Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 104 (GAU)

Girindharilal Sarma v. Safia Ahmed

2009-02-12

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. This is an application under Section 115 of the Code of Civil Procedure (Code of Civil Procedure) read with Article 227 of the Constitution of India against the judgment and decree dated 27.01.04 passed by the learned Addl. District Judge (Ad hoc), Jorhat in Title Appeal No. 14/2001 dismissing the appeal and affirming the judgment and decree dated 15.03.2001 passed by the Civil Judge (Jr. Division) No. 1 Jorhat in Title Suit No. 60/96. The application has been filed by the Defendants in the suit. 2. Shortly stated, the facts leading to the filing of the instant application are that the opposite parties as the Plaintiffs filed the suit being Title Suit No. 34/92 in the Court of the learned Assistant District Judge, Jorhat for eviction of the Defendants/Petitioners from the house in Jorhat Town which was described in Schedule-B to the plaint. The Plaintiffs also claimed Rs. 13,500/- as arrear of rent. The suit was subsequently transferred to the Court of the learned Civil Judge (Jr. Division) and the same was renumbered as Title Suit No. 60/96. 3. As per the facts narrated in the plaint, the case of the Plaintiffs is that the suit house originally belonged to one Abu Naser Khairul Alam. On his death, the Plaintiffs became the owner of the same by right of succession. The Defendant No. 1 took the house in suit on monthly rent of Rs. 450/-from said Abu Naser Khairul Alam. Said Alam died on 05.11.89 who received the rent till September, 1989. Thereafter the Defendants/Petitioners paid the rent to the Plaintiffs/opposite parties for the month of October, 1989. The Defendant No. 1 inducted his son (Defendant No. 2) to the house and left for Rajasthan allowing his son to stay in the house. Thus, the Plaintiffs/opposite parties claimed the Defendant No. 2 to be outsider who had occupied the house unauthorizedly. 4. The Plaintiffs/opposite parties instituted the suit for eviction of the Defendants/Petitioners on the grounds of bonafide requirement of the house and that the Defendants/Petitioners became the defaulters by not paying the rent after October/1989. 5. In the written statement filed by the Defendants/Petitioners they resisted the claim of the Plaintiffs/opposite parties in the plaint. 4. The Plaintiffs/opposite parties instituted the suit for eviction of the Defendants/Petitioners on the grounds of bonafide requirement of the house and that the Defendants/Petitioners became the defaulters by not paying the rent after October/1989. 5. In the written statement filed by the Defendants/Petitioners they resisted the claim of the Plaintiffs/opposite parties in the plaint. It was their case that the earlier landlord had entered into an agreement with the Defendant No. 1 for sale of the suit premises at a consideration money of Rs. 60,000 and received an amount of Rs. 12,000 as advance on 07.03.89 when they entered into agreement for sale orally. According to the Defendants/Petitioners the agreement for sale was executed on 07.04.89 on which date Anr. amount of Rs. 11,000 was paid to the landlord as advance. The balance amount was to be paid within one year of the written agreement and it was agreed upon that the sale deed would be executed. However, the landlord Abu Naser Khairul Alam could not execute the sale deed because of his illness and subsequently he died. According to the Defendants/Petitioners it was also agreed upon that after execution of the agreement for sale they would not require to pay monthly rent in consideration of the agreement for sale. 6. In paragraph 8 of the written statement, the Defendant No. 1 stated as follows: 8. That the averments of para-3 are denied. In fact, after the death of the previous owner Abu Naser Khairul Alam, the Plaintiffs demanded the monthly rents as heirs of the aforesaid deceased and the Defendant showed the agreement for sale of the suit land executed by the said deceased and claimed execution of the sale deed by the successors of the said deceased to which the Plaintiffs answered positively and assured the Defendant No. 1 that after consultation amongst the Plaintiff they would execute the sale deed on receipt of the balance consideration. 7. On the basis of the pleadings of the parties, learned Trial Court framed the following issues: 1) Whether the suit is maintainable? 2) Whether the Defendant No. 1 is a tenant and the Defendant No. 2 being the son of the Defendant used to stay with the Defendant No. 1? 3) Whether the Defendant is a defaulter? 4) Whether the tenanted premises are required by the Plaintiff bonafidely? 