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2017 DIGILAW 730 (GAU)

Rabindra Chandra Das v. Md. Saifuddin Ahmed

2017-06-05

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. I.C. Deka, the learned counsel appearing for the appellant. Also heard Mr. P. Khataniar, the learned counsel appearing for the respondents. 2. In challenge in this appeal under section 100 of the Civil Procedure Code is the first appellate judgment and decree dated 21.12.2006 passed by the learned Additional District Judge (F.T.C.) No. 4, Guwahati (hereinafter referred to as the "First Appellate Court"), in Title Appeal No. 6/1999, by which the appeal was dismissed and the judgment and decree dated 19.07.1999, passed by the learned Civil Judge No. 2, Kamrup, Guwahati (hereinafter referred to as the "Trial Court"), in Title Suit No. 67/1993 (formerly TS No. 48/1987) was affirmed. This appeal was admitted by this Court vide order dated 22.08.2007 on the following substantial questions of law:- “1. Whether a document not produced by the plaintiff in accordance with Order VII Rule 14 CPC can be admitted into evidence without the leave of the Court? 2. Whether the judgment and decree passed by the learned Lower Appellate Court are illegal for ignoring the mandatory provision of Order 41 Rule 31 CPC? 3. Whether the lease created under exhibit 5 was a lease for year to year lease and if so, whether the learned courts below committed illegality in decreeing the suit by applying the provisions of Assam Urban Areas Rent Control Act?” 3. The case of the respondents- plaintiffs, as it appears from the record is that the plaintiffs No. 1 namely, Hafizuddin Ahmed (since deceased) and Plaintiff No. 2, namely, Md. Saifuddin Ahmed had let out a CI Sheet roofed Assam type house standing on about 11 lechas of land covered by Dag No. 564, 565 and 573 of K.P. Patta No. 285 and 320 of Village Japarigog, Mouza-Beltola, morefully described in Schedule appended to the plaint to the respondent herein for one year on the basis of an agreement dated 01.03.1974. The monthly rent of the said premises was Rs. 300/- per month, which was payable within the first week of every subsequent month. The plaintiff No. 2, who was the owner of an adjacent plot of land allowed the respondent to occupy a thatched house standing thereon, without being let out to him. The monthly rent of the said premises was Rs. 300/- per month, which was payable within the first week of every subsequent month. The plaintiff No. 2, who was the owner of an adjacent plot of land allowed the respondent to occupy a thatched house standing thereon, without being let out to him. It was projected that the said CI Sheet Assam type house and the said thatched house was comprised under Holding No. 134 of Ward No. 29 of Guwahati Municipal Corporation Ward, standing in the name of the plaintiff No. 2. The case of the plaintiffs was that the defendant paid the monthly rent in respect of the tenanted premises only for the months from March, 1974 to February, 1975 and on and from 01.03.1975 till the filing of the suit, the defendant had failed to pay monthly rent to the plaintiffs No. 1 and 2 and around the year 1979-80, illegally converted the thatched house into an Assam type house and fraudulently got the his name entered into the Municipal Holding No. 144. Hence, by filing Title Suit No. 48/1987, the plaintiffs had, inter-alia, prayed for (a) decree declaring the title of the plaintiffs on the land and houses described in the schedule, (b) for eviction of the defendant from the suit premises by demolishing the house constructed by the defendant by converting the thatched house of the plaintiffs, (c) for decree for recovery of arrear rent of Rs. 11,100/- with future interest at the rate of 16% per annum, (d) for decree of pendente lite and future rent for the month of February, 1987 till the date of decree and till eviction, (e) for a decree of Rs. 10,000/- as damages and compensation with all future interest at the rate of 16% per annum, (f) decree for full costs of the suit and (g) decree for any other reliefs. 4. 10,000/- as damages and compensation with all future interest at the rate of 16% per annum, (f) decree for full costs of the suit and (g) decree for any other reliefs. 4. The defendant-appellant contested the suit by filing his written statement and, inter-alia, took a defence that the suit land was a government khas land when he took over possession of the same in the year 1967 and constructed a house thereon and started his motor garage in the name and style of M/s. Lalita Motor Works and, as such, the suit was barred by limitation under section 27 and Article 64 or 65 of the Limitation Act as the defendant was in continuous, open and uninterrupted possession of the suit land for more than 12 years since the year 1967 prior to the date of filing of the suit on 07.02.1987. It was projected that the plaintiff had no right, title and interest over the suit land and if the court found any title, then the same had already been extinguished by adverse possession. The defendant denied that he was ever a tenant of the plaintiffs and there was no question of paying any rent of any kind to the plaintiffs. It was denied that the defendant was ever a permissive occupier of any part of the suit premises under the plaintiff No. 2 in respect of a thatched house and also denied that he illegally constructed the Assam type house as alleged. The defendant denied that the Holding No. 144 was obtained in his name by fraud or misrepresentation. It was, thus, the case of the defendant that there was no obligation to pay any monthly rent to the plaintiffs and, as such, the suit was liable to be dismissed. The defendant also denied his signature and the execution of any tenancy agreement and, as such, denied the claim as imaginary and it was prayed that the suit was liable to be dismissed. 