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2007 DIGILAW 161 (GAU)

Dharmeswar Barman v. Dipjyoti Sarma

2007-02-27

I.A.ANSARI

body2007
JUDGMENT I.A. Ansari, J. 1. This revision is directed against the judgment and decree, dated 22.08.2003, passed, in Title Appeal No. 68 of 1997, by the learned Civil Judge (Senior Division) No. 2, Guwahati, dismissing the appeal and upholding the judgment and decree, dated 26.09.1997, passed by the learned Civil Judge (Junior Division) No. 3, Guwahati, in Title Suit No. 16 of 1988, decreeing the suit of the plaintiff-opposite party. 2. The case of the plaintiff may, in brief, be described thus: The plaintiffs has an Assam type house, situated within the municipal area, and, on being approached by the defendant No. 1, the plaintiff let out the house to the defendant, as a monthly tenant, for a fixed period of six months, because of the fact that the defendant required the house to live, while constructing his own residential house on a piece of land, which is situated at a distance of about one kilometer from the plaintiff's suit property. Believing in the assurances given by the defendant, the plaintiffs let out the suit house to the defendant on a monthly rent of Rs.30/- and the tenancy commenced on 01.12.1980. The defendant paid one month's rent in advance; but thereafter, paid nothing towards the rent despite demands raised by the plaintiff. The defendant has, thus, committed breach of the agreement, which he had with the plaintiff, he (defendant) has become a defaulter and that he (defendant) has also altered the tenanted premises. The defendant is, therefore, liable to be evicted from the suit premises. The plaintiff accordingly sought for a decree for recovery of possession of the suit property by evicting the defendant therefrom, arrear rents, etc. 3. The defendant resisted the suit, by filing written statement, his case being that plaintiffs brother, Prabhat Sharma, a co-pattadar of the land, had entered into an oral contract, in the year 1971, with the defendant for sale of the suit land and, having taken a sum of Rs.5,000/as advance, Prabhat Sharma had handed over the possession of the land to the defendant No. 1 and the defendant No. 1 accordingly constructed a house thereon. Thereafter, though the defendant, on several occasions, requested the said Prabhat Sharma to receive the balance amount of money and execute the sale deed, the said Prabhat Sharma has failed to execute the sale deed. Thereafter, though the defendant, on several occasions, requested the said Prabhat Sharma to receive the balance amount of money and execute the sale deed, the said Prabhat Sharma has failed to execute the sale deed. The plaintiff was never a landlord of the defendant nor did the defendant pay to the plaintiff any rent, in advance, as has been claimed by the plaintiff. 4. Based on the above pleadings, following issues were framed in the suit: 1. Whether the suit is maintainable in its present form ? 2. Whether the suit is barred by limitation and is bad for waiver, estoppel and acquisance? 3. Whether the suit is bad for non-joinder and misjoinder of parties and is bad for want of cause of action ? 4. Whether the suit is properly stamped? 5. Whether the plaintiff is the owner of the suit premise and the defendant is a tenant under him as claimed ? 6. Whether the plaintiff took a sum of Rs.5,000/- from the defendant towards advance to transfer the suit land in 1971 as alleged by the defendant? 7. Whether the defendant has any holding on the suit land as alleged by him? 8. Whether the plaintiff is entitled to decree prayed for? 9. To what reliefs the parties are entitled? Additional Issues: 10. Whether the defendant is in occupation of the suit land and constructed house thereon? 11. Whether the holding No. 49 alleged to be constructed by the principal defendant is situated on the suit land? 12. Whether the relation between landlord and tenant established between plaintiff and defendant is respect of suit premise and is entitled to eject the defendant in terms of proviso of Section 5(1) of Assam Urban Areas Rent Control Act 1972 for non payment of rent and for having acted in contravention of Clauses (M)(O)(P) of Section 108 of Transfer of Property Act ? 13. Whether the defendant paid Rs.5,000/- to proforma defendant No. 4 and made valid contract with him to purchase the suit land and obtained possession from him of the suit land in 1971 ? 14. Whether the suit is hit by Section 53A of the Transfer of Property Act and the defendant is not liable to be evicted from the suit premise ? 15. 14. Whether the suit is hit by Section 53A of the Transfer of Property Act and the defendant is not liable to be evicted from the suit premise ? 