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2013 DIGILAW 705 (GAU)

Fidaul Haque @ Raju and Anr. v. Jorgina Ahmed

2013-09-25

BROJENDRA PRASAD KATAKEY

body2013
Brojendra Prasad Katakey, J. This appeal by the defendants is directed against the judgment and decree dated 26th February, 2004 passed by the learned Civil Judge (Senior Division) No. 3, Kamrup at Guwahati in Title Appeal No. 25/2003, allowing the appeal preferred by the present respondent/plaintiff, by setting aside the judgment and decree dated 25th March, 2003 passed by the learned Civil Judge (Junior Division) No. 1, Kamrup at Guwahati in Title Suit No. 177/1992, whereby and whereunder the suit of the present respondent/plaintiff has been dismissed. The respondent as plaintiff initially instituted the aforesaid suit against the present appellant No. 1, as defendant, for his ejectment from the house described in Schedule-B to the plaint and also for recovery of Rs. 6,400/-, being the arrear rent from 1st April, 1991 to 30th July, 1992, contending inter alia that though the defendant was the tenant under the original owner, namely, Md. Rafiul Haque, the rent payable @ Rs. 400/- per month has not been paid by the defendant to the plaintiff, after transfer of the ownership of the suit premises by way of gift deed dated 20th May, 1988 by Md. Rafiul Haque in favour of the plaintiff. It has further been contended that the suit property also requires for the bonafide use and occupation by the plaintiff. 2. The defendant, namely, Md. Fidaul Haque @ Raju, filed written statement contending inter alia that the possessory right over the suit premises was purchased by his wife Mustt. Sultana Begum from the original owner, namely, Md. Rafiul Haque, and hence the right, title and interest of the suit land vest on his wife. 3. The plaintiff then filed an application seeking amendment of the pleadings in the plaint, under Order 6 Rule 17 CPC, which was allowed by the trial Court. After amendment, the plaintiff has impleaded Mustt. Sultana Begum as defendant No. 2 in the suit and prays for declaration of right, title and interest, for ejectment of the defendants and also for recovery of arrear rent of Rs. 6,400/-, contending inter alia that she has acquired right, title and interest over the suit land by virtue of the gift deed dated 20th May, 1988 (Exhibit-1) executed by Md. Rafiul Haque in favour of the plaintiff. 6,400/-, contending inter alia that she has acquired right, title and interest over the suit land by virtue of the gift deed dated 20th May, 1988 (Exhibit-1) executed by Md. Rafiul Haque in favour of the plaintiff. It has further been contended that neither the defendant No. 1 nor the defendant No. 2 has any right, title and interest over the suit land, who were tenants under the original landlord and have not paid the rent to the plaintiff after transfer of the ownership of the suit land alongwith the house standing thereon, which is under occupation of the defendants. The defendant No. 2 thereafter, filed the written statement, contending inter alia that she has acquired right, title and interest over the suit land by virtue of purchase of possessory right on 1st April, 1986 (Exhibit - Ka) and since she is occupying the land and the house standing thereon of her own right, there is no question of having any relationship of the landlord and tenant between the plaintiff and defendants and hence, there is no question of payment of any rent. The claim of defaulter alongwith the claim for bonafide requirement have accordingly been denied. 4. The plaintiff, in order to prove her case, has examined herself and proved a number of documents including the gift deed dated 20th May, 1988(Exhibit-1); order of mutation dated 27th August, 1988 (Exhibit-2); the revenue paying receipts (Exhibit-3) and the house tax payment receipts issued by the Gauhati Municipal Corporation (Exhibit-4). The defendants have examined 5(five) witnesses, which includes the defendant Nos. 1 and 2 as DWs-1 and 2 and the original owner of the suit land, i.e. Md. Rafiul Haque as DW-3. 5. The trial Court, upon appreciation of the evidence on record, both oral and documentary, dismissed the suit of the plaintiff refusing to pass a decree declaring right, title and interest even though it has been held that Md. Rafiul Haque has transferred right, title and interest over the suit land in favour of the plaintiff. The decree for ejectment has also not been passed, as the plaintiff, according to the trial Court, could not prove the attornment and also the relationship of the landlord and tenant between the plaintiff and the defendants. 6. Rafiul Haque has transferred right, title and interest over the suit land in favour of the plaintiff. The decree for ejectment has also not been passed, as the plaintiff, according to the trial Court, could not prove the attornment and also the relationship of the landlord and tenant between the plaintiff and the defendants. 