Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 632 (GAU)

Prova Devi v. Ram Krishna Singh S/o Lt. Radha Krishna Singh

2018-04-11

MIR ALFAZ ALI

body2018
JUDGMENT & ORDER : 1. This second appeal by the defendants is filed against the judgment and decree dated 27.03.2008 passed by learned Civil Judge, Dhubri in T.A. No. 2/2004, whereby learned Civil Judge, allowing the appeal, reversed the judgment and decree dated 28.11.2003 passed by learned Munsiff No. 1, Dhubri and decreed the suit in favour of the plaintiff/respondent. 2. The brief facts leading to the present second appeal are that the plaintiff respondent filed a suit (T.S. No. 132/1998) under the Urban Area Rent Control Act for eviction of the defendant/appellant, from the suit premises and for recovery of arrear rent on the ground of defaulter and sub-letting. The case of the plaintiff was that the plaintiff was the owner of the suit premises, being a house comprising of three rooms and verandah under Municipal Holding No. 131 described in the schedule of the plaint. The suit premises was given on rent to Harendra Prasad Sing (since deceased) the predecessor of the defendant No. 1 (a) to 1 (d) at a monthly rent of Rs. 150/- payable within the 5th day of the next month according to English calendar. Said predecessor of defendant No. 1 (a) to 1 (d) failed to pay rent since December, 1994. It was also alleged that the tenant Lt. Harendra Prasad Singh, the predecessor of defendant No.1 (a) to 1 (d) sublet the suit premises to defendant No. 2.The original tenant, predecessor of defendant No. 1 (a) to 1 (d) died in the year 1997. As the defendant did not pay rent and sublet the suit premises, the plaintiff asked the defendants to vacate the suit premises. When the defendant refused to vacate the suit premise, the suit was filed by the plaintiff for eviction of the defendants on the ground of defaulter and subletting. 3. The pleaded case of the defendants was that father of the plaintiff late Radha Krishan Singh was permissive possessor of the land and he left Dhubri 30 years ago. At the time of his departure from Dhubri, he gave the possession of the property to the defendants by taking the small amount as consideration. A dilapidated house was there on the suit premise, where the defendants started living after making repairing. After death of Radha Krishan Singh, his son, the present plaintiff took Rs. At the time of his departure from Dhubri, he gave the possession of the property to the defendants by taking the small amount as consideration. A dilapidated house was there on the suit premise, where the defendants started living after making repairing. After death of Radha Krishan Singh, his son, the present plaintiff took Rs. 11,000/- from the defendant as cost of the dilapidated suit house and as such, the plaintiff had nothing to do with the suit property. Further case of the defendants was that the suit was bad for non-joinder of necessary parties. On the basis of the above pleadings, learned Munsiff framed the following issues : - 1. Is there any cause of action for the suit ? 2. Is the suit bad for non-joinder of necessary parties ? 3. Whether the plaintiff is entitled to get decree as prayed for ? 4. What relief if any the parties are entitled to ? 4. Both the parties adduced evidence and after hearing the parties, learned Munsiff dismissed the suit holding that the suit was bad for non-joinder of necessary parties being the Railway department. 5. Aggrieved by the judgment and decree passed by the learned Munsiff, the plaintiff preferred an appeal before the learned Civil Judge and the learned Civil Judge by the impugned judgment and decree allowed the appeal and decreed the suit of the plaintiff. 6. Feeling aggrieved, the defendants preferred the instant second appeal, which was admitted to be heard on the following substantial questions of law :- 1. Whether the judgment of the learned trial court was perverse in respect of dismissing the suit of the respondent on the ground of non-joinder of necessary parties ? (2) Whether the first appellant court was justified in deciding the appeal on the basis of landlord, tenant relationship when the respondent failed to prove the title of the landlord. ? 7. Learned Senior Counsel, Mr. B. Banerjee for the appellants was heard. However, none appeared for the respondent. 8. Learned Senior Counsel, Mr. Banerjee submitted that the land belonged to the Railway department and as such, the suit was bad for non-joinder of necessary parties, being the Railway department as well as the Union of India, and therefore, learned appellate court ought not to have reversed the judgment and decree passed by learned Munsiff. 9. 8. Learned Senior Counsel, Mr. Banerjee submitted that the land belonged to the Railway department and as such, the suit was bad for non-joinder of necessary parties, being the Railway department as well as the Union of India, and therefore, learned appellate court ought not to have reversed the judgment and decree passed by learned Munsiff. 