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2018 DIGILAW 365 (GAU)

Anil Kumar Das v. Ramen Das

2018-02-27

KALYAN RAI SURANA

body2018
JUDGMENT & ORDER : 1. Heard Mr. B.D. Deka, the learned counsel for the petitioner as well as Mr. S.P. Roy, the learned counsel for the respondents-caveators. 2. By this revision under section 115 CPC, the petitioner has challenged the first appellate judgment and decree dated 27.10.2017, passed by the Court of the learned Additional District Judge No.1, Kamrup (M), Guwahati in Title Appeal No. 7/2014, thereby dismissing the appeal and upholding the judgment and decree dated 07.12.2013, passed by the Court of the Court of the learned Munsiff No.1, Kamrup (M), Guwahati in T.S. No.469/2008, thereby allowing the counter-claim of the respondent/defendant. 3. The petitioner herein is the plaintiff in T.S. No.469/08. He had filed a suit was filed for declaration and injunction. As per the plaint, the petitioner is the tenant in the two Assam Type rooms with covered verandah, one kitchen and one out-house with toilet, assessed under Holding No. 33 of GMC Ward No. 34, which was situated in a plot of land covered by Dag No. 912/1275 (New) of Annual Patta No.4 of Sahar Guwahati Part-VI, under Mouza- Ulubari. It was claimed that the tenancy was subsisting between the petitioner and the respondent No.1 and the petitioner has the right to possess the suit house. In the plaint, the petitioner had, inter-alia, prayed for an injunction to restrain the respondent from disturbing the peaceful possession of the petitioner in respect of the suit premises and from illegally evicting him. 4. The respondents No. 1, 2 and 3 herein, who were arrayed as defendants No.1 to 3 in the suit had filed their joint written statement cum counter-claim, inter-alia, stating that the respondent No.2 was nowhere connected with the suit property and had no interest in the suit property and that the respondent No.1 had sold the suit property to the respondent No.3 vide sale deed No.10591 dated 01.08.2008 and, as such, the respondent No.3 had become the absolute owner of the land and house covered by the said sale deed, which included the suit premises. It was stated that after purchasing the suit land, a notice for attornment of tenancy was issued to the petitioner on 24.12.2008. It was also stated that the respondents No. 1 and 3 had requested the petitioner on several occasions to at torn his tenancy and to pay monthly rent from the month of August, 2008 onwards. It was stated that after purchasing the suit land, a notice for attornment of tenancy was issued to the petitioner on 24.12.2008. It was also stated that the respondents No. 1 and 3 had requested the petitioner on several occasions to at torn his tenancy and to pay monthly rent from the month of August, 2008 onwards. But instead, the petitioner sent his rent to the respondent No.1 by bank draft along with a letter dated 17.12.2008 to sell the suit land to him at a reasonable price. The respondent No.1 had responded to the said letter by his letter dated 22.12.2008, wherein he had stated that he had not received rent for the last four years and that had sold the said property to the respondent No.3 and accordingly, the bank draft was returned. Hence, the counter-claim was filed for evicting the petitioner on the ground that the suit land was bona fide required for reconstructing of a modern RCC building thereon as well as on the ground that the petitioner was defaulter, and prayer was made to put the respondent No.3 in khas possession in the suit premises and for recovery of arrear rent, pendente lite and future rent and for permanent injunction. 5. As against the said counter-claim, the petitioner had filed his written statement, inter-alia, taking a plea that the transfer of the suit land was illegal as the land was a annual patta land. The petitioner denied the receipt of the purported letter dated 24.12.2008 for attornment. It was also stated that the petitioner was a monthly tenant, but, with an understanding that if the respondent No.1 intended to sell the land on which the suit premises was standing, he would be given preference. It was further stated that there was no fixed date for paying monthly house rent and that the petitioner was paid rent as per the contract of tenancy. It was further stated that the respondent No.1 had no right, title over the suit premises and the respondent No.3 had not acquired any valid title by virtue of the sale deed and in the absence of any notice of change of ownership or absence of any agreement between the parties, the counter-claim was not maintainable. The petitioner had prayed for dismissal of the counter-claim. 6. The petitioner had prayed for dismissal of the counter-claim. 6. On the basis of the pleadings, the learned Trial Court framed the following issues in the suit:- 1. Whether the defendant No.1 has sold the land to defendant No.3 vide registered sale deed No.10591 dated 01.08.08, and whether the land so sold includes the suit houses? 2. Whether the sale of land is without the knowledge of the plaintiff? 3. Whether defendant No.3 is the landlord of the plaintiff? 4. Whether, by not tendering rent to the defendant No.3, the plaintiff is a defaulter? 5. Whether the counter-claim of the defendants has a cause of action? 6. Whether the counter-claim is maintainable? 7. Whether the plaintiff is a tenant under the defendant No.1? 