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2005 DIGILAW 755 (GAU)

Bhupati Bhushan Dey v. Julphi Begum

2005-10-06

AFTAB H.SAIKIA

body2005
JUDGMENT A.H. Saikia, J. 1. Both these Civil Revisions being Nos. 438/93 and 439/93 assail the common judgment and decree dated 6.8.93 rendered by the learned Asstt. District Judge, Nagaon having heard the two title appeals being T.A. No. 24/91 and T.A. No. 25/91 analogously so preferred by the Respondents against the decree dated 13.3.91 passed by the learned Munsiff No. 2, Nagaon in T.S. No. 31/72 which was instituted by the Petitioner herein as the Plaintiff. 2. These two Civil Revisions raise common question of law founded on exactly similar set of facts and accordingly both were heard together and are being disposed of by this common judgment. 3. The instant suit so preferred by the Plaintiff/Petitioner was for ejectment of the Defendants/Respondents and recovery of arrear rent. 4. The brief facts, necessary for the proper adjudication of real controversy arising between the parties, need to be narrated. The original owners of the suit premises in question were Faizur Rahman and Habibur Rahman who sold the suit premises on 16.3.67 containing Holding No. 135 to the Plaintiff/Petitioner and delivered the possession of the suit premises which was at the relevant time, under the possession of the Defendant/Respondent No. 1 as tenant under the vendors of the Petitioner under whom he consented to remain as tenant and to pay the arrear rent from the month of Asarh, 1371 to the Plaintiff/Petitioner as directed by the vendors. Accordingly, the Defendant/Respondent No. 1 continued to occupy the said premises under the Petitioner under the previous terms and conditions. The title over the suit premises in favour of the Petitioner's vendors was confirmed earlier by virtue of decision of the Hon'ble Supreme Court in Civil Appeal being No. 266/53. 5. It was pleaded by the Petitioner as Plaintiff in the instant suit that despite repeated demands, the Defendant/Respondent No. 1 was not paying the arrear rent from Asarh, 1371 till the month of Bhadra, 1379 and as such he was defaulter. That apart, he also violated the terms of tenancy by subletting a part of the suit holding to the Defendant/Respondent No. 2. That apart, he also violated the terms of tenancy by subletting a part of the suit holding to the Defendant/Respondent No. 2. More so, the suit holding was required by the Petitioner for his bonafide use and occupation, and accordingly he served a pleader notice on 1.9.72 on the Defendant/Respondent No. 1 terminating the tenancy with him from the last day of Ashin month, 1379 and requesting the Defendant/Respondent No. 1 to deliver the possession of the suit land. He also claimed arrear rent of Rs. 5,880/- from the month of Ashara, 1371 till the month of Shraban, 1379@ Rs. 60/- p.m. However, the arrear rent prior to Agrahayan, 1376 being barred by limitation, the Plaintiff/Petitioner claimed arrear rent for two years and eleven months only from the month of Agrahayan, 1376 till the month of Ashin, 1379 for a total sum of Rs. 2,100/- and Rs. 120/- as compensation for two months stating that the cause of action of the suit arose on and from 1st day of Kartik, 1379 corresponding to English date 18.10.71. The Defendant/Respondent No. 2 was also served with similar notice. The Defendants/Respondents were also informed that if they failed to vacate the premises after the stipulated period, they would be treated as trespassers and compensation @ Rs. 10/- per day will be charged. But despite receipt of such quit notices, the Defendants/Respondents failed to vacate and deliver the possession of the suit holding. Consequently, this suit was filed seeking ejectment of the Defendant/Respondents from the suit premises. 6. The Defendant/Respondent No. 1 contested the suit by filing written statement, pleading inter alia that the Plaintiff and his vendors, Faizur Rahman and Habibur Rahman were not Indian nationals and hence there could be no sale or exchange of properties between them and there was no valid sale and exchange of the suit premises by Faizur Rahman and Habibur Rahman in favour of the Plaintiff. That being so, there could be no question of delivery of possession of the suit premises by both of them to the Petitioner. The Defendant also denied the relationship of landlord and tenant initially with the vendors namely, Faizur Rahman and Habibur Rahman and afterwards with the Plaintiff. The case of the Defendant/Respondent No. 1 was that originally in the year 1963, one Dr. The Defendant also denied the