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2017 DIGILAW 1446 (GAU)

Mira Prava Paul v. Abdur Rahim (Md. )

2017-11-16

PRASANTA KUMAR DEKA

body2017
JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. N. Dhar, learned counsel appearing for the petitioner/plaintiff and Mr. Sheeladitya, learned counsel for the respondents/defendants. The present petitioner as the plaintiff instituted T.S. No. 19/2002 in the court of the Civil Judge (Junior Division) No. 2 Kamrup (M), Guwahati for ejectment of the present respondents from the suit land and for recovery of arrear of rent. The claim of the plaintiff/petitioner is that she is the owner and possessor of the plot of land measuring 1 Katha 10 Lechas of Dag No. 214 of KP Patta No. 33 situated at Matgharia, Narengi under Beltola Mouza in the District of Kamrup (Metro), Assam. On 1.3.2001 as per written agreement the plaintiff/petitioner rented out a Tinchali room measuring 12 ft. X 18 feet to the respondent/defendant No. 1 at monthly rent of Rs. 150/- but on the following month when the plaintiff/petitioner demanded monthly rent, the defendant/respondent No. 1 refused to pay the rent and in August 2001, the defendant/respondent No. 1 Abdul Rahman, disappeared from the room leaving aside his wife and children who also refused to pay any rent to the petitioner/plaintiff. When the defendant/respondent No. 2, the wife of the defendant/respondent No. 1 collected building materials, the plaintiff raised objection. As the defendant/respondent No. 1 refused to pay the monthly rent, the plaintiff/petitioner filed suit for ejectment of the defendant/respondent No. 1 and for recovery of arrear of rent. The defendant/respondent No. 1 did not appear before the court as no summons could be served upon him. 2. On the other hand, on the basis of an application filed by the defendant/respondent No. 3 he was impleaded. The defendant/respondent No. 2 Sahina Khatun wife of the defendant respondent No. 1, contested the suit by filing written statement stating inter alia that the suit is not maintainable and it has no cause of action and also bad for non-joinder of the parties. It was totally denied by the defendant/respondent No. 2 that the plaintiff is the owner of the suit land and as per her pleading the suit land belonged to the defendant/respondent No. 3 and after getting permission from him, she constructed tinchali house in which she lives with her daughter. It was totally denied by the defendant/respondent No. 2 that the plaintiff is the owner of the suit land and as per her pleading the suit land belonged to the defendant/respondent No. 3 and after getting permission from him, she constructed tinchali house in which she lives with her daughter. On the other hand, the defendant/respondent No. 3 denying the claim of the plaintiff/petitioner pleaded that the land on which the suit house is situated belonged to him and he allowed the defendant/respondent No. 2 and her daughter to construct a tinchali house and the same has been recorded by the Guwahati Municipal Corporation under holding No. 715 Ward No. 49. 3. The suit land is covered by Dag No. 214 of KP Patta No. 33, situated at No. 1 Matgharia under Beltala Mouza. Accordingly, both the respondent Nos. 2 and 3 prayed for dismissal of the suit. 4. On the basis of the pleadings of the parties following issues were framed:- (1) Whether there is cause of action? (2) Whether the suit is maintainable? (3) Whether the defendant Nos. 1 and 2 are tenants of the plaintiff or are trespassers? (4) Whether the defendants are defaulters in respect of the suit premises? (5) Whether the suit premise is bonafide required by the plaintiff? 5. The plaintiff/petitioner examined 3 witnesses and exhibited number of documents. The defendants/respondents also examined three witnesses and exhibited some documents. The learned trial court vide judgment and decree dated 24.12.2004 dismissed the suit The learned trial court, while deciding the Issue Nos. 3 and 4 scrutinized the various exhibits filed by the petitioner/plaintiff. It was held that as per the plaintiff/petitioner she had let out the suit premises to the defendant/respondent No. 1 by way of written agreement dated 1.3.2001 at a monthly rent of Rs. 150/-, the defendant No. 1 defaulted in payment of rent from the very beginning. On the other hand, the defendant/respondent Nos. 2 and 3 denied that the defendant/respondent No. 1 was the tenant under the plaintiff/petitioner and further denied that there was any tenancy agreement between the plaintiff/petitioner and the defendant/respondent No. 1. 150/-, the defendant No. 1 defaulted in payment of rent from the very beginning. On the other hand, the defendant/respondent Nos. 2 and 3 denied that the defendant/respondent No. 1 was the tenant under the plaintiff/petitioner and further denied that there was any tenancy agreement between the plaintiff/petitioner and the defendant/respondent No. 1. The trial court came to the finding that to prove the tenancy the plaintiff/petitioner exhibited and relied on the exhibit No. 4 i.e. the unregistered tenancy agreement entered into by the plaintiff/petitioner and the defendant/respondent No. 1 holding onus of proof of the said exhibit No. 4 on the plaintiff/petitioner. 