Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 76 (GAU)

Bhabendra Nath Baruah v. Bina Devi

2008-01-31

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katakey, J. 1. This appeal by the Plaintiffs is directed against the judgment and decree dated 8.3.1999 passed by the learned Civil Judge (Sr. Division), Jorhat in Title Appeal No. 60/1989 decreeing the suit of the Plaintiffs for arrear rent and passing the decree of eviction/ejectment of the Defendant in the event the decree for rent is not paid within 30 days from the date of the said decree. 2. The Appellants, as Plaintiffs, instituted Title Suit No. 43/1977 in the Court of the learned Munsiff at Jorhat praying for a decree for eviction of the predecessor-in-interest of the present Respondent, namely Sri Atul Chandra Baruah, and for recovery of khas possession and also for recovery of rent, contending inter alia that one Babula Phukan was originally inducted as a tenant by the predecessor-in-interest of the Plaintiffs in respect of the suit land for installation of a rice mill at an annual rent of Rs. 32/-, which land along with the mill was subsequently transferred by said Babula Phukan to the Defendant Atul Chandra Baruah in the year 1943 and thus the Defendant stepped into the shoes of said Babula Phukan as the lessee in respect of the land at an annual rental of Rs. 32/- till 31.12.1948. It has further been pleaded in the plaint that a fresh lease was executed between the predecessor-in-interest of the Plaintiffs and the Defendant Atul Chandra Baruah on 9.3.1951 creating tenancy with effect from 1.1.1949 to 31.12.1958 at an annual rent of Rs. 200/- with the condition not to make any permanent structures therein. According to the Plaintiffs the Defendant defaulted in payment of rent since the year 1954 and sublet a portion of the land to one Sri Krishna Sahu and allowed him to raise permanent structures on the land without the consent or authority of the Plaintiffs and thereby violated the terms of the lease. The Plaintiffs therefore, prayed for ejectment and recovery of arrear rent. 3. On receipt of the summons, the Defendant contested the suit by filing written statement contending inter alia that the tenancy created being in respect on 3 Kathas 15 Lechas of land between the predecessor-in-interest of the Plaintiffs and the Defendant, the suit for eviction of the Defendant from the land measuring 4 Lechas of land is not maintainable there being no tenancy in respect of the remaining land of 7 Lechas. It has further been contended that the original tenant Babula Phukan in fact raised the permanent structures wherein the mill was set up and after purchasing the same in the year 1943, permanent structures were raised by the Defendant with the knowledge and acquiescence of the predecessor-in-interest of the Plaintiffs and such permanent construction having been raised firstly by the original tenant within five years from the date of commencement of the tenancy and thereafter by the Defendant within five years from the date of tenancy created with him, he is protected under Section 5 of the Assam Non Agricultural Urban Areas Tenancy Act, 1955 (in short 1955 Act). The Defendant has also denied the allegation of non payment of rent and contended that the rent due and payable to the Plaintiffs was paid. 4. The learned trial Court on the basis of the pleadings framed the following is- sues: 1. Whether notice for ejectment is sufficient and valid? 2. Whether the Plaintiffs are entitled to include land not covered by the tenancy.' 3. Whether the Plaintiff's suit is hit by the principle of res-judicata? 4. Whether the rice mill machinery and the mill house constructed on the suit land by Babula Phukan (First lessee) come under the definition of permanent structure as incorporated in 1958 amendment to 5.3(d) of Assam Non-Agricultural Urban Areas Tenancy Act, 1955? 5. Whether the Defendants are protected from eviction for having acquired a right title and interest over the permanent structure on the suit land constructed by the first lessee as envisaged in the 1988 amendment to Section 5(1)(a) of the above mentioned Act? 6. Whether the Defendants are protected for ejectment under the said Act for having installed new machinery and for having constructed other permanent structures on the suit land during the tenancy? 7. Whether the Defendants have paid to the Plaintiffs any money in excess of the stipulated rent? 8. Whether the part of the suit land, which forms the approach to the residential quarters of the Defendants can be included in the present suit? 9. Whether the Plaintiffs are entitled to get the reliefs as prayed? 10. To what other reliefs, the parties are entitled? 5. 8. Whether the part of the suit land, which forms the approach to the residential quarters of the Defendants can be included in the present suit? 9. Whether the Plaintiffs are entitled to get the reliefs as prayed? 10. To what other reliefs, the parties are entitled? 5. During the course of trial, both the Plaintiffs and the Defendant examined one witness each apart from exhibiting a number of documents including the depositions, of the predecessor-in-interest of the Plaintiff Sri Radha Nath Baruah, of the original tenant Sri Babula Phukan, of the Defendant Sri Atul Chandra Baruah and of Sri Krishna Sahu recorded in Title Suit No. 5/1958 filed by Radha Nath Baruah, the predecessor-in-interest of the present Plaintiff against the predecessor-in-interest of the present Respondents in this appeal, namely Atul Chandra Baruah. The Plaintiff also exhibited the tenancy agreement executed between their predecessor-in-interest and Sri Atul Chandra Baruah, the original Defendant on 9.3.1951 as exhibit 3' and also the pleaders notice issued on behalf of Sri Radha Nath Baruah before institution of Title Suit No. 5/1958 as exhibit No. 10. 