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2017 DIGILAW 1022 (GAU)

Ram Kumar Mahatoo v. Raj Kumar Mahatoo

2017-08-01

PRASANTA KUMAR DEKA

body2017
JUDGMENT & ORDER : 1. Heard Mr. S. Dutta, learned senior counsel, assisted by Mr. S. Dutta, learned counsel, appearing for the appellant/ defendant and Mr. C. Baruah, learned senior counsel, assisted by Mr. D. Baruah, learned counsel, appearing on behalf of the respondents/ plaintiffs. 2. The present appellant is the defendant in TS No. 114/2007 filed by the plaintiffs/ respondents praying that they are equally entitled to the shares of the rent in respect of the suit premises and for restraining the present defendant/ appellant from collecting the rent from the suit premises from the tenant therein. 3. It is pleaded that the plaintiffs/ respondents are the joint owners of the suit premises along with Durga Prasad Mahato (since deceased). Durga Prasad Mahato, being the Karta of M/s. Sitaram Mahato and Sons, a Hindu Undivided Mitakshara Family Firm, let out the suit premises to proforma defendant Nos. 2 and 3, on promise to pay Rs. 1,200.00 per month as tenants under him and the terms of the tenancy were stipulated by way of registered deed of agreement bearing deed No. 979/2005, dated 23.06.2005. 4. Durga Prasad Mahatoo died on 12.04.2007 leaving behind the plaintiffs/ respondents and defendants/ appellants as his legal heirs. The defendants/ appellants since the death of his father collected the rent being the eldest son from the tenants against the consent of the plaintiffs/ respondents and misused the same for his personal use. Though the plaintiffs/ respondents requested the defendants/ appellants to distribute the rent equally amongst the legal heirs of Durga Prasad Mahato, but the defendants/ appellants did not comply it. Notices were issued which were replied by the defendants/ appellants. 5. It is also pleaded that the plaintiffs/ respondents could come to know that a clause was stipulated in the lease deed thereby authorizing the defendant/ appellant to collect the rent. The plaintiffs/ respondents stated such introduction of the stipulation was a foul play on the part of the defendant/ appellant. The plaintiffs/ respondents being deprived from their legitimate shares of rent being the joint owners of the said tenanted premises, they have filed suit for the relief as mentioned hereinabove. 5. The appellants/ defendants contested the suit by filing his written statement. The plaintiffs/ respondents being deprived from their legitimate shares of rent being the joint owners of the said tenanted premises, they have filed suit for the relief as mentioned hereinabove. 5. The appellants/ defendants contested the suit by filing his written statement. It is the defence taken by the defendants/ appellants that he is also a joint owner alongwith the plaintiffs/ respondents with respect to the suit premises and Durga Prasad Mahato stipulated in the agreement that during his life time he would collect the rent and on his death, the same would be collected by the defendants/ appellants. Durga Prasad Mahatoo as Karta of the HUF had made the said arrangement during his life time and executed the said registered lease deed. The proforma defendant (tenant) defaulted in paying the rent following which the ejectment suit was filed which was however compromised on 29.7.2005. 6. It is the claim of the defendants/ appellants that he borne out all the litigation expenses for the suit premises. He however denied that he is using the said rent for his personal expenses. Rather it is stated that he looked after and maintained his mother and the sister. Further it is pleaded that Durga Prasad Mahatoo during his life time sold a plot of land to Biswambar Paul and out of the said sale proceedings, the plaintiffs/ respondent Nos. 2 and 3 constructed a three storied building and as such he prayed for dismissal of the suit. 7. On the basis of the pleadings, following issues were framed:- (1) Whether the suit is maintainable in law and facts? (2) Whether the defendant No. 1 deprived the plaintiffs of their legitimate share of the rent being joint owners in respect to the suit premises as alleged? (3) Whether defendant No. 1 has any right to collect rent in respect to the suit premises from proforma defendants? (4) Whether plaintiff is entitled to get decree as prayed? (5) To what other relief(s) parties are entitled to? 8. The trial court after considering the evidence adduced by the parties to the suit decreed the same in favour of the plaintiffs/ respondents. However, while deciding the Issue No. 3, the trial court held that the defendants/ appellants had the right to collect rent from the tenant over the suit premises. 9. 