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2010 DIGILAW 940 (GAU)

Lakhi Pator v. Jayanta Deka

2010-12-16

I.A.ANSARI

body2010
JUDGMENT Iqbal Ahmed Ansari, J. 1. By filing this revision under Section 115 of the Code of Civil Procedure (in short, 'the Code'), the petitioner has put to challenge the judgment and decree, dated 05.03.2010, passed by the learned Civil Judge, Morigaon, in Title Appeal No. 13 of 2009, dismissing the appeal and upholding the judgment and decree, dated 09.03.2009, passed, in Title Suit No. 65 of 2006, by the learned Munsiff No. 1, Morigaon, whereby the plaintiffs-opposite party have been granted decree for recovery of the arrear rent since January, 2004, and for eviction of the defendant-petitioner from the suit house within a period of one month from the date of passing of the judgment. The case of the plaintiffs may, in brief, be described thus: Late Narottam Deka, predecessor-in-interest of the plaintiffs, was the owner of the suit house. About 15 years ago, the defendant entered into the suit house as a tenant under Narottam Deka. The monthly rent, in the year 1993, was Rs. 150/- and with effect from January, 2002, the monthly rent was enhanced to Rs. 700/-. The defendant had been paying monthly rent to the plaintiff till the end of the year 2003. In the month of December, 2003, Monorama Deka, wife of deceased Narottam Deka, expired and with effect from January, 2004, the defendant did not pay any rent despite demands for rent raised by the plaintiffs. The plaintiffs, therefore, instituted the suit on the ground that the defendant was a defaulter and he was, therefore, liable to pay the arrear rents with effect from 01.01.2004 @ Rs. 700/- per month until the date of the decree and also liable to be evicted with his family members from the suit house. 2. The defendant contested the suit by contending that it was about 23 years back that he (defendant) had come into possession of the land, where the suit house stands situated, by taking the said land on rent from Narottam Deka and, having accordingly taken possession of the land on rent, he constructed the house himself with the consent of Narottam Deka and had been paying rent to Narottam Deka not for the house, but for the land, the rent of the land being Rs. 150/- per month. 150/- per month. In the month of March, 1994, the defendant and Narottam Deka entered into an oral agreement, the agreement being that Narottam Deka would sell the land to the defendant on consideration of Rs. 70,000/-. Pursuant to the agreement, so reached, the defendant, on 10.05.1944, paid the first installment of Rs. 20,000/- to Narottam Deka and thereafter, he paid four installments Of Rs. 10,000/- each, on 02.12.1994, 04.11.1995, 07.10.1996 and 12.01.2001. The defendant further paid Rs. 5,000/- on 14.10.2003. Thus, the defendant paid, in all, Rs. 65,000/- to Narottam Deka. It had been agreed between Narottam Deka and the defendant that the former would, on 10.04.2004, execute a sale deed in favour of the defendant in respect of the land over which the suit house stands. However, in the meanwhile, Narottam Deka fell ill and died on 24.04.2004 and he could not, therefore, execute the sale deed as had been agreed upon. The defendant is not, thus, a defaulter and the suit is liable to be dismissed. 3. Following issues were framed in the suit "i) Whether there is cause of action for the suit ii) Whether the suit is maintainable in its present form. iii) Whether there is any relationship of landlord-tenant between the plaintiffs and the contesting defendant. iv) Whether the defendant is defaulter as alleged in the plaint. v) Whether the plaintiffs are entitled to a decree as prayed for. vi) To what relief/relieves parties are entitled to." 4. Both the parties to the suit adduced their respective evidence. On closer of the evidence, the learned trial Court came to the conclusion that the defendant was not a tenant in respect of the land, as claimed by the defendant; rather, he was a tenant in respect of the suit house and that he was a defaulter, he having not paid rents with effect from January, 2004. The learned trial Court also concluded that the defendant had failed to prove that there was an agreement for sale as had been asserted by the defendant. The learned trial Court further concluded that even after institution of the suit the defendant had not paid any rent. The learned trial Court, therefore, directed the defendant to make payment of the rents to the plaintiffs with effect from January, 2004, and also to vacate the suit house within a month. In terms of the reliefs, so granted, a decree followed. The learned trial Court, therefore, directed the defendant to make payment of the rents to the plaintiffs with effect from January, 2004, and also to vacate the suit house within a month. In terms of the reliefs, so granted, a decree followed. As indicated above, this decree was put to challenge in appeal, However, as the appeal has failed, the defendant has, now, filed this revision. 