8. Whether the plaintiff is a defaulter in respect of payment of rent to defendant No.1? 9. To what relief’s, parties or any of them entitled to? 7. In support of their cases, the petitioner has examined himself as PW-1 and one Dipen Choudhury as PW-2 (mentioned in certified copy of cross-examination as PW-3). The respondent No.3 examined two witnesses including himself as DW-1 and one Shri Nitul Das, who was deputed from the office of the Senior Sub-Registrar, Guwahati was examined as DW-2. In respect of issue No.1, the learned trial court had held that the DW-1 and DW-2 had proved the execution and registration of the said Sale Deed (Ext.1). The learned trial Court rejected the plea of the petitioner that the suit house was not within the land purchased by the respondent No.3 or that the suit house was on additional land held by the respondent No.1 and not on land purchased by respondent No.3, situated by the side of the land sold by respondent No.3. In this regard it was held that the said plea was not taken in the plaint and that in the sale deed (Ext.1), it was mentioned that the land comprised of a house standing on it. Hence, it was held that the respondent No.3 had purchased the land from respondent No.1 which included the suit land and the issue No.1 was decided in the affirmative. 8. In respect of issue No.2, the learned trial Court believed in evidence of the respondent No.3 (DW-1) that the information of sale of property to him was informed to the petitioner vide letter dated 10.08.2008 (Ext. 8. In respect of issue No.2, the learned trial Court believed in evidence of the respondent No.3 (DW-1) that the information of sale of property to him was informed to the petitioner vide letter dated 10.08.2008 (Ext. L), and that the due service of the said letter was proved by the acknowledgment card (Ext. M). The learned trial court had also relied on the Letter of Attornment dated 24.12.2008 (Ext. J) send by respondent No.3, of which Ext.K was the postal receipt. It was held that the second letter (Ext. J) was sent after filing of the suit but the sending of first letter (Ext. M) was duly proved and it was held that as the Letter for Attornment was sent to the petitioner, he was aware of the sale. Hence, the said issue No.2 was decided in the negative. 9. In respect of issue No.3, the learned trial Court had referred to the authorization letter (Ext.F) given by the respondent No.1, authorizing the respondent No.3 to appear, plead or act tender evidence and to exhibit the documents in the suit. The learned Court had also referred to the entries made in the certified copy of the jamabandi (Ext.G) and Holding Mutation order dated 02.01.2001 (Ext.H) in the name of respondent No.1 as well as on the sale deed dated 01.08.2008 (Ext.1 and Ext.I). By referring to the rent receipts [Ext.1 (1) to Ext.1 (26) ], counterfoil of bank deposit slips [Ext.2 (1) to Ext.2 (5) ] and the Treasury Challans [Exb.3 (1) to Ext.3 (14) ] showing deposit of rent in court, it was held that once the petitioner had admitted that the respondent No.1 and before him his father were his landlord, the petitioner was barred from making any submission to the effect that the said house did not fall within the suit land, but outside the land belonging to the landlord. Moreover, the learned Trial Court did not found anything adverse in the additional documents No. 1 and 2 submitted by the petitioner after completion of evidence of both sides and it was held that the respondent No.3 was the landlord of the petitioner by purchasing the suit land and the issue was decided in the affirmative. 10. Moreover, the learned Trial Court did not found anything adverse in the additional documents No. 1 and 2 submitted by the petitioner after completion of evidence of both sides and it was held that the respondent No.3 was the landlord of the petitioner by purchasing the suit land and the issue was decided in the affirmative. 10. In respect of issue No.4 it was held that by not tendering rent to the respondent No.3, the petitioner had became a defaulter and that the petitioner should have attorned his tenancy under the respondent No.3 and the said issue is decided in the affirmative. Similarly, in respect of issue No.5, it was held that as the respondent No.3 had become the owner of the suit premises and the petitioner having not tendered rent to him had become a defaulter and as the respondent No.3 had deposed that he bona fide needed the suit premises for reconstruction, it was held that there was cause of action for the respondent No.3 to file the counter-claim and the issue was decided in the affirmative. In respect of issue No.6 it was held that as the respondent No.3 had proved that the petitioner was a defaulter in paying the monthly rent, he was liable to be evicted as per the provisions of Assam Urban Areas Land Control Act, 1972. Hence, the counter-claim was held to be maintainable and the issue was decided in the affirmative. 