Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 764 (GAU)

M. Birendra Sharma v. Lokeswar Singh

2006-08-17

AMITAVA ROY

body2006
JUDGMENT Amitava Roy, J. 1. Both the Civil Revision petition and the First Appeal involve the same parties. The issues raised are also identical. Both were heard analogously and have been disposed of by this common judgment and order. 2. I have heard Mr. N. Choudhury, learned Counsel for the appellants/petitioners and Mr. M. Singh, learned Counsel for the Respondents/Opposite Parties. 3. As the revision petition and the appeal relate to two different suits namely Rent Suit No. 3/84 and Rent Suit No. 1/93, narration of the facts pertaining thereto would be separately made. 4. The petitioners instituted four suits being Rent Suit Nos. 3/84, 4/87, 1/90 and 1/93 against the Respondents/Opposite Parties as defendants praying for a decree inter alia for paddy rent @ 22 mounds 10 kati per year together with compensation for delayed deposit thereof. The Suits relate to different periods of the Bengali Calendar year. The Rent Suit No. 1/93 and the Rent Suit No.3/84 with which we are concerned correspond to 1397 BS to 1399 BS and 1388 BS to 1390 BS respectively. Rent suit No.1/93 from which Rent Appeal No .4/96 had arisen relates to CRP No. 353/2002. Rent Suit No.3/84 pertaining to Rent Appeal No. 3/96 is involved in FAO No. 44/2001. 5. The pleaded facts are common. According to the petitioners/appellants, the predecessor in interest of the Opposite parties/respondents, late Dhaneswar Singh took settlement of the suit land from late Atambi Bramhani, predecessor in interest of the petitioners/appellants on the stipulation of paying rent @ 22 mounds 10 kati of paddy every year. In terms of the agreed covenant, the petitioners/appellants--even after the death of Atambi Bramhani--had been collecting the paddy rent from Dhaneswar Singh, the predecessor in interest of the Respondents/Opposite Parties and after his demise, they deposited the paddy rent upto the year 1383 BS and thereafter defaulted. A spate of litigations followed, amongst others, in the form of Rent Suit No. 12/1981"in which the petitioners plaintiffs prayed for a decree for paddy rent @ 22 mounds 10 kati per year and compensation for the delayed deposit thereof by the tenants. 6. A spate of litigations followed, amongst others, in the form of Rent Suit No. 12/1981"in which the petitioners plaintiffs prayed for a decree for paddy rent @ 22 mounds 10 kati per year and compensation for the delayed deposit thereof by the tenants. 6. The Opposite parties/respondents, in addition to the challenge bearing on the maintainability of the suit on the ground of limitation and absence of cause of action, denied to have paid the rent in kind by way of paddy and pleaded that as per the agreement they and their predecessor in interest had paid rent @ Rs. 45/- per year initially which was later on enhanced to Rs. 50/-. They in essence denied the pleaded assertion about the stipulation of deposit of 22 mounds and 10 kati paddy per year, more particularly, contending that the suit land was a one crop and low lying land, the yield whereof fell in the years of heavy rainfall. They denied that the paddy was sold at Rs. 100/150 per mound and that the petitioners appellants were entitled to receive 67 mounds and 10 kati or Rs. 670/- for three years. Incidentally, in both the suits the petitioners appellants had prayed for a decree for the aforementioned 22 mounds 10 kati of paddy per year or the money value thereof. Noticeably, in their written statement, the Opposite parties/respondents did not either categorically deny that they were in default in the payment of rent or that the demand made by the petitioners appellants was barred under the proviso to Section 28 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (hereinafter referred to as the 'Act'). 7. The learned trial Court by the common judgment and order dated 24.09.1996 decreed all the four suits observing that there was no denial of default and that the only contention of the Opposite parties/respondents was that the rent was payable @ Rs. 50/- per year. The learned trial Court took note of the order dated 22.08.1992 passed by this Court in Civil Revision No. 120/1985 between the same parties involving the same land and introduced in evidence as Ext.4 and concluded that the petitioners were entitled to the money value of the amount of paddy in arrears @ Rs. 50/- per month. 50/- per year. The learned trial Court took note of the order dated 22.08.1992 passed by this Court in Civil Revision No. 120/1985 between the same parties involving the same land and introduced in evidence as Ext.4 and concluded that the petitioners were entitled to the money value of the amount of paddy in arrears @ Rs. 50/- per month. Separate appeals being Rent Appeal No. 4/1996 (arising out of Rent Suit No. 1/93) and Rent Appeal No. 3/96 (arising out of Rent Suit No. 3/84) were preferred by the Opposite parties/respondents. By the judgment and order dated 12.07.2002 passed in Rent Appeal No. 4/96 by the lower appellate Court held that the Opposite parties/respondents were defaulters in delivering 15 mounds of paddy and modified the decree by granting the money equivalent thereof @ Rs. 50/-per mound. This judgment and order forms the subject matter of challenge in Civil Revision Petition No. 353/2002. By the judgment and order dated 30.03.2001 passed in Rent Appeal No. 3/1996 the learned lower appellate Court interfered with the decision of the learned trial Court and remanded the matter for fresh disposal on the issues framed by it. This decree has been assailed in FAO No. 44/2001. Both the Courts below in substance proceeded on the premise that the suit land did not yield the produce of paddy as asserted by the petitioners. In Rent Appeal No. 3/1996 the learned lower appellate Court, in this context also noticed Section 28 of the Act. 8. Mr. Choudhury has argued that the issue pertaining to the stipulation of deposit of 22 mounds of paddy annually having been finally decided by this Court in Civil Revision No. 120/1985 permitting the Opposite parties/respondents to offer the money value thereof on the basis of market value of the crop, the learned Courts below erred in law and on facts in interfering with the verdict of the learned trial Court by taking note of facts neither pleaded nor proved in the suit. The Opposite parties/respondents having omitted to present their case to assert that the demands made by the petitioners appellants were violative of the prescriptions of Section 28(b) of the Act, the learned Court below acted beyond its jurisdiction in passing the impugned judgment and order in the teeth of the determination of this Court on the same issue. 