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2015 DIGILAW 569 (GAU)

Phulani Bala Das v. Upen Das

2015-05-14

HRISHIKESH ROY

body2015
JUDGMENT : Heard Mr. A.C. Sarma, the learned Counsel appearing for the petitioner, who was the defendant in the Title Suit No.64/2003. Also heard Mr. Sheeladitya the learned Counsel appearing for the respondent (plaintiff). 2. The respondent filed an ejectment suit under the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as “the Rent Act”) by contending that the defendant failed to pay the rent from the month of March 2002, for the two rooms let out to her. The plea of bona fide requirement is also projected with the plea for additional space for the two growing sons of the plaintiff. The plaintiff claimed ownership of the suit property on the basis of the Will dated 20.7.1983 executed by his aunt Bulu Das, W/o Jogen Das @ Jogendra Keot, who as a Rayati Khatiandar under the Kamakhya Devalaya, was in possession of the suit property, where he built two Assam Type Houses. The two rooms in the first Assam Type House was let out to the defendant, through monthly tenancy @Rs.800/- P.M. 3. In the W.S., the defendant claimed that her husband Dhanai was adopted by Late Jogen Das and Smt. Bulu Das and after her husband Dhanai died on 31.5.1994, she along with her son Shankar Das inherited the property of Late Jogen Das and Smt. Bulu Das, from her husband Dhanai, who was allegedly adopted by the land owner. On this basis, the defendant denied that she has obligation to pay any rent and instead made a counter-claim of being the owner of the suit property. Against this counter-claim, the plaintiff filed his W.S. 4. On the basis of the pleadings of the parties, the learned Trial Judge framed the following Issues : (a) Whether the suit as well as the counterclaim is maintainable in its present form ? (b) Whether there is any cause of action for the suit and counterclaim ? (c) Whether the plaintiff or the defendant has the right, title and interest over the suit land? (d) Whether the counterclaim is barred by limitation ? (e) Whether Late Dhanai Das was the adopted son of the original owner of the suit land ? (f) Whether the defendant is a tenancy under the plaintiff? (g) Whether the defendant is a defaulter and is liable to be evicted and whether the plaintiff is in bona fide need of the suit room? (e) Whether Late Dhanai Das was the adopted son of the original owner of the suit land ? (f) Whether the defendant is a tenancy under the plaintiff? (g) Whether the defendant is a defaulter and is liable to be evicted and whether the plaintiff is in bona fide need of the suit room? (h) Whether the parties are entitled to the reliefs as prayed for? 5. To prove his case the plaintiff adduced 2 witnesses and exhibited 6 documents whereas the defendant’s side also adduced 2 DWs and exhibited 4 documents. 6.1 The learned Civil Judge (Jr. Division) No.3, Guwahati firstly held that the suit is maintainable. The Court then observed that the defendant could not say when her husband Dhanai was adopted by Jogen Das. Furthermore since Jogen Das’s wife Bulu Das executed the Will on 20.7.1983 in plaintiff’s favour, which was probated on 20.12.1997 by the nephew Upen Das, the counter-claim of the defendant was held to be not maintainable. 6.2 On the 3rd Issue relating to the plaintiff’s claim to title over the suit property, the Trial Court noted that after the death of Jogen Das, his wife Bulu Das succeeded to the suit property and during her lifetime, she made a Will in favour of her nephew Upen Das (plaintiff) and this Will was probated by the plaintiff on 20.12.1997 through the Probate Title Suit No.1/1995. Therefore the plaintiff by virtue of his aunt’s Will and the probate thereof, became the owner of the property of Late Jogen Das. 6.3 The claim of the defendant is that her husband Dhanai was the adopted son of the original owner Jogen Das, as she failed to adduce any evidence in support of the adoption plea, the Court answered the Issue of adoption against the defendant. 6.4 The Court then considered the 6th Issue on tenancy of the defendant under the plaintiff and noted that the defendant admitted in her evidence that three other tenants namely Lakhan Singh, Thaneswar Medhi and Lalit Mishra were occupying the other rooms of the tenanted property of Jogen Das and the plaintiff ejected the other three tenants, by instituting legal proceeding against them. 6.5 The defendant’s plea of collecting rent from the other tenants as the owner of the property was disbelieved by the Court on account of the evidence of the D.W.s Gurucharan Kaur (another tenant), who stated that after the death of Bulubala Das (wife of Jogen Das), she never paid rent to the defendant or to her son Shankar. 