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2015 DIGILAW 358 (GAU)

Sarat Ch Gogoi v. Anju Dolakasharia

2015-03-24

HRISHIKESH ROY

body2015
ORDER (ORAL) Heard Mr. A. Barkataki, the learned counsel appearing for the petitioner (plaintiff). Also heard Mr. HK Baishya, the learned counsel appearing for the respondents who are the legal heirs of original defendant No.1, Dilip Dolakasharia. 2. The T.S. No.48/2007 was filed by the petitioner for eviction of the predecessor of the respondents on the ground of rent default, sub-letting the property to the defendant No.2 Deepak Saikia and bonafide requirement. The plaintiff pleaded that he is the owner of the Assam Type house on land at Block No.14 of Jorhat Town and he claimed that the defendant was a monthly tenant of the house for which rent of Rs.1750/- P.M. is payable to the landlord. Since the rent from December, 2001 onwards wasn’t paid, the defendant No.1 became a defaulter and the tenancy was then terminated w.e.f. 31.10.2002, through Advocate’s notice dated 30.9.2002 (Exhbt.3). With these pleadings the suit was filed for ejectment of the defendant and for arrear rent. 3. The 2nd defendant did not contest the case and the stand of the 1st defendant in his W.S. is that the plaintiff is not the owner of the suit premises and that the defendant No.1 is not a tenant under the plaintiff. The defendant claimed to be a permissive occupier as caretaker, under Smti Bidyawati Gogoi (mother of the plaintiff). The possibility of the property being purchased eventually by the 1st defendant from Bidyawati Gogoi was also pleaded in the W.S. The contesting 1st defendant accepted that at times, he tendered rent to the plaintiff on behalf of the defendant No.2. 4. On the basis of the pleadings of the parties, the following issues were framed in the suit:- 1) Whether there is cause of action for the suit? 2) Whether the suit is bad for non-joinder of necessary parties? 3) Whether the plaintiff is the owner of the suit premises? 4) Whether the defendant No.1 is the monthly tenant under the plaintiff? 5) Whether the plaintiff is entitled to a decree for eviction of the defendant No.1 from the suit premises? 6) To what relief the parties are entitled to? 5. From the plaintiff’s side, four witnesses were adduced and documentary evidence by way of the sale deed dated 13.1.1992 (Exhbt.1) and the tenancy termination notice dated 30.9.2002 (Exhbt.3) along with money-order receipts i.e. Exhbt.6, 7 & 8 were introduced. 6.1. 6) To what relief the parties are entitled to? 5. From the plaintiff’s side, four witnesses were adduced and documentary evidence by way of the sale deed dated 13.1.1992 (Exhbt.1) and the tenancy termination notice dated 30.9.2002 (Exhbt.3) along with money-order receipts i.e. Exhbt.6, 7 & 8 were introduced. 6.1. The learned Munsiff No.2, Jorhat discussed the evidence on record and taking into account the sale deed dated 13.1.1992, executed by Bidyawati Gogoi in favour of her son Sarat Chandra Gogoi (Plaintiff), the ownership of the suit property was declared in plaintiff’s favour. 6.2. On the important issue of whether the defendant No.1 is the monthly tenant under the plaintiff (issue No.4), the Trial Court considered the evidence of PW.2 Aditya Gogoi and PW.3 Badan Ch. Gogoi and found from their testimony that originally Bidyawati Gogoi was the landlady for the suit premises. But after she executed the sale deed dated 13.1.1992 (Exhbt.1), the plaintiff became the owner and thereafter the defendant No.1 became a tenant under the plaintiff. 6.3. The Court also considered the money-order receipts (Exhbt.6, 7 & 8) and the report of the Forensic Science Laboratory (in short ‘the FSL’) on the handwriting of the defendant in the concerned exhibits. The FSL report to the effect that the specimen writings were given by the contesting defendant in a detached form with attempt to disguise his handwriting was noted by the Court. The peculiar tactic of the 1st defendant, adopting different writing styles while signing the W.S., vokalatnama, affidavit, etc. in the Court, also attracted the Trial Court’s attention. The Court relied on the oral testimony of PW.2 & PW.3 and observed that the defendant No.1 is a practicing lawyer of Jorhat Bar and that he used to receive his letter in the Bar address and therefore he must have received the tenancy termination notice from the plaintiff in his usual address. 