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2015 DIGILAW 257 (GAU)

Laxmi Devi Mahato v. Meghu Rai

2015-03-03

HRISHIKESH ROY

body2015
JUDGMENT : Hrishikesh Roy, J. 1. Heard Mr. PK Deka, the learned counsel appearing for the petitioners, whose predecessor Late Rajendra Mahato filed the T.S. No. 30/1992 for ejectment of the defendant. Also heard Mr. SP Roy, the learned counsel appearing for the respondent/defendant. Claiming to be the owner of a Goru Khatal (cow shed) and describing the defendant to be a tenant for the cow shed at a monthly rate Rs. 200/- P.M., the plaintiff sought ejectment on the ground that the defendant defaulted in paying rent since 1.8.1989. The plaintiff's bona fide requirement was also pleaded for eviction. 2. In the additional W.S., the defendant denied the existence of landlord-tenant relationship between the parties and further claimed that the plaintiff is not the owner of the cow shed and that it was constructed by the defendant himself. Therefore the obligation to pay rent to the plaintiff was denied by the defendant. 3. On the basis of the above pleadings, the following 8 issues were framed by the learned Civil Judge (Jr. Divn.), No. 1, Guwahati: (1) Whether there is a cause of action for the suit? (2) Whether the suit is barred by limitation? (3) Whether there is a tenant-landlord relationship between the parties? (4) Whether the defendant is a defaulter? (5) Whether the plaintiff has bona fide requirement for the suit premises? (6) Whether the plaintiff has right, title, interest over the suit land? (7) Whether the plaintiff is entitled to a decree as prayed for? (8) To what other relief/reliefs the plaintiff is entitled? 4. The learned Trial Court considered the Issue Nos. 2, 3 & 6 to be inter linked and discussed the same analogously. On the plea of the defendant that the cow shed belongs to Ajit Kumar Singh, the Court found that the defendant failed to produce any evidence. On the 3rd issue of landlord-tenant relationship, the Trial Court after considering the evidence of the D.W. 1, D.W. 2 & D.W. 3, decided this issue in the negative i.e. against the plaintiff. 5. Proceeding then to examine the 4th issue of rent default, the Trial Court held that the defendant is not paying the rent to anyone although he is occupying the house and on this basis only, the defendant was declared to be defaulter. 6. 5. Proceeding then to examine the 4th issue of rent default, the Trial Court held that the defendant is not paying the rent to anyone although he is occupying the house and on this basis only, the defendant was declared to be defaulter. 6. Consequently although the bona fide requirement was not proved, on the basis of the decision on the other issues, the decree of ejectment was granted through the judgment dated 9.12.2003 (Annexure-2) in the T.S. No. 30/1992, by the learned Civil Judge (Jr. Divn.), No. 1, Guwahati. 7. The aggrieved defendant then filed the T.A. No. 5/2004, where the Appellate Court treated the Issue No. 3 to be the vital issue in the case. Here the Court held that the landlord-tenant relationship is not proved between the two contesting parties. As this key issue was answered against the plaintiff, the Appellate Court observed that the decree for rent default could not have been passed against the defendant and accordingly the ejectment decree was reversed and the Title Suit was dismissed by the learned Civil Judge, (Sr. Divn.), No. 3, Kamrup, Guwahati. 8. Assailing the legality of the Appellate Court's verdict, Mr. PK Deka, learned counsel submits that a cryptic order was recorded by the Appellate Court only on the basis of the Issue No. 3, whereas the Court was obliged under Order 20, Rule 5 of the C.P.C. to give findings on each issue. 9. The petitioner contends that in ejectment suits under the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as 'the Rent Act'), title is not relevant for a landlord-tenant relationship and yet casual findings were recorded by the two Court's on the Issue No. 3. 10. Referring to the evidence of D.W. 2 Ramlal Roy, who in his cross-examination stated that "it is not a fact that the defendant has stopped paying rent to the plaintiff", Mr. Deka argues that from this evidence, the relationship of landlord-tenant is established and therefore the decision on the Issue No. 3 is contended to be a perverse decision. 11. Appearing for the respondent (defendant), Mr. SP Roy, learned counsel refers to the plaint to project that there is no mention of the due date when the rent was payable under the tenancy claimed by the plaintiff. 