11. In respect of issue No. 7, it was held that after the death of his father, the respondent No.1 had become the landlord and upon on attornment of the tenancy, the respondent No.1 had been receiving rent from the petitioner and that till the sale of land to the respondent No.3, the respondent No.1 was the landlord of the petitioner. Hence the issue was decided in the affirmative. In respect of issue No.8, it was held that though the landlord used to accept rent together for months without any objection but once there was dispute and such rent was being deposited in Court, the tenant was under an obligation to deposit the rent by following due procedure. Hence the issue was decided in the affirmative. In respect of issue No.8, it was held that though the landlord used to accept rent together for months without any objection but once there was dispute and such rent was being deposited in Court, the tenant was under an obligation to deposit the rent by following due procedure. It was also held that Ext.3 (1) reflected that the petitioner had deposited house rent in Court on 09.01.2009 from August, 2005 to January, 2009 at a time in the name of the respondent No.1, but there was nothing on record to prove that the rent was offered to the landlord for the said period on the due dates. The suit was instituted on 22.12.2008, and it was held that though the petitioner had exhibited the rent deposit challans in respect of subsequent months as Ext.3 (1) to Ext. 3 (14), he did not mention anywhere about the date when such rent was offered to the landlord. Moreover, the learned court took notice of the fact that the petitioner did not call for the concerned N.J. Case records to prove the due deposit of rent in Court by taking proper steps of having first offered rent to landlord before depositing such rent in Court. Therefore, notwithstanding that the respondent No.1 did not appear before the Court, by relying on the case of Abdul Matin Choudhury & Anr. Vs. Nityananda Dutta Banik, (1997) 2 GLR 468, from the evidence and exhibited documents, it was held that the petitioner had failed to prove that the petitioner had deposited rent in Court within time on each occasion after such payment was refused to be accepted by the respondent No.3. Thus, it was held that the petitioner had failed to prove his own case and it was further held that the petitioner was a defaulter in payment of rent. Accordingly, in respect of issue No.9, it was held that the petitioner had defaulted in payment of rent to the respondent No.1 and subsequently to the respondent No.3. Moreover, as the respondent No.3 required the land for reconstruction and, as such, it was held that the petitioner was not entitled to any relief. 12. Accordingly, in respect of issue No.9, it was held that the petitioner had defaulted in payment of rent to the respondent No.1 and subsequently to the respondent No.3. Moreover, as the respondent No.3 required the land for reconstruction and, as such, it was held that the petitioner was not entitled to any relief. 12. Consequently, the suit filed by the petitioner- tenant was dismissed and the counter-claim filed by the respondent- landlord was allowed and decree was passed for eviction of the petitioner from the suit premises and for recovery of the said suit premises in favour of the respondent No.3 by evicting the petitioner from the suit premises. 13. The aforesaid judgment and decree passed by the learned Trial Court was assailed by filing Title Appeal No.7/14. Upon hearing the learned counsel for the parties, the learned First Appellate Court formulated the following points of determination of appeal:- (a). Point No.1: Whether the respondent No.3 is the landlord of the appellant? (b). Point No.2: Whether the sale deed No.10591 dated 01/08/08 is void in view of Govt. notification? (c). Point No.3: Whether the respondents failed to prove that the appellant is a defaulter of rent and there is bonafide requirement of the respondent No.3 in respect of the suit houses? 14. The learned First Appellate Court on the basis of examination of materials on record held that the petitioner in his cross-examination had admitted that he used to pay rent to the respondent No.1 after Late Rajbihari Das and, as such, there existed landlord and tenancy relationship between the petitioner and the respondent No.1. It was held that the petitioner had admitted the receipt of letter dated 22.12.2008 (Ext.A) and therefore, as per the contents thereof, the petitioner had come to know that the respondent No.3 was his new landlord on the strength of purchase of the suit land and house from the respondent No.1. The learned Appellate Court also relied on the Sale Deed (Ext.A) and held that it was clear from the said document that the entire land and house of the respondent No.1 was sold out to the respondent No.3, including the suit premises. The learned Appellate Court also relied on the Sale Deed (Ext.A) and held that it was clear from the said document that the entire land and house of the respondent No.1 was sold out to the respondent No.3, including the suit premises. Relying on the cross-examination the petitioner, where he had admitted having been informed by the respondent No.3 that he had purchased the land and suit house from the respondent No.1, as well as the fact that the receipt of letter dated 24.12.2008 (Ext.J) was not disputed by the petitioner, it was held that from 30.12.2008, the appellant was aware that the respondent No.3 was the new owner of the suit land and house. Thus, it was held that after knowing that the respondent No.3 had purchased the property, the petitioner ought to have attorned his tenancy under the respondent No.3, otherwise he would have no status over the suit house as tenant. Accordingly, it was held that the respondent No.3 was the landlord of the petitioner and the point of determination No.1 was decided in affirmative. 