9. Apparently from the pleadings of the plaintiff, it is palpable that the plaintiff filed the suit for eviction of the defendants from the suit premises, being a house on the ground of defaulter and subletting, under the Assam Urban Areas Rent Control Act. Whereas, the plea raised by the defendants was that the house was sold by the plaintiff and his predecessor in favour of the defendants and there was no relationship of landlord and tenant between them. Further case of the defendants was that the suit was bad for non-joinder of necessary parties, as the suit land belonged to Railway department. The specific plea of the plaintiff was that the original tenant in respect of the suit premises was late Harendra Prasad Singh, predecessor of the defendant No. 1 (a) to 1(d,) who sublet the suit premises to the defendant No. 2. The plaintiff in course of his evidence duly proved the tenancy agreement (exhibit 1) between the father of the present plaintiff and late Harendra Prasad Singh, predecessor of defendant No. 1 (a) to 1 (d). Plaintiff also proved the municipal tax paying receipt, being Exts. 5-series showing that the suit holding stood in the name of the plaintiff. In fact, the defendants also admitted that the suit house belonged to the plaintiff. The defendant Nos. 1 (a) to (d) did not come to the witness box to challenge the tenancy agreement proved as exhibit 1 by the plaintiff which was executed between the plaintiff and the predecessor of the defendant Nos. 1 (a) to 1 (d). The specific plea of the plaintiff was that the defendant No. 2 was sub-tenant, as the original tenant sub-let the suit premises to defendant No. 2. The defendant 1(a) to 1 (d) opted to remain away from the witness box and failed to challenge the tenancy agreement duly proved by the plaintiff in support of his pleadings, which establishes the claim of the plaintiff as to the relationship of landlord and tenant between the parties. The defendant 1(a) to 1 (d) opted to remain away from the witness box and failed to challenge the tenancy agreement duly proved by the plaintiff in support of his pleadings, which establishes the claim of the plaintiff as to the relationship of landlord and tenant between the parties. That the plaintiff was the owner of the suit house has also been admitted by the defendant No. 2 examining himself as DW 2. The DW 2 stated in his evidence that the land originally belonged to the father of the present plaintiff and it was the railway land. He also stated that the house, where he was residing belonged to Harendra Prasad Singh predecessor of defendant Nos. 1 (a) to 1 (d). He further admitted that the suit house originally belonged to Radha Krishan Singh, father of the present plaintiff, who gave the house to Harendra Prasad Singh predecessor of defendant Nos. 1 (a) to 1 (d). The further evidence of defendant No. 2 was that in the year 1994 he paid Rs. 11,000/- to the plaintiff as a price of the suit house. Thus, evidently and admittedly there was no dispute that the suit house belonged to the plaintiff. It was also found admitted from the evidence of defendant No. 2 that he took possession of the house from Harendra Prasad Singh and admittedly Harendra Prasad Singh was given the possession of the house by the plaintiff. Admittedly the owner of the suit house was the plaintiff and the plaintiff had successfully proved the plea that Harendra Prasad Singh was inducted in the house as tenant by adducing oral and documentary evidence and such evidence remained uncontroverted as the defendant 1 (a) and 1(d), being the successor of the defendant, remained away from the witness box. 10. The plea of the defendant No. 2 was that he purchased the suit house on payment of Rs. 11,000/- and in support of his plea he also adduced two witnesses, being DW 1 and DW 3. DW 1, was the bank employee, who proved that a bank draft was drawn by the defendant No. 2 in favour of the plaintiff. The evidence of DW 3 was that there was an agreement for selling the suit house by the plaintiff to the defendants at a cost of Rs. 55,000/- and Rs. 11, 000/- was paid in advance. DW 1, was the bank employee, who proved that a bank draft was drawn by the defendant No. 2 in favour of the plaintiff. The evidence of DW 3 was that there was an agreement for selling the suit house by the plaintiff to the defendants at a cost of Rs. 55,000/- and Rs. 11, 000/- was paid in advance. Even if this part of the evidence of the DW 3, that there was some agreement for sale of the suit house and Rs.11,000/- was taken as advance is accepted, that does not prove that the suit premises was sold or the defendants or defendant No. 2 acquired any title over the suit premises. That apart, as rightly held by the learned trial court that mere payment of Rs. 11,000 to the plaintiff without anything more, there could not be any presumption that such amount was paid towards purchase of the suit house. 