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2015 DIGILAW 834 (GAU)

Abdul Matin Choudhury v. Chairman

2015-07-14

A.K.GOSWAMI

body2015
JUDGMENT : This case was taken up for hearing on 13.07.2015 and as the hearing could not be completed, the case is again taken up to-day. 2. None had appeared yesterday on behalf of the respondents and to-day also there is no appearance of the learned counsel for the respondents despite their names being shown in the cause-list. 3. Heard Mr. A.K. Talukdar, learned counsel for the appellants. 4. This appeal by the plaintiffs is preferred against the judgment and decree dated 21.05.2004 passed by the learned Civil Judge (Sr. Divn.), Karimganj in Title Appeal No.50/2002 allowing the appeal and setting aside the judgment and decree dated 18.06.2002 passed by the learned Civil Judge (Jr. Divn.) No.1, Karimganj, in Title Suit No. 48/2001. 5. It is pointed out by Mr. Talukdar that the appeal was admitted to be heard on 28.02.2005 on the substantial questions of law indicated in the memo of the second appeal and that it will be more appropriate to specifically frame substantial questions of law for proper adjudication of this case. Considering his submissions with regard to framing of substantial questions of law, the following substantial questions of law are formulated: (1) Whether the learned lower Appellate Court was correct in holding that State of Assam was a necessary party in spite of the fact that the suit property which was requisitioned by the State Government was subsequently released from requisition? (2) Whether the finding of the learned lower Appellate Court that despite the order of de-requisition vide Ext-7, the plaintiffs could not have entered into tenancy agreement with the defendants in absence of any evidence that suit property was delivered to the plaintiffs by the Government of Assam is correct? 6. The case projected in the plaint, in short, is that the suit premises measuring 8’ X 18’ is owned by the plaintiffs. While plaintiff Nos.1 and 2 had 50% share therein, the plaintiff Nos.3 to 7 have the rest 50% share. The Assam Khadi and Village Industries Board (for short, “the Board’) took the premises on monthly rent from plaintiff Nos.1 and 2 and the predecessor-in-interest plaintiff Nos.3 to 7. Monthly rent was payable within 7 days of the succeeding English Calendar month at the rate of Rs.50/- to the plaintiff Nos.1 and 2 and Rs.75/- to the predecessor of the plaintiffs Nos.3 to 7. Monthly rent was payable within 7 days of the succeeding English Calendar month at the rate of Rs.50/- to the plaintiff Nos.1 and 2 and Rs.75/- to the predecessor of the plaintiffs Nos.3 to 7. The defendants became defaulter from the month of February, 2000 and till the end of February, 2001 an amount of Rs.1625.00 had fallen due on account of arrear rent. It is also pleaded that the suit house was very old and had become damaged and the plaintiffs decided to construct a new house by dismantling the old one and to use the same for their personal necessity. It is also pleaded that other old houses of the plaintiffs near to the suit house had been demolished and new building had been constructed in its place. Accordingly, suit was filed for ejectment of the defendants from the suit house and for recovery of Rs.1625.00 with pendente lite and future interest at the rate of 15% on Rs.1625.00 from the defendants. 7. In the written statement filed, apart from other legal pleas, it was pleaded that State of Assam, the Deputy Commissioner and Collector of Karimganj District and all the heirs of late Khan Bahadur Abdul Majid Choudhury and other legal heirs of late Sirajul Haque Choudhury, i.e. the predecessor-in-interest of the plaintiff Nos.3 to 7 are necessary parties. 8. The specific case of the defendants is that the payment of Rs.125/- was settled to be paid to the predecessors of the plaintiffs as compensation as the suit land along with some other lands were requisitioned and acquired by the Government of Assam vide Requisition Order No.1 of 1963-64 dated 08.01.1964; that there is no landlord-tenant relationship in between the plaintiffs and the defendants as on and from the issuance of Requisition Order No.1 of 1963-64, the plaintiffs had ceased to be owners. A much bigger area measuring 420 sq. ft. was handed over to the defendants and a large portion of the said area was taken back by the predecessors of the plaintiffs with an undertaking to re-deliver the same. It is pleaded that major portion of the “acquired” land in question, illegally and by practicing fraud, had been delivered to third parties. As the area was substantially reduced by the plaintiffs, the plaintiffs are not entitled to get any further compensation. It is pleaded that major portion of the “acquired” land in question, illegally and by practicing fraud, had been delivered to third parties. As the area was substantially reduced by the plaintiffs, the plaintiffs are not entitled to get any further compensation. It was, however, admitted that the suit house was required to be repaired because rain water falls over the stock of clothes. 9. The learned Trial Court framed 4 issues which are as follows:- “1. Whether there is any cause of action for the suit ? 2. Whether the suit is bad for defect of parties ? 3. Whether the plaintiffs are entitled to the decree as prayed for ? 4. Whether the plaintiffs are entitled to the relief claimed for ?” 10. The learned Trial Court also framed the following 2 additional issues:- “1. Whether the defendants are defaulter in payment of rent ? 2. Whether the defendants are liable to be evicted ?” 11. Both the sides examined 1 witness each and exhibited certain documents. 12. The learned Trial Court held that vide Ext-6 and Ext-A, the suit land was requisitioned and as per Ext-7 dated 13.08.1964, the same was de-requisitioned. On the basis of rent receipts, Ext-1, 1(1 to 9) and Ext-2, 2 (1 to 33), it was held that plaintiffs proved tenancy as well as payment of rent by the defendants and on the basis of evidence on record, it was also held that defendants has not paid rent as claimed by the plaintiffs. Accordingly, defendants were held to be defaulters. It was also held that suit house was urgently required to be repaired and that the plaintiffs wanted to construct a new house by dismantling the old one and to use the same for their personal use. Accordingly, the suit for eviction was decreed also providing that the defendants are liable to pay Rs.1625.00 with pendente lite and future interest at the rate of 10% on Rs.1625.00. 