5. Based on the pleadings, the learned Trial Court had framed the following issues and additional issues:- “1. Is there any cause of action? 2. Whether the suit is barred by limitation? 3. Whether the plaintiff has right, title and interest in the suit land? 4. Whether the defendant has acquired title by adverse possession? 5. Whether there is a legal agreement in existence? 6. Is there any cause of action? 2. Whether the suit is barred by limitation? 3. Whether the plaintiff has right, title and interest in the suit land? 4. Whether the defendant has acquired title by adverse possession? 5. Whether there is a legal agreement in existence? 6. To what relief or reliefs, the parties are entitled to? Add. Issue: 7. Whether the suit is barred by adverse possession?” 6. After hearing the parties and after analyzing the evidence on record, the learned Trial Court passed the judgment and decree dated 19.07.1999 in Title Suit No. 67/1993 [Title Suit No. 48/1987 (Old)], decreed the suit by declaring the right, title and interest of the defendant-respondent over the suit land and further holding that the plaintiffs were entitled to recovery the khas possession of the suit land by evicting the defendant and it was also held that the plaintiffs were entitled to recover an amount of Rs. 11,100/- as arrear rent from January, 1984 to January, 1987 and compensation of Rs. 10,000/- for converting thatched house to an Assam type house from the defendant along with interest at the rate of 6% over the said sum of Rs. 21,100/- from the date of institution till realization. The appellant herein preferred an appeal against the said judgment and decree, which was registered as Title Appeal No. 6/1999, which was heard and decided by the learned Additional District Judge (F.T.C.) No. 4, Guwahati. The said learned First appellate court dismissed the said appeal by judgment and decree dated 21.12.2006. 7. Being aggrieved by the concurrent judgment and decree passed by the courts below, the defendant as appellant has filed the present appeal. 8. Mr. I.C. Deka, the learned Counsel for the appellant has pressed all the grounds taken in appeal. It was submitted that the Ext.5 i.e. the Tenancy Agreement, on which the learned courts below had relied upon was not filed in accordance with the provisions of Order VII Rule 14 of the Civil Procedure Code (hereinafter referred to as the ‘Code’ for brevity), as it was admitted without any leave from the learned Trial Court. It was strenuously argued that the learned First Appellate Court did not formulate any points of determination and, as such, the appellate judgment was violative of the mandate contained in the provisions of Order XLI Rule 31 of the Code. It was strenuously argued that the learned First Appellate Court did not formulate any points of determination and, as such, the appellate judgment was violative of the mandate contained in the provisions of Order XLI Rule 31 of the Code. It was also submitted that the learned First Appellate Court did not scrutinize the evidence of all the witnesses of the respective parties and mechanically affirmed the findings as well as the judgment of the learned Trial Court. It was also argued that the tenancy was in respect of the land only and, as such, when the admitted case of the plaintiff-respondent was that the appellant had constructed the house by converting the thatched house into an Assam type house and when his case was that he constructed the house in the year 1967, from which he was operating the motor garage under the name and style of M/s. Lalita Motor Works, the appellant became entitled to protection from eviction under section 5 of the Assam Non- Agricultural Urban Areas Tenancy Act, 1955 and the non-consideration of the said aspect had vitiated the impugned judgments. The last point urged by the learned Counsel for the appellant is that the appellant had never set up a plea of adverse possession, but merely pleaded about the bar of limitation as contained in Article 65 of the Limitation Act and, as such, the courts below had misread and misconstrued the pleadings and arrived at an erroneous decision. The learned Counsel for the appellant has referred to the relevant evidence of the witnesses of both sides. 