6. The learned trial Court upon appreciation of the evidences on record, both oral and documentary, by the judgment and decree dated 23.8.1989 dismissed the suit filed by the Plaintiffs/Appellants by holding that the suit being for eviction of the Defendants from the land in excess of the land leased out to him, is not maintainable, though the issue relating to the res judicata was decided in favour of the Plaintiffs. The learned trial Court has also decided the issue relating to the protection claimed by the Defendant under Section 5 of the 1955 Act in favour of the Defendant. Being Aggrieved, the Plaintiffs preferred Title Appeal No. 60/1999 before the learned first appellate Court which was party allowed vide judgment and decree dated 8.3.1999 by reversing the finding recorded by the trial Court regarding issue No. 2 and 8 and also by passing the decree for recovery of arrear rent with effect from 1.1.1975 upon holding that the Defendant did not pay the rent payable in respect of the land with effect from the said date to the Plaintiffs. The learned appellate Court, however, affirmed the finding recorded by the learned trial Court in so far as it relates to the protection claimed by the Defendant under Section 5 of the 1955 Act. The learned appellate Court, however, affirmed the finding recorded by the learned trial Court in so far as it relates to the protection claimed by the Defendant under Section 5 of the 1955 Act. Having held so the learned appellate Court passed the decree of eviction of the Defendant from the suit land on the ground of non payment of rent and ordered that unless the Defendant pays the rent within 30 days there from as required under Sub-section (3) of Section 5 of the 1955 Act they will be evicted from the suit land. 7. I have heard Ms. Baruah, learned Counsel for the Appellants and Mr. A. Dasgupta, learned Counsel appearing on behalf of the Respondents. 8. Ms. Baruah, learned Counsel for the Appellants has submitted that the grounds on which the suit being Title Suit No. 43/1977 has been instituted by the Plaintiffs, apart from the ground of defaulter, was on the ground of violation of the agreement of tenancy which was executed on 9.3.1951 between the predecessor-in-interest of the Plaintiff and the original Defendant namely Atul Chandra Baruah as the Defendant has sublet a part of the suit land and inducted one sub tenant and allowed such sub tenant to raise permanent structure on the land. According to the learned Counsel, the learned Court below while passing the judgment and decree impugned did not consider this aspect of the matter at all. Ms. Baruah has further contended that the finding relating to the knowledge and acquiescence of the Plaintiffs about the permanent structure raised by the Defendant over the suit land is perverse having not based on the evidence on record. 9. Mr. Dasgupta, learned Counsel for the Respondent on the other hand has submitted that it is being an admitted position of fact that the original Defendant Atul Chandra Baruah was the tenant in respect of the land and the Court below having found him to be a defaulter for non payment of the annual rent payable to the Plaintiffs, the Defendant tenant cannot be evicted for non payment of rent in view of the provisions contained in Sub-section (3) of Section 5 of the 1955 Act. Mr. Mr. Dasgupta has further contended that it is evident from the discussions of the evidences on record by the learned first appellate Court as well as by the learned trial Court that the original tenant Babula Phukan raised the permanent structures within five years from date of commencement of his tenancy and the Defendant also raised permanent structure within five years from date of commencement of tenancy in his favour and such finding of fact cannot be disturbed by the second appellate Court unless the perversity in recording such finding is demonstrated, which according to Mr. Dasgupta the Appellant has failed to do. It has further been submitted by Mr. Dasgupta that it is apparent from the statements made in the plaint that the grounds on which the eviction of the Defendant was sought for were for making permanent construction without the consent of the Plaintiffs thereby violating the condition in the tenancy agreement executed on 9.3.1951 and for non payment of the rent payable to the Plaintiffs and not on the ground of subletting a part of the said land in favour of Anr. person Sri Krishna Sahu. Mr. Dasgupta referring to the judgments passed by the learned Courts below has contended that though in the tenancy agreement, which has been exhibited as Ext. 3, there was a stipulation for not making permanent structure by the Defendant/tenant, such permanent structure having been raised with the knowledge and acquiescence of the predecessor-in-interest of the Plaintiffs and of the Plaintiffs, the Defendant is protected under Section 5(1) of the 1955 Act. The question as to whether such permanent constructions were raised by the Defendant with the knowledge and acquiescence of the Plaintiffs being a finding of fact, according to Mr. Dasgupta, such finding of fact cannot be disturbed by the second appellate Court more so when the Appellants could not demonstrate any perversity in recording such finding. 10. The predecessor-in-interest of the present Plaintiffs initially instituted Title Suit No. 5/1958 praying for the eviction of Atul Chandra Baruah, the predecessor-in-interest of the present Respondents on the ground of default in making payment of rent, and for recovery of khas possession. 