2) Whether the Defendant No. 1 is a tenant and the Defendant No. 2 being the son of the Defendant used to stay with the Defendant No. 1? 3) Whether the Defendant is a defaulter? 4) Whether the tenanted premises are required by the Plaintiff bonafidely? 5) Whether there were any question/stipulation for sell of land measuring 12 lechas? 6) To what relief/reliefs, the parties are entitled? 8. The Plaintiffs/opposite parties examined four witnesses and exhibited the documents indicated in the impugned judgments. The Defendants/Petitioners also examined four witnesses and exhibited the documents indicated in the impugned judgments. The learned Trial Court in consideration of the materials on record while found that the suit premises was not required bonafide by the Plaintiffs/opposite parties for setting up business of the son of the Plaintiff No. 1, but found that the Defendants/Petitioners were defaulters in payment of monthly rent. It was found that the Defendants/Petitioners did not pay monthly rent from November, 1989 but suddenly in the year 1991 started depositing rent in the Court from the month of March, 1991. Learned Trial Court did not find anything on record to show or to suggest that there was an agreement between Abu Naser Khairul Alam and Defendant No. 1 to the effect that the Defendant would not pay any rent till execution of the sale deed. 9. The suit having been decreed in favour of the Plaintiffs/opposite parties, the Defendants/Petitioners preferred Title Appeal No. 14/2001 which has also been dismissed by the impugned judgment and decree dated 27.01.04. Hence this application under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution. 10. Mr. B.K. Goswami, learned Sr. Counsel assisted by Mrs. T. Goswami, learned Counsel appearing for the Petitioners submitted that the appellate judgment is not a judgment in the eye of law. He submitted that the Appellate Court while disposing the appeal did not do so according to the provision of Section 96 of the Code of Civil Procedure. He submitted that the Defendant No. 1 was in permissive possession after agreement for sale and thus, the Defendant was a licensee under Abu Naser Khairul Alam. According to him there could not have been any occasion for default in payment of monthly rent as the landlord had already obtained an advance payment of Rs. 35,000/- from the Defendant No. 1, Mr. According to him there could not have been any occasion for default in payment of monthly rent as the landlord had already obtained an advance payment of Rs. 35,000/- from the Defendant No. 1, Mr. Goswami has placed reliance on the following decisions of the Apex Court. 1) (2001) 3 SCC 179 Santosh Hazari v. Purushottam Tiwai. 2) (2001) 9 SCC 385 Bhura Mogiya and Ors. v. Satish Pagariya and Ors. 3) (1994) 2 SCC 289 Kranti Swaroop Machine Tools Pvt. Ltd. and Anr. v. Kanta Bai Asawa and Ors. 4) Judgment dated 23.06.04 passed by this Court in CRP No. 204/2000. 11. Countering the above argument, Mr. C.K. Sarma Baruah, learned Sr. Counsel assisted by Mr. N. Rajkhowa, submitted that there being admitted default on the part of the Defendant No. 1 to pay the monthly rent, the Courts below rightly passed the impugned judgment and decree. Referring to the orders passed by this Court in connected miscellaneous proceeding directing payment of monthly rent by the Defendants/opposite parties, he submitted that the default on the part of the Defendants/Petitioners in payment of monthly rent being an admitted position, this Court exercising its power of revisional jurisdiction will not interfere with the impugned judgment. In this connection he has referred to the decision of this Court reported in 1997 (2) GLT 590 Abdul Matin Choudhury and Ors. v. Nilayananda Dutta Banik and 2006 (1) GLT 479 Sobha Biswas and Ors. v. Ranjit Lodh. 12. Before dealing with the impugned judgment and orders, it will be appropriate to deal with the arguments advanced by Mr. C.K. Sarma Baruah, learned Counsel for the Plaintiffs/opposite parties in reference to Abdul Motin Choudhury's case. There is no dispute that after initiation of the proceeding also the Defendants/Petitioners defaulted in payment of monthly rent. As has been held by this Court in Abdul Motin Choudhury case, a tenant is deemed to be under all liabilities for payments of rent in accordance with law all along if he wants to avail the protection granted by Rent Control Legislation. The protection granted to a tenant cannot be a one way traffic. If he wants to enjoy certain privileges or benefits, the corresponding duties/obligations thrust upon him by the Legislators, must also be performed. The protection granted to a tenant cannot be a one way traffic. If he wants to enjoy certain privileges or benefits, the corresponding duties/obligations thrust upon him by the Legislators, must also be performed. It was pointed out by this Court that this liability shall subsist all through out the proceeding even when the matter may be pending in the highest Court. If at any point of time, the landlord in prudent manner can bring to the notice of the Court that even during the pendency of the proceeding the tenant has failed to discharge his liability, a right will spring upon in favour of the landlord to get the decree for ejectment executed on any of the grounds as incorporated in the Assam Urban Areas Rent Control Act, 1972. 