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2007 DIGILAW 160 (GAU)

Faruque Rahim v. Akbari Begum

2007-02-27

I.A.ANSARI

body2007
JUDGMENT I.A. Ansari, J. 1. This revision is directed against the judgment and decree, dated 23.11.04, passed by the learned Civil Judge (Senior Division), Dibrugarh, in Title Appeal No. 6 of 2002, dismissing the appeal and affirming thereby the judgment and decree, dated 21.5.02, passed by the learned Civil Judge (Junior Division) No. 1, Dibrugarh, in Title Suit No. 85/98, whereby the plaintiffs-opposite parties' suit for ejectment of the defendant-petitioner from the suit premises, as a tenant, on the ground that he is a defaulter, was decreed. 2. I have heard Mr. B.K. Goswami, learned Senior counsel appearing on behalf of the defendant-petitioner, and Mr. R. Barpujari, learned Counsel for the plaintiffs-opposite parties. 3. The plaintiffs instituted the suit aforementioned for recovery of Khas possession of the suit premises by ejecting the defendant therefrom and also for realization of arrear rent, the case of the plaintiffs being, in brief thus: The plaintiffs are the owner of the suit premises and the defendant, who is a tailor by occupation, came to occupy the suit premises, on the basis of an oral agreement reached between the parties concerned, as a tenant under the plaintiffs, in February, 1988, undertaking to pay rent at the rate of rupees two hundred per month. The defendant used to pay rent regularly to the plaintiffs, as landlord; but since November, 1993, he made no payment of rent despite repeated demands raised by the plaintiffs, as landlord. The defendant is, thus, a defaulter. This apart, the suit premises are required bona fide by the plaintiffs for their own use and occupation. 4. The defendant contested the suit, his case being, briefly stated, thus: Md. Habib Khan, owner of the suit premises and grandfather of the plaintiffs, treated the defendant as his son and, out of the love and affection that Habib Khan had for the defendant, he had made an oral gift of the suit property, in January, 1965, in favour of the defendant. Following the gift, so made, the defendant, having accepted the gift, came into possession of the suit land and has been living there by constructing a house thereon. The defendant is, thus, absolute owner of the suit property and the plaintiffs have no semblance of any right, title and/or interest over the suit property. There has been no relationship of landlord and tenant between the parties to the suit. The defendant is, thus, absolute owner of the suit property and the plaintiffs have no semblance of any right, title and/or interest over the suit property. There has been no relationship of landlord and tenant between the parties to the suit. As the defendant is not a tenant under the plaintiffs, the question of his becoming a defaulter, for non-payment of rent to the plaintiffs, does not arise at all nor is it correct that the plaintiffs bona fide require the suit property for their own use and occupation. 5. Following the pleas taken by the defendant in the suit, the following issues were framed: 1) Is the suit maintainable in law and on facts? 2) Is the suit barred by law of limitation, estoppel, waiver? 3) Whether the plaintiffs are the owner of the suit premises? 4) Whether the defendant has acquired the right, title and interest over the suit premises by way of gift and by adverse possession? 5) Whether there is any cause of action arose for filing of the suit? 6) Whether the suit is defective for non joinder of necessary party? 7) Whether defendant is a tenant and defaulter in the eye of law and liable to be ejected there from? 8) Whether the plaintiffs are entitled to khas possession of the suit premises by ejecting the defendant there from? 9) To what extent the plaintiffs are entitled to relief in the law and equity? 6. The learned trial Court, having held that the plaintiffs are the landlord of the defendant in respect of the suit premises and that the defendant is a defaulter, decreed the suit in favour of the plaintiffs. This decree was challenged by the defendant by way of an appeal. Since the appeal has also been turned down, as indicated hereinabove, the defendant is, now, before this Court with the help of the present revision petition. 7. While considering the present revision, what is of immense importance to note is that in the case at hand, the plaintiffs' suit was for ejectment of the defendant under the Assam Urban Areas Rent Control Act, 1972. 7. While considering the present revision, what is of immense importance to note is that in the case at hand, the plaintiffs' suit was for ejectment of the defendant under the Assam Urban Areas Rent Control Act, 1972. As the plaintiffs instituted the suit seeking ejectment of the defendant from the suit premises on the ground that the defendant, being a tenant under them, is a defaulter, and that the suit premises are bona fide required by them for their own use and occupation, and since the defendant had disputed that there existed any relationship of landlord and tenant between him and the plaintiffs, the real issue, which arose for determination, was as to whether there existed relationship of landlord and tenant between the parties to the suit and if the Court could come to the conclusion that the relationship between the parties concerned was that of landlord and tenant, further question as to whether the defendant was a defaulter or not and/or the question as to whether the suit premises were bona fide required by the plaintiffs, as landlord, or not, could have been determined. 8. It needs to be borne in mind that in a suit for ejectment of tenant, the Court, under the Assam Urban Areas Rent Control Act, 1972, has no power to determine the title of the parties to the suit property. What the Court is, in such a suit, required to determine is this: whether there exists relationship of landlord and tenant between the parties to the suit and if the answer to this question is found in the affirmative, then, the Court has the duty to determine whether the tenant is a defaulter and/or whether the suit premises are required bona fide by the landlord either for purposes of repairs or re-building, or for his own occupation, or for the occupation of any person for whose benefit the house is held, or if the landlord can show any other cause, which may be deemed satisfactory by the Court, for ejectment of the tenant. 9. Bearing in mind, what has been indicated above, when I revert to the facts of the case at hand, I notice that in the present case, the learned appellate Court formulated the following points for determination in the appeal: Points to be decided 1. Whether the suit is maintainable in law and facts. 