6.4. The plea of the contesting defendant that he was entrusted to take care of the premises by Bidyawati Gogoi was disbelieved by the Judge since the landlady’s own daughter and son-in-law resided in the same locality and they were the natural option, for the absentee landlady. Moreover the defendant never objected to deny his status in pursuant to the tenancy termination notice. 6.5. Moreover the defendant never objected to deny his status in pursuant to the tenancy termination notice. 6.5. Since the Exhbt.6, 7 & 8 indicates that rent was tendered by the defendant No.1 to the plaintiff, the relationship of landlord-tenant between the two was held to be established and accordingly the issue No.4 was decided in plaintiff’s favour. 6.6. As the plaintiff could prove his title on the basis of the sale deed dated 13.1.1992 (Exhbt.1), executed by his mother, the non-joinder of any other party as plaintiff was considered inconsequential and accordingly after declaring the issue Nos.5 & 6 in favour of the plaintiff, the ejectment of the defendants was ordered with further direction for payment of arrear rent and compensation by the contesting defendant to the plaintiff. 7.1. The aggrieved defendant then filed the T.A. No.10/2008 and the learned Civil Judge, Jorhat reversed the decree through his judgment dated 5.12.2008 (Annexure-5). 7.2. The Appellate Court primarily concentrated on issue No.4 and took note of the money-order receipts (Exhbt.6, 7 & 8), whereby the defendant No.1 tendered rent to the plaintiff. But since the handwriting expert failed to determine conclusively that the signatures on the money-order receipts were made by the person, whose specimen handwritings were furnished, the documentary evidence was declared to be unacceptable. 7.3. After discarding the documentary evidence, the oral evidence of PW.2 Aditya Gogoi and PW.3 Badan Ch. Gogoi were considered but they were summarily rejected with the observation that their testimony does not inspire confidence of the Appellate Court. It was then declared that the plaintiff failed to prove that the defendant No.1 is a tenant under him in respect of the suit premises and accordingly this key issue was answered against the plaintiff. 7.4. Because of the above conclusion, the other issues received only perfunctory consideration and consequently the defendants’ appeal was allowed and the Trial Court’s judgment was set aside. Therefore the aggrieved plaintiff has filed this Revision Petition. PLAINTIFF’S ARUGMENTS 8.1. Assailing the legality of the Appellate Court’s judgment, Mr. A. Barkataki, the learned counsel submits that the oral testimony of PW.2 Aditya Gogoi, who was a neighbouring witness as well as the testimony of PW.3 Badan Ch. Therefore the aggrieved plaintiff has filed this Revision Petition. PLAINTIFF’S ARUGMENTS 8.1. Assailing the legality of the Appellate Court’s judgment, Mr. A. Barkataki, the learned counsel submits that the oral testimony of PW.2 Aditya Gogoi, who was a neighbouring witness as well as the testimony of PW.3 Badan Ch. Gogoi, who is the son-in-law of Late Bidyawati Gogoi should have received due weightage from the Appellate Court, as these two witnesses clearly stated that the defendant No.1 was a tenant under the plaintiff, after he purchased the land from his mother Bidyawati Gogoi. On the other hand, the PW.3 Badan Ch. Gogoi testified that his mother-in-law Late Bidyawati Gogoi never told that the defendant No.1 was entrusted to look after the suit property or that she would sell the same to the contesting defendant. But this relevant testimony was summarily brushed aside by the Court. 8.2. The petitioner submits that the expert opinion on the handwriting of the defendant in the money-order receipts (Exhbt.6, 7 & 8) was wrongly construed because the Appellate Court overlooked the fact that the defendant No.1 attempted to disguise his handwriting by writing in detached form and that the witness also altered his writing patterns in the Court documents. Accordingly it is argued that the Appellate Court ignored vital evidence on clever tricks of the contesting defendant and this has resulted in a perverse decision. 