15. In respect of point of determination No.2, the learned first appellate court had held that the notification which was produced as additional document was a direction to all the Deputy Commissioners of the State "to make a remark on the chitha while correcting the land records in case of converted settled land" was merely an executive direction, which could not have any adverse impact on the transfer of property as it did not create any embargo to sell any newly converted settled land by registered sale deed. Hence, the learned first appellate court was of the view that it cannot be held that the Sale Deed No.10591 in question was void, and thus, the point of determination No.2 was decided in negative. 16. In respect of point of determination No.3, it was held that as the respondent No.1 had sold the suit land to the respondent No.3, after such transfer, he was no longer the owner of the suit premises. Hence, it was not required for the respondent No.1 to adduce any evidence and it was further held that the respondent No.3 was entitled to file his counter-claim against the petitioner- tenant and that the petitioner was bound to pay rent to the respondent No.3, his new landlord, who has assumed property by way of sale deed dated 01.08.2008. Hence, it was not required for the respondent No.1 to adduce any evidence and it was further held that the respondent No.3 was entitled to file his counter-claim against the petitioner- tenant and that the petitioner was bound to pay rent to the respondent No.3, his new landlord, who has assumed property by way of sale deed dated 01.08.2008. Accordingly, it was held that there was no question of the petitioner offering rent to his previous landlord and it was also held that the petitioner was not entitled to challenge or dispute the sale of property and that after the sale/transfer, the respondent No.1 had no authority to collect or claim rent from the petitioner. Hence, it was held that the petitioner was bound to pay the rent to the respondent No.3 after 01.08.2008. Furthermore, the learned First Appellate Court took note of the fact that in his evidence, the petitioner had stated that on 17.12.2008 he had sent a demand draft of Rs.11,521/- as house rent to the respondent No.1 but it was returned and he deposited house rent for the months of August, 2005 to January and February, 2009 before the Court by filing N.J. Case and that he had subsequently deposited house rent in Court by way of N.J. Cases on refusal of respondent No.1 to accept rent. The said learned court also took note of the admission made by the petitioner that as per Ext.A, the respondent No.1 had refused to accept rent tendered by the petitioner and held that as on 19.12.2008, the petitioner had came to know that the respondent No.1 had sold the tenanted premises to the respondent No.3. 17. The learned first appellate Court also took note of the contents of Ext.A letter, by which the respondent No.1 had complained that he did not receive house rent for 4 (four) years from the petitioner. The said learned court also held that if there was no agreement that when the house rent fell due, the law would fill up such gap and the petitioner was bound to follow the provisions of law when there was no agreement or date of payment of rent. The said learned court also held that if there was no agreement that when the house rent fell due, the law would fill up such gap and the petitioner was bound to follow the provisions of law when there was no agreement or date of payment of rent. Taking note of the statement made by the petitioner in his cross-examination, wherein the petitioner had admitted that he did not submit his house rent challan after February 2010, it was held that the said evidence would mean that the petitioner had not paid house rent from February, 2010 to his landlord. Hence, on the basis of evidence and pleadings, the learned first appellate court had held that the petitioner never offered the house rent to respondent No.3 after coming to know that the suit premises was sold to him and it was also held that the respondents had not refused to accept the house rent offered by the petitioner, as such, in order to cover up his default in payment of rent for four years, the petitioner had deposited house rent in Court. Thus, it was held that from the evidence of the petitioner, it was established that he was a defaulter from February, 2010 onwards in respect of respondent No.3, and that no further evidence was necessary to prove the fact of defaulter of rent by the petitioner. It was held that Ext.3 series did not satisfactorily show that the petitioner had deposited monthly rent in the Court in terms of the provisions of Assam Urban Areas Land Control Act, 1972. 18. Relying on the materials on record that the petitioner was a tenant of the house since 1971 and the tenanted house had become an old house as it was built in the year 1950 and by further relying on the fact that the respondent No.3 had obtained building permission for construction of G+2 building, it was held that the suit premises was bona fide required by the respondent No.3. Hence, it was held that the petitioner was liable to be evicted and the respondent No.3 was held to be entitled to recover vacant premises as well as arrear rent from the petitioner as per the law. Accordingly, the point of determination No.3 was decided in the affirmative and the appeal was dismissed by upholding the judgment and decree passed by the learned trial Court by allowing the counter-claim. Accordingly, the point of determination No.3 was decided in the affirmative and the appeal was dismissed by upholding the judgment and decree passed by the learned trial Court by allowing the counter-claim. 