relationship of landlord and tenant initially with the vendors namely, Faizur Rahman and Habibur Rahman and afterwards with the Plaintiff. The case of the Defendant/Respondent No. 1 was that originally in the year 1963, one Dr. C.S. Lieu, a Chinese Doctor was occupying the suit holding No. 135 as tenant; however at the time of Chinese aggression when Doctor Lieu was arrested in 1963, the holding occupied by him was put under lock and key by the Government and later on the basis of an application filed by the Respondent No. 1, the possession was given to him by the Government and since then he has been possessing the same. He further contended that he sub-let a portion of the house to the Defendant No. 2. 7. Challenging the right, title and interest of the Plaintiff in respect of the suit land, the Defendant Respondent No. 2 by filing the written statement separately contested the suit alleging that neither the Plaintiff/Petitioner nor his so called vendors ever possessed the suit premises which he was occupying under the real owners, Rajaur and Wahidur. 8. The trial Court, on the basis of the pleadings of the parties, framed as many as seven issues as well as ten additional issues. 9. The Petitioner/Plaintiff examined as many as 12 witnesses in support of his case when the Defendants/Respondents examined three witnesses including themselves. Both the parties produced the necessary documents as Exhibits. 10. Upon hearing learned Counsel for the parties and on proper appreciation of the materials available on record, the learned Munsiff by his judgment and decree dated 13.3.91, decreed the suit in favour of the Petitioner/Plaintiff deciding almost all the issues framed in favour of the Plaintiff and declared that the Plaintiff/Petitioner was entitled to a decree of ejectment of the Defendants/Respondents from the suit premises described in the Schedule 'Ka' and also decreed for arrear of rent of Rs. 2,100/- with compensation of Rs. 120/- and recovery of arrear rent up to the date of ejectment of the Defendants from the suit land including the costs of the suit. 11. Being dissatisfied with the decree awarded in favour of the Plaintiff/Petitioner, both the Defendants/Respondents i.e., 1 and 2 preferred separate two appeals being T.A. No. 24/91 and 25/91. 2,100/- with compensation of Rs. 120/- and recovery of arrear rent up to the date of ejectment of the Defendants from the suit land including the costs of the suit. 11. Being dissatisfied with the decree awarded in favour of the Plaintiff/Petitioner, both the Defendants/Respondents i.e., 1 and 2 preferred separate two appeals being T.A. No. 24/91 and 25/91. The learned Assistant District Judge by the impugned common judgment and decree dated 6.8.93, set aside the judgment and decree passed by the trial Court. 12. The appellate Court, on assessment of the materials available on record, came to the finding that there was no relationship of landlord and tenant between the Petitioner and Respondent No. 1. However, the Court held that the Defendant/Respondent No. 1 trespassed into the suit land as illegal occupant and possessed the suit premises arbitrarily. Eventually the judgment and decree of the trial Court was set aside directing the Petitioner to seek appropriate remedy by instituting an appropriate suit for declaration of right, title etc., and also for ejectment of the trespassers i.e., the Respondents No. 1 and 2 in a separate forum. 13. The Petitioner, being aggrieved by the judgment and decree rendered by the appellate Court, as mentioned above, preferred these two revision petitions against both the Defendants/Respondents separately founded on identical facts raising common question of law on the grounds that the appellate Court acted illegally and with material irregularity in deciding that there was no relationship of landlord and tenant between the parties with regard to suit premises as Plaintiff failed to prove any credible evidence that he was the landlord, discarding wholly Plaintiff's witnesses in this regard. It was also set out that once the appellate Court found the Defendant/Respondent No. 1 a trespasser or illegal occupant in the suit premises the appellate Court ought to have granted decree for khas possession of the suit premises without directing the Petitioner to get his title declared by the competent Court so as to evict the trespassers. 14. Heard Mr. N.M. Lahiri, learned Sr. Counsel assisted by Mr. N. Choudhury as well as Mr. S.C. Koyal, learned Counsel for the Petitioner and Mr. B.K. Goswami learned Sr. Counsel assisted by Mrs. T. Goswami, learned Counsel for the Respondents. 