6. On the face of denial of execution of any such tenancy agreement by the defendant/respondent No. 1, the learned trial court bringing into the reference of the provision of Section 67 of the Indian Evidence Act, 1872 held that the plaintiff/petitioner failed to prove the signature of the defendant/respondent No. 1 in Ext. No. 4. Further it was held that the description of the suit property and the description of the one in the Ext. No. 4 are not same. Further scrutinizing evidence on record of the plaintiff/petitioner, the learned trial court held that she claimed to have let out the suit premises as its owner standing over the plot of land covered by KP patta No. 33 Dag No. 214 as aforesaid. Exhibit 1 is the sale deed and the learned trial court held that the plaintiff/petitioner purchased the land on 18.9.2002. Comparing both Ext. 1 and Ext. 4, the learned trial court held that both are contradictory to each other. The plaintiff purchased the land over which the suit premises is standing on 18.9.2002 and under such circumstances, the execution of the tenancy agreement, the Ext. 4 on 1.3.2001 is confusing and contradictory to arrive at a just decision that the plaintiff/petitioner is the land lord of defendant/respondent No. 1 or the defendants/respondents are the tenants of the plaintiff/petitioner. Accordingly the learned trial court held the Issue No. 3 in the negative and the Issue Nos. 1 and 2 were also decided in the negative thereby holding that the defendant/respondent Nos. 1 and 2 are not the tenants of the plaintiff/petitioner nor trespassers and the said defendants/respondents are not the defaulters. The suit hence was dismissed. 7. Accordingly the learned trial court held the Issue No. 3 in the negative and the Issue Nos. 1 and 2 were also decided in the negative thereby holding that the defendant/respondent Nos. 1 and 2 are not the tenants of the plaintiff/petitioner nor trespassers and the said defendants/respondents are not the defaulters. The suit hence was dismissed. 7. Being aggrieved the plaintiff/petitioner preferred T.A. No. 10/2015 in the court of the learned Civil Judge No. 1, Kamrup (M), Guwahati challenging the judgment and decree dated 24.12.2004, passed by the trial court. The said appeal was also accordingly dismissed vide judgment and decree dated 6.6.2008 whereafter the present revision petition is filed by the plaintiff/petitioner challenging the said judgment and decree of the first appellate court that the findings of the learned courts below are perverse. 8. Mr. Dhar, learned counsel appearing on behalf of the petitioner submits that the tenancy agreement i.e. the Ext. No. 4 had not been disputed by the defendant/respondent No. 1 who is one of the signatories in the said tenancy agreement and as such the same amounts to admission. Not only the said Ext. 4 was proved by the PW 2, Nantu Ch. Das who is one of the witnesses in the said Ext No. 4, the defendant No. 2, being the wife of the defendant No. 1 has possessed the tenanted premises under the claim of tenancy of the defendant No. 1, signatory of the Ext. 4. The issue of title between the parties to the suit cannot be a principal issue in a suit under the Rent Control Act rather, if any observation is made by the trial court while deciding such nature of the suit, the same ought to be taken to be a casual observation. It is submitted strenuously that in a suit under the Rent Control Act it is the relation of landlord and the tenant to be looked into by the court and not title with respect to the suit land of the Landlord upon which the tenanted premises is situated. Both the courts below misdirected and gone beyond the scope in deciding a suit under the Rent Control Act. Both the courts below misdirected and gone beyond the scope in deciding a suit under the Rent Control Act. It is further submitted that a person who is not an owner of the suit tenanted premises can let out the same by entering into a tenancy agreement as the landlord and if that person gets the status of the of the owner subsequent to entering into the said agreement of tenancy that cannot be a ground to non-suit the landlord. 9. It is pertinent to mention here that the defendant/respondent No. 3 filed Title Suit No. 68/02 with respect to the present suit land for declaration of right, title and interest wherein he pleaded that he purchased possessory right from one Ramji by way of an unregistered sale deed in 1975. The said suit was filed against the present petitioner as the defendant. The learned trial court decreed the suit of the defendant/respondent No. 3. However, in T.A. No. 74/2007 the said judgment in favour of the defendant/respondent No. 3 was set aside by way of judgment and decree dated 25.5.2010. The copy of the said judgment and decree of Title Appeal No. 74/07 has been brought on record by way of an affidavit after leave was granted by this court. 