5. I have heard Mr. B.D. Deka, learned counsel for the defendant-petitioner, and Mr. D Choudhury, learned counsel appearing on behalf of the plaintiffs-respondents. 6. At the time of moving this revision, there are two grounds on which the impugned decree has been challenged. 7. It has been contended, on behalf of the defendant-petitioner, that the defendant in the present case, was not a tenant in respect of the suit house, but he was a tenant in respect of the land, where the suit house is situated, and that the suit house was built on the land aforementioned by the defendant after he (defendant) had taken the land, on rent, from Narottam Deka. The case at hand is, therefore, according to the learned counsel for the petitioner, covered by the provisions of Assam Non-Agricultural Urban Areas Tenancy Act, 1956, and not the Assam Rent Control Act, 1972; whereas the suit has been proceeded and adjudicated upon treating the same as a suit under the Assam Urban Areas Rent Control Act. The decree is, therefore, it is contended, wholly illegal and may be set aside. 8. The second ground of challenge posed to the impugned decree is that the plaintiffs had not specifically pleaded the due date of payment of rent and in the absence of any such pleading, the learned Courts below ought to have held that the due date of payment has not been established and the defendant is not liable to be evicted. 9. Controverting the submissions made on behalf of the petitioner, Mr. Choudhury, learned counsel, submits that it was not only the pleaded case of the plaintiffs, but also the supporting evidence on record that the defendant had entered into the suit house and not the land inasmuch as the defendant's own witness has given evidence to the effect that before the defendant entered into the suit house, it was Narottam Deka, who used to reside in the said house. The suit was, therefore, contends Mr. The suit was, therefore, contends Mr. Choudhury, covered by the provisions of the Assam Urban Areas Rent Control Act, 1972. As regards the petitioner's contention that due date of payment was not proved, Mr. Choudhury contends that the defendant is a monthly tenant and he, having not paid any rent since the month of January, 2004, has been rightly held to be a defaulter. 10. While considering the present revision, it needs to be noted that there is clear evidence adduced by the plaintiffs that the house, in question, was constructed by Narottam Deka and that the defendant entered into the suit house as Narottam Deka's tenant and it is not the defendant, but Narottam Deka, who had constructed the suit house. In support of his plea, however, that he used to pay rent to Narottam Deka in respect of the land and not in respect of the suit house, the defendant examined two witnesses. In his cross-examination, DW2 admitted that the defendant entered into the suit house as tenant under Narottam Deka. In fact, the defendant's witness also stated in his evidence, during the course of cross-examination, that before the defendant came to the suit house, Narottam Deka had stayed in the suit house. In the face of such clear evidence, which has come on record from none other than the defendant's own witness, there could have been no conclusion, other than the one, which the learned trial Court reached, that the defendant was a tenant in respect of the suit house and not in respect of the land, where the suit house stands, and that he was liable to pay rent to Narottam Deka, predecessor-in-interest of the plaintiffs, for occupying and using the suit house as tenant. 11. Turning to the question whether the defendant has been proved to be a defaulter or not, it needs to be noted that it has been the specific case of the plaintiffs that the defendant, in the year 1993, used to pay Rs. 150/- per month as rent and, in the year 2000, the rent was enhanced to Rs. 11. Turning to the question whether the defendant has been proved to be a defaulter or not, it needs to be noted that it has been the specific case of the plaintiffs that the defendant, in the year 1993, used to pay Rs. 150/- per month as rent and, in the year 2000, the rent was enhanced to Rs. 700/- per month and that the defendant paid the same till the end of the year 2003, but in January, 2004, when Narottam Deka's