15. Mr. Lahiri, learned Sr. 14. Heard Mr. N.M. Lahiri, learned Sr. Counsel assisted by Mr. N. Choudhury as well as Mr. S.C. Koyal, learned Counsel for the Petitioner and Mr. B.K. Goswami learned Sr. Counsel assisted by Mrs. T. Goswami, learned Counsel for the Respondents. 15. Mr. Lahiri, learned Sr. Counsel, questioning the correctness and legality of the impugned judgment, has strenuously argued that the impugned judgment of the appellate Court, which directed the Petitioner to seek appropriate remedy instituting a suit seeking declaration of right, title etc and also seeking ejectment of the trespassers i.e. Defendants No. 1 and 2 in a separate forum, after arriving at a specific conclusion that the Respondent No. 1 was either a trespasser to the suit premises or illegal occupant, reflects the non-exercise of jurisdiction vested in the appellate Court inasmuch as the learned Judge having found the Defendant No. 1 to be a trespasser to the suit premises in question, ought to have grants/decree of eviction of the Defendants from the suit premises. More so, the learned appellate Court acted without jurisdiction and with material irregularity in holding that there was no relationship of landlord and tenant between the Petitioner and Respondent No. 1 as the Plaintiff/Petitioner failed to prove the said relationship by adducing adequate evidence save and except P.W. 3, the Plaintiff himself and P.W. 4, Ramesh Patowary. In fact, P.W. 4, examined by the Plaintiff clearly testified that at the time of delivery of possession of the suit premises and house by the vendors to the Plaintiff/Petitioner he was present and the Defendant/Respondent No. 1 was tenant in respect of the suit premises and in view of the said deposition, it is asserted by the learned Sr. Counsel, the finding of the appellate Court suffers from perversity. According to him, assuming but not accepting that the Respondent No. 1 is not a tenant but a trespasser, the appellate Court should have decreed the suit for ejectment keeping in view the suit itself was for ejectment by granting equitable relief to the Petitioner under Order 7 Rule 7 Code of Civil Procedure. Mr. According to him, assuming but not accepting that the Respondent No. 1 is not a tenant but a trespasser, the appellate Court should have decreed the suit for ejectment keeping in view the suit itself was for ejectment by granting equitable relief to the Petitioner under Order 7 Rule 7 Code of Civil Procedure. Mr. Lahiri has further contended that if in an ejection suit against the tenant, the Plaintiff fails to prove the relationship of landlord and tenant though he can prove his title, the Court has the discretion under Order 7 Rule 7 Code of Civil Procedure to grant equitable relief for ejectment on the basis of title. 16. In the instant case, the Petitioner purchased the land from the original vendors namely-Faizur Rahman and Habibur Rahman whose title and interest over the suit premises was confirmed by the Apex Court by its order dated 17.12.61 passed in Civil Appeal No. 266/53 which fact also accepted by the learned Judge relying on the evidence of Defendant/Respondent No. 1 observing to the extent that the vendors of the Plaintiff, Faizur Rahman and Habibur Rahman had saleable interest over the suit property and the sale deed Ext. 7 (in favour of the Petitioner) appeared to have been executed by both of them and since the said land was sold to the Petitioner, the Petitioner also acquires right, title and interest over the land by virtue of the said sale of the land including the suit premises which had been possessed and occupied by the Defendant as tenant under the Petitioner's vendors Faizur Rahman and Habibur Rahman and the possession of the land on such purchase was delivered to the Petitioner in presence of the Defendant/Respondent No. 1 during his continuation of the tenancy and accordingly the Petitioner became the landlord over the Defendant under the Defendant No. 1 who later on admittedly sublet the suit premises to dependant No. 2. 