10. Pointing to the findings in the said judgment and decree in Title Appeal No. 74/2007, Mr. Dhar submits that the dismissal of the suit of the defendant/respondent No. 3 had attained its finality inasmuch as no revision or second appeal has been preferred by the said defendant/respondent No. 3. Pointing to the findings in Issue No. 8 given by the first appellate court in T.A. No. 74/2007, Mr. Dhar submits that the learned first appellate court while dismissing the suit of the defendant/respondent No. 3 held that the defendant/respondent No. 3 has/had no right, title and interest over the suit land. Referring to the pleadings in the written statement of the defendant/respondent No. 2 that she had been residing on the land of defendant/respondent No. 3, Mr. Dhar further submits that the dismissal of the said suit of the defendant/respondent No. 3 clearly shows that the plaintiff/petitioner has the paramount title over the suit land including the premises let out to the defendant/respondent No. 1 on the basis of the principles under Section 109 of the T.P. Act. Dhar further submits that the dismissal of the said suit of the defendant/respondent No. 3 clearly shows that the plaintiff/petitioner has the paramount title over the suit land including the premises let out to the defendant/respondent No. 1 on the basis of the principles under Section 109 of the T.P. Act. This court can allow the decree for ejectment of the defendant/respondent. Summing up as above, Mr. Dhar relies 1995 (3) GLT 610 (Sudhir Chandra Mitra v. Md. Sujauddin Ahmed & Ors) 2004 (3) GLT 415 (Kalyani Deb v. Usha Rani Saha & Ors). 11. Taking into consideration the view of this court in the said referred decisions, Mr. Dhar submits that once the trial court and the appellate court came to the finding that there exist a relationship of landlord and the tenant and the default is established, in such a situation in a suit for ejectment under the Assam Urban Areas Rent Control Act, 1972, the owner of the land is not to be impleaded as the party. However, the defendant/respondent No. 2 being the wife of the respondent No. 1 cannot deny the title of the plaintiff/petitioner inasmuch as admittedly she is a tenant and the tenancy had been derived from her husband and under such situation wherein the tenancy has been proved, the defendant/respondent No. 2 is estopped from disclaiming the title of the landlord, the plaintiff/petitioner under Section 116 of the Indian Evidence Act. Mr. Dhar as such submits that interference is required in the judgment and decree passed by the first appellate court. 12. Mr. Sheeladitya on the other hand submits that the tenancy between the parties to the suit more specifically with the defendant/respondent No. 1 is not at all proved. Even if it is assumed to be proved then also the plaintiff/petitioner had a duty cast upon her after she subsequently acquired the status of ownership with respect to the suit land at least to inform the respondent No. 1 and 2 to attorn her as their landlord. No such attornment has been proved and under such circumstances even if she is the owner subsequent to the agreement and dismissal of the suit of the defendant/respondent No. 3, failed on her part to prove any such move asking for attornment by the present defendant/respondent Nos. No such attornment has been proved and under such circumstances even if she is the owner subsequent to the agreement and dismissal of the suit of the defendant/respondent No. 3, failed on her part to prove any such move asking for attornment by the present defendant/respondent Nos. 1 and 2 which she defaulted on her part and as such the said judgment and decree had no relevancy in the present suit wherein there is a specific denial of the relationship of landlord and tenant by the defendant/respondent No. 2. Further Mr. Sheeladitya submits that the said tenancy agreement Ext. 4 cannot at all be held to be proved within the parameters of Section 67 of the Indian Evidence Act. Relying 1996 (1) GLT 272 (Md. Majibur Rahman v. Md. Sabed Ali & Ors), Mr. Sheeladitya submits that in order to succeed in claim for eviction under the Assam Urban Areas Rent Control Act, 1972, it is incumbent on the part of the plaintiff/petitioner, the landlord to establish the relationship with the tenants. He accepts the submission of Mr. Dhar that the title has nothing to do while deciding a suit under the Rent Control Act. But in the present case in hand, it is pleaded that the plaintiff/petitioner had been possessing the suit land after the purchase. 13. On the face of such pleadings both the courts below had taken into consideration the sale deed Ext. 1 which is subsequent to execution of the Ext. 4, the tenancy agreement. Both the courts below had come to a concurrent finding and as a revisional court, this court cannot entertain the fact like subsequent judgment passed in Title Appeal No. 74/2007. More so, there was no such pleading to that effect. Accordingly, the revision is liable to be dismissed. 14. Considering the nature of the dispute between the parties the same is basically with respect to relationship of the landlord and the tenant. In this revision petition, even if there are concurrent findings of facts, this court enters into in order to examine as to what extent as submitted by Mr. Dhar, the tenancy agreement Ext. 4 has been proved. In the event if the same is held to be proved definitely this court can come to a conclusion with respect to the relationship which is in dispute. Dhar, the tenancy agreement Ext. 4 has been proved. In the event if the same is held to be proved definitely this court can come to a conclusion with respect to the relationship which is in dispute. The holding number of the suit premises as apparent from the pleading i.e. plaint is 66. The sale deed Ext. 1 is admittedly executed subsequent to the Ext. No. 4, the tenancy agreement. The peculiar facts and circumstances of this case is that the defendant/respondent No. 1 who was alleged to be a signatory in Ext. No. 4 has neither filed any written statement nor summons was duly served upon him. The wife of the said defendant/respondent No. 1 denied the landlord and tenancy relationship as pleaded by the plaintiff/petitioner. In her cross examination, the plaintiff/petitioner as PW 1 denied that Ext. 4 was a manufactured one and further denied that signature of the defendant respondent No. 1 in Ext. 4 was forged. 