13. The learned lower Appellate Court formulated points for determination which are as follows:- “(1) Whether the defendant is a Bharatia tenant of the respondent in respect of the properties ? (2) Whether the suit is defective due to non impleadment of the Govt. of Assam as a party to the suit ?” 14. 13. The learned lower Appellate Court formulated points for determination which are as follows:- “(1) Whether the defendant is a Bharatia tenant of the respondent in respect of the properties ? (2) Whether the suit is defective due to non impleadment of the Govt. of Assam as a party to the suit ?” 14. So far as point No.2 is concerned, the Government of Assam was held to be a necessary party in the following manner:- “Point No.2. After all, Govt. of Assam is unquestionably a necessary party to the suit in which absence, no effective order can be passed. As such, the suit is bad for defect of parties, so righteously and buoyantly submitted by the learned counsel on behalf of the appellant side. In the conclusion, may I observe that the learned lower Court ought to have discussed this aspect of law and ought to have dismissed the suit.” 15. The learned lower Appellate Court, while deciding point No.1, held that though it is explicit from the evidence on record that appellant used to pay rent vide Ext-1 as well as Ext-2 series, there is no relationship of landlord and tenant in view of the fact that there was no evidence that after Ext-7 was issued, possession was handed over to the plaintiffs. 16. Ext-6 order dated 08.01.1964 was issued in exercise of powers under Section 3(1) of the Assam Land (Requisition and Acquisition) Act, 1948 (for short, “the Act of 1948”) in respect of an area more or less 420 sq. ft. By the said order, it was also indicated that the owners will be paid compensation in the shape of monthly rent, which will be determined and indicated in due course. Ext-7 de-requisition order dated 13.08.1964 was issued under the provisions of Section 6 of the Act of 1948. It is to be noticed at this stage that the Assam Land (Requisition and Acquisition) Act, 1964 (for short, “the Act of 1964”) came into effect on 03.08.1964. While release from requisition was dealt with under Section 6 of the Act of 1948, release from requisition is dealt with under Section 8 of the Act of 1964. There is no substantive change in the provisions, though. While release from requisition was dealt with under Section 6 of the Act of 1948, release from requisition is dealt with under Section 8 of the Act of 1964. There is no substantive change in the provisions, though. The provisions of both Section 6 of the Act of 1948 and Section 8 of the Act of 1964 provide that where any land requisitioned under Section 3 of both the Acts, is not acquired and is to be released from requisition, it will revert to the owner or the person interested who was recognized as such and the delivery of possession of such land to the persons specified in the manner above, shall be a full discharge of any liability of the State Government to deliver possession to such person as may have rightful claim to the possession thereof. 17. The plaintiffs had set out the case without any reference to the order of requisition or de-requisition as their simple case was based on landlord and tenant relationship. The defendants in the pleadings had brought in the requisition order dated 08.01.1964, exhibited by the plaintiffs as Ext-6 and as Ext-A by the defendants. However, the defendants did not mention about the order of the de-requisition and the plaintiff, in the aforesaid circumstances, had exhibited the order of de-requisition dated 13.08.1964 as Ext-7. The learned courts below had not disbelieved Ext-7. There is no explanation why the defendants did not disclose the order of de-requisition. It is also manifest from a reading of Exts-6 and 7 that the requisition was in respect of an area more or less 420 sq. ft. whereas the suit property measured 8’ X 18’, totaling 144 sq. ft. The explanation sought to be given that the plaintiffs violated order of requisition by transferring land falling part of land under requisition to some others, appears to be a hollow claim. Plaintiffs do not claim any compensation and it is not their case that they were not delivered possession despite the order of de-requisition having been passed. In fact, the plaintiffs did not even think it is necessary to bring on record the aforesaid fact and under the circumstances, rightly so. The learned lower Appellate Court embarked upon an inquiry to find out whether possession was delivered or not to the plaintiffs when the same was not the case of either of the parties. In fact, the plaintiffs did not even think it is necessary to bring on record the aforesaid fact and under the circumstances, rightly so. The learned lower Appellate Court embarked upon an inquiry to find out whether possession was delivered or not to the plaintiffs when the same was not the case of either of the parties. Therefore, when the learned lower Appellate Court had also found that defendants had paid rent, the finding that there was no relationship of landlord and tenant between the parties, cannot be sustained. The finding with regard to necessary party is an abrupt finding without any discussion. The learned lower Appellate Court merely records the finding that the Government of Assam is unquestionably a necessary party, without alluding as to why the Government of Assam is a necessary party. In view of the case projected and having regard to Ext-7 and the rent receipts, Ext-1 and Ext-2 series, this court is of the considered opinion that the Government of Assam was not a necessary party. 18. Mr. Talukdar had made a statement at the Bar that the defendants had left the premises on their own accord sometime in the year 2009 and that is why they are not interested to prosecute this case before this court. This court will not express any opinion on that. 19. For the reasons above, the substantial questions of law are answered in favour of the appellants. The impugned judgment of the learned lower Appellate Court is set aside and the judgment and decree of the learned Trial Court is restored. No cost. 20. Registry will send back the records.