17. The following authorities have been cited by the learned Sr. Counsel to support his case: 1. AIR 1951 Pat 550 Mohammad Miyah v. Jugeshwar Prasad) 2. AIR 1954 Pat 128 (Smt. Kasturi Devi and Ors. v. Shripal Singh and Ors.) 3. AIR 1975 Cal 200 (Amulya Ratan Mukherjee and Ors. v. Kali Pada Tah and Ors.) 4. AIR 1977 Pat 161 (Mahabir Ram v. Smti. Sita Devi) 5. Counsel to support his case: 1. AIR 1951 Pat 550 Mohammad Miyah v. Jugeshwar Prasad) 2. AIR 1954 Pat 128 (Smt. Kasturi Devi and Ors. v. Shripal Singh and Ors.) 3. AIR 1975 Cal 200 (Amulya Ratan Mukherjee and Ors. v. Kali Pada Tah and Ors.) 4. AIR 1977 Pat 161 (Mahabir Ram v. Smti. Sita Devi) 5. AIR 1982 Pat 42 (Kashi Choudhury v. Mujataba Hassan and Anr.) 18. Ratio of the above cited cases is that in a suit for ejectment of a tenant, if the Plaintiff fails to prove the relationship of landlord and tenant but proves his title, the Court has the discretion under Order 7 Rule 7 Code of Civil Procedure to grant equitable relief of ejectment on the basis of title provided that the Plaintiff has done nothing but disqualified himself from receiving an equitable relief and the issue of the title has been raised and fairly tried. 19. In the instant case, as submitted by the learned Counsel, the appellate Court ought to have decided that there is relationship between the landlord and tenant keeping in view the material evidence on record especially P.W. 4 in affirmative and thereby it should have affirmed the judgment of the trial Court. Nevertheless, when the relationship of landlord and tenant was not accepted, the appellate Court, in the alternative, while holding the Defendant to be a trespasser, ought to have granted ejectment of the Defendant falling back upon the provisions of law laid down under Order 7 Rule 7 Code of Civil Procedure. 20. An emphasis being placed on Order 7 Rule 7 Code of Civil Procedure, it would be appropriate to notice the said provision which is extracted hereunder: 7. Relief to be specifically stated - Every plaint shall state specifically the relief which Plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which was always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the Defendant in his written statement. The above provision stipulates even if a general or other relief is not being specifically sought for the plaint, such relief can always be granted by the Court as if it had been prayed for. And the same rule shall apply to any relief claimed by the Defendant in his written statement. The above provision stipulates even if a general or other relief is not being specifically sought for the plaint, such relief can always be granted by the Court as if it had been prayed for. If the relief claimed in the plaint is not wholly sufficient or appropriate, the Court has, under Order 7 Rule 7 Code of Civil Procedure, the power to grant the proper relief according to the attending facts and circumstances of the case. 21. Supporting the impugned judgment, Mr. Goswami, learned Sr. Counsel has vehemently argued that no jurisdictional error or illegality and/or material irregularity can be ex-facie detected in the impugned judgment. When the appellate Court reached at a conclusion that there was no relationship between the landlord and tenant, and rather it was of the view that the Respondent was a trespasser, it was justified to direct the Petitioner to approach the appropriate forum to take legal recourse to evict the Respondents in accordance with law only after obtaining a decree as regards his title and interest over the suit premises. His contention is that once Court found the Petitioner as trespasser, he cannot be evicted until and unless the Plaintiff established his title over the land. Had the relationship of the landlord and tenant been established, the matter would have been different as in the case of eviction of a tenant, the Plaintiff's title cannot be questioned. 22. The learned Sr. Counsel has also contended that in the instant case, the Petitioner cannot get any relief by way of ejectment due to the reason that the suit was not properly valued for enabling him to get an ejectment founded on the title. Referring to the plaint, it is argued that it is explicit from the reading of the pleading way of plaint that the Plaintiff sought for ejectment on three counts as stated in para 10 and 11. The grounds for ejectment as sought were (1) non payment of arrear rent @ Rs. 60/-, thereby making the Defendant himself defaulter, (2) subletting of suit premises to the Defendant No. 2 and (3) bonafide requirement. These grounds clearly show that the Petitioner sought relief under the Assam Urban Areas Rent Control Act, 1972 (for short 'the Act') since suit premises being admittedly fell within the urban area. 60/-, thereby making the Defendant himself defaulter, (2) subletting of suit premises to the Defendant No. 2 and (3) bonafide requirement. These grounds clearly show that the Petitioner sought relief under the Assam Urban Areas Rent Control Act, 1972 (for short 'the Act') since suit premises being admittedly fell within the urban area. Once the Appellate Court found that there was no relationship between landlord