6.6 After concluding that the defendant is a tenant under the plaintiff and since the defendant herself pleaded that she doesn’t pay rent to the plaintiff, the Court declared the defendant to be a defaulter and also answered the Issue of bona fide requirement in favour of the landlord. 6.7 On the basis of the above conclusions, the ejectment of the defendant from the Schedule-C suit rooms was directed with a further decree for payment of Rs.9600/- as arrear rent + future rent, till final ejectment of the defendant, through the order dated 23.6.2006 (Annexure-II) in the Title Suit No.64/2003 rendered by the learned Civil Judge (Jr. Division) No.3, Guwahati. 7. The aggrieved defendant then filed the Title Appeal No.67/2006, where Appellate Court farmed 7 points for determination, which are extracted hereinbelow for ready reference : 1 Whether there is any cause of action for the suit and it is maintainable in its present form ? 2. Whether the respondent/plaintiff has right, title and interest over the suit land? 3. Whether late Dhanoi Das was adopted son of Lae Jogen Das? 4. Whether there is any cause of action for the counterclaim and if it had whether it was barred by limitation? 5. Whether the tenancy in question is determined by forfeiture because of the denial of the plaintiff’s title over the suit property? 6. Whether respondent/plaintiff is entitled for a decree as claimed? 7. Whether the appellant/defendant entitled for a decree as claimed in the counter claim? 8. The Civil Judge took note of the Probate Title Suit (Exbt.1); the Chitha; GMC Tax Assessment; Municipal Tax Payment; Land Revenue Receipt (Exbt.3,4,5 and 6) which were produced by the plaintiff. The defendant being unsure on when her husband Dhanai was adopted was also considered by the Court. The D.W.2 Gurucharan Kaur did not say anything about adoption of the defendant’s husband by Jogen Das and on the other hand P.W.2 Phani Das had testified that Bulubala Das bequeathed her entire property by Will in favour of the nephew (plaintiff). The defendant being unsure on when her husband Dhanai was adopted was also considered by the Court. The D.W.2 Gurucharan Kaur did not say anything about adoption of the defendant’s husband by Jogen Das and on the other hand P.W.2 Phani Das had testified that Bulubala Das bequeathed her entire property by Will in favour of the nephew (plaintiff). From these evidences, the Appellate Court concluded that Dhanai was never adopted by Jogen Das and the plaintiff is the owner of the suit property. On the basis of these findings, the Appellate Court dismissed the defendant’s appeal and upheld the ejectment decree passed against the tenant by the Trial Court through the impugned order dated 19.7.2008 (Annexure-I) in the Title Appeal No.67/2006. 9.1 Assailing the legality of the ejectment orders, Mr. A.C. Sarma, the learned Counsel submits that the defendant’s son Shankar filed the Title Suit No.165/2002 to challenge the Probate verdict in favour of the plaintiff and this suit was decreed on 31.5.2003 in plaintiff’s favour. But although the D.W.1 introduced the decree (Exbt.-D) in her son’s favour in the Title Suit No.165/2002, the same was never considered by either Court. 9.2 Moreover since the defendant questioned the title of the plaintiff, Mr. Sarma argues that a title suit should have been filed by the plaintiff to establish his title over the suit property and without establishing the legal right, the ejectment decree could not have been passed against the defendant, who too claim ownership of the suit property through her husband Dhanai, who was the adopted son of Late Jogen Das. 9.3 The petitioner also contends that the 1st Appellate Court did not independently consider the plea of rent default and bona fide requirement in the appellate proceeding and therefore it is argued that the impugned judgment dated 19.7.2008 is vitiated in law. 10.1 On the other hand, Mr. Sheeladitya, the learned Counsel for the respondent (plaintiff) submits that the title claim of the defendant was negated through rejection of the counter-claim in the Title Suit No. 64/2003 and since the same is not challenged by the defendant, she can’t now question the plaintiff’s title over the suit property. 10.1 On the other hand, Mr. Sheeladitya, the learned Counsel for the respondent (plaintiff) submits that the title claim of the defendant was negated through rejection of the counter-claim in the Title Suit No. 64/2003 and since the same is not challenged by the defendant, she can’t now question the plaintiff’s title over the suit property. 