6. Being aggrieved, the plaintiff preferred the aforesaid appeal, which has been allowed vide judgment and decree dated 26th February, 2004, decreeing the suit of the plaintiff declaring her right, title and interest and also eviction of the defendants from the suit property. The first appellate Court has held that since the plaintiff could prove the ingredients to constitute a valid gift, under the Mahomedan Law, the plaintiff has acquired right, title and interest over the suit land. It has also been held that though the plaintiff could not prove that there was attornment of the plaintiff by the defendants as landlord and also failed to proved that there was relationship of landlord and tenant between them, the decree for ejectment, however, has been passed, on the ground that the defendants having failed to establish the claim of transfer of possessory right, their status is that of a trespasser. Hence, the present appeal. 7. The appeal was admitted for hearing vide order dated 16th March, 2004 on the following substantial questions of law:-- (a) Whether on the facts and circumstances of the case, the learned first appellate Court was justified in coming to finding that in the absence of delivery of possession? (b) Whether on the facts and circumstances of the case, the learned lower appellate Court was justified in declaring that the respondent has acquired right, title and interest over the suit property by merely mutating her name in respect of her suit property that too on the basis of gift deed wherein the essential condition of delivery of possession as required under the provisions of law was not fulfilled? (c) Whether on the facts and circumstances of the case, the learned first appellate Court was justified in declaring that the appellants are trespassers and liable to be ejected from the Schedule B premises although the same was not an issue between the parties? (c) Whether on the facts and circumstances of the case, the learned first appellate Court was justified in declaring that the appellants are trespassers and liable to be ejected from the Schedule B premises although the same was not an issue between the parties? (d) Whether on the facts and circumstances of the case, the learned first appellate Court was justified in decreeing the suit in favour of the plaintiff on the ground that the appellants could not prove their title in respect of the suit properties although the same was not an issue between the parties nor framed by the Court? (e) Whether on the facts and circumstances of the case, the learned Court below was justified in holding that in absence of attornment of tenancy there can be delivery of possession as required under the provisions of the Mohammedan law to constitute a valid gift? (f) Whether on the facts and circumstances of the case, the learned Court below was justified in coming to a finding that in the event of a contest between unregistered document and registered document, the unregistered document will not prevail although the same is accompanied by delivery of possession? (g) Whether on the facts and circumstances of the case, the learned Court below was justified in relying on the judgment and decree passed in Title Suit No. 27/1993 wherein the appellants were not parties to the said suit? 8. I have heard Mr. D. Das, learned senior counsel appearing for the appellants/defendants and Mr. G.N. Sahewalla, learned senior counsel appearing for the respondent/plaintiff. 9. Mr. 8. I have heard Mr. D. Das, learned senior counsel appearing for the appellants/defendants and Mr. G.N. Sahewalla, learned senior counsel appearing for the respondent/plaintiff. 9. Mr. Das, learned senior counsel referring to the judgment passed by the first appellate Court and also the evidence adduced by the parties, apart from the provisions of the Mahomedan Law relating to the gift, has submitted that to constitute a valid gift under the Mahomedan Law, since three ingredients, i.e. (i) a declaration of gift by the donor; (ii) an acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150, are required to be proved, in the instant case, the delivery of possession of the subject of the gift by the donor to the donee having not been proved, the alleged gift by the donor to the donee vide Exhibit-1 gift deed is not valid and hence the appellate Court ought not to have decreed the suit of the plaintiff declaring her right, title and interest over the suit land. 10. The learned senior counsel further submits that even if all the three necessary ingredients to constitute a valid gift under the Mahomedan Law exist, since the plaintiffs suit is for eviction of the defendants from the suit property on the ground of defaulter and bonafide requirement, contending that there was relationship of landlord and tenant between them, apart from the suit for declaration of right, title and interest by virtue of gift, and as it has been held by the first appellate Court that there was no attornment of the plaintiff by the defendants as landlord and also there was no relationship of landlord and tenant between them, there is no question of being in default in payment of rent and hence the first appellate Court ought not to have passed a decree of eviction, which amounts to a decree of recovery of khas possession, which ought not to have passed there being no prayer made in the plaint for recovery of khas possession by evicting the defendants therefrom and hence in fact the suit of the plaintiff is hit by Section 34 of the Specific Relief Act, 1963. In support of the contention that the suit of the plaintiff is hit by Section 34 of the Specific Relief Act, 1963, the learned senior counsel has placed reliance on the decision of the Apex Court in Vinay Krishna v. Keshav Chandra & Anr. reported in AIR 1993 SC 957 , apart from the judgment passed by this Court on 4th September, 2013 in RSA No. 33/2003 (Nani Bhushan Dey & Anr. v. Bijoy Kumar Ganguly & Ors.). 