19. The learned counsel for the petitioner has submitted that there was no agreement between the petitioner and the respondent No.3 to create a tenant and landlord relationship, therefore, the respondent No.3 can only step into the shoes of the previous landlord and therefore, it must be presumed that the same arrangement, as stood earlier, would continue to exist for payment of rent, meaning thereby that as there was no due date for the erstwhile landlord to claim monthly rent from the petitioner, the petitioner was not obliged to tender rent at his choice, but the petitioner was bound by the convenience of the landlord and he would only be obliged to pay monthly rent as and when demanded by the landlord. It is further submitted that there being no due date for payment of rent, the existence of "due date" being sine qua non for deciding the issue of defaulter, both the Courts below had erred in law in holding the petitioner to be a defaulter even in the absence of any finding as to on which date the rent had fallen due. 20. It is submitted that while the petitioner had made statement in his plaint as well as the written statement of the counter-claim that there was no due date of payment of rent to the erstwhile landlord, the respondent No.1 neither came forward for giving evidence nor was he summoned by the respondent No.3 to give his evidence. Therefore, the absence of view date of payment of rent was duly demonstrated by the petitioner and the question of default of payment would arise only if due date is proved. 21. It is further submitted that the provisions of section 109 of the Transfer of Property Act, 1882 entitled the petitioner to infer that the transfer of title had not been validly passed to the respondent No.3. Hence, the petitioner was entitled under the law to continue to deposit rent to the respondent No.1, who was his erstwhile landlord. Hence, it is submitted that the deposit of rent by the petitioner in favor of the respondent No.1 could not be faulted with. 22. Hence, the petitioner was entitled under the law to continue to deposit rent to the respondent No.1, who was his erstwhile landlord. Hence, it is submitted that the deposit of rent by the petitioner in favor of the respondent No.1 could not be faulted with. 22. It is further submitted that in his cross-examination, the respondent No.3 had categorically admitted that he had completed his proposed construction, and therefore, as the respondent No.3 had obtained an NOC to build G+2 house/building, upon completion of the proposed building, there cannot be an existing or subsisting bona fide requirement for the suit premises. Hence, it is submitted that the said part of the evidence, whereby the respondent No.3 had admitted the lapse of the bona fide requirement, the same having not been considered and thus the judgment passed by the learned Court below was vitiated and the same was liable to be set aside. Therefore, it is submitted that although the petitioner was not liable to be evicted from the suit premises on the ground of bona fide requirement of the suit premises, but the issue of bona fide requirement was decided against the petitioner without considering the fact that the proposed construction had come up during the pendency of the suit and bona fide requirement for the suit premises ceased to exist. 23. It is submitted by the learned counsel for the petitioner that as per the facts of the present case, the respondents No.1 and 3 had different interest in the suit property, the former being the transferor and the later being the transferee of the property, the respondent No.3 could not be the recognized agent of the respondent No.1. Hence, the provision of Order I Rule 12 read with Order III Rule 1 CPC would not empower the respondent No.3 to give evidence on behalf of respondent No.1, for which the stand of the respondent No.1 cannot be said to have been proved. 24. In support of his contention, the learned counsel for the petitioner has referred to the following cases citations:- (a). M/S Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, AIR 1985 SC 207 . (b). Amarjit Singh Vs. Smt. Khatoon Quamarain, AIR 1987 SC 741 . (c). S.F. Engineer Vs. Metal Box India Ltd, (2014) 6 SCC 780 . (d). Chiranjilal Pant & ors Vs. Sunil Kumar Choudhury, (1983) 1 GLR 268 . (e). M/S Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, AIR 1985 SC 207 . (b). Amarjit Singh Vs. Smt. Khatoon Quamarain, AIR 1987 SC 741 . (c). S.F. Engineer Vs. Metal Box India Ltd, (2014) 6 SCC 780 . (d). Chiranjilal Pant & ors Vs. Sunil Kumar Choudhury, (1983) 1 GLR 268 . (e). Bhawani Sankar Sharma Vs. On the death of Jugal Kishore Garodia, his LRs, etc., (1984) 2 GLR 182. (f). Harish Ch. Ram Kanai Bhuiya & Ors. Vs. Dr. Naresh Ch. Ghose & anr., (1985) 1 GLR 36. (g). Harish Shankar Sahu Vs. Giridharilal Sarma, 1989 (2) GLJ 201. (h). Abdul Matin Choudhury Vs. Nityananda Dutta Banik, (1997) 2 GLR 468. 