9. In reply, Mr. 9. In reply, Mr. Singh has asserted that the Act being a legislation to bring about agrarian reforms and improve the living lot of the tillers of the soil, the learned Court below was perfectly justified in taking note of Section 28 of the Act in rendering the impugned judgment and order. The Opposite party having denied the claim of the petitioners/appellants contending that the suit land was not capable of producing the amount of paddy justifying the claim registered in the plaint, the impugned decision is unassailable. The learned Court below having recorded its findings on an assessment of the pleadings of the parties and the evidence on record, no interference is called for, he urged. 10. I have carefully considered the rival submissions. The fact that the parties had fought an earlier round of litigation before this Court in the form of Civil Revision Petition No. 120/85 is not in dispute. The proceeding arose out of Rent Suit No. 12/1981 filed by the present petitioners/appellants against the Opposite parties/respondents registering an identical claim for paddy rent or its money equivalent from 1385 BS to 1387 BS. The same tenancy figured and its stipulation of delivering of 22½ mounds of paddy annually as rent was insisted upon. The 'Kabuliat' evidencing the tenancy in the year 1936 was taken note of by this Court. This Court noticed that above stipulation of delivery of 22½ mounds of paddy as annual rent as referred to in the Kabuliat. The liability of the tenants to pay compensation @ ¼th of the paddy value was also recorded. The Civil Revision Petition, as the records disclose, had been brought by the Opposite parties/respondents being aggrieved by the learned lower appellate Court's determination of fixing the money equivalent of the paddy on the basis of the market value thereof. This Court noticing the above facts upheld the decision of the learned lower appellate Court in terms of the second proviso to Section 28(b) of the Act holding that in absence of any notice contemplated thereunder, the tenant was to pay rent at the stipulated rate or the market value of Paddy agreed to be delivered. 11. Admittedly, the decision of this Court in the above Civil Revision Petition has remained unchallenged and therefore, has attained finality. 11. Admittedly, the decision of this Court in the above Civil Revision Petition has remained unchallenged and therefore, has attained finality. This assumes importance in view of the fact that the present controversy arises out of the same tenancy between the same parties. As noticed hereinabove, the Opposite parties/respondents in their written statement stopped only at denying the pleaded facts in the plaint supporting the claim of the petitioners. Though the decision of this Court rendered in the Civil Revision Petition No. 120/85 was a part of the documentary evidence of record being Ext. 4 and has a vital bearing on the decision making process, in none of the judgments including those impugned, there is any reference thereof. While there cannot be two opinions with regard to the laudability of objectives of the Act, going by law of pleading and proof in the considered opinion of this Court, in absence of any categorical stand in the written statement that the demand of the petitioners/appellants was antithetical thereto or the foundational facts of such assailant, the plea on the basis thereof has to be dismissed as unsustainable in law. This is more so in the background of the decision of this Court rendered in Civil Revision Petition No. 120/1985. It was open for the Petitioners/Opposite parties-Respondents to assert contravention of Section 28 at the first instance in Rent Suit No. 12/1981 which culminated in Civil Revision proceeding in this Court. In view of explanation-iv of Section 11 of the Civil Procedure Code as well, I am of the opinion having regard to the above conspectus of fact and identicalness in the essential features of the suits namely, parties tenancy and the issues involved, contention based on Section 28 of the Act is not entertainable by this Court at this stage. The learned lower appellate Court not only had over looked the judgment and order dated 28.02.2002 of this Court in Civil Revision Petition No. 120/85, though it was a part of the records as Ext. 4, it also failed to address itself to the above lacuna in the case of the Opposite parties/Respondents. The learned lower appellate Court not only had over looked the judgment and order dated 28.02.2002 of this Court in Civil Revision Petition No. 120/85, though it was a part of the records as Ext. 4, it also failed to address itself to the above lacuna in the case of the Opposite parties/Respondents. Having regard to the similitude of the parties and the issues involved, the question of applicability of Section 28 of the Act in the face of the determination of this Court in the aforementioned Civil Revision proceeding cannot be permitted to be reopened at this distant point of time. 12. On this short ground alone, the impugned judgment and order cannot be sustained in law and therefore merits interference of this Court. 13. In the result, the judgment and order dated 12.07.2002 passed by the learned Civil Judge (Junior Division) No. 1, Silchar in Rent Appeal No. 4/1996 and dated 23.05.2000 passed in Rent Appeal No. 3/96 are hereby set aside. The Civil Revision and the Appeal are hereby allowed. No costs. Appeal allowed.