11. The learned senior counsel also submits that the plaintiff having claimed that the suit property has been transferred in her favour by way of gift (Exhibit-1), in the suit filed by her for eviction of the defendants on the ground of defaulter and bonafide requirement, the plaintiff is required to prove the attornment, which having not been proved, the first appellate Court ought not to have passed the decree for eviction of the defendants, even if it is found that the plaintiffs have acquired right, title and interest by virtue of the gift. 12. Mr. Sahewalla, learned senior counsel appearing for the respondent/plaintiff, on the other hand, supporting the decree passed by the appellate Court has submitted that since the plaintiff could prove the existence of three essential conditions of the gift, as required under the Mahomedan Law, the first appellate Court has rightly decreed the suit of the plaintiff declaring her right, title and interest over the suit land. Referring to Sub-section (2) of Section 5 of the Assam Urban Rent Control Act, 1972 (in short, "1972 Act"), Mr. Sahewalla, learned senior counsel further submits that there is no question of attornment, in so far as it relates to the proceeding under the 1972 Act, as the tenant would get protection from eviction as stipulated under Sub-section (1) of Section 5 of the said Act, provided the tenant pays the rent lawfully payable to the landlord, which includes the transferee landlord, within the time agreed upon. Referring to the deposition of witnesses examined, more particularly, the deposition of defendant Nos. 1 and 2 (DWs-1 and 2), Mr. Sahewalla further submits that in their deposition, they have admitted that they had knowledge about the transfer of the ownership of the property by the original landlord, namely, Md. Referring to the deposition of witnesses examined, more particularly, the deposition of defendant Nos. 1 and 2 (DWs-1 and 2), Mr. Sahewalla further submits that in their deposition, they have admitted that they had knowledge about the transfer of the ownership of the property by the original landlord, namely, Md. Rafiul Haque, in favour of the plaintiff by gift and hence, they will be protected from eviction under the provisions of the 1972 Act, only if they discharge the burden of proving that they have either paid the rent to the transferee landlord or deposited the same in Court within a fortnight of its falling due, as required under Sub-section (4) of Section 5 of the said Act and on being refused to accept the rent by the landlord. The learned senior counsel, therefore, submits that the ultimate decree passed by the first appellate Court needs no interference. 13. In reply, Mr. Das, learned senior counsel for the appellant submits that the respondent/plaintiff having not filed either an appeal or cross-objection under Order XLI Rule 22 CPC, against the finding recorded by the first appellate court relating to the attornment and having no relationship of landlord and tenant, the respondent/plaintiff cannot challenge the finding recorded by the first appellate Court in that regard. 14. I have considered the submissions advanced by the learned senior counsel appearing for the parties, and also perused the judgments and decrees passed by both the Courts below. I have also read the evidence with a view to decide the appeal finally in this Court so as to cut short the life of the litigation, which is already 21 years old, instead of remanding the same to the first appellate Court for giving a fresh decision. 15. Section 149 of the Mahomedan Law stipulates the three essentials to constitute a valid gift. They are - (i) a declaration of gift by the donor, (ii) an acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. When all these three conditions are fulfilled, the gift is complete. Section 150 of the Mahomedan Law provides that it is essential to the validity of a gift that there should be delivery of possession as the subject of the gift is susceptible of. When all these three conditions are fulfilled, the gift is complete. Section 150 of the Mahomedan Law provides that it is essential to the validity of a gift that there should be delivery of possession as the subject of the gift is susceptible of. Section 152 of the said Act provides that a gift of immovable property, of which the donor is in actual possession, is not complete, unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It also provides that a gift of immovable property, which is in the occupation of tenants, may be completed by a request by the donor to the tenants to attorn to the donee or by delivery of the title deed or by mutation in the revenue register or the landlord's sherista. 