25. Per contra, the learned Counsel for the respondent has made his submissions in support of the concurrent judgment by both the learned courts below. It is submitted that the suit rooms are standing over the front set-back margin and, as such, the bona fide requirement of the suit premises still exists, otherwise, the building would continue to be facing imminent threat of demolition by the civic authorities and that the Court could take judicial notice of the said legal proposition. It is submitted that this Court may take judicial notice of the fact that the construction had come up on the basis of order dated 23.11.2017 passed by this Court in W.P. (C) No. 1050/2011 [Naba Sarma (respondent No.3) Vs. (1) The Guwahati Municipal Corporation (GMC for short), (2) Anil Kumar Das (petitioner)]. It is submitted that the petitioner was served with a notice of attornment, but not only he did not recognize the respondent No.3 as his landlord, but in appeal, the petitioner took up a stand that the suit rooms did not form a part of the land sold. Hence, the petitioner was a willful defaulter. It is submitted that while the petitioner denied the title of the respondent No.3, in his cross examination, the petitioner had admitted in his cross examination that the electricity connection in the suit premises was in the name of the respondent No.3. Hence, the learned counsel for the respondent No.3, while pressing the stand of the respondent No.3 before the trial court, had prayed for the dismissal of the revision petition. 26. Hence, the learned counsel for the respondent No.3, while pressing the stand of the respondent No.3 before the trial court, had prayed for the dismissal of the revision petition. 26. Thus, on the basis of the arguments advanced by the learned counsels for both sides, the issues which arise for determination in this case are follows:- (a) Whether the finding on the issue of bona fide requirement of the suit premises by both the courts below suffer from any jurisdictional error? (b) Whether the finding on the issue of defaulter against the petitioner by both the courts below suffer from any jurisdictional error? (c) Whether the concurrent finding by both the learned courts warrants interference in this revision? 27. Before, appreciating the arguments advanced by the learned Counsels for both the parties and before considering any of the issues formulated above, it is deemed fit by this Court to first examine the stand of the petitioner- plaintiff in his plaint and written statement to the counter-claim. The stand of the petitioner, inter-alia, summarized as follows:- (a) The petitioner had sought for a declaration that he was a tenant in respect of the suit premises that the tenancy was still subsisting in between him and the respondent-defendant No.1; (b) to exclude the counter-claim under Order VIII Rule 6 (c) CPC; (c) land over which the suit house is standing is annual patta land and, as such, not only the sale deed was void, but the suit was not maintainable for non- joinder of State of Assam as necessary and proper party; (d) the plea that he was given a notice to attorn the tenancy under the respondent No.3 was false; (e) in absence of any agreement between the petitioner and the respondent No.3, the said respondent No.3 could not claim eviction of the petitioner jointly with the other respondents. In appeal, the petitioner had changed their stand by claiming that the two suit rooms were not a part of the land sold to the respondent No.3 and thereby the title of the respondent No.3 was denied. 28. Point of Determination No. (a) : (a). It is seen that there was no pleading by the petitioner in his plaint or in the written statement to the counter-claim on the point that the construction as proposed by the respondent No.3 was completed. (b). 28. Point of Determination No. (a) : (a). It is seen that there was no pleading by the petitioner in his plaint or in the written statement to the counter-claim on the point that the construction as proposed by the respondent No.3 was completed. (b). A perusal of the order dated 23.11.2017 passed by this Court in W.P. (C) No. 1050/2011, which had been filed along with a buinch of documents by the learned Counsel for the respondents reveal that on a complaint filed by the petitioner, the GMC authorities had issued notice dated 20.11.2010 to the respondent No.3 to show cause why his NOC dated 22.03.2010 to construct his proposed building should not be revoked, and after hearing, the said NOC was actually revoked on 17.02.2011. This Court, after hearing the parties in the said writ petition, by order dated 23.11.2017 had quashed the order dated 17.02.2011 to revoke the NOC. (c). However, no material has been filed by the petitioner in this revision to show how much portion of the proposed construction was completed before 07.03.2003, the date when respondent No.3 (DW-1) was cross examined, or whether the proposed construction was completed only after the GMC order dated 17.02.2011, revoking the NOC was quashed by this Court by order dated 23.11.2017. (d). Therefore, a solitary question put in a cross examination to the respondent No.3 (DW-1) on a point which is not a matter in issue, cannot be said to have disproved that the bona fide requirement of the suit premises existed. There are other factors which are to be considered before a construction can be legally said to be complete. One of such factors is that the Guwahati Building Byelaws in force requires a competent person to declare before the appropriate authority that the proposed construction is completed and only thereafter, the competent authority issues a completion certificate. Therefore, presumption under Section 114 Illustration (g) of the Evidence Act, 1872 in drawn against the petitioner that