10. The predecessor-in-interest of the present Plaintiffs initially instituted Title Suit No. 5/1958 praying for the eviction of Atul Chandra Baruah, the predecessor-in-interest of the present Respondents on the ground of default in making payment of rent, and for recovery of khas possession. The said suit was decreed by the learned trial Court by holding that the Defendant Atul Chandra Baruah raised permanent structure and the original tenant Babula Phukan also raised such permanent structure within five years from the date of commencement of such tenancy. However, the learned trial Court recorded the finding that the Defendant has defaulted and therefore passed the decree of eviction and in view of the provision contained under Section 5(3) of 1955 Act, it was ordered that such decree of eviction of the Defendant was to be executed only in the event of failure of the Defendant to deposit the decree for rent within 30 days therefrom. Though the suit was decreed, the predecessor-in-interest of the present Plaintiffs filed Title Appeal No. 24/1959 challenging the finding relating to the raising of permanent structures by the Defendant within the period of five years from the date of commencement of the tenancy agreement and consequently of the protection given to the tenant under Section 5 of the 1955 Act. The said appeal was dismissed as being not maintainable as the Appellant therein had no right to appeal, the suit having been decreed. Thereafter the Second Appeal No. 4/1960 was filed before this Court by the predecessor-in-interest of the present Plaintiffs which was also dismissed vide judgment and order dated 27.6.1960, however by observing that the finding re-corded relating to the nature of structure raised by the Defendant over the suit land will not operate as res judicata and it would be open to the parties to prove their respective case with regard to the nature of structure when the suit is brought on the other grounds available to the Plaintiffs. 11. The predecessor-in-interest of the Plaintiffs thereafter instituted the Title Suit No. 27/1963 which was decreed in favour of the Plaintiff by holding that neither Babula Phukan nor the Defendant Atul Chandra Baruah built any permanent structure over the land within five years from the commencement of the tenancy and hence they are not protected under Section 5(1) of the 1955 Act. The said suit was as such decreed for ejectment and for recovery of arrear rent. The Defendant Atul Chandra Baruah being aggrieved, filed Title Appeal No. 27/1974 before the learned first appellate Court and the judgment and decree passed in Title Suit No. 27/1963 was set aside for want of notice terminating the tenancy. The Plaintiff challenged the judgment and decree passed by the appellate Court before this Court in a second appeal, which was dismissed. The present Appellants thereafter, instituted the present suit for eviction of Atul Chandra Baruah, the predecessor-in-interest of the present Respondents, who died during the pendency of the suit and in his place the present Respondents were substituted. 12. This Court vide order dated 13.04.2004 framed the following substantial questions of law: (i) Whether the Defendant having derived his title in respect the houses (permanent construction) by way of purchase from the original tenant namely, Babula Phukan and continues in the possession of the land as well as the house, is protected from eviction under Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (as amended), permanent construction of which has been made by the original tenant namely Babula Phukan within 5 years from the date of commencement of his tenancy? (ii) Whether the Defendant raised any permanent construction within 5 years from the date of commencement of the new tenancy with him dated 9.3.1951 within the meaning of the 1955 Act, if so, whether he is entitled to protection under Section 5 thereof? 13. It is apparent from the averments made in the plaint that the suit has been filed by the Plaintiffs for ejectment of the original Defendant on the ground of default in payment of rent and also on the ground of violation of the conditions of the tenancy created by Ext. 3, by contending that permanent structures have been raised without the consent of the Plaintiffs though there is specific stipulation in the tenancy agreement not to make any such permanent structure. Both the learned Courts below have recorded the finding that the original tenant namely Babula Phukan raised the permanent structure within five years from the date of commencement of his tenancy and the same was transferred by the original tenant in favour of the Defendant Atul Chandra Baruah, who also raised permanent structure within five years from the date of creation of fresh tenancy on 9.3.1951 (Ext. 3) with the knowledge and acquiescence of the predecessor-in-interest of the Plaintiffs. Having held so, both the learned Courts below have further held that the Defendant is entitled to protection under Section 5(1) of the 1955 Act. Such concurrent finding of fact cannot be disturbed by the second appellate Court unless of course perversity in recording such finding is demonstrated. Ms. Baruah, learned Counsel for the Appellant though argued that there is perversity in recording such finding, she has failed to demonstrate the relevant deposition of the witness which according to her were either not considered or wrongly appreciated. 