limitation under Article 67 of the Limitation Act, 1963? 5. I have heard Mr. Whether the Title Suit No. 2/1996 is barred by Section 11 of the Code of Civil Procedure in view of the judgment and decree dated 28.9.1963 passed in Title Suit No. 66/1962? 2. Whether the suit is barred by limitation under Article 67 of the Limitation Act, 1963? 5. I have heard Mr. S. Talaptra, learned senior Counsel, assisted by Mr. B. Banerjee, learned Counsel for the Appellant and Mr. S. Deb, learned senior Counsel, assisted by Mr. R.B. Sinha, learned Counsel for the Respondents. 6. The first question that falls for consideration is whether the suit in question is barred by the principle of res judicata? Section 11 of the Code of Civil Procedure dealing with the principle provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. It maybe noticed that in Title Suit No. 66 of 1962, the learned trial Court decided that the Appellant herein had taken lease of the suit land from Tambi Singha by a registered lease deed dated 10.6.1957 for a period of five years and it was determined by efflux of time under Section 111(a) of the Act. In appeal against the said judgment, the appellate Court in Title Appeal No. 81 of 1963 confirmed the finding of the learned trial Court that the suit land was taken on lease by the Appellant herein, but the lease was not determined by efflux of time as the lease deed was not signed by both the lessor and the lessee. As a result, the lease became a monthly tenancy, which called for a notice under Section 106 of the Act for termination of the said tenancy. The prayer for eviction was dismissed by the learned appellate Court by reversing the judgment and decree of the learned trial Court only on the ground that the lessor did not institute the proceeding after issuing a notice under Section 106 of the Act. The prayer for eviction was dismissed by the learned appellate Court by reversing the judgment and decree of the learned trial Court only on the ground that the lessor did not institute the proceeding after issuing a notice under Section 106 of the Act. The present Respondents are legal heirs of Tambi Singha and they instituted the proceeding for eviction of the Appellant after issuing a notice under Section 106 of the Act and the learned trial Court proceeded to decide whether the Appellant herein is liable to be evicted by the Respondents herein, who issued notice under Section 106 of the Act removing thus the defect pointed out in the above noted first appeal. The nature of the tenancy having been decided by the learned first appellate Court, it was not necessary for the learned trial Court to decide it afresh and accordingly, it has not been done as the limited scope of the proceeding instituted by the legal heirs of Tambi Singha was whether after issue of the notice the Appellant tenant was liable to be evicted. Therefore, there is no issue in the present suit, which was directly and substantially an issue in the former suit and in my considered opinion, the decision of the learned first appellate Court in Title Appeal No. 81 of 1963 that without a notice under Section 106 of the Act the Appellant tenant was not liable to be evicted has not foreclosed the remedy for the legal heirs of Tambi Singha to file a fresh suit for eviction of the tenant after issuing statutory notice on the ground the tenant has failed to pay rent for a period exceeding 40 years. For the aforesaid reason, it has to be held that the suit was not barred by Section 11 of the Code of Civil Procedure. 7. Second substantial question of law that needs to be adverted to is whether the suit is barred by limitation under Article 67 of the Limitation Act, 1963. According to Article 67 of the Limitation Act, a suit for eviction of the tenant by the landlord has to be instituted within 12 years from the date when the tenancy is determined. Section 111 of the Act provides how a lease of immovable property determines. According to Article 67 of the Limitation Act, a suit for eviction of the tenant by the landlord has to be instituted within 12 years from the date when the tenancy is determined. Section 111 of the Act provides how a lease of immovable property determines. Clause (h) of that Section is the only relevant provision in the present context, which provides that a lease of immovable property determines on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. It has been settled by the appellate Court in Title Appeal No. 81 of 1963 that nature of the lease being a monthly tenancy, it can be terminated only by issuing a notice under Section 106 of the Act, which notice was given by the Respondents herein for the first time only on 11.7.1995. The suit having been filed in 1996, the question of limitation cannot be a ground for barring the suit. The second substantial question is, therefore, answered by holding that in view of Article 67 of the Limitation Act, the suit is not barred by limitation. 8. For the discussions made above, I am of the considered view that this second appeal cannot succeed and consequently, the same stands dismissed leaving the parties to bear their own cost. Appeal dismissed.