10.2 As the defendant failed to prove that her husband Dhanai was ever adopted by Jogen Das and on the other hand since the plaintiff could secure Probate of the Will, the nephew (plaintiff) lawfully inherited the property of Jogen Das through the Will of Bulu Das. The respondent thus argues that the plaintiff’s right over the suit property is established through the probate proceeding, in the absence of any challenge in the appellate forum, against the Probate order, Mr. Sheeladitya argues that the plaintiff’s title claim has attained finality and it can’t be re-agitated in this proceeding. 10.3 On the non-consideration of the decree dated 31.5.2003 in the Title Suit No.165/2002 (Exbt.D), the plaintiff argues that in none of her pleadings, the defendant had mentioned about the Title Suit filed by her son Shankar Das and accordingly it is argued that the unrelated evidence not based on pleadings of the party, can’t receive any consideration in the case. 10.4 Referring to the evidence of the tenant Gurucharan Kaur (D.W.2), who did not support the case of the defendant and projecting that the defendant in her testimony acknowledged that other tenants in the same property were evicted by the plaintiff, Mr. Sheeladitya argues that there can be no interference with the factual finding recorded by the Courts for ordering the ejectment of the defendant. 11. Both parties here accept that the suit property was originally owned by Jogen Das and after his death his wife Bulu Das succeeded to the estate of the deceased. While the plaintiff claims title through the Will executed by Bulu Das on 20.7.1983, the defendant claims title by contending that her husband Dhanai was adopted by the original land owner Jogen Das. The ownership claim of the plaintiff was proved through the probate order (Exbt.1) and he also produced the Chitha records as well the Municipal Tax Assessment & Receipts to establish his ownership over the suit property. The ownership claim of the plaintiff was proved through the probate order (Exbt.1) and he also produced the Chitha records as well the Municipal Tax Assessment & Receipts to establish his ownership over the suit property. On the other hand the defendant failed to adduce any convincing evidence to prove that her husband Dhanai was adopted by Jogen Das. In fact her uncertainty on the adoption aspect was noted by the Court to reach an adverse conclusion against the defendant’s claim. On this basis, the counter-claim of ownership made by the defendant was rejected but the same was left unchallenged by the defendant. 12. Moreover despite the knowledge of the probate proceeding the defendant failed to challenge the probate order in the appellate forum. But on this petitioner contends that they were unaware of the probate case. While the want of knowledge of the defendant of the probate proceeding initiated by the plaintiff may be correct initially, but thereafter learning about the probate proceeding, she failed to challenge the same in the appellate forum. Therefore this Court in my view should proceed with the understanding that the bequeathing of the suit property through the Will executed by Bulu Das in favour of the plaintiff, has attained finality. 13. When the evidence in the case shows that the plaintiff could evict other tenants from the suit property through legal process and the defendant’s claim of collecting rent from those tenants was not supported by the co-tenant Gurucharan Kaur (D.W.2), it has to be declared that the concurrent finding of plaintiff’s ownership given by two Courts, is based on cogent evidence which doesn’t suffer from any perversity or jurisdictional error. 14. The pleadings of the defendant is completely silent about the Title Suit No.165/2002 filed by the defendant’s son Shankar. Therefore the Exbt.-D evidence being unrelated to the case pleading was rightly not considered and ignoring Exbt.-D in my view can have no impact in the ejectment verdict. Accordingly the argument made by the petitioner’s lawyer on this issue is rejected. 15. The 1st Appellate Court while considering the defendant’s Appeal, formulated the important points for determination and gave its finding on each point with reference to the evidence on record. Accordingly the argument made by the petitioner’s lawyer on this issue is rejected. 15. The 1st Appellate Court while considering the defendant’s Appeal, formulated the important points for determination and gave its finding on each point with reference to the evidence on record. According to me, when all relevant aspects of the case were considered the impugned verdict given by the 1st Appellate Court doesn’t suffer from any infirmity which would justify intervention in this Revision petition. 16. In view of the above discussion and reasoning, I find no merit in this case and the same is accordingly dismissed by leaving the parties to bear their respective cost. The Registry should return the LCR along with a copy of this order.