11. Appearing for the respondent (defendant), Mr. SP Roy, learned counsel refers to the plaint to project that there is no mention of the due date when the rent was payable under the tenancy claimed by the plaintiff. Moreover although the rent default since 1.8.1989 was alleged in the suit filed in the year 1992, the arrear rent was not claimed in the case. 12. Projecting on the inconsistency in the evidence of P.W. 1 Rajendra Mahato on the boundary of the suit property, which doesn't tally with the description in the schedule to the plaint, Mr. SP Roy submits that the plaintiff himself was unaware of the location of the cow shed and accordingly it is argued that the Trial Court committed a vital error, in issuing the ejectment decree. 13. The respondent/defendant argues that when the landlord-tenant relationship is not established in an ejectment suit and the defendant claimed that one Ajit Kr. Singh was the landlord, the burden shifts to the plaintiff and the ejectment suit could not have been decreed otherwise, for non-payment of rent to the plaintiff. Moreover from the testimony of the P.W. 1, Advocate Mr. SP Roy submits that although initially the plaintiff indicated that he was unaware of Ajit Kr. Singh and his two brothers, subsequently in the cross-examination, this witness acknowledged Ajit Kr. Singh as the grandson of late Baijnath Prasad, who was the owner of the adjacent land and moreover the plaintiff was litigating with Ajit Kr. Singh in a Ryati Khatian case. 14. It can be seen from the plaint itself that the suit was valued for 12 months' rent and arrear rent was not claimed, although default of rent since 1.8.1989 was pleaded. Moreover in the plaint there was no mention of the due date, when the rent was payable. The plaintiff as P.W. 1 admitted that there were 18 persons who were occupying various houses in the concerned land and more significantly the evidence revealed that none of them were tendering rent to the plaintiff. It is also important to notice that the boundary given of the suit premises in the evidence of P.W. 1 did not correspond to the boundary given in the plaint. 15. The plaintiff's familiarity with Ajit Kr. Singh, the grandson of late Baijnath Prasad (despite the original denial), damages the credibility of his evidence. It is also important to notice that the boundary given of the suit premises in the evidence of P.W. 1 did not correspond to the boundary given in the plaint. 15. The plaintiff's familiarity with Ajit Kr. Singh, the grandson of late Baijnath Prasad (despite the original denial), damages the credibility of his evidence. On the other hand the defendant claims that he paid rent to Ajit Kr. Singh. Therefore the decision on the Issue No. 3 that landlord-tenant relationship does not exist between the plaintiff and the defendant is found to be based on relevant materials and on this count, no perversity is noticed in the concurrent findings given by the Court. 16. Proceeding on the above basis, when the defendant is held to be not a tenant under the plaintiff, to further decide that he defaulted in paying rent to the plaintiff, in my view is a finding which suffers perversity and therefore the decision of the Trial Court is found to be unsustainable. 17. There are vital inconsistencies in the evidence of P.W. 1, who at one stage testifies about being unfamiliar with the grandson of Baijnath Prasad and subsequently admitted to litigating with his grandsons i.e. Ajit Kr. Singh and his brothers on khatian rights. Because of this and other omissions like not mentioning the due date in the plaint, multiple occupiers who didn't pay rent to the plaintiff and the plaintiff's own uncertainty about the suit property as revealed by his testimony, I am of the view that the plaintiff himself failed to prove his case. 18. In so far as the evidence of D.W. 2 Ramlal Roy is concerned, he clearly testified in his cross-examination that the plaintiff is not the owner of the suit land. Therefore I hold that the case pleaded by the defendant in his W.S. was established on the basis of the available evidence and in such circumstances, the view taken by the Appellate Court is found to be justified. On the other hand since jurisdictional error is noticed in the Trial Court's judgment, the Revision Petition is dismissed by upholding the decision of the Appellate Court. With the above order, the case is disposed of, without any order on cost. The Registry should return back the LCR alongwith a copy of this order.