8.3. In this case the defendant No.1 didn’t adduce any evidence to prove that he was a permissive occupier to look after the suit premises. Moreover the defendant No.1 in his W.S. admitted that rent was tendered by him to plaintiff but he claimed to do so, on behalf of the defendant No.2. As the defendant No.2 was not inducted as a tenant by the plaintiff, it is argued by the petitioner that the Appellate Court should have accepted the landlord-tenant relationship, on the basis of the available evidence and the impugned decision is argued to be inconsistent with the evidence on record. DEFENDANTS’ ARUGMENTS 9.1. Mr. HK Baishya, the learned counsel representing the successors of the original defendant however argues for dismissal of the suit. According to him, the tenancy between the plaintiff and the defendant No.1 was not proved through any independent witness and therefore the counsel submits that the conclusion reached by the Appellate Court was just and proper. 9.2. DEFENDANTS’ ARUGMENTS 9.1. Mr. HK Baishya, the learned counsel representing the successors of the original defendant however argues for dismissal of the suit. According to him, the tenancy between the plaintiff and the defendant No.1 was not proved through any independent witness and therefore the counsel submits that the conclusion reached by the Appellate Court was just and proper. 9.2. The respondents also contend that the plaintiff never demanded any rent from the defendant No.1. Moreover although the plaintiff claims that he is the landlord since long on the basis of the sale deed dated 13.1.1992 (Exhbt.1), he could produce only 3 money-order receipts and since the handwriting of the defendant No.1 on the money-order receipts were not conclusively proved through Forensic Experts, the Trial Court could not have concluded that the defendant No.1 is a tenant under the plaintiff, for the suit premises. 9.3. According to the respondents rent was tendered through money-order to the plaintiff only on behalf of the defendant No.2, who was occupying a portion of the suit premises and such tendering of rent by the contesting defendant, doesn’t amount to acceptance of the plaintiff as the landlord for the suit premises, by the defendant No.1. DISCUSSION 10. The sale deed executed by Bidyawati Gogoi in favour of her son Sarat Chandra Gogoi (Plaintiff) on 13.1.1992 (Exhbt.1) shows that an Assam Type house with four rooms with latrine and bath room, kitchen and store room were sold to the son and the zamabandi confirms that the plaintiff’s name was incorporated in respect of the suit property, in the revenue records. 11. The money-order receipts (Exhbt.6, 7 & 8) produced by the plaintiff bears close scrutiny and their contents are extracted for ready reference:- In Exhbt.6 it was written in Assamese that “Shradha laba. November mahor bharato dukhan money order kori diso.” (Please accept my regards. Then rent for November is being sent through two money-orders. In Exhbt.7 it was written that “October mahor bharato dukhan money order kori diso. Deri hol. Beya napaba. Nischay sakolere bhal.” (the rent for October is sent through two money-orders. It is delayed. Please don’t mind. Hope everyone is well.) and in Exhbt.8 it was written that “December mahor bharato dukhan money order kori pathai diso” (the rent for December is being is sent through two money-orders). Deri hol. Beya napaba. Nischay sakolere bhal.” (the rent for October is sent through two money-orders. It is delayed. Please don’t mind. Hope everyone is well.) and in Exhbt.8 it was written that “December mahor bharato dukhan money order kori pathai diso” (the rent for December is being is sent through two money-orders). When we consider the above noting in the Exhbt.6, 7 & 8, they show that the sender is tendering rent to the plaintiff for the concerned months with apologies for delayed payment in Exhbt.7. What is significant here is that the sender doesn’t say that the rent is being tendered on behalf of another and the writing on these exhibits clearly show that the amount sent through money-order was for tendering rent to the plaintiff. But the question is whether these money-order receipts, clinch the issue No.4. 12. The report furnished on 3.10.2007 by the Scientific Officer of the FSL indicates that the specimen writings were written in a detached form which indicates an attempt to disguise the writings by the contesting defendant. But the expert opined that if extensive written specimen is furnished, a definite opinion on the handwriting in the money-order receipts (Exhbt.6, 7 & 8), can certainly be given. 