2. 9. Bearing in mind, what has been indicated above, when I revert to the facts of the case at hand, I notice that in the present case, the learned appellate Court formulated the following points for determination in the appeal: Points to be decided 1. Whether the suit is maintainable in law and facts. 2. Whether the suit is bad for non-joinder of necessary parties. 3. Whether the plaintiffs acquired right, title and interest over the suit premises. 4. Whether the defendant had acquired right, title and interest over the suit land by way of oral gift allegedly made by the donor Habib Khan as well as by adverse possession. 5. Whether the defendant being a tenant became a defaulter by not paying the monthly rent to the plaintiff. 6. Whether the plaintiffs are entitled for a decree for khas possession of the suit premises by ejecting the defendant there from and recovery of arrear rents. 10. A careful reading of the points, which the learned appellate Court had formulated for its decision, clearly indicates that what the learned appellate Court attempted to ascertain or determine was as to whether the plaintiffs had title to the suit property or whether it was the defendant, who had the title thereto. There was, in fact, no attempt by the learned appellate Court to determine if there existed relationship of landlord and tenant between the parties concerned. 11. Be that as it may, having considered the evidence on record, the learned appellate Court observed: From the evidence adduced by the contending parties I do not find any material that shows that appellants are tenant of the respondent within the meaning of Assam Urban Areas Rent Control Act. So the question of defaulter does not arise. This point is decided in favour of the appellant. 12. From a careful reading of what has been observed by the learned appellate Court, it becomes transparent that the learned appellate Court has concluded that the plaintiffs could not prove that the defendant was a tenant under them within the meaning of the word 'tenant' under the Assam Urban Areas Rent Control Act, 1972, and, hence, the question of the defendant having become a defaulter does not arise at all. Having reached such a clear finding, the learned appellate Court could not have concluded that the plaintiffs were entitled to the decree. Having reached such a clear finding, the learned appellate Court could not have concluded that the plaintiffs were entitled to the decree. The entire approach of the learned appellate Court, is thus, contrary to law and devoid of any logical application of mind. If the conclusion, so reached, and the judgment, so delivered, are allowed to stand good on record, it will cause serious miscarriage of justice. 13. It is also clear from a careful reading of the observations made by the learned trial Court that no attempt was made by the learned trial Court too to determine if there existed a relationship of landlord and tenant between the parties concerned, nor was there any specific issue framed by the learned trial Court in this regard. The learned trial Court, while discussing the issue No. 7, 8 and 9, observed and concluded as under: Plaintiffs' contention is that defendant came to the suit premises as monthly tenant in the year 1988 on oral arrangement to pay monthly rent of Rs.200/- P.M. with condition that he shall quit and vacate the premises as and when asked. But denying the ownership of plaintiffs completely, defendant has claimed the title of the suit premises on his own right through gift alleging to be made by Habib Khan, the grand father of plaintiffs and also through adverse possession. So, burden of the case has been shifted to defendant to prove his right of occupation of suit premises. But it is seen that defendant has failed to prove it. As suit it infers that defendant came to the suit premises as tenant as claimed by plaintiffs. But defendant has denied the tenancy under the plaintiffs and payment of rent to plaintiffs. So definitely defendant is a defaulter in payment of rent since 1997 as alleged by plaintiffs. However, in my view due to non-production of account of rent, plaintiffs will not be entitled for arrear of rent. 14. From what has been observed above by the learned trial Court, it is clear that the learned trial Court has merely stated the case of the plaintiffs and then, abruptly, concluded that the defendant was a defaulter. There is absolutely no discussion as to how the plaintiffs were regarded as the landlord of the defendant. 15. 14. From what has been observed above by the learned trial Court, it is clear that the learned trial Court has merely stated the case of the plaintiffs and then, abruptly, concluded that the defendant was a defaulter. There is absolutely no discussion as to how the plaintiffs were regarded as the landlord of the defendant. 15. Because of what have been discussed and pointed out above, neither the learned trial Court nor the learned appellate Court addressed the moot point for decision, namely, as to whether the relationship of landlord and tenant existed between the plaintiffs, on the one hand, and the defendant, on the other. Though the plaintiffs had taken the ground of bona fide requirement, no issue was framed in this regard. However, in view of the fact that the plaintiffs did not file any appeal against the learned trial Court's judgment and decree, it is no longer required for the trial Court to determine if the suit premises are bona fide required by the plaintiffs, as landlord. 16. Considering, therefore, the matter in its entirety and in the interest of justice, the impugned judgment and decree, dated 21.5.2005, and also the judgment and decree, dated 23.11.2004, are hereby set aside. The suit is remanded to the learned trial Court with direction to frame an issue on the question as to whether the defendant is a tenant under the plaintiffs in respect of the suit premises and then, further, determine as to whether the defendant was a defaulter and whether the plaintiffs were entitled to the decree as had been sought for. 17. No further evidence shall be allowed to be adduced by the parties in support of their respective cases and the decision, on the relevant issues, shall be taken on the basis of the pleadings of the parties and the evidence available on record. 18. In order to avoid further delay in disposal of the suit, the parties to this revision are hereby directed to appear in the Court of the Civil Judge (Junior Division) No. 1, Dibrugarh, on 3.4.07, for further necessary order. Send back the LCR with a copy of this order. No cost.