9. Mr. P. Khataniar, the learned Counsel for the respondent, on the other hand submitted that the appellant had been taking contradictory stand in all stages of suit, appeal and the present second appeal. Against the first plea of the learned Counsel for the appellant, the learned Counsel for the respondent had visited the evidence of PW-1 and has submitted that when the Ext.5 was introduced in evidence, no objection at the time of admission of evidence was taken. 10. Against the second plea urged by the learned counsel for the appellant, it was submitted that it would be evident from paragraph 10 of the judgment passed by the learned First appellate Court that only three points were urged by the appellant in the appeal, viz. 10. Against the second plea urged by the learned counsel for the appellant, it was submitted that it would be evident from paragraph 10 of the judgment passed by the learned First appellate Court that only three points were urged by the appellant in the appeal, viz. (i) the respondent was not the owner of the suit land and house and the defendant had occupied the land since 1967 as government khas land and constructed houses thereon to run motor garage in 1967 and thus the plaintiff had no right, title, interest and possession over the suit land, the same was already extinguished due to adverse possession of the defendant and that the defendant was never a tenant under the plaintiffs and, as such, the question of payment of rent to the plaintiffs did not arise, (ii) as the defendant had made the permanent structure over the suit land within 5 years from taking the lease, section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 got attracted, (iii) the suit land was already declared as ceiling surplus land and it was vested with the State Government and as the appellant was in possession of the same, he was entitled to get settlement of the said land and even if the plaintiff had any right over the same, the same got extinguished. It was submitted that the appellant had argued only these three points before the learned First appellate Court had the said learned Court had answered the said points, as such, it was not required for the learned First Appellate Court to formulate the points of determination and then deliver the judgment, which was a mere formality. In support of the said argument, the learned Counsel for the respondent had relied on the case of Thakur Sukhpal Singh vs. Thakur Kalyan Singh, AIR 1963 SC 146 , which was decided by the Full Court (3 Judge Bench Coram) of the Hon’ble Apex Court. 11. In support of the said argument, the learned Counsel for the respondent had relied on the case of Thakur Sukhpal Singh vs. Thakur Kalyan Singh, AIR 1963 SC 146 , which was decided by the Full Court (3 Judge Bench Coram) of the Hon’ble Apex Court. 11. Against the third submissions made by the learned Counsel for the appellant that the learned First Appellate Court did not scrutinize the evidence of all the witnesses of the respective parties and mechanically affirmed the findings as well as the judgment of the learned Trial Court, the learned Counsel for the respondent had submitted that a plain reading of the judgment passed by the learned First Appellate Court would show that the appellant had urged only three points and the same was duly answered by the said learned court by referring to the relevant evidence. It was further argued that it is not the mandate of law requiring the appellate court to scan through and discuss the voluminous evidence of 8 witness even on issues not raised in course of argument. 12. On the argument advanced by the learned counsel for the appellant that the appellant became entitled to protection from eviction under section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, the learned Counsel for the respondent has submitted that when at the outset the appellant had categorically taken a plea of non-existence of any tenancy between the plaintiff and the defendant for which the plea of the appellant was that the question of paying any rent to the respondent did not arise, the plea of protection from eviction under section 5 of the Assam Non-Agricultural Areas Tenancy Act, 1955 could not co-exist, when the appellant had denied taking the land on rent from the respondent, claiming the land to be government khas land, which was liable to be settled with him. 13. 13. As against the last point urged by the learned Counsel for the appellant that the appellant had never set up a plea of adverse possession, but merely pleaded about the bar of limitation as contained in Article 65 of the Limitation Act, the learned Counsel for the respondent has argued that once the appellant had admitted protection under section 5 of the Assam Non-Agricultural Areas Tenancy Act, 1955 it must be first held that the appellant was a tenant and the same would lead to an irreversible fact that a tenant cannot be permitted to raise the plea of adverse possession on the well settled principle of law that “once a tenant, always a tenant.” 14. The learned Counsel for the respondent has further submitted that the plea that the land was a ceiling surplus land, as argued by the learned counsel for the appellant, was not even the case pleaded by the appellant in his written statement. 