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2016 DIGILAW 484 (GAU)

Anjali Das v. Nuron Nissa

2016-05-31

N.CHAUDHURY

body2016
ORDER : Petitioner herein as plaintiff instituted Title Suit No. 102 of 2007 in the court of learned Munsiff No. 1 at Dibrugarh stating that defendant is a tenant with respect to two shop rooms described in the schedule to the plaint at monthly rental of Rs.200/- payable within the first week of every succeeding month as per English Calendar. The defendant was subsequently given another suit room and thus the rent was enhanced to Rs.800/- under the same condition. But defendant stopped paying rent after August 2004 and became a defaulter. The Plaintiff, therefore, prayed for eviction of the defendant on the ground of default along with a decree for realization of arrear rent to the tune of Rs.27,200/-. The suit house was described in the scheduled to the plaint as two rooms butted and bounded as follows: North : Shop room of the landlord South : House/room of the landlord East : Passage West : Pucca drain (one foot on the land of the Landlord) 2. On being summoned, the defendant appeared and not only filed written statement by denying the case of the plaintiff but also filed a counter claim praying for specific performance of contract alleging that plaintiff had received a sum of Rs.80,000/- from her for executing a registered sale deed in respect to the suit land described in Schedule-A to the written statement. The defendant also denied the title of the plaintiff over the suit land described in the plaint. 3. On the basis of the respective pleadings of the parties, the learned trial court framed four issues in the suit and five issues in the counter claim and they were numbered serially. The issues are quoted below: (i) Whether the suit is maintainable in law and on facts? (ii) Whether the defendant is a tenant of plaintiff with respect to the suit premises? (iii) Whether defendant has defaulted in paying rent to the plaintiff? (iv) Whether plaintiff is entitled to get decree as prayed? Issues on counter claim: (i) Whether the counter claim is maintainable in law and facts? (ii) Whether defendant has any right, title and interest over the landed property described in schedule A of the counter claim? (iii) Whether plaintiff received payment of Rs.80000/- from defendant by misrepresenting the facts and entering into agreement to sale the landed property described in Schedule B of the counter claim? (ii) Whether defendant has any right, title and interest over the landed property described in schedule A of the counter claim? (iii) Whether plaintiff received payment of Rs.80000/- from defendant by misrepresenting the facts and entering into agreement to sale the landed property described in Schedule B of the counter claim? (iv) Whether the defendant is entitled to get decree as prayed? (v) To what reliefs parties are entitled to? 4. In course of trial, plaintiff adduced evidence of five witnesses and exhibited as many as 104 documents. The defendants adduced two witnesses and exhibited 7 documents. 5. After considering the evidence led by the parties, the learned trial court while deciding Issue no. 2 arrived at the finding that defendant is a tenant with respect to the suit premises at a monthly rental of Rs.800/- as per English Calendar payable within the first of week of each succeeding month. Admittedly, defendant did not make payment of the rent and so she became a defaulter. Coming to the counter claim, learned trial court held that defendant did not have any right, title and interest with respect to the suit land and defendant did not make payment of Rs.80,000/- to the plaintiff towards consideration against alleged agreement for sale. Accordingly, the counter claim was dismissed by the judgment and decree dated 24.5.2010. 6. The tenant being aggrieved thereby preferred Title Appeal No. 19 of 2010 in the court of learned Civil Judge at Dibrugarh. In the said judgment, the learned trial court framed three points for determination and while deciding ground No. No.2, the learned appellate court held that the plaintiff did not produce any document to show that the appellant was a tenant and so the defendant was not a tenant under the plaintiff and so there was no question of default in payment of rent. Accordingly, the suit of the plaintiff was dismissed by holding that defendant is not tenant under the plaintiff. The learned trial court held that the point regarding counter claim need not be decided after going through the documents and materials available on record. This appellate judgment and decree dated 10.2.2015 has been challenged by the plaintiff by preferring the CRP No.95 of 2012. The defendant also preferred CRP No. 207 of 2012 challenging the findings of the learned courts below in regard to the counter claim. This appellate judgment and decree dated 10.2.2015 has been challenged by the plaintiff by preferring the CRP No.95 of 2012. The defendant also preferred CRP No. 207 of 2012 challenging the findings of the learned courts below in regard to the