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2015 DIGILAW 213 (GAU)

RABINDRANATH NATH v. RANI CHANDA

2015-02-24

HRISHIKESH ROY

body2015
ORDER (ORAL) Heard Mr. S.P. Choudhury, the learned counsel appearing for the petitioners, whose predecessor Rajendra Lal Nath filed the Title Suit No.26/2005. Also heard Mr. F.U. Borbhuyan, the learned counsel appearing for the respondents, whose father Baroda Kanta Chanda was the original defendant. 2. The Title Suit No.26/2005 was filed for ejectment of the defendants by contending that the defendants have defaulted in payment of rent and the suit premises is required for bonafide use of the landlord. In the WS the defendants denied that they are monthly tenants under the plaintiffs. It was further pleaded that after the father of the defendants Baroda Kanta Chanda died, the defendants’ widowed mother Nikunjabala Chanda with due permission from Amalendu Nath, the Manager of the plaintiffs, constructed the suit house at her own expense, on land measuring 6 kathas 2 chataks covered by Dag No.575 of Patta No.183 and Dag No.578 of Patta No.126 and since then, the defendants are residing as permissive occupier. The defendants claimed that they were paying municipal tax to the Lala Town Committee against the holding number issued to them and land revenue for the occupied land is being paid by the defendants. 3. On the basis of the above pleadings, the learned Trial Court framed the following issued:- “(i) Whether the suit is maintainable? (ii) Whether the suit is barred by waiver, estoppel and acquiescence? (iii) Whether the suit is barred by limitation? (iv) Whether the plaintiffs have got right, title and possession over the suit land? (v) Whether the suit is attracted by Urban Areas Tenancy Act? (vi) To what relief, the parties are entitled?” 4. The plaintiffs’ side examined 2(two) witnesses, whereas 1(one) witness was presented from the defendants’ side. 5. The learned Civil Judge (Jr. Division) No.1, Hailakandi, held that the plaintiffs failed to prove that the defendants are their tenants and observed that the defendants are occupying the suit property by paying municipal tax to the Lala Town Committee and therefore the defendants are not evictable tenants under the plaintiffs. 6. But when the Title Appeal No.12/2007 was filed by the aggrieved plaintiffs, the learned Civil Judge (Sr. 6. But when the Title Appeal No.12/2007 was filed by the aggrieved plaintiffs, the learned Civil Judge (Sr. Division), Hailakandi, considered the written agreement dated 21st Falgun, 1363 BS (Exbt.-2) and through the judgment dated 21.05.2007 (Annexure-8) declared that the defendants failed to pay rent for 32 months and primarily on this ground, the ejectment of the defendants was ordered by the Appellate Court. 7. When the ejectment decree was then challenged by the plaintiffs through the CRP No.300/2007, the same was remanded on 22.01.2008 (Annexure-9) with the observation that the evidence in the case were not discussed and therefore direction was issued for a fresh decision by the Appellate Court, after considering the evidence on record. 8. On remand, the evidence in the Title Appeal No.12/2007 was taken into account by the learned Civil Judge, Hailakandi, who found that the plaintiffs could prove their title over the suit property on the basis of the sale deed (Exbt.-1). However the Court didn’t find that any rent was payable or recovered from the defendants. Since the holding number for the suit property was in the name of the defendants and they proved payment of the municipal tax, the defendants construction was found to be with due permission of the land owners. 9. Consequently after considering the evidence of PW-2 Samiran Nath, the Court opined that the case falls under the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (hereinafter referred to as the “1955 Act”). Moreover as the defendants’ mother Nikunjabala Chanda constructed the suit house on the basis of oral permission granted by Amalendu Nath, the relationship of landlord and tenant was not found under the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as the “1972 Act”). Therefore since the defendants themselves constructed the suit structure on the plaintiffs’ land and they are protected under Section 5 of the 1955 Act, the plaintiffs’ appeal was dismissed and the dismissal decree of the learned Civil Judge (Jr. Division) was upheld by the Appellate Court. 10. Assailing the legality of the impugned orders, Mr. S.P. Choudhury, the learned counsel submits that the plaintiffs’ title to the land was proved and admitted by the defendants. Moreover, the Exhibit-2 document was the tenancy agreement on the basis of which the defendants’ status as monthly tenant can be gathered. Division) was upheld by the Appellate Court. 