13. In the instant case, there is no dispute that the Defendants/Petitioners defaulted in payment of rent when the present proceeding was pending before this Court. The Plaintiffs/opposite parties brought the miscellaneous proceeding by way of Misc. case No. 3585/2004 praying for a direction to the Defendants/Petitioners to deposit the arrear monthly rent from May, 1992 to November, 2004. This Court by order dated 17.06.05 accepting the prayer so made issued direction for payment of outstanding rent from May, 1992. 14. There was further default in payment of rent and accordingly the Plaintiffs/opposite parties instituted Anr. miscellaneous proceeding by way of Misc. Case No. 2095/06 in which it was claimed that the Defendants/Petitioners again defaulted in payment of rent from July, 1995 to May, 2006. 15. Mr. Goswami, learned Counsel for the Petitioners while accepting the proposition of laid down in Abdul Motin Choudhury (supra), submitted that since there was a reference of the matter to the Division Bench, till the reference was answered by the Division Bench in Sobha Biswas (supra), the Defendants/Petitioners were not under any obligation to pay the monthly rent. In Sobha Biswas the proposition of law laid down in Abdul Motin Choudhury has been upheld. As per the said decision the requirement to pay monthly rent by a tenant to the landlord during the pendency of ejectment suit and/or proceeding all along subsists even though the default relates to the period after filing of the eviction suit. It has been held that if a tenant failed to discharge his liability, the landlord shall have the right to get the decree for ejectment. 16. It has been held that if a tenant failed to discharge his liability, the landlord shall have the right to get the decree for ejectment. 16. Above being the possession of law in respect of default in payment of monthly rent even to the period subsequent to the institution of the suit and during the pendency of the proceeding, there is no manner of doubt that the Defendants/Petitioners being defaulter in payment of rent are liable to be evicted from the suit premises. The argument advanced by Mr. Goswami that the Defendants/Petitioners were not under obligation to pay monthly rent during the subsistence of the present proceeding till such time the reference was answered by the Division Bench in Sobha Biswas (supra) is simply not acceptable. The proposition of law laid down in Abdul Motin Choudhury continued to operate irrespective of the reference made. When a point is ostensibly a point of law and required to be substantiated by facts, same will have to be understood in the given fact situation of the case. The law enjoins a duty on the tenant to pay monthly rent regularly which the Defendants/Petitioners admittedly defaulted. Consequently the Defendants/Petitioners became liable for eviction on that count alone. 17. When the Defendants/Petitioners by their own conduct made them liable to be evicted there cannot be any escape from the said liability on the grounds urged in the application. The Trial Court on the basis of the materials on record has decreed the suit in favour of the Plaintiffs/opposite parties. Although Mr. Goswami, learned Counsel for the Petitioners strenuously argued that the Defendants/Petitioners never recognized the Plaintiffs/opposite parties as their landlord, but a mere reference to the above quoted paragraph-8 of the written statement would go to show that the Defendants/Petitioners in fact and indeed recognized the Plaintiffs/opposite parties as their landlord. There is also nothing to show that any agreement was arrived at with the earlier landlord towards exemption of payment of monthly rent since the execution of the agreement for sale. The Trial Court found that the Defendants/Petitioners did not pay rent from November, 1989 and suddenly made payment on two occasions in the year 1991 and again defaulted in payment as has been noticed by this Court in the aforesaid miscellaneous proceeding. 18. The Appellate Court duly appreciated the judgment and decree passed by the learned Trial Court alongwith the evidence on record. 