counter claim. The learned trial court had dismissed the counter claim after considering the materials on record and the learned first appellate court did not feel it necessary to interfere with it in view of the materials available on record. The defendant, in the counter claim, had prayed for a specific performance of contract and also for declaration of right, title and interest with respect to the suit land described in the Schedule-A of the written statement and so once the appeal was dismissed by the first appellate court, a second appeal under Section 100 of the CPC was maintainable. The counter claim filed was in the nature of a declaratory suit along with a specific performance of contract and so it is appealable under Section 100 of the CPC. No such second appeal has been filed and rather a civil revision petition has been preferred which is clearly not maintainable in law. The CRP No.207 of 2012, therefore, challenging the 7. I have heard Mr. S Dutta, learned senior counsel assisted by Mr. C Sharma, learned counsel for the plaintiff / revision petitioner and Mr. PJ Saikia and Ms. M Kechii, learned counsel for the opposite party. I have perused the materials available on record including the parties and the evidence adduced by them. The plaintiff by adducing oral evidence has claimed that defendant entered into the suit premises as a tenant under her initially at a monthly rent of Rs.200/- payable within the first week of every succeeding month as per English Calendar and subsequently she was also inducted as a tenant in another room under same condition. It is stated that defendant paid rent from July, 2004 and defaulted in August 2004 in course of cross examination by the defendants. Such a stand taken by the plaintiff could not be shaken. PW-2 was questioned only regarding quantum of rent and no suggestion was given to PW-2 that defendant was not a tenant under the plaintiff. The witness having deposed on oath that defendant was a tenant with respect to the suit premises there is no specific cross examination of such point. PW-2 was questioned only regarding quantum of rent and no suggestion was given to PW-2 that defendant was not a tenant under the plaintiff. The witness having deposed on oath that defendant was a tenant with respect to the suit premises there is no specific cross examination of such point. The defendant on the other hand remained busy in establishing a case that plaintiff was not either the owner of the land described in the Schedule A to the plaint nor plaintiff had taken Rs.80,000/- from the defendant towards consideration for executing sale deed in her favour in respect with Schedule-B land. Thus, while defendant concentrated for Schedule-B land for obtaining a specific performance of contract, prayer was made that plaintiff is not the owner of the land described in the Schedule –A to the plaint. Apparently, properties described under the Schedule-A land is not decretal land. Schedule- A to the plaint contains two shop rooms within the definite boundaries mentioned therein. The plaintiff led evidence to show that within the suit premises described in the Schedule to the plaint, defendant was inducted as a tenant at monthly rent of Rs.800/- in all on the condition that rent would be paid monthly within the first week of each succeeding month as per English Calendar and that amount has been shaken in course of cross examination. 8. The learned first appellate court committed error in holding that since there is no document on record to show that to establish tenancy between the parties, the plaintiff failed to establish landlord tenant relationship. Such finding of the learned first appellate court disturbing the finding of the learned trial court does not appear to be acceptable. In a given case, a tenant and that event although there is no agreement on rent or tenancy, the same can be established by leading evidence. 9. Mr. PJ Saikia, learned counsel for the opposite party submits at this stage that defendant claimed to be in possession of the suit premises described in the Schedule to the plaint. The defendant all along claimed her right, title and interest with respect to the Schedule-A land described in the counter claim which is distinct and different from the land described in schedule to the plaint. The defendant all along claimed her right, title and interest with respect to the Schedule-A land described in the counter claim which is distinct and different from the land described in schedule to the plaint. He submits that he has no objection if the trial court in respect of the two rooms strictly described in the schedule to the plaint if restored. The finding of the learned first appellate court that the plaintiff could not establish tenancy is hereby is set aside. The trial court decree with respect to the eviction from the suit premises described in the Schedule to the plaint is hereby restored. 10. CRP No.95 of 2012 stands allowed. No order as to cost. Send down the record. CPR No.207 of 2012 stands dismissed as it is not maintainable. No order as to cost.