15. Whether the defendant has tendered himself liable to be ejected having contravened proviso (G) of Section 5(1) of Assam Urban Areas Rent Control Act 1972? 16. Whether the structures put by the defendant on the suit land is illegal and are liable to be demolished and khas possession of the land is to be resorted to the plaintiff? 5. Having recorded the evidence adduced by the parties, the learned trial Court held the plaintiff entitled to the decree sought for and accordingly decreed the suit. Aggrieved by the decree, so granted, the defendant preferred an appeal. As the appeal has also been turned down, the defendant is, now, before this Court with the help of the present revision. 6. Heard Mr. D.C. Mahanta, learned Senior counsel for the defendant-petitioner. * None has appeared on behalf of the plaintiff-opposite party. 7. Appearing on behalf of the petitioner, Mr. D.C. Mahanta, learned Senior counsel, has drawn the attention of this Court to the issue No. 12 framed by the learned trial Court and pointed out that though the plaintiff sought for ejectment of the defendant on the ground that he was a defaulter, the learned trial Court did not determine if the defendant was really a defaulter and without such a determination, the plaintiff's suit has been decreed. 8. The above submission made on behalf of the defendant-petitioner is, undoubtedly, attractive and, on the first blush, appears to be correct too. However, on a close scrutiny of the plaint, what clearly transpires is that the plaintiff's case has been not only that then defendant is a tenant under the plaintiff as landlord, but that the defendant is a defaulter for having not paid rent after making payment of one month's rent, in advance, to the plaintiff and that the defendant has raised constructions on the suit land without the consent of his landlord. From the pleadings of the parties, it is clear that the fact that the plaintiff is the owner of the land was not in dispute. The dispute was as to whether the defendant was a tenant under the plaintiff, as landlord, or whether the defendant had come into occupation of the land by virtue of an agreement for sale. From the pleadings of the parties, it is clear that the fact that the plaintiff is the owner of the land was not in dispute. The dispute was as to whether the defendant was a tenant under the plaintiff, as landlord, or whether the defendant had come into occupation of the land by virtue of an agreement for sale. Apart from the fact that the defendant had failed to prove that he had come to occupy the property pursuant to an agreement for sale, the plaintiff had proved, with the help of cogent evidence adduced, in this regard, that the plaintiff was landlord of the defendant in respect of the suit premises. 9. In the circumstances, as indicated hereinabove, the learned trial Court, having analyzed the evidence, concluded that the defendant is a tenant under the plaintiff in respect of the suit house. The learned appellate Court has upheld this finding. On scrutiny of the materials on record, I do not find that this finding, namely, that relationship of landlord and tenant existed between the parties to the suit has been incorrectly decided. In fact, the finding reached by the learned Court below that the defendant is a tenant under the plaintiff, as landlord, in respect of the suit house, could not be assailed. In such a situation, though it is true that the learned Courts below have not specifically held that the defendant was a defaulter, the fact remains that the defendant had not only denied the relationship of landlord and tenant existing between him, as a tenant, on the one hand, and the plaintiff, as landlord, on the other, but that he even denied that he had paid any rent to the plaintiff as landlord. In such circumstances, there can be no escape from the conclusion that when the defendant himself claims that he has not paid any rent to the plaintiff, he was, undoubtedly, a defaulter within the meaning of the Assam Urban Areas Rent Control Act, 1972. Hence, the impugned decree cannot be interfered with on the ground that the learned Courts below have not specifically concluded that the defendant was proved to be a defaulter. Hence, the impugned decree cannot be interfered with on the ground that the learned Courts below have not specifically concluded that the defendant was proved to be a defaulter. When the fact that the defendant is a defaulter stands well-proved, it will not be, in the interest of justice, that the suit be remanded to the learned trial Court merely for pronouncing the fact that the defendant is a defaulter. 10. Because of what have been discussed and pointed out above, I see absolutely no merit in this revision petition. This revision petition, therefore, fails and the same shall accordingly stand dismissed. No order as to costs. Send back the LCRs. Petition dismissed.