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2013 DIGILAW 413 (GAU)

Mahendra Talukdar v. Prem Nath Bhuya

2013-06-14

NISHITENDU CHAUDHURY

body2013
Heard Mr. A. Biswas, learned counsel, appearing for the appellant. None appears for the respondent, although the respondent is represented by learned counsel whose names are also shown in the cause list. 2. It appears that earlier notice was issued prior to admission of this appeal and records of the learned courts below were also called for. Records have been received and on due service of notice the respondent has also appeared. 3. This second appeal is yet to be admitted. 4. It appears that the sole respondent as plaintiff instituted Title Suit No. 10/2009 in the Court of Munsiff, Bajali at Pathsala, praying for eviction of the sole defendant (Mahendra Talukdar) who is the appellant in this case. 5. The case of the plaintiff was that by agreement dated 20.12.2007 he was inducted into the suit land as a lessee/tenant for a fixed period of 11 months. After expiry of the said period, fresh but similar agreement of lease for another fixed period of 11 months was executed between the parties. This was followed by execution of a third similar lease dated 2.11.2008 for the suit premises. The said lease automatically lapsed on 15.2.2009. Since the lease of the suit land in favour of the sole defendant was determined by efflux of time, the defendant was duty bound to handover the vacant possession to the plaintiff but he did not do so and continued possessing the same without paying rent. The status of the defendant as lessee/tenant, therefore, stood modified to that of a trespasser with effect from 16.2.2009. Be that as it may, the plaintiff vide Ext. 5, dated 19.2.2009, demanded vacant possession of the suit land from the defendant. Plaintiff states that, even thereafter, the defendant did not handover vacant possession. Hence, filing of the suit for eviction became necessary. 6. Summons were duly served on the defendant and accordingly the defendant appeared but chose not to file written statement. Consequently, the suit proceeded ex parte against the defendant. In the absence of written statement there was no framing of charges by the learned trial court and the suit was heard on two points as follows : (a) Whether the plaintiff is entitled to get peaceful possession of the rented premises by evicting the defendant? (b) Whether the plaintiff is entitled to arrear rent of Rs. 1,800/-with 12% interest as claimed for? 7. (b) Whether the plaintiff is entitled to arrear rent of Rs. 1,800/-with 12% interest as claimed for? 7. In course of trial, plaintiff examined himself as witness and exhibited seven documents including all the three lease agreements. The last agreement dated 2.11.2008 was exhibited as Ext. 4. The defendant did not cross-examine the witness of the plaintiff and, as such, the documents went into the record unchallenged. After hearing the learned counsel for the plaintiff, the learned trial court passed judgment and decree dated 25.2.2011 decreeing the suit for eviction. 8. Aggrieved, the sole defendant preferred Title Appeal No. 38/2011 before the learned Civil Judge, Barpeta. From the Memorandum of Appeal available on record it appears that the basic thrust of the appellant-defendant before the First Appellate Court was that there was no service of notice under section 106 of the Transfer of Property Act in accordance with the provision of law and as such, in the absence of notice the suit was not maintainable. 9. The learned appellate court held that the lease between the parties came to an end by efflux of time on 5.2.2009 inasmuch as the lease was for a fixed period. Although the findings of the learned trial court in regard to service of notice vide Ext. 5 was not approved by the learned Appellate Court, yet it was held that plaintiff had been able to prove his case as pleaded. There was no miscarriage of justice, the learned Appellate Court observed. With these observations, the First Appellate Court dismissed the appeal by judgment and decree dated 5.3.2012 upholding the decree of the trial court in entirety. 10. By this second appeal, the defendant has challenged the aforesaid concurrent findings of both the courts below. The three substantial questions of law suggested by the learned counsel for the appellant also revolve around objection as to service of notice under section 106 of the T.P. Act, 1872. The learned counsel, Mr. Biswas, has strenuously argued that once the learned Appellate Court held that Ext. The three substantial questions of law suggested by the learned counsel for the appellant also revolve around objection as to service of notice under section 106 of the T.P. Act, 1872. The learned counsel, Mr. Biswas, has strenuously argued that once the learned Appellate Court held that Ext. 5 notice was inadmissible in evidence, the learned Appellate Court ought not to have relied on oral evidence of the plaintiff in regard to service of notice under section 106 of the T.P. Act and accordingly it was incumbent on the First Appellate Court to allow the appeal and to set aside the judgment of eviction by permitting both the parties to fight the case afresh on merit. The arguments of the learned counsel though appears to be tempting at the first blush, but ultimately does not appear to be appealing. It is not disputed that the lease in question in favour of the defendant was only for a limited period. It is no longer res intrega that when a lease is determined by efflux of time no notice under section 106 of the T.P. Act is at all necessary. However, if any reference is necessary, mention can be made of a judgment of this court reported hi Nibaran Chandra Nath v. Kumud Chandra Nath and Ors., 2012 (3) GLT 354. 11. Since the relationship between the lessor and the lessee and/or landlord and tenant was on the basis of a written agreement and the same was for a fixed period and since on the expiry of the said fixed period the lease stood determined by efflux of time under section 111(a) of the Transfer of Property Act, 1882, the possession of the lessee/tenant after expiry of the lease period has become one of a trespasser inasmuch as the lessee did not attempt to get elevated to the status by way of holding over and/or by getting fresh agreement as done on two previous occasions. This being the position, it is merely a dispute between two parties in regard to their status as landlord and tenant. The hon'ble Supreme Court has held in the case of Raja Durga Singh of Solon v. Tholu and Ors., AIR 1963 SC 361 that the dispute as to the status of landlord and tenant cannot give rise to a substantial question of law. 12. The hon'ble Supreme Court has held in the case of Raja Durga Singh of Solon v. Tholu and Ors., AIR 1963 SC 361 that the dispute as to the status of landlord and tenant cannot give rise to a substantial question of law. 12. On perusal of the materials on record and upon hearing the learned counsel for the appellant, it appears that no substantial question of law arises in the present case and as such it cannot be admitted. 13. The appeal is, accordingly, dismissed. No order as to costs. ____________________