knowing well that the proposed building was not completed, he did not ask the Respondent No.3 (DW-1) whether he had obtained completion certificate and even at the hearing of the writ petition referred above, the petitioner herein had not made any submissions before the writ Court that the construction of the proposed building was completed by the petitioner during the period when the NOC had stood revoked. (e). (e). In the present case in hand, no attempt has been made to amend the plaint or the written statement to the counter-claim to set up a plea that the proposed construction was completed, which had resultantly frustrated the plea of the respondent No.3 in respect of his bona fide requirement of the suit premises. (f). Therefore, when both the learned courts have given a concurrent finding on bona fide requirement of the respondent No.3 in respect of the suit premises, it is not open for the revisional court to re-appreciate evidence or to substitute its view on the well considered decision by both the learned courts below, unless the finding is prima facie found to be vitiated either by perversity, or by incorrect appreciation of pleadings or evidence on record. As no plea of frustration of ground of bona fide requirement was pleaded by the petitioner, and no issue was framed in this regard, the decisions by both the learned courts below cannot be faulted with. Hence, this revisional court would refrain from visiting the said plea, which is beyond pleading. (g). The learned appellate court, upon appreciating the pleadings and evidence on record has held that the tenanted house was built in the year 1950 and that the respondent No.3 had received building permission for construction of G+2 building from the concerned authority and such evidence was not challenged by the petitioner, as such, it was held that if the permission for construction was already obtained, the respondent No.3 had genuine and bona fide requirement for the tenanted premises for its new construction. This particular issue was taken up by the learned trial court under Issue No.6 Whether the counter-claim is maintainable? In respect of the said issue, the learned trial court had also held that the Assam Type house is very old and requires reconstruction and, as such, it was held that the counter-claim was maintainable. This Court does not find any infirmity in the said finding recorded both by the learned courts below. (h). This Court has not found the finding by both the learned Courts below to suffer from any jurisdictional error, as such, the aforesaid point of determination No. (a) is decided in the negative and against the petitioner. 29. Point of determination No. (b) : (a). (h). This Court has not found the finding by both the learned Courts below to suffer from any jurisdictional error, as such, the aforesaid point of determination No. (a) is decided in the negative and against the petitioner. 29. Point of determination No. (b) : (a). At the outset, and before venturing to discuss the said issue, it must be kept in mind that although the respondents had disclosed in their joint written statement that respondent No.1 had sold the land inclusive of the suit premises to the respondent No.3 by Sale Deed registered as Deed No. 10591 dated 01.08.2009 (Ext.I), the petitioner has not challenged the legality and validity of the said sale deed. (b). The DW-1 had exhibited the said sale deed as Ext.I and DW-2, a delegate from the Office of the Sub- Registry had also proved Ext.I in original. Thus, the respondent No.3 had proved the execution and registration of the sale deed in respect of the land described therein, which is inclusive of the suit premises. (c). The petitioner (PW-1) had deposed to the effect that he was not aware of the sale deed prior to December, 2008 till he was informed about the same by the respondent No.3. In this regard, the learned trial court had held that the respondent No.3 (DW-1) had deposed that by letter dated 10.08.2008 (Ext.L), the information of sale of suit land to him was informed to the petitioner, which was duly served on the petitioner and the same was proved by exhibiting the returned acknowledgement card (Ext.M). Hence, notwithstanding sending of second letter dated 24.12.2008 (Ext.J), vide postal receipt (Ext.K), to the petitioner for attornment after institution of the suit, the learned trial court had held that by virtue of letter dated 10.08.2008 (Ext.L), the petitioner had the knowledge of sale of the suit premises to the respondent No.3. However, the petitioner did not attorn his tenancy under the respondent No.3 and never offered him any monthly rent for use and occupation of the suit premises. Be it stated that the learned Trial Court has, in different context, arrived separate findings that the petitioner had got the knowledge of sale of land to respondent No.3 vide letter dated 10.08.2008, and on 19.12.2008, and on 30.12.2008. Thus as on the month of December, 2018, the petitioner had such knowledge. (d). Be it stated that the learned Trial Court has, in different context, arrived separate findings that the petitioner had got the knowledge of sale of land to respondent No.3 vide letter dated 10.08.2008, and on 19.12.2008, and on 30.12.2008. Thus as on the month of December, 2018, the petitioner had such knowledge. (d). Thus, for not tendering any rent to the respondent No.3 after the petitioner had come to know that the respondent No.3 was the lawful