15. Thus, in summing up, the learned counsel for the respondent had submitted that the first question of law was actually a non-issue. There being no objection at the admission of the said Ext.5 on record, the same remains a question of fact and cannot be decided as a question of law, being not backed by any admissible evidence on record. On the second substantial question of law, it was submitted that only three points were urged by the appellant and, as such, the first appellate court was not obliged to formulate points of determination as it had answered all the three points. As regards the third substantial question of law, it is submitted that the said issue was not supported by the pleadings in the written statement and the issue was raised for the first time in this second appeal, nonetheless, a mere perusal of the said Ext.5 would show that the tenancy was from 01.03.1974 to 01.03.1975, which did not exceed one year and, as such, neither the said document was compulsorily required to be registered, nor there was any bar for being received in evidence. It is lastly submitted that neither any permission was obtained from this Court and nor any other substantial question of law had been urged by the learned counsel for the appellant and, as such, there is no fourth substantial question to be gone into. 16. It is lastly submitted that neither any permission was obtained from this Court and nor any other substantial question of law had been urged by the learned counsel for the appellant and, as such, there is no fourth substantial question to be gone into. 16. On examination of the said portion of examination-in-chief of Saifuddin Ahmed (PW-1), recorded on 31.03.1993, this Court had not found a record of any objection by the appellant/defendant’s side at the time of admission of Ext.5 in evidence. It also appears from examination of the judgment passed by the learned Trial Court that objection as to admission of Ext.5 was raised at the time of final argument in the suit. Moreover, on the examination of records, it is seen that along with other 6 documents (total 7 documents), the copy of agreement dated 01.03.1974 consisting of 2 pages was filed on record along with a List, which was received by the learned Trial Court under its rubber stamp dated 16th August, 1991. The said documents and list was accompanied by petition No. 3892/91 dated 16.08.1991 to accept the documents and after hearing the learned counsel for the parties, the learned Trial Court had accepted the documents by order dated 11.12.1991. Hence, the said plea is found to be not sustainable on the basis of record and the said first substantial question of law is answered in the affirmative and against the appellant by holding that all the documentary exhibits were in fact submitted by the respondent and duly admitted by the learned Trial Court by an order dated 11.12.1991 and, as such, there is no bar for being admitted into evidence. 17. Coming to the second substantial question of law as formulated by this Court, it is evident from the bare perusal of the first appellate judgment that the appellant had only argued on three points, which was duly addressed and/or answered by the said learned court. There is no material before this Court to enable this court to arrive at any conclusion that more than 3 points were argued by the appellant. Hence, in the opinion of this Court, there was no necessity for the lower appellate court to formulate any points of determination. There is no material before this Court to enable this court to arrive at any conclusion that more than 3 points were argued by the appellant. Hence, in the opinion of this Court, there was no necessity for the lower appellate court to formulate any points of determination. The second substantial question of law is answered in the negative and against the appellant by holding that as the appellant had not urged any point other than three points before the First Appellate Court and the said learned Court had considered and answered those points, it would not be necessary to formulate points of determination and address it again. In this regard, this Court deems it appropriate to quote few relevant portions of paragraphs 5, 6, 7, 8, 11 and 16 of the judgment of Thakur Sukhpal Singh (supra). “5. Learned counsel for the appellant does not dispute these propositions. His contention, however is that even if the appellant does not address the Court, the Court must go through the record and the judgment under appeal and come to its own conclusion about the correctness of the decision under appeal. Support for this contention is sought from the provisions of R. 32 of O.XLI which reads: lm15. "The judgment of the Appellate Court shall be in writing and shall state:- (a) the points for determination; (b) the decision there on; (c) the reasons for the decision; (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; And shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein." It is urged that the judgment of the appellate Court has to state the points for determination, the decision thereon and the reasons for the decision, and these the appellate Court cannot do till it has gone through the record and considered the entire matter on record including the judgment under appeal. The matters have to be in