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2006 DIGILAW 762 (GAU)

Jamela Khatoon and Ors. v. Ram Nagina Mahto

2006-08-16

D.BISWAS

body2006
1. RSA No. 40/2000 and CRP No. 86/2000 are directed against the judgment and decree dated 16.12.1999 passed by the learned Civil Judge (Sr. Divn.), Tinsukia in Title Appeal No. 10/96 affirming the judgment and decree passed in Title Suit No. 1/96 by the learned Munsiff No.JI, Tinsukia. As an abundant precaution the Civil Revision has been filed to salvage the situation in the event no substantial question of law is discernible in the Second Appeal. The Second Appeal was admitted on 31.3.2000 for hearing on the substantial question of law : - "Whether the decision of the learned courts below refusing to declare the title of the plaintiff over the suit land is sustainable ?" 2. I have heard Mr. B.K. Goswami, learned senior counsel for the appellants/revision petitioners and Mr. C.K. Sarma Baruah, learned senior counsel for the respondent. 3. Nazmul Huda, the predecessor-in-interest of the appellants filed Title Suit No. 1/96 in the court of the learned Munsiff No. II, Tinsukia for declaration of title over the suit land described in Schedule-A to the plaint and for recovery of khas possession by evicting the defendant (respondent) for non-payment of rent and also for recovery of arrears of rent and compensation. On the demise of Nazmul Huda, the appellants have been substituted as his legal heirs. Their case is that Nazmul Huda purchased the suit land along with the structures standing thereon from the original owner Smt. Rabia Khatun (pro forma defendant) by Sale Deed No. 183/88. The respondent herein was in occupation of the house standing on the suit land as monthly tenant under the original owners at a rent of Rs. 50 per month. The respondent paid rent upto January 1988 and defaulted thereafter. Notice dated 5.3.1988 was issued to the respondent to attorn the original plaintiff as landlord. The notice was ignored and no rent was paid. The respondent with ulterior object in mind collected building materials for construction on the suit land on and from 25.9.1988. Consequent thereupon, the suit was filed. 4. The respondent as defendant filed written statement denying the title of the appellants over the suit land as well as the suit premises. Their case is that Dharmadeo Nunia and Ram Chandra Nunia, grandfather and father of the defendants took the suit land on lease on a rent of Rs. 22 per annum from Dr. 4. The respondent as defendant filed written statement denying the title of the appellants over the suit land as well as the suit premises. Their case is that Dharmadeo Nunia and Ram Chandra Nunia, grandfather and father of the defendants took the suit land on lease on a rent of Rs. 22 per annum from Dr. Nabibullah in the year 1946 and constructed houses thereon at their own cost. The premises are numbered as holding No. 1951 of Tinsukia Municipal Board. Rent was paid to Dr. Nabibullah till 1988, but the landlord issued rent receipts till 1985 only. 5. Mr. Goswami, Iearne4 senior counsel argued that in view of the purchase of the suit land including the houses standing thereon by the predecessor of the appellants vide sale deed (Exhibit-1), the courts below ought to have decreed the suit declaring the title of the appellants. According to Mr. Goswami, there is no specific plea of protection from eviction under the provisions of the Assam Urban Areas (Non-Agricultural) Tenancy Act and the respondent also failed to substantiate his claim that his predecessor-in-interest constructed permanent structure on the suit land within a period of five years from the date of occupation of the land as lessee. 6. Exhibit-1 is the sale deed executed by Smt Rabia Khatun who had inherited the same on death of Nazmul Huda by an amicable family partition. Rabia Khatun and other heirs of Nazmul Huda did not contest the suit. D.W. 5 Nurul Haque, son of late Dr. Nabiulla, admitted his signature on the sale deed. The evidence on record show that the sale deed (Ext. 1) has been duly proved by the witnesses. The evidence of P.W. 1 Md. Jalaluddin Nasir Khan read with Exts. 1 and 6, the copy of Jamabandi, establish that the appellants have succeeded in proving that their predecessor-in-interest had purchased the land from the original owner and, on his demise, the land devolved on them. The evidence of D.W. 5 Md. Nurul Haque could not throw any light as to the nature of construction as well as the year of construction. On the other hand, he claimed that the land on which the predecessor-in-interest of the defendant were residing belongs to him. But Ext. The evidence of D.W. 5 Md. Nurul Haque could not throw any light as to the nature of construction as well as the year of construction. On the other hand, he claimed that the land on which the predecessor-in-interest of the defendant were residing belongs to him. But Ext. 1, the sale deed, which was also attested by defendant D.W. 5, leaves no scope for doubt that the title of the land was purchased by the plaintiffs. The decision of the learned Trial Judge about claim of title in issue No. 5 is evasive and perverse. The learned First Appellate Court also affirmed the finding without proper discussion though the learned Trial Judge observed that after partition the suit land admittedly fell into the share of deceased Anwarul Hussain, father and husband of pro forma defendant Nos. 2 to 6. Since the plaintiffs have purchased the land from the pro forma defendant, no question of rejection of their prayer for declaration of their title arose. Therefore, the appellants are entitled to a declaration of their title over the suit land. Unfortunately, both the courts below committed mistake in refusing to declare the title of the appellants. The question formulated in this second appeal accordingly stands answered. 7. Mr. C.K. Sarma Barua, learned senior counsel without questioning the title of the appellants submitted that the predecessor of the respondent constructed permanent structure on the suit land within the stipulated period of five years and, therefore, the respondent is entitled to protection from eviction under provisions of the Assam Urban Areas (Non-Agricultural) Tenancy Act. 8. Mr. Goswami repelling the contention of Mr. Sarma Baruah argued that the plea of protection was not specifically pleaded in the written statement. Consequently, no issue was also framed in this regard. Therefore, the claim of protection is beyond pleadings and, as such, cannot be taken into consideration. 