18. The Appellate Court duly appreciated the judgment and decree passed by the learned Trial Court alongwith the evidence on record. It has been rightly held by the Appellate Court that the Defendant No. 1 did not take any step for specific performance of the alleged contract between him and the earlier landlord. The Appellate Court found that the particular exhibit does not contain anything regarding the claim made by the Defendant No. 1 that there was an agreement exempting the Defendant No. 1 from payment of monthly rent till registration of the sale deed. Unless the sale deed had been executed by the landlord, the possession of the suit premises of the tenant remained in the capacity of the tenant making him liable to pay the monthly rent. 19. The decision of the Apex Court in Kranti Swaroop (supra), was pressed into service towards advancing the argument for adjustment from deposit made by the tenant with the landlord even without a specific request by tenant in that behalf. That was a case relating to making of advance payment in respect of rent, unlike the present case in which it is the claim of the Defendants/Petitioners that there was an agreement for sale and certain payments towards that end were made by them to the earlier landlord. Thus, this case is of no help to the case of the Petitioners. 26. The decision in CRP No. 204/2000 has also been pressed into service in the same context. In that decision as in the aforesaid decision in Kranti Swaroop (supra), it was held that the monthly rent was adjustable against the advance amount available to the credit of the Defendant. Unlike the present case, in the said case the advance payment of Rs. 15,000 was made towards execution of the agreement of tenancy. In the instant case, the advance payment was only in respect of the agreement for sale. If the Defendants/Petitioners were aggrieved by non-execution of sale deed, it was open for them to take recourse to legal proceeding for specific performance of contract etc. and not to advance the argument that such advance payment was adjustable towards payment of monthly rent. 21. If the Defendants/Petitioners were aggrieved by non-execution of sale deed, it was open for them to take recourse to legal proceeding for specific performance of contract etc. and not to advance the argument that such advance payment was adjustable towards payment of monthly rent. 21. The decision in Santosh Hazari (supra) has been relied to emphasis on the duty of the appellate Court which according to the learned Counsel for the Petitioners was not discharged by the appellate court in the instant case. As has been emphasized by the Apex Court, the judgment of the appellate Court must reflect its conscious application of mind and record the findings supported by reasons on all the issues. On perusal of the appellate order, it cannot be said to be a case of non-application of mind and non-recording of findings supported by reasons. The appellate order is exhaustive and has dealt with the issues involved. Such an order cannot be interfered with lightly accepting the argument advanced by the learned Counsel for the Petitioners. 22. The decisions of the Bhura Mogiya (supra) has been relied upon in reference to the particular paragraph in the judgment in which it has been observed that permissible possession cannot be converted into adverse possession unless it is proved that the person in possession asserted and acquired adverse title to the property to the knowledge of the true owner for a period of 12 years or above. According the learned Counsel for the Petitioners the Defendants came into possession on the basis of the agreement for sale and such possession was a permissible possession. I am afraid the argument advanced in reference to the decision is totally misplaced. Apart from the fact that the ratio of a decision must be understood in the background of the facts of that case and that a case is only an authority for what it actually decides, and not what logically follows from it, in the instant case, the Defendants/Petitioners were not in possession of the suit premises because of the agreement of sale but was only a tenant under the landlord. Further it has also been held in the said decision that permissible possession cannot be converted into adverse possession unless the ingredients thereof are established. Further it has also been held in the said decision that permissible possession cannot be converted into adverse possession unless the ingredients thereof are established. In the instant case it is not a case of adverse possession coupled with the fact that the Defendant No. 1 was also not under permissible possession upon execution of the agreement for sale. 23. For all the aforesaid reasons, there is no merit in this application and accordingly same is dismissed. Application dismissed