16. In the case in hand, the donor, namely, Md. Rafiul Haque, executed the gift deed (Exhibit-1), which has been registered under the provisions of the Indian Registration Act, 1908. There is no dispute in the case in hand relating to declaration of the gift by the donor and acceptance of the gift, expressed or implied, by or on behalf of the donee. The question, which has been raised, is whether there was delivery of possession. Admittedly, the suit property was in possession of the defendants, who were admittedly tenants under the donor, namely, Md. Rafiul Haque. The plain-tiff could also prove that the title deed, namely, the gift deed, has been delivered to the plaintiff, i.e. the donee, and her name has been mutated in the revenue records, which has been proved and marked as Exhibit-2. That being the position, the third essential condition to constitute a valid gift under the Mahomedan Law has also been proved by the plaintiff and hence, the first appellate Court has rightly decreed the suit of the plaintiff declaring her right, title and interest over the suit land. 17. The next question which requires determination is whether the first appellate Court was justified in passing a decree of eviction of the defendants as trespasser, upon holding that the plaintiff could not prove the attornment and there is no relationship of landlord or tenant. 18. Before proceeding further, the provisions of Order XLI Rule 22 and Rule 33 of the CPC may be noticed. 18. Before proceeding further, the provisions of Order XLI Rule 22 and Rule 33 of the CPC may be noticed. Sub-rule (1) of Rule 22 of Order XLI CPC provides that any respondent, though he may not have appealed from any part of the decree, may not only support the decree but also state that the finding against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate Court may see fit to allow. 19. Order XLI Rule 33 defines the power of the Court of appeal. It provides that the appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. It also provides that the appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. 20. Plain reading of the aforesaid provisions of Order XLI Rule 33 CPC amply makes it clear that the appellate Court is empowered to make whatever order it thinks fit, not only between the appellant and the respondent but also between a respondent and a respondent. 20. Plain reading of the aforesaid provisions of Order XLI Rule 33 CPC amply makes it clear that the appellate Court is empowered to make whatever order it thinks fit, not only between the appellant and the respondent but also between a respondent and a respondent. It empowers the appellate Court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief's to any of the respondents, as the case may require. The power conferred on the appellate Court under the said provision of law, however, is discretionary and cannot be exercised to nullify a decree, which has already attained its finality, having not been challenged in the higher forum. The appellate Court in exercise of the power conferred by Order XLI Rule 33 CPC, in an appropriate case, even grant a decree, even if a party to the appeal, who could have file the cross-objection under Order XLI Rule 22 has not done so. Reference in this regard may be made to a judgment passed by the Apex Court in Pannalal v. State of Bombay reported in AIR 1963 SC 1516 . 21. As discussed above, instant appeal has been preferred by the defendants challenging the judgment and decree passed by the first appellate Court. The first appellate Court having not discussed the entire evidences on record and also as without considering the provisions contained in Sub-section (2) of Section 5 of the 1972 Act recorded the finding that there was no attornment and hence there was no relationship of landlord and tenant, though the provisions of Sub-section (2) of Section 5 of the said Act would prevail upon the requirement of attornment under the provisions of the Transfer of Property Act, the 1972 Act being a special legislation, this Court normally should remand the appeal for fresh decision by the first appellate Court, based on the evidence available on record as well as the provisions of the 1972 Act, which has not been done in the instant case and instead this Court proceeded to perused the evidence available on record, apart from the provisions of the 1972 Act, so as to cut short the life of the litigation. Hence, it is in this circumstance, this Court proceeded to decide the appeal by exercising the power under Order XLI Rule 33 CPC. 22. Hence, it is in this circumstance, this Court proceeded to decide the appeal by exercising the power under Order XLI Rule 33 CPC. 22. To appreciate the question, which has been noticed above, I have gone through the evidence adduced by the parties, apart from the pleadings. As noticed above, the plaintiffs case is that the defendants were originally tenants under the original landlord, namely, Md. Rafiul Haque, who has donated the suit premises by way of gift deed dated 20th May, 1988 (Exhibit-1) in favour of the plaintiff and though the defendants paid the rent upto 31st March, 1991 to the original landlord, rents payable from 1st April, 1991 has not been paid. The defendants in the written statements have denied the relationship of the landlord or tenant and have set up the plea that they have acquired right, title and interests by virtue of purchase of possessory right vide deed dated 1st April, 1986 (Exhibit-Ka). The defendants, however, cannot claim right over the property on the basis of Exhibit-Ka, the same being not registered, though compulsorily registerable under the Transfer of Property Act as well as Registration Act. The defendants, who were examined as DWs-1 and 2, in their exanimation-in-chief have