9. I have examined the written statement filed by the respondent. In para-8 it has been pleaded that the defendant was not a tenant under the plaintiffs at any time. In para-9, it is submitted that he paid annual rent upto 1988 to the landlord Mr. Nurul Huda and in para-12 asserted that he has right, title and interest over the suit premises. In para-8 it has been pleaded that the defendant was not a tenant under the plaintiffs at any time. In para-9, it is submitted that he paid annual rent upto 1988 to the landlord Mr. Nurul Huda and in para-12 asserted that he has right, title and interest over the suit premises. Defendant's case was that his predecessor in interest took the land on annual lease in the year 1946 and constructed residential houses thereon at their own cost. There is no specific plea that the construction of permanent nature was made within a period of five years from the commencement of the lease. But impliedly, the defendant took the stand that he is protected from eviction. 10. The crucial question to be decided is whether the lease of the land was taken by the predecessors-in-interest of the defendant on annual or monthly basis. Exts. Jha(1) and Jha(2) shows that the rent for the land was received by Dr. Nabibullah, the original landlord at the rate of Rs. 22 for the year 1946-47. These two receipts clearly show that the land was taken on rent by Rama Chandra Nunia. The contents of the receipts further show that it was an annual lease on condition of payment of Rs. 22. Exts. Jha(4), Jha(5) and Jha(6) on the other hand show that it was a monthly tenancy at a rate of Rs. 2 per month. Similar is the contents of Exts. Jha(7), Jha(8) and Jha(9). Ext. Jha(3) is another receipt which shows that Rama Chandra Nunia paid a sum of Rs. 84 being the rent for three years 1949, 1950 and 1951 in pursuant to a decree in a rent suit filed in 1952. It is, therefore, not clear as to how and under what circumstances the rent during the subsequent years was reduced to Rs. 2 per month. This is suggestive of the fact that there might have been a fresh agreement between the parties, and the annual lease was converted to monthly tenancy at a rent of Rs.2/- per month. Exts. Jha(4) to Jha(9) are for the period subsequent to 1968. Ext. Jha(1) to Jha(9) have been tendered in evidence by D.W. 6 Shri Ram Sagar Mahato, brother of the defendant. Therefore, there remains no doubt that the predecessors-in-interest of the defendant were tenant of the erstwhile landlord in respect of the land. Exts. Jha(4) to Jha(9) are for the period subsequent to 1968. Ext. Jha(1) to Jha(9) have been tendered in evidence by D.W. 6 Shri Ram Sagar Mahato, brother of the defendant. Therefore, there remains no doubt that the predecessors-in-interest of the defendant were tenant of the erstwhile landlord in respect of the land. No documentary evidence could also be produced by the defendant to show that their predecessor-in-interest after taking the land on lease in the year 1946 had made construction of permanent nature within the meaning of section 3(d) of the Assam Urban Areas Non-Agricultural Tenancy Act, There is no clear finding in this respect in the judgment under challenge. 11. The learned Trial Judge in para 13 of the judgment observed that it cannot be reasonably held that the defendant was a monthly tenant. This finding of the learned Trial Judge has been affirmed by the learned First Appellate Court in an ambiguous language. The learned First Appellate Court observed that it can safely be held that the defendant was not a monthly tenant under the pro forma defendants. The prime question as to whether the predecessors-in-interest of the defendant had constructed a house of permanent nature within the stipulated period has not been addressed by the courts below. 12. The word 'tenant' has been denned in section 3(g) of the Act. Section 4 speaks of obligation on the part of a tenant to pay rent. Section 5(1) provides for protection of a tenant from eviction. A plain reading of this section would suggest that if a tenant as denned in section 3(g) is entitled to build permanent structure in terms of the contract within five years from the date of such contract, or has built a permanent structure within that period with the knowledge and acquiescence of the landlord, he shall not be ejected by the landlord except of the ground of nonpayment of rent. Sub-section (3) of section 5 further provides that no decree for ejectment on the ground of non-payment of rent shall be executed within thirty days if the tenant pays into the court the entire amount payable under the decree within that period. 13. Sub-section (3) of section 5 further provides that no decree for ejectment on the ground of non-payment of rent shall be executed within thirty days if the tenant pays into the court the entire amount payable under the decree within that period. 13. Having regard to the above provisions of law, this court is of the opinion that the judgments of the courts below are liable to be set aside and the matter be remanded for a fresh decision in accordance with the provisions of law. So far the title is concerned, in view of the observation made herein above, the courts below are left with no option but to declare that the plaintiffs have the right, title and interest over the suit land. The question of eviction will have to be dealt with by framing appropriate issues as indicated below : - "(a) Whether the predecessors of the defendant was a tenant in respect of the land under the original owner Dr. Habibullah and his successors and, thereafter, under the plaintiffs after acquisition of title by them ? (b) Whether the predecessors of the defendant after commencement of tenancy, within a period of five years, had built any permanent structure within the meaning of section 3(d) of the Act in pursuance of any term of such contract or with the knowledge arid acquiescence of the landlord ?" 14. The questions formulated in the Second Appeal stands answered in the light of the discussion hereinbefore. The judgments of the learned courts below are set aside and the matter is remanded back to the learned Trial Judge for framing additional issues as indicated above and for disposal of the matter in accordance with the provisions of law after giving the parties opportunity to adduce further evidence. Civil Revision Petition No. 86/2000 is considered redundant in view of the decision in Bireswar Banerjee & Ors. v, Sudhir Ranjan Bose & Ors., AIR 1973 SC 15. Accordingly, it is dismissed.