the judgment when points in dispute between the Parties are raised before the appellate Court. If no such points are raised for consideration, the appellate judgment cannot refer to the points for determination in its judgment and, when there be no points raised for determination, there can be no decision thereon and no reasons for such decision. If no such points are raised for consideration, the appellate judgment cannot refer to the points for determination in its judgment and, when there be no points raised for determination, there can be no decision thereon and no reasons for such decision. Such is the position when the appellant does not address the Court and does not submit anything against the decision of the Court below. The memorandum of appeal does contain the grounds of objection to the decree appealed from, without any argument or narrative as laid down in sub-rule (2) of r. O.XLT. Such grounds cannot take the place of the points for determination contemplated by rule 31. Not un-offensive certain grounds of objection raised in the memorandum of appeal are not argued or passed at the bearing and in that case such grounds cannot be taken to be the points for determination and are rightly not discussed in the judgment at all. It is for the appellant to raise the points against the judgment appealed from. He has to submit reasons against its correctness. He cannot just raise objections in his memorandum of appeal and leave it to the appellate Court to give its decision on those points after going through the record and determining the correctness thereof. It is not for the appellate Court itself to find out that the points for determination can be and then proceed to give a decision on those points. 6. The Privy Council observed in Mi. Fakrunisa vs. Moulvi Izarm. "In every appeal it is incumbent upon the appellants to show reason why the judgment appealed from should be disturbed; there must be some balance in their favour when all the circumstances are considered, to justify the alteration of the judgment that stands. Their Lord-ships are unable to find that this, duty has been discharged." With respect, we agree with this and hold that it is the duty of the appellant to show that the judgment under appeal is erroneous for certain reasons and it is only after the appellant has shown this that the appellate Court would call upon the respondent to reply to the contention. It is only then that the judgment of the appellate Court can fully contain all the various matters mentioned in r. 31, O.XLI. 7. It is only then that the judgment of the appellate Court can fully contain all the various matters mentioned in r. 31, O.XLI. 7. This Court observed in Sangram Singh vs. Election Tribunal, Kotah, Bhurey Lal Baya, at page 8: "Now a code of procedure must be regarded as such: It is procedure, something designed to facilitate justice and further its ends. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to boa sides) lest the very means designed for the furtherance of justice be used to frustrate it." The provisions of r.31 should therefore be reasonably construed and should held to require the various particulars to be mentioned in the judgment only when the appellate has actually raised certain points for determination by the appellate Court, and not when no such points have been raised as had been the case in the present instance when the appellant did not address the Court at all. 8. The provisions of r.30 of O.XLI support our construction of r.31. This rule reads: "The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceeding, whether on appeal or in the Court from whose decree the appeal is preferred to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders." It is to be noticed that this rule does not make it incumbent on the appellate Court to refer to any part of the proceedings in the Court from whose decree the appeal is preferred The appellate Court can refer, after hearing the parties and their pleaders, to any part of these proceedings to which reference be considered necessary. It is in the discretion of the appellate Court to refer to the proceedings. It is competent to pronounce judgment after hearing what the parties or their pleaders submit to it for consideration. It is in the discretion of the appellate Court to refer to the proceedings. It is competent to pronounce judgment after hearing what the parties or their pleaders submit to it for consideration. It follows therefore that if the appellant submits nothing for its consideration, the appellate Court can decide the appeal without any reference to any proceedings of the Courts below and, in doing so, it can simply say that the appellants have not urged anything which would tend to show that the judgment and decree under appeal were wrong.” “11. Another object can be that the second appellant Court or the revision be in a position to know why the Courts below came to a certain conclusion. Such knowledge is undoubtedly of great assistance to the Court. If therefore, DO contention is raised by the appellant in the first appellate Court, no question of raising any contention in the next appellate Court arises and therefore, the necessity of writing a complete judgment contemplated by r.31 does not arise.” “16. We therefore repel the contention for the appellant that the High Court had to decide the appeal after going through the record of the case and the judgment of the Court below and must have complied with the provisions of r. 31 of O.XLI C.P.C., when the appellant did not address the Court.” 