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2015 DIGILAW 882 (GAU)

Amiya Mazumdar v. Biraj Bahadur Pradhan

2015-07-22

A.K.GOSWAMI

body2015
JUDGMENT : Heard Mr. A.K. Sarma, learned counsel for the appellant. None appears for the respondent despite service of notice. 2. This appeal by the plaintiff is preferred against the judgment and decree dated 19.10.2004 passed by the learned District Judge, Tinsukia in Title Appeal No.6/2003, setting aside the judgment and decree dated 15.10.2001 passed by the learned Civil Judge (Jr. Divn.), Margherita in Title Suit No.14/1998. 3. The second appeal was admitted to be heard by an order dated 11.11.2015 on the following substantial questions of law: “1. Whether in absence of any specific issue to determine the relationship of landlord and tenant, the relationship of landlord and tenant can be examined and decided under the ambit of two different issues framed for determination of maintainability and right to sue ? 2. Whether misappreciation of evidence has vitiated the judgment ? 3. Whether the learned lower Appellate Court is justified to decide a case of its own by drawing an adverse presumption against the plaintiff/Appellant relating to subletting when in the case in fact it was nobody’s case ? 4. Whether the learned lower Appellate Court is justified to draw in any inference favouring the defendant/Respondent while examining the proceeding the MPG Case No.9/94 before the Executive Magistrate, Margherita ?” 4. The plaintiff filed the suit for recovery of khas possession, arrears of rent, compensation, etc. The case set out in the plaint is that the plaintiff took on lease a plot of land from North Eastern Coal Fields (Coal India Limited), Margherita, covered by Code No.171901999(Old)/971901999(New) at a monthly rent of Rs.7.75 which was subsequently enhanced to Rs.13.56 per month. She had constructed a two-room shop house on a part of the said land and the defendant came in occupation of the southern room as a tenant according to English Calendar month under the plaintiff at a monthly rent of Rs.100/- for running his grocery shop. It is pleaded that the defendant was very irregular in payment of rent and he neglected to pay any rent in respect of the suit premises after August, 1993 and that apart, he started living in the room with his wife and children though the premises was not having latrine, bathroom and the defendant had forcibly constructed a kutcha latrine. When the demand was made for payment of rent, the defendant tried to assault her. When the demand was made for payment of rent, the defendant tried to assault her. Later on, the defendant closed down his grocery shop and started selling illicit liquor and divided the room into several rooms and in one of such rooms, a kitchen was also set up. It is pleaded that the plaintiff required the premises bona fide for her own use and occupation as she wanted to start a tailoring shop. 5. The defendant filed a written statement stating, amongst others, that Coal India Limited, Margherita is a necessary party, in absence of which the suit is liable to be dismissed. The defendant denied that he was a tenant under the plaintiff. It is pleaded that he had taken the land on lease from Assam Railway and Trading Company Ltd., Margherita (now Coal India Limited) at a monthly rental of Rs.33.62. 6. On the basis of the pleadings, learned Trial Court framed the following issues:- “(i) Whether the suit is maintainable in law and fact ? (ii) Whether the plaintiff has right to sue ? (iii) Whether the suit is bad for non-joinder of necessary party ? (iv) Whether the defendant is defaulter in payment of rent in respect of suit premises ? (v) Whether the suit premises is bona fide required to the plaintiff ? (vi) Whether the plaintiff is entitled to a decree as prayed for ?” 7. Two witnesses were examined on behalf of the plaintiff and the defendant also examined 2 witnesses. 8. The learned Trial Court primarily relied on evidence purportedly given by the defendant in a case instituted by the plaintiff before the Sub-Divisional Officer (Civil), Margherita alleging non-payment of rent which was registered as M.P.G. Case No.9/94. 9. Based on the said statement, the learned Trial Court held that the defendant admitted the fact that he took a house belonging to the plaintiff on lease and the house was not having bathroom or latrine. He had taken the house for running a shop and later on started to reside with his family in the suit house by constructing a kutcha latrine. The learned Trial Court took a view that such admission of the defendant extended full support to the evidence of PW-1 and PW-2 and accordingly, decreed the suit. 10. He had taken the house for running a shop and later on started to reside with his family in the suit house by constructing a kutcha latrine. The learned Trial Court took a view that such admission of the defendant extended full support to the evidence of PW-1 and PW-2 and accordingly, decreed the suit. 10. The learned lower Appellate Court, however, allowed the appeal, as noted above, holding that the plaintiff had failed to establish landlord-tenant relationship. It did not take cognizance of the alleged statement recorded by the Sub-Divisional Officer (Civil), Margherita in M.P.G. Case No.9/94 as the same was not signed by the Presiding Officer and the order-sheet also did not disclose that statement of the defendant was at any point of time recorded. 11. Mr. A.K. Sarma, learned counsel for the appellant has submitted that he would not be arguing on substantial question of law Nos.1 and 3, but will address on substantial question of law Nos.2 and 4. 12. It is submitted by him that defendant had himself stated in his cross-examination that Ext-7(3) is his signature in respect of statement given by him in M.P.G. Case No.9/94. It is submitted by him that the entire record of M.P.G. Case No.9/94 was exhibited as Ext-7. The learned lower Appellate Court, without any justification, omitted to take into account the said evidence and as a consequence thereof, the suit of the plaintiff was dismissed. He has submitted that the defendant had categorically stated in his statement in M.P.G. Case No.9/94 that he had taken the premises on lease from the plaintiff, which was also taken note of by the learned Trial Court. PW-1 and PW-2 had also deposed towards the defendant taking on rent the premises from the plaintiff. In that view of the matter, learned counsel submits that impugned judgment of the learned lower Appellate Court being perverse, the same is to be interfered with. 13. I have considered the submission of the learned counsel for the appellant and have perused the evidence on record. 