15. PW 2, Nantu Ch. Das in his evidence on affidavit deposed that he is one of the signatory in the said Ext. No. 4 and exhibited his signature as Ext. 4(1). In his cross-examination, he deposed that he is unaware with regard to the contents of Ext. 4. He further denied the fact that Abdur Rahman, the defendant/respondent No. 1 was missing since 10/15 years back. The holding extract Ext. 6 has been proved by PW 3 who is an official witness of the Gauhati Municipal Corporation (GMC). The defendant/respondent No. 2 as DW 1 in her cross-examination denied that the plaintiff/petitioner used to collect rent from the tenanted premises. In the cross examination, the plaintiff side never confronted the DW 1 putting question with regard to the genuinity of the signature of the defendant/respondent No. 1. The rest of the two witnesses were not confronted with the said Ext. No. 4 which is quite natural inasmuch as they are not family members of the defendant/respondent No. 1, Abdur Rahman. In the evidence on affidavit of the defendant/respondent No. 2, she has specifically stated that she is not the tenant under the plaintiff/petitioner. 16. On the face of the said pleadings hereinabove mentioned, a duty is cast upon the plaintiff to prove the signature of the defendant/respondent No. 1 in order to prove the veracity of the deposition of the DW 1. 16. On the face of the said pleadings hereinabove mentioned, a duty is cast upon the plaintiff to prove the signature of the defendant/respondent No. 1 in order to prove the veracity of the deposition of the DW 1. There is no move on the part of the plaintiff/petitioner at least to call for the said defendant/respondent No. 1, even in the address shown in the plaint. Section 67 of the Indian Evidence Act stipulates if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the hand writing of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. 17. In the evidence of PW 2, Nantu Ch Das, nowhere he stated that the signature in Ext. 4 was put by the defendant/respondent No. 1. Rather, there is contradiction with regard to the statement made in the evidence of affidavit and the one in the cross-examination with regard to the contents of the Ext. 4. Similar is the case with the evidence of the PW 1 wherein she had never identified the signature of Abdur Rahman. In AIR 1959 SC 443 (H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors.), it was held that under Section 67 of the Indian Evidence Act if a document alleged to be signed by any person, the signature of the said person must be proved to be in his own handwriting and proving of such handwriting under Section 45 and 47 of the Act and the person conversant with the handwriting of a person concerned are relevant. 18. Considering the materials on record, it cannot be held that the execution of Ext. 4 was done by the defendant/respondent No. 1. There is no endeavour on the part of the plaintiff/petitioner to prove the said signature and surprisingly both the PW 1 and PW 2 never even exhibited the said signature nor there is any attempt made on their part to produce any document contemporaneous to Ext. 4 for comparison by the court. 4 was done by the defendant/respondent No. 1. There is no endeavour on the part of the plaintiff/petitioner to prove the said signature and surprisingly both the PW 1 and PW 2 never even exhibited the said signature nor there is any attempt made on their part to produce any document contemporaneous to Ext. 4 for comparison by the court. Under such circumstances, on the face of the pleadings of the defendant/respondent No. 2, this court holds that there is no relationship of landlord and tenants between the parties to the suit Moreover, in a suit of this nature, wherein the tenant has disputed and denied the relationship of the landlord and tenants between them, the burden lies upon the plaintiff/petitioner to prove that there exists a relationship as such. The plaintiff/petitioner had failed to discharge such burden of proving the relationship between them. Accordingly, the findings of the courts below remains as it were there being no occasion for its interference. 19. In view of the decision of this court in 1993 (1) GLR 220 (Madharam Thakursidas v. M/s. Pokarmal Agarwalla) as submitted by Mr. Dhar, this court has entered into the relevant facts in order to examine the main issue involved and this court finds that the plaintiff/petitioner has failed to discharge her burden and onus taken upon her by the denial of the relationship of the landlord and tenant by the defendant/respondent No. 2. 20. This Civil Revision Petition is accordingly dismissed. No costs. Send back the LCR.