and tenant between the parties, the Defendant was not liable for ejectment under the said Act and the learned Judge was wholly justified directing the Petitioner to approach the appropriate forum to seek title and interest for entitling him to evict the Respondents as trespassers as the Rent Court has no jurisdiction to eject the Respondent, not being the tenant under the Petitioner. In a case of Act and the learned Judge was wholly justified directing the Petitioner to approach the appropriate forum to seek title and interest for entitling him to evict the Respondents as trespassers as the Rent Court has no jurisdiction to eject the Respondent, not being the tenant under the Petitioner. In a case of admitted relationship of the landlord and tenant for the eviction of the later, the question of title is immaterial. Since this is not a specific case of ejectment of a tenant as held by the Appellate Court, the Plaintiff/Petitioner must prove his title so as to get an order of ejectment in the appropriate Court in the nature of regular title suit on proper valuation of the same. According to him, the present suit was filed showing the valuation precisely on the rent of 12 months as required for ejectment of the tenant manifestly displaying that this was suit for ejectment of the tenant only and without the suit being properly valued, therefore, the Petitioner is not entitled to claim any relief of ejectment. 23. Mr. Goswami, learned Sr. Counsel has further submitted that there was no perversity in the findings of the appellate Court as the deposition of P.W. 4 was rightly discarded by the appellate Court. The learned Judge did not accept the piece of evidence as deposed by P.W. 4 observing that in cross-examination RW.4 stated that he knew the Plaintiff since 1952 but admittedly the Plaintiff first appeared in Nagaon in the year 1967. The learned Judge did not accept the piece of evidence as deposed by P.W. 4 observing that in cross-examination RW.4 stated that he knew the Plaintiff since 1952 but admittedly the Plaintiff first appeared in Nagaon in the year 1967. It was also observed that RW.4 could not narrate under what terms and conditions, the Defendant No. 1 was a tenant under the vendors of the Plaintiffs. At the same time, RW.3, the Plaintiff/Petitioner himself, as observed by the learned appellate Court, stated that Faizur Rahman and Habibur Rahman recovered the possession of the said house and let out the same to the Defendant No. 1 on monthly rent of Rs. 60/-; however, it was not known as to how he could know that the Defedant No. 1 was a tenant in respect of the suit house under his vendors and the appellate Court was, therefore, right in disbelieving the depositions of both P.Ws. 3 and 4. 24. Since the question of perversity has specifically been raised herein in appreciation of the testimony of P.W. 4 whose evidence, being vital one, as basically relied on by both the Courts below to decide the point of determining the relationship between the landlord and tenant, it would be in the interest of justice to analyse the deposition of P.W. 4 in the fight of the assessment of the evidence of P.W. 4 effected by both the Courts below. 25. The trial Court while deciding the issue No. 6, framed as one of the issues, as to whether there had been any relationship between the Plaintiff and landlord No. 1 as landlord and tenant and if so whether the Defendant No. 1 sublet the suit holding to Defendant No. 2, quoting the deposition of P.W. 4 as well as D.W. 2, the Defendant No. 1 himself, in vernacular in the judgment itself, discussed the relevant and important portion of evidence so adduced by those witnesses. P.W. 4 who asserted the testimony of the Plaintiff, P.W. 3, was found by the trial Court to be consistent in his cross-examination. In his cross, P.W. 4 deposed that at the time of taking possession by the Plaintiff over the land, there was few houses. The Defendant No. 1, Ataur Rahman was at that time occupying the suit premises as a tenant. In his cross, P.W. 4 deposed that at the time of taking possession by the Plaintiff over the land, there was few houses. The Defendant No. 1, Ataur Rahman was at that time occupying the suit premises as a tenant. Ataur Rahman was told, at the time of delivery of the possession by Faizur Rahman and Habibur Rahman, that the land was sold to the Plaintiff. As per P.Ws. evidence Ataur Rahman consented to pay rent to the Bhupati Bhusan accepting him as landlord and the possession of the land including house was delivered to Bhupati Bhusan. Ataur Rahman was the tenant from the days of Faizur Rahman