14. I have also gone through the evidence on record more particularly Exts. 5,6,7 and 8 i.e. the deposition of the witnesses examined in Title Suit No. 5/1958 by the Plaintiffs as well as by the Defendant, wherefrom it appears that Babula Phukan raised permanent structures within five years from the date of creation of tenancy in his favour and the Defendant also raised permanent structures within five years from the date of commencement of tenancy in his favour vide Ext. 3 dated 9.3.1951. Radhanath Baruah who deposed in the said suit being Title Suit No. 5/1958 and whose deposition has been exhibited as Ext. 5, in his deposition also admitted about raising of permanent structure by the Defendant 3-4 years before the date of his deposition (month of recording deposition is December 1958) and that he has verbally objected to making of all such permanent structures but did not issue any notice. It is also apparent from Ext. 10 i.e. the notice, which was issued by Radha Nath Baruah prior to the filing of Title Suit No. 5/1958, that the Plaintiff never objected to raising of any permanent structure by the Defendant Atul Chandra Baruah and what was objected to is the alleged subletting of portion of the suit land in favour of Sri Krishna Sahu and allowing him to raise permanent structure. It is also in evidence that the predecessor-in-interest of the Plaintiffs knew about raising of such permanent structure. The learned Court below has disbelieved the version of the Plaintiffs that they did not have any knowledge and acquiescence about making of permanent structure by the Defendant. Such finding of fact cannot be disturbed by the second appellate Court there being no perversity in recording such finding. 15. The learned Court below has disbelieved the version of the Plaintiffs that they did not have any knowledge and acquiescence about making of permanent structure by the Defendant. Such finding of fact cannot be disturbed by the second appellate Court there being no perversity in recording such finding. 15. Section 3(g) of the 1955 Act defines the 'tenant' as a person who holds land under Anr. person other than Government and who is, but for a special contract liable to pay rent for that land to the latter, and includes a person who derives his title from a tenant, and a person who continues in possession of any land after termination of his tenancy in respect of that land. 16. Clause (a) of Sub-section (1) of Section 5 of the said Act protects a tenant from ejectment by the land lord from the tenancy except on the ground of non-payment of rent provided the tenant who under the contract of tenancy is entitled to build a permanent structure and has actually built such permanent structure within five years from the date of such contract for residential or business purposes. Such protection is also available to a tenant even if under the contract he is not entitled to built a permanent structure but he has actually built any such permanent structure on the land of tenancy within 5 years from the date of commencement of tenancy for residential or business purpose with the knowledge and acquiescence of the landlord. The first proviso to Section 5(1 )(a)stipulates that where a tenant has built the permanent structure within the said period of five years and the tenancy on the expiry of the original contract has been renewed, the tenant shall always be deemed to have built such permanent structure within the period of five years from the date of such contract. The second proviso stipulates that the person having right, title and interest by whatever mode of acquisition he may have taken the tenancy from the landlord of the land wherein the said structure stands shall not be ejected except on the ground of non-payment of rent. Sub-section 2 of Section 5 provides that no tenant shall be ejected by the landlord except in execution of a decree passed by competent Civil Court. Sub-section 2 of Section 5 provides that no tenant shall be ejected by the landlord except in execution of a decree passed by competent Civil Court. Sub-section 3 of that section provides that no decree for ejectment passed on the ground of non-payment of rent shall be executed within a period of thirty days from the date of the decree if the tenant pays into the Court, whose duty is to execute such decree, the entire amount payable under the decree within the aforesaid period and in that event the Court shall record the decree as satisfied. 17. In the instant case, from the aforesaid discussion, it is evident that the predecessor-in-interest of the present Respondents was the tenant within the meaning of Section 3(g) of the Act and there being a permanent construction made within five years from the. date of commencement of the tenancy he cannot be evicted on the ground of non payment of rent. The Plaintiff also could not prove by adducing any evidence relating to the violation of any condition of the tenancy. However, the learned appellate Court has recorded the finding mat the original Defendant i.e. the predecessor-in-interest of the present respondent is a defaulter as he has not paid the rent lawfully payable to the Plaintiffs which finding of fact has also not been challenged by the Respondents by filing any appeal or cross-objection. The learned Court below therefore in view of the provisions contained under Sub-section 3 of Section 5 of the Act, rightly passed the impugned judgment and decree as the decree for ejectment of the tenant on the ground of non-payment of rent cannot be executed provided the tenant pays into the Court the decree for rent passed by it, within thirty days from the date of decree. 18. In view of the aforesaid discussion, I do not find any merit in the second appeal and hence the same is dismissed. The parties are directed to bear their own cost. Appeal dismissed