13. However the Appellate Court abruptly discarded the documentary evidence without considering that the defendant No.1 while providing specimen handwriting had attempted to disguise his writing. This vital aspect of a non-bonafide attempt of the contesting defendant, who tried to mislead the Court by writing in different styles in different documents, should have been noticed by the Appellate Court, as was noticed by the Trial Judge. But without considering the attempted disguise, which was also reflected in the Forensic Expert’s Report, the documentary evidence through Exhbt.6, 7 & 8 was summarily discarded. According to me, this amounts to ignoring of relevant evidence, by the Appellate Court. 14. From the oral evidence of PW.2 and PW.3, the landlord-tenant relationship between the plaintiff and the defendant No.1 is clearly established and since the defendant No.1 failed to adduce any evidence of his own to show that he was care taker of the suit premises (on being permitted by Late Bidyawati Gogoi), the contrary conclusion reached by the Appellate Court, is held to be a perverse conclusion. 15. It is important to note that PW.3 Badan Ch. 15. It is important to note that PW.3 Badan Ch. Gogoi had married the eldest daughter of Bidyawati Gogoi and the daughter and the son-in-law were residing at Jorhat near the suit premises. The PW.2 Aditya Gogoi was also relation of Late Bidyawati Gogoi and he was also residing in the neighbourhood. Both these witnesses testified that the defendant No.1 was a tenant firstly under Late Bidyawati Gogoi and subsequently under her son Sarat Chandra Gogoi (Plaintiff), after he purchased the suit property on 13.1.1992. But despite the failure of the defendant No.1 to adduce any evidence to prove his caretaker status in respect of the suit premises, an erroneous finding without consideration of relevant evidence was given on issue No.4. This according to me has led to failure by the Appellate Court to exercise its due jurisdiction. 16. If any caretaker was needed to look after the property, the owner could have entrusted any of her near relations who were residing in the neighbourhood and if we consider the issue from this perspective, in the absence of any contrary proof, the occupation of the premises by the defendant No.1 is more likely as a tenant and not as caretaker. 17. One can examine this issue from another angle. The Exhbt.6, 7 & 8 show tendering of rent to plaintiff and it is clearly established that plaintiff is the owner of the suit house. He has no other rental property. Therefore it is more logical to conclude that plaintiff was acknowledged to be the landlord through Exhbt.6, 7 & 8 by the sender. Furthermore since apology was tendered for delayed tendering of rent, the amount must have been sent on the sender’s account and not on behalf of another. 18. In this case, the Appellate Court failed to discuss all the issues arising in the Appeal and decided the matter by considering the Issue Nos.4. This was a faulty adjudicatory process and the same has resulted in failure of the Appellate Court to discharge its legal responsibility, under Order 41, Rule 31 of the C.P.C. 19. On the other hand, if the Trial Court’s order is analysed, I find that all the relevant evidence was logically considered and appropriate finding on each of the issues was given. On the other hand, if the Trial Court’s order is analysed, I find that all the relevant evidence was logically considered and appropriate finding on each of the issues was given. The ejectment decree was passed on the ground of rent default and I find that the reversal of the said Trial Court’s decree by the Appellate Court through a perfunctory exercise, was not legally justified. 20. The oral testimony of the PW.1, PW.2 & PW.3 were consistent and revealed that the defendant No.1 was a tenant under the plaintiff and their testimony could not be shaken by the other side. Moreover the contesting defendant being a caretaker of the suit premises was never proved by him and yet the Trial Court’s verdict was reversed without any cogent evidence. Therefore the impugned decision in the T.A. No.10/2008, rendered by the Civil Judge, Jorhat is held to be perverse and the same is accordingly quashed. The Revision Petition is therefore allowed by upholding the ejectment decree dated 12.2.2008 of the learned Trial Judge. The parties will bear their own cost. 21. The Registry should return back the LCRs to the concerned Court with a copy of this order.