and Habibur Rahman. Deposition of D.W. 1, in his cross, was also quoted by the trial Court to the effect that Faizur and Habibur instituted a case against them relating to the same property. The case No. 4/46 went up to the Hon'ble Supreme Court where Faizur and Habibur got a decree over the said suit land and house which was included in the decreetal land measuring 2 Kathas 10 Lechas. He knew that the decreetal land was exchanged by Faizur and Habibur with Bhupati (Plaintiff). Holding was also in the name of the Plaintiff. Accordingly, he was paying the tax in the name of Plaintiff. Batten, having left, he let out the house to Riaz (Defendant No. 2. Riaz was still paying the rent. Riaz was in the suit premises since 1971. 26. The above testimony would unmistakably show that the Defendant No. 1/Respondent was a tenant initially under the vendors of the Petitioner and afterwards when the Plaintiff became the owner of the land by dint of purchase from Faizur and Ataur, he became the landlord and Defendant No. 1/Respondent was a tenant under him. In the same breath, the Defendant No. 1 in his deposition admitted that he was aware of the exchange of the suit premises between the vendors and the Petitioner and the Petitioner himself had the holding in his name. He also admitted that he was paying tax in the name of the Petitioner and he let out the suit premises to Defendant No. 2 However, this finding of the trial Court was not believed and accepted by the learned Asstt. He also admitted that he was paying tax in the name of the Petitioner and he let out the suit premises to Defendant No. 2 However, this finding of the trial Court was not believed and accepted by the learned Asstt. District Judge who on the contrary, questioning the veracity of the deposition of P.W. 4, observed that when in his cross-examination P.W. 4 stated that he knew the Plaintiff since 1952, the Plaintiff first appeared at Nagaon only in the year 1967. The appellate Court also felt the importance of this witness as it observed that there was no iota of evidence to support the contents of the Plaintiff except this witness i.e., P.W. 4. That being so, the appellate Court ought to have taken adequate caution and care in re-appreciating the evidence P.W. 4. on appeal, being the final Court of facts. In paragraph 10 at page 9 of the judgment the learned Judge, keeping in view the Hon'ble Supreme Court's decision in Civil Appeal No. 26/53, confirmed the right, title and interest of the vendors of the Plaintiff in the suit house and premises holding that after purchase of the land in question on valid execution of the sale deed, Exbt. 7, the right of the landlord in respect of the suit premises passed ever to Plaintiff/Respondent. On the other hand, the learned Judge, cryptically and ambiguously rejected that there was any relationship of landlord and tenant between the Plaintiff and the Defendant No. 1. More so, the appreciation of the deposition of P.W. 4 in cross to the effect that admittedly Plaintiff first appeared in Nagoan in the year 1967 when P.W. 4 asserted that he knew the Plaintiff since 1952 was a fact not borne out of the record. The entire assessment of the testimony of P.W. 4 by the Appellate Court, therefore, appears to be perverse on the face of the record. 27. Looking at the attending facts and circumstances of the case and also upon hearing learned Counsel for the parties, this Court is of the view that impugned judgment reveals on the face of the record that the appellate Court misinterpreted and overlooked the important evidence of P.W. 4 and thus the appellate Court acted illegally or with material irregularity in its exercise of jurisdiction. Consequently, the impugned judgment and decree deserves interference by this Court in exercise of its revisional jurisdiction. Consequently, the impugned judgment and decree deserves interference by this Court in exercise of its revisional jurisdiction. Since the precise plea of perversity raised on behalf of the Petitioner is accepted, this Court does not want to burden this judgment with discussion and dissection of the other points advanced by the learned Counsel representing the rival parties as has since been recorded hereinabove. 28. For the foregoing reasons, observations and discussions, the impugned judgment and order is hereby set aside and quashed. Resultantly, the judgment and decree dated 13.3.91 rendered by the learned Munsiff No. 2, Nagaon in title Suit No. 31/72 is hereby restored. Send down the records immediately. 29. In the result, both the revision petitions succeed and stand allowed. No costs.