10. Assailing the legality of the impugned orders, Mr. S.P. Choudhury, the learned counsel submits that the plaintiffs’ title to the land was proved and admitted by the defendants. Moreover, the Exhibit-2 document was the tenancy agreement on the basis of which the defendants’ status as monthly tenant can be gathered. Therefore, the logic of application of the 1955 Act to protect the defendants from eviction, is questioned by the petitioners (plaintiffs). 11. Representing the respondents, Mr. F.U. Borbhuyan, the learned counsel submits that the suit structure on the plaintiffs’ land was constructed by the defendants and therefore as permissive occupiers, they are eligible for protection under Section 5 of the 1955 Act. Projecting that the land revenue as well as municipal tax were borne by the defendants and the municipal holding number for the occupied property was in the defendants’ name, the counsel argues that the dismissal of the ejectment suit is duly supported by the evidence in the case. 12. In the present matter, the defendants do not deny the title of the plaintiffs over the suit land. But they contend that they constructed the occupied house with their own fund with due permission of the plaintiffs and therefore they are entitled for protection under the 1955 Act. The PW-1 Nirmalendu Nath proved the sale deed (Exbt.-1) through which his father Rajendra Lal Nath purchased the suit land. He also testified that in his presence, the tenancy agreement (Exbt.-2) was executed, by the father of the defendants. But in his cross-examination, the witness stated that he was 8(eight) years old when the Exhibit-2 document was written on 21st Falgun, 1363 BS. Moreover, since the PW-1 admitted that they had not taken any permission from the Town Committee, the plaintiffs’ claim for construction was disbelieved. Significantly this witness was unaware that the holding number of the suit property was recorded in the name of the defendants’ mother and after her death, in the name of the defendants since 1975. 13. The PW-2 is Samiran Nath, is a cousin brother of the plaintiff Nos.1, 2 and 3. Although the witness stated that the defendants were irregular in payment of rent, the PW-2 was unable to say by whom and when the rent for the suit premises is collected. The witness was also unaware of the amount of rent purportedly payable by the defendants. Although the witness stated that the defendants were irregular in payment of rent, the PW-2 was unable to say by whom and when the rent for the suit premises is collected. The witness was also unaware of the amount of rent purportedly payable by the defendants. 14. It appears from the notice dated 09.08.1976 issued by the Lala Town Committee to Nikunjabala Chanda (mother of the defendants) that she was asked to deposit the municipal tax against the Holding No.103. The Exhibit-Kha indicates that municipal tax was paid by Nikunjabala Chanda as the occupier of the Holding No.144. The Town Committee through Exhibit-Ga approved the mutation transfer of the holding number standing in the name of Nikunjabala Chanda in favour of her daughter i.e. the defendant No.1 Kalyani Chanda. 15. The Appellate Court noted from the evidence that the municipal tax for the occupied property was being tendered by the defendants and that the holding number is in their name. It was also found that the plaintiffs were never issued any holding number for the suit property although the land is owned by them. Most importantly the Court found that monthly tenancy under the 1972 Act was not proved and on the other hand it was concluded that the occupied premises was constructed by the defendants themselves. Since the PW-2 was unsure about the rental arrangement, the Court did not accept the Exhibit-2 agreement. Proceeding with this understanding, as the occupied house was found to be constructed by the defendants with verbal permission of the land owner, they were considered as protected occupier under Section 5 of the 1955 Act and on this basis, the dismissal of the suit by the Trial Court was upheld by the Appellate Court. 16. I have noted the arguments of the rival counsel and have carefully considered the basis on which concurrent judgment(s) were rendered by both Courts. In my opinion, the view taken by the Appellate Court is based on the evidence in the case and the decision doesn’t suffer from any jurisdictional error. The evidence of the witnesses show that the defendants had constructed the occupied property themselves after securing permission from the land owner and therefore no perversity is found with the impugned judgment. Therefore merit is not found in this Revision petition and the same is accordingly dismissed. 17. The evidence of the witnesses show that the defendants had constructed the occupied property themselves after securing permission from the land owner and therefore no perversity is found with the impugned judgment. Therefore merit is not found in this Revision petition and the same is accordingly dismissed. 17. The Registry is directed to return the LCR accordingly along with a copy of this order.