11. Be that as it may, from the own evidence of the defendants as deposed by DW 2 & DW 3, it is abundantly clear, that the plaintiff did not sell the suit premises inasmuch as, no cogent evidence had been adduced to support the plea of the defendant No. 2 that he purchased the suit premises. Admittedly the defendant No. 2 was inducted in the suit house by the original tenant of the plaintiff and the tenancy agreement between the parties was also duly proved establishing the relationship of landlord and tenant, as indicated above. When the plaintiff filed the suit for ejectment of the defendants from the suit premises on the basis of landlord and tenant relationship, for non-payment of rent and the relationship of landlord and tenant had been established, the question of title over the land on which the suit premises was situated became irrelevant. As per own admission of the defendants, the plaintiff was permissive occupier of the land, which was stated to be standing in the name of the Railway. When admittedly and evidently the plaintiff was the owner of the suit house and the relationship of landlord and tenant was established. The plea of defaulter was also established inasmuch as, defendant nowhere stated that he paid rent, rather he took a plea of purchasing the suit premises, which is found to have fallen flat. 12. When admittedly and evidently the plaintiff was the owner of the suit house and the relationship of landlord and tenant was established. The plea of defaulter was also established inasmuch as, defendant nowhere stated that he paid rent, rather he took a plea of purchasing the suit premises, which is found to have fallen flat. 12. It is the settled principle of law that in a suit between the landlord and tenant, on the basis of landlord/tenant relationship under the Assam Urban Areas Control Act, the question of title over the suit land is immaterial. In Sivsagar Municipal Board -VS- Dayal Chandra Borthakur reported in AIR 1971 (A & N) 155, this Court held that in a suit for ejectment simpliciter based on relationship of landlord and tenant, the question of title is immaterial. The court is not required to enter into the question of title, except to the extent may be necessary in connection with finding out the relationship of landlord and tenant. In the present case, even if it is assumed for the sake of argument that the title of the land was with the Railway department and the plaintiff was only a permissive possessor of the land, in view of the proved facts that the suit premises belonged to the plaintiff and it was rented out to the defendants and that there was a relationship of landlord and tenant between the parties, the Railway department could not be a necessary party in the present suit under the Assam Urban Areas Rent Control Act between the landlord and tenant. 13. The submissions of the learned Senior Counsel, Mr. Banerjee and the decision relied by him in District Collectors Srikakulam & Ors.–Vs- Bagathi Krishna Rao reported in AIR 2010 SC 2617 appears to be misplaced in the facts and circumstances of the present case. In District Collectors Srikakulam's case dealt by Apex Court, the plaintiff filed a suit for declaration of right, title and interest over the suit land which was a govt. land and therefore, the Apex Court held that Government was a necessary party. In the present case, evidently and admittedly there was landlord tenant relationship between the plaintiff and defendant Nos. In District Collectors Srikakulam's case dealt by Apex Court, the plaintiff filed a suit for declaration of right, title and interest over the suit land which was a govt. land and therefore, the Apex Court held that Government was a necessary party. In the present case, evidently and admittedly there was landlord tenant relationship between the plaintiff and defendant Nos. 1 (a) to 1 (d) and such relationship having been established, the question of title over the land was irrelevant and the suit could not be held to be bad for non-joinder of the Railway department, reason being that dispute involved in the present suit could be adjudicated upon without the Railway department. 14. The plaintiff having proved the relationship of landlord and tenant, the suit could not be dismissed on the ground of non-joinder of necessary party, being Railway department, inasmuch as, in a suit for ejectment of tenant on the basis of landlord tenant relationship under Urban Areas Rent Control Act, none other, except the landlord and tenant, or any one claiming right under the tenant or landlord is necessary party. Accordingly, both the substantial questions of law are answered in affirmative and in favour of the plaintiff/respondent. The plaintiff having filed the suit for eviction of the defendants and having proved the relationship of landlord and tenant between him and the defendants as well as the plea of defaulter, as held by the learned first appellate court, the impugned judgment and decree passed by the learned first appellate court cannot be faulted. 15. In view of the answer to the substantial questions of law and the discussion made herein-above, the second appeal is held to be devoid of merit and dismissed. 16. Send back the LCR.