also though denied the relationship of the landlord and tenant between the original landlord, Md. Rafiul Haque and them, they, however, during cross-examination have admitted that they were monthly tenant under Rafiul Haque with rent of Rs. 200/- and not Rs. 400/-, as claimed by the plaintiff. The defendants, therefore, have admitted mat they were the tenants under the original landlord, namely, Md. Rafiul Haque. The defendants, namely, DWs-1 and 2, during cross-examination have also admitted that they knew about the transfer of the ownership by Md. Rafiul Haque in favour of the plaintiff by means of a gift deed. The said gift deed in fact was proved by the defendant No. 1 and marked as Exhibit-Cha. It is, therefore, evident that it was within the knowledge of the defendants that the ownership of the suit land has been transferred, by way of gift by Md. Rafiul Haque in favour of the plaintiff. 23. Sub-section (1) of Section 5 of the 1972 Act gives a protection to the tenant from eviction, subject to fulfillment of the conditions stipulated therein. Rafiul Haque in favour of the plaintiff. 23. Sub-section (1) of Section 5 of the 1972 Act gives a protection to the tenant from eviction, subject to fulfillment of the conditions stipulated therein. It provides that no order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays the rent to the full extent allowable under the Act or performs the conditions of the tenancy. Sub-section (4) of Section 5 provides that in case the landlord refuses to accept the lawful rent offered by his tenant, the tenant may within a fortnight of its becoming due, deposit in Court the amount of such rent together with process fees. Hence, a decree for ejectment of the tenant on the ground of defaulter cannot be passed by the Court or rent control authority, under the provisions of the 1972 Act, so long the tenant either pays the rent to the landlord lawfully due and within the time agreed upon or deposit the same in Court, as required under Sub-section (4) of Section 5 of the 1972 Act. It is an established position of law that in a suit for eviction of a tenant on the ground of defaulter, the burden lies on the defendant/tenant to prove that he has either paid the rent to the landlord within the time allowed or deposited the same in Court as required under Sub-section (4) of Section 5 of the said Act. 24. Sub-section (2) of Section 5 of the aforesaid Act provides that the transfer of interest of the landlord in the house shall not affect the right of the tenant provided the tenant pays rent allowable under the Act to the transferee. Hence, protection from eviction as stipulated in Sub-section (1) of Section 5 would be available to the tenant only if the tenant pays the rent allowable under the provisions of the said Act to the transferee landlord, provided of course, the tenant had the knowledge about the transfer. One cannot expect a tenant that he should search for the landlord for payment of the rent when the tenant does not know about the transfer. 25. In the instant case, as discussed above, the defendant Nos. One cannot expect a tenant that he should search for the landlord for payment of the rent when the tenant does not know about the transfer. 25. In the instant case, as discussed above, the defendant Nos. 1 and 2 (DWs-1 and 2) in their deposition, in clear terms have admitted that they had the knowledge of the transfer, i.e. gift deed executed by Md. Rafiul Haque in favour of the plaintiff and hence they had the knowledge about transfer of the ownership of the land together with the house standing thereon by the original landlord Md. Rafiul Haque in favour of the transferee landlord, namely, the plaintiff. It has also come out from the evidence of DWs-1 and 2 that they have not paid the rent either to the original landlord, namely, Md. Rafiul Haque, or to the plaintiff with effect from 1st April, 1991. Since the burden to prove that they are not defaulters is on the defendants, which burden they could not discharge and in fact have admitted that rent from 1st April, 1991 was not paid, the defendants are defaulter in respect of payment of rent. 26. In view of what has been discussed above, I am of the view that the first appellate Court was not justified in holding that there was no attornment, such attornment having not been required under the provisions of the 1972 Act, more so when the defendants had knowledge about the transfer. The defendants having admitted that they were tenants under Mr. Rafiul Haque, the original landlord and failed either to pay the rent to the transferee landlord, i.e. plaintiff, or deposit the same in Court, on being refused to accept, so as to get protection from eviction as stipulated in Sub-section (1) of Section 5 of the 1972 Act, they are not protected from eviction and hence, liable to be evicted. 27. In view of the aforesaid discussion, the question of maintainability of the suit, being hit by Section 34 of the Specific Relief Act, 1963, need not be gone into in the present case and consequently, the judgment passed by the Apex Court in Vinay Krishna (supra) and by this Court in Nani Bhushan Dey (supra) have not been discussed. 28. The appeal is accordingly dismissed. 29. The parties, however, are directed to bear their own costs throughout. The Registry is directed to send down the records.