owner of the tenanted premises, it has rightly been held that the petitioner was a defaulter. The fact that the monthly rent was never offered to the respondent No.3, had been proved by the petitioner himself by exhibiting rent deposit challans vide Ext.3 (1) to Ext. 3 (14), favouring respondent No.1, who was the erstwhile landlord. (e). The sale of the land and houses described in Schedule appended to the sale deed bearing Deed No. 10591 dated 01.08.2009 (Ext.I), gave right, title, interest and exercise of constructive possession of the suit land by the respondent No.3. By serving notices for attornment vide letter dated 10.08.2008 (Ext.L), and second letter dated 24.12.2008 (Ext.J), the respondent No.3 had asserted and exercised his right over the suit property. (f). The learned trial court had relied on the ratio laid down in the case of Abdul Matin Choudhury & Anr. Vs. Nityananda Dutta Banik, (1997) 2 GLR 468, held that it was mandatory under the Assam Urban Areas Rent Control Act, 1972 for a tenant to offer rent to the landlord first before depositing it in Court, and it was held that the petitioner herein was a defaulter. (g). The learned appellate court held that when respondent No.3 had assumed the properties by virtue of a valid sale deed dated 01.08.2008, the tenant i.e. the petitioner was duty bound to offer monthly rent to the respondent and that there was no question of offering to the previous landlord. Moreover, it was held that the respondent No.1, the erstwhile landlord, had informed the respondent No.3 vide Ext.A that he had not been offered rent for last 4 years and that after sale of property, rent was offered to him, as such, as on 19.12.1998, the respondent No.3 was aware who was his landlord, yet no rent was offered to the respondent No.3. (h). (h). Even if assuming but not admitting that the petitioner was unaware about transfer of ownership of the suit premises by the respondent No.1 in favour of the respondent No.3, yet the service of the copy of the plaint of this case, it must be deemed that the petitioner had notice who was his landlord. But even during the pendency of the suit, appeal and this revision, the petitioner did not tender any rent to the respondent No.3. It has been well settled in the case of Abdul Matin Choudhury (supra) that the duty of the tenant to pay rent during the continuance of suit, appeal, revision, etc. till the highest Court would continue to exist. Hence, as per the said ratio, even if any subsequent default in payment of rent by a tenant is brought to the notice of the courts, a right would accrue on the landlord to get the tenant evicted in the same suit, without the need of filing successive suits. Under the said principle, the petitioner, having found to have not paid any rent to the respondent No.3 during the pendency of suit and appeal, the petitioner must be held to be a defaulter and liable to be evicted. (i). Hence, it is not believable that despite service of letters of attornment vide Ext.A, Ext.L and Ext.J, the landlord did not demand rent from the petitioner. Thus, it is held that there is nothing on record that the petitioner ever acknowledged the respondent No.3 to be his landlord. Thus, since 01.08.2008, when the respondent No.3 entered into the shoes of the landlord the petitioner had not offered and/or tendered any monthly rent to the respondent No.3, there was no necessity for the learned trial court to arrive at a perfunctory finding as to when was the due date for tendering rent, when it is a well settled law that if there was no agreement for creating tenancy, the tenancy would be deemed to be a monthly tenancy and rent would fall due on the last day of each month. In the case of Anunamoyee Bishaya V. Rabindra Nath Bora, 2008 (1) GLT 421, this Court has held that unless the tenant proves conduct of landlord, the logical conclusion would be that since tenancy is a monthly tenancy, the rent would become due and payable at the end of each month according to the English Calendar month. This court is bound by the said ratio. (j). Under the circumstances, both the learned courts below have not committed any error to hold that the petitioner was a defaulter. Rather, this Court is of the considered opinion that the petitioner had been rightly proved to be a defaulter. Hence, the Point of Determination No. (b) is decided in the negative by holding that the finding on the issue of defaulter against the petitioner by both the courts below does not suffer from any jurisdictional error. 30. Point of Determination No. (c) : (a). In view of the discussions and decision on the points of determination No. (a) and (b) as indicated above, this court is of the unhesitant opinion that the concurrent finding by both the learned courts does not warrant any interference in this revision. (b). Hence, the issue is decided in the negative and against the petitioner. (c). This is found to be an appropriate stage to refer to the decision by the Honble Supreme Court of India in the Constitution Bench case of P.D. Chougule V. Maruti Hari Jadav & Ors., AIR 1966 SC 153 , where it has been held that even if an error was committed by the lower court in question of law, but if such question is not related to question of its jurisdiction, interference in revision was held to be not justified. 31. Accordingly, this revision fails and, as such, this revision stands dismissed at the motion stage. The parties are left to bear their own cost.