widow, namely, Manorama Deka, died, the defendant stopped making payment of the rents and since the month of January, 2004, he has not paid any rent till the date of institution of the suit. In fact, it was pointed out, on behalf of the plaintiffs, at the time of hearing of the suit, that not only till the date of institution of the suit, but even alter the suit was instituted, defendant did not pay rent The defendant could not show, far less prove, that he had been paying rent. Though it is true that it had not been specifically stated in the plaint as to when the rent fell due, it needs to be borne in mind that the pleadings have to be read as a whole and the pleadings have to be construed in a manner, which make the pleadings meaningful and intelligible. 12. In the case at hand, it has not been disputed that the rent, initially, in the year 1993, was Rs. 150/- per month and, in the year 2002, the rent was enhanced to Rs. 700/- per month. As the defendant, according to the plaint, paid the rent regularly till the end of the year 2003, it is clear that the payment of rent was governed by English calendar month. In the absence of any pleading and in the absence of any other material showing to the contrary, the tenancy, in the present case, being a monthly tenancy, the rent became obviously due at the end of each English calendar month. In terms of the provisions of the Assam Urban Areas Rent Control Act, 1972, when rent becomes due, the payment thereof shall be made within a fortnight from the date, when the rent becomes due. 13. In terms of the provisions of the Assam Urban Areas Rent Control Act, 1972, when rent becomes due, the payment thereof shall be made within a fortnight from the date, when the rent becomes due. 13. In the case at hand, the rent becomes due at the end of each English calendar month and the same ought to have been paid by the defendant within a fortnight of the end of every succeeding month. It is the specifically pleaded case of the plaintiffs that the defendant has not paid rent since the month of January, 2004. The defendant miserably failed to show that the rent had not become due at the end of each English calendar month. The defendant also miserably failed to prove that he had paid any rent since after the month of January, 2004, until the date of institution of the suit. Thus, the learned trial Court was wholly correct in taking the view and in holding that the defendant had not paid to the plaintiffs rents since the month of January, 2004, and he was, therefore, not only liable to pay the arrear rents, but also liable to be evicted from the suit house. I do not find that these findings suffer from any infirmity, factual or legal. The decree, thus, granted by the learned trial Court was wholly legal, correct and justified and the learned appellate Court committed no error in upholding the same. 14. Though it has not been agitated in the revision, at the time of hearing, that there was an agreement for sale of the land, as indicated above, between Narottam Deka and the defendant, it may nevertheless be noted that the defendant could bring no convincing corroborative evidence on record in support of his assertion that the oral agreement for sale of the land, as contended by the defendant, had ever been entered into. This apart, the defendant did not ask for specific performance of the alleged contract of sale by raising a counter claim nor did he institute any suit for specific performance of the alleged contract of sale of the suit land with the house standing thereon. Situated thus, it is clear that the learned trial Court was correct in holding that the defendant failed to prove that there was an agreement for sale as was alleged by the defendant 15. Situated thus, it is clear that the learned trial Court was correct in holding that the defendant failed to prove that there was an agreement for sale as was alleged by the defendant 15. Because of what have been discussed and pointed out above, this Court finds no merit in the revision. Considering, however, the fact that a submission has been made, on behalf of the defendant-petitioner, that plaintiffs be allowed reasonable period of time to vacate the house, this Court finds that though a period of one month, as given to the defendant by the learned trial Court, was a sufficient period, yet, having regard to the matter in its entirety and in the interest of justice, this Court is of the view that the defendant be given some more time to vacate the suit house. This revision shall, therefore, stand dismissed with costs, but the defendant-petitioner is hereby given three months further time to vacate the suit land.