8. The trial court after considering the evidence adduced by the parties to the suit decreed the same in favour of the plaintiffs/ respondents. However, while deciding the Issue No. 3, the trial court held that the defendants/ appellants had the right to collect rent from the tenant over the suit premises. 9. Being aggrieved by the said judgment and decree passed by the trial court, the present defendants/ appellants preferred T.A. No. 30/2009 in the court of the learned Civil Judge, Dibrugarh. The said first appeal was accordingly dismissed vide judgment and decree dated 20.09.2014. 10. Subsequent thereto the said judgment and decree passed in T.A. No. 30/2009 is challenged in the present second appeal, which is taken up for hearing under Order 41 Rule 11 CPC. 11. Mr. Dutta leaned senior counsel submits that the plaintiffs/ respondents sought for reliefs that they are entitled to the shares of the rent in respect arising out of the suit premises and permanent injunction restraining the appellants/ defendants from collecting rent from the tenant in the suit premises. However, both the courts below came to the findings that the defendants/ appellants is entitled to collect the rent from the tenants in the suit premises. In such a situation, though both the courts below had decreed the suit but in fact the findings in Issue No. 3 itself goes to show that the suit ought to have been dismissed as the vital issue involved in the said suit for the relief of permanent injunction restraining the defendants/ appellants from collecting the rent from the suit premises was negated by the courts below which is the consequential relief on the basis of the declaration sought for by the plaintiffs/ respondents. 12. Having decided the said issue No. 3 in favour of the defendants/ appellants, mere declaration on the part of the courts below in favour of the plaintiffs/ respondents is totally an ineffective decree which has no bearing on the relief claimed by the plaintiffs/ respondents in the suit. As such Mr. Dutta submits that the findings of the court below ought to be reversed and to that effect a substantial question is to be framed. 13. Mr. Baruah, learned senior counsel, appearing for the plaintiff/ respondents submits that the court below rightly held that the plaintiff/ respondents are equally entitled to the shares of the rent in respect of the suit premises. 13. Mr. Baruah, learned senior counsel, appearing for the plaintiff/ respondents submits that the court below rightly held that the plaintiff/ respondents are equally entitled to the shares of the rent in respect of the suit premises. Mere finding of Issue No. 3 that the defendants/ appellants is entitled to collect the rent arising out of the suit premises only cannot be considered that the suit of the plaintiffs/ respondents ought to have been dismissed. He submits that the findings of both the courts below are concurrent findings in nature. This court cannot enter into the facts which attained its finality and considering the concluded facts, there is no wrong in the findings given by both the courts below and as such no substantial question of law is involved in the present second appeal. 14. Considered the submissions of both the learned counsel appearing on behalf of the parties. On one hand, if the submission of Mr. Dutta, the learned senior counsel is considered, it can be concluded that until and unless the defendants/ appellants is restrained from collecting the rent, the mode of distribution amongst the plaintiffs/ respondents sought for by them is not at all effective. On the other hand, if the submission of Mr. Baruah, learned senior counsel is considered in the light of findings given in the Issue No. 3, it amounts to a suit decreed without any consequential relief flowing out of the said declaration. It seems that the plaintiffs/ respondents ought to have sought for further consequential reliefs in the manner of partition which the plaintiff/ respondents failed to do so. 15. Considered the findings on record of the courts below. It is apparent that whatever decree has been passed in favour of the plaintiffs/ respondents, the same would remain simply a paper decree, there being no substantial benefit derived by the parties, more specifically the plaintiffs/ respondents. 16. In view of the said discussions, this court holds that no substantial question of law is involved in order to resolve the dispute between the parties on the basis of the concluded facts arrived at by both the court below. Accordingly, this second appeal is dismissed. However, considering the findings given by the courts below, the parties are at liberty to file a suit afresh with a proper consequential relief. The appeal is accordingly dismissed.