18. Coming to the third substantial question of law as formulated by this Court, the answer is found on reading Ext.5. In clause 2 of the said tenancy agreement, there is a clear mention in Assamese vernacular that “the first party had given the house on rent to the second party from 01.03.1974 of the year 1974 to 01.03.1975 of the year 1975 and during this period, the first party will not be able to let the said rented house to any other second party on higher rent.” There is no other admissible evidence to the contrary by any of the defendant’s witnesses that the suit premises does not fall within the urban area notified under the Assam Urban Areas Rent Control Act, 1972. It also establishes the letting out of suit premises to the appellant. There is admission by the appellant that as the land which was possessed by the appellant/defendant was a government khas land and, as such, no tenancy existed between the plaintiff and the defendant and claimed extinguishment of title. It also establishes the letting out of suit premises to the appellant. There is admission by the appellant that as the land which was possessed by the appellant/defendant was a government khas land and, as such, no tenancy existed between the plaintiff and the defendant and claimed extinguishment of title. Thus, on the Ext.5 being found to be admissible in evidence, it establishes the existence of a valid tenancy in respect of the suit premises described in Schedule appended to the plaint. Moreover, there is a further admission that he had constructed the Assam type house situated on the suit land, which is a plea that has been not proved and, as such, it is establishes that the appellant had illegally converted the thatched house into a Assam type house, which are good grounds under the Assam Urban Areas Rent Control Act, 1972 to evict the appellant and to recover arrear rent and compensation from him. Thus, the third substantial question of law is also answered in the negative and against the appellant by holding that there was no lease for year to year, rather the tenancy is found to be for a fixed term of 11 months from 01.03.1974 to 01.03.1975 and, as such, there was no illegality in decreeing the suit by applying the provisions of the Assam Urban Areas Rent Control Act, 1972. 19. In the opinion of this Court, no further necessity is found to refer to any other pleadings or evidence on record. 20. In view of what has been discussed herein above, no case is made out to disturb the judgment and decree passed by both the Courts below on the substantial questions of law being decided against the appellant and therefore, the appeal is found to be devoid of any merit and the same is dismissed with cost. 21. Prepare the appellate decree and send back the lower court records along with a copy of this judgment and decree. 22. As the appellant has been in the tenanted premises described in Schedule of the plaint since 01.03.1974, this court is inclined to give time till 31.08.2013 from today to vacate the suit premises, subject to the following conditions: (a) The appellant shall bind himself and shall also deposit the decreetal sum as decreed before the learned Court Trial Court within a period of one month from today. (b) The appellant shall submit an unconditional undertaking in writing before the learned Trial Court, i.e. Court of Civil Judge No. 2, Kamrup (Metropolitan), Guwahati, within 1 (one) month from today, binding himself to vacate the suit premises on or before 31.08.2017. (c) The appellant shall bind himself not to sub-let or part with the possession of the suit premises to any other third party and/or to hand over the suit premises to anyone other than any one of the respondents herein (Plaintiffs No. 2 to 5), who will accept the said premises for and on behalf of all the plaintiffs. (d) Taking judicial notice of the sky-high market rent now prevailing, and as laid down by the Hon’ble Apex Court in the case of Rattan Arya vs. State of Tamil Nadu, AIR 1986 SC 1444 : 1986) 3 SCC 385, the appellant shall bind himself to henceforth pay monthly rent of Rs.10,000/- per month every month to any one of the respondents herein (Plaintiffs No. 2 to 5), who will accept the same for and on behalf of all the plaintiffs, which shall not constitute any further tenancy or create any right whatsoever in favour of the appellant. (e) The appellant shall bind himself not to cause any nuisance or any other disturbance and/or cause any damage to the suit premises in the meantime. 23. It is made clear that if any of the appellant does not give an undertaking to bind himself on any of the above five conditions (a) to (e) and if any of those conditions are violated or not complied with, the respondents herein (Plaintiffs No. 2 to 5) shall be entitled to enforce the decree.