14. M.P.G. Case No.9/94 was instituted on the basis of an application filed by the plaintiff alleging that the present defendant had not paid her rent for 1 and ½ years and when she had demanded rent on 05.06.1994, defendant had attempted to assault her. The plaintiff was the 1st party and the defendant was the 2nd party. 14. M.P.G. Case No.9/94 was instituted on the basis of an application filed by the plaintiff alleging that the present defendant had not paid her rent for 1 and ½ years and when she had demanded rent on 05.06.1994, defendant had attempted to assault her. The plaintiff was the 1st party and the defendant was the 2nd party. Order-sheet of the said case discloses that on 24.10.1994, two witnesses were brought on behalf of the 1st party and their statements were recorded. On 03.04.1995, 1st party was absent and 2nd party was present and the case was fixed on 17.04.1995 for evidence of 1st party. On 17.04.1995, both parties were absent and 03.05.1995 was fixed for evidence of 2nd party. Inexplicably, the case was taken up on 02.05.1995 when 1st party was present. 2nd party was absent on that day and as trial Magistrate was busy, case was fixed on 18.05.1995. On 18.05.1995, while 1st party was absent, 2nd party was present and it was recorded that 2nd party’s evidence will be recorded on “fix date” and date was fixed on 29.05.1995. On 29.05.1995 and 12.07.1995, both the parties were absent. On 28.08.1995, 05.09.1995 and 08.10.1995 while 1st party was absent, the 2nd party was present. The order-sheet comes to an end on 20.12.1995, on which date both the parties were absent and next date fixed was kept blank. 15. From the order-sheet, it does not appear that statement of defendant was ever recorded. The statement of 2nd party which finds place in the record is also not signed by any Presiding Officer though other statements which were recorded were signed. Though the defendant had admitted that his signature appeared in Ext-7(3), the learned lower Appellate Court, taking note of the fact that no legal evidence was collected by the Executive Officer, at least from the side of the defendant, accepted the explanation given by the defendant explaining the circumstances under which the signature was given. Taking the evidence of the defendant in the suit as a whole, the learned lower Appellate Court held that defendant had denied giving any statement admitting himself as a tenant under the plaintiff. The learned lower Appellate Court also opined that possibility of obtaining signature to prepare the statement cannot be totally discounted. Taking the evidence of the defendant in the suit as a whole, the learned lower Appellate Court held that defendant had denied giving any statement admitting himself as a tenant under the plaintiff. The learned lower Appellate Court also opined that possibility of obtaining signature to prepare the statement cannot be totally discounted. When the order-sheet of M.P.G. Case No.9/94 is totally silent with regard to recording of any statement of the defendant and when the statement stated to have been made by the defendant is also not signed by the Presiding Officer, it cannot be said that the view taken by the learned lower Appellate Court is perverse. 16. The learned lower Appellate Court recorded the finding that the plaintiff failed to adduce any evidence to establish her right, title and interest over the suit house and on the contrary the defendant was able to produce better evidence to show the land on which the suit house is situated was allotted to him. The defendant had produced two rent receipts. No suggestion was given to the defendant that he was having any other house. The evidence of DW-2(defendant) was also supported by DW-1, who is an Officer of the Land and Estate Department of Assam Railway and Trading Company Limited. It is to be noted that the plaintiff, neither in the plaint nor in the evidence, had indicated when the suit house was given on rent to the defendant. The plaintiff had also admitted that there was no system of issuance of rent receipts which was also taken note by the learned lower Appellate Court. The plaintiff, in her evidence, had stated that one Jagadish Agarwala is also a tenant under her in the northern side of the suit house. The learned lower Appellate Court opined that in the circumstances, the evidence of Jagadish Agarwala would have been best evidence to support her case. However, Jagadish Agarwala was also not examined by the plaintiff. The learned lower Appellate Court rejected the rent receipts exhibited by the plaintiff as the same did not indicate location of the plot. It also appears from the evidence of PW-1(plaintiff) that the plaintiff was residing in a house about 150/200 metres away from the suit house and she had been making payment of rent to Coal India Limited. The learned lower Appellate Court rejected the rent receipts exhibited by the plaintiff as the same did not indicate location of the plot. It also appears from the evidence of PW-1(plaintiff) that the plaintiff was residing in a house about 150/200 metres away from the suit house and she had been making payment of rent to Coal India Limited. The evidence of PW-1 in this respect is ambivalent as at one point she stated that she had taken the said house on rent from Assam Railway and Trading Company Limited and pays rent to Coal India Limited, but at another point, she had stated that land stood in the name of someone else. 17. On an overall consideration of the evidence on record, I am not persuaded to take a view that the impugned judgment of the learned lower Appellate Court is vitiated by any perversity. If the purported statement of defendant in M.P.G. Case No.9/94 is excluded and which has to be excluded, there is no acceptable evidence to establish the case of the plaintiff. 18. In that view of the matter, I find no merit in this appeal and accordingly, the same is dismissed. The substantial questions of law are answered accordingly. No cost. 19. Registry will send back the records.