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2018 DIGILAW 965 (GAU)

Minabala Das v. Paresh Chandra Das

2018-06-20

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. Rupen Sarma, the learned Advocate for the petitioner. Also heard Mr. Pijush Chandra Dey, the learned Advocate for the respondent. 2. By this revision, the petitioner has challenged the first appellate judgment and decree dated 30.08.2017, passed by the learned Addl. District Judge No. 2, Kamrup (Metropolitan), Guwahati in Title Appeal No. 86/2013, thereby dismissing the appeal and affirming the judgment and decree dated 26.03.2013, passed by the learned Munsiff No. 2, Kamrup (Metropolitan), Guwahati in the counter-claim in connection with Title Suit No. 283/2008, for recovery of the vacant possession of the suit premises evicting the petitioner, her men and materials. 3. The petitioner is the plaintiff in TS 283/2008. As a tenant, in the year 1968, she had entered into a tenancy agreement with the father of the respondent-defendant in respect of the suit premises. It was alleged that the respondent refused to receive monthly rent for the month of September, 1989 for which the petitioner was compelled to deposit rent in court. In the year 1991, the disconnected the electricity connection to the suit premises. Hence, the petitioner approached the Court of Asstt. District Judge No. 1, Guwahati under section 7 of the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as "AUARC Act"). The said learned Court by order dated 04.12.1992, had ordered restoration of electricity connection. Aggrieved by the said order, the respondent approached this Court by filing a CRP 7/1993, wherein this Court had upheld the order of restoration of electricity passed by the learned court below. 4. On 17.07.2008, the respondent asked the petitioner to vacate the suit premises, which was followed by an Advocate's notice dated 04.08.2008, giving 14 days time to vacate the suit premises. Thereafter, as the respondent avoided the petitioner and the wife of the respondent had threatened the petitioner and her son, the suit was filed. 5. The respondent contested the suit by filing his written statement cum counter-claim. Apart from usual plea, it was denied that there was any oral tenancy agreement with his father, and it was claimed that the petitioner had entered into tenancy agreements from time to time and by last agreement, she had agreed to vacate the suit premises by 31.05.1986, but she had not vacated the suit premises. Apart from usual plea, it was denied that there was any oral tenancy agreement with his father, and it was claimed that the petitioner had entered into tenancy agreements from time to time and by last agreement, she had agreed to vacate the suit premises by 31.05.1986, but she had not vacated the suit premises. It was stated that when the suit premises was let out he was a bachelor but later on he got married and he required the suit premises for the business of his elder son. It was also claimed that there was no passage to go to his residence and he was using different passage through someone else's land. He claimed that he had a building in the backside of the suit premises and it was envisaged to connect the said building with the road through a part of the suit premises and because of lack of passage, the backside building could not be used for commercial purpose. 6. In the written statement to the counter-claim, the petitioner denied bona fide requirement of the suit premises and claimed that one Pinku Das, a tenant in the first floor of the suit premises had vacated his tenanted premises in September, 1998 but the petitioner without accommodating his son had kept the said premises vacant. The petitioner also denied that the respondent was using someone else's land for passage and also denied that without creating passage, the further work of the backside building could not be done. 7. Upon pleadings, the following issues were framed for trial:- 1. Whether there is any cause of action for the suit? 2. Whether the counter-claim is maintainable in facts and law? 3. Whether the relationship of landlord tenant still subsists between the parties? 4. Whether the suit premises is required by the defendant for his personal requirement? 5. To what relief/reliefs the parties are entitled? 8. The petitioner examined herself as PW-1 and had exhibited the following exhibits, viz., Trade licence (Ext. 1), Order dated 04.12.1992 passed by A.D.J. No. 1, Guwahati (Ext. 2), Order by this Court in CRP No. 7/1993 (Ext. 3), Tenancy Agreement between Pinku Das and respondent's wife (Ext. 4). The respondent examined two witnesses and exhibited a Tenancy Agreement dated 21.06.1984 (Ext. A). 9. In respect of issue No. 1, it was held that there was cause of action for the suit. 2), Order by this Court in CRP No. 7/1993 (Ext. 3), Tenancy Agreement between Pinku Das and respondent's wife (Ext. 4). The respondent examined two witnesses and exhibited a Tenancy Agreement dated 21.06.1984 (Ext. A). 9. In respect of issue No. 1, it was held that there was cause of action for the suit. In respect of issue No. 2, it was held that the counter-claim was maintainable. In respect of issue No. 3, it was held that relationship between the parties subsisted as tenant and landlord. In respect of issue No. 4, the learned trial court had discussed the evidence of witnesses as follows - DW-1 had stated that they were using passage through land of his brother. The DW-2, who was the wife of DW-1 had deposed that the passage that they were using was over a drain and was narrow. The PW-1 had admitted that a four-wheeler cannot pass through the passage. DW-2 had stated that their son was keeping idle for last 5-6 years. As per DW-2, the suit premises left by Pinku Das was not fit for doing business as it was on backside of first floor and was used as godown, which was already let out to other tenant. The learned trial court by not accepting the argument advanced on behalf of the petitioner that the respondent had taken contradictory stand, arrived at a finding that the suit premises was a considerably big room measuring 33X13 feet, as such, even after creating a passage, considerable space would be left out for business of the son of the respondent. It was held that there was no renewal of tenancy and the petitioner was occupying the suit premises at a paltry rent of Rs. 990/- per month since the year 1989. It was held that mere lack of mention about the type of business which would be carried out from the suit premises does not make the requirement of suit premises mala fide. Upon discussing various cases cited by the learned Advocates for the parties, it was held that the suit premises was bona fide required by the respondent, as such, the issue No. 4 was decided in the affirmative. Upon discussing various cases cited by the learned Advocates for the parties, it was held that the suit premises was bona fide required by the respondent, as such, the issue No. 4 was decided in the affirmative. In respect of issue No. 5, it was held that the petitioner was not entitled to any relief and her suit was dismissed, and it was held that in the counter-claim the respondent was entitled for recovery of the vacant possession of the suit premises evicting the petitioner, her men and materials and, as such, the counter-claim was decreed. 10. The said judgment and decree was unsuccessfully challenged in appeal. The learned first appellate Court had framed the following point of determination - "Whether under the facts and circumstances of the case the learned lower court was justified to dismiss the suit of the plaintiff and decree the counter-claim?" 11. The learned first appellate court, upon independently discussing the evidence on record, the plea of inconsistent plea by the respondent was discarded and the bona fide requirement of the suit premises was found to be genuine as the elder son of the respondent was sitting idle since 4-5 years. Hence, the decree of eviction in the counter-claim was affirmed. 12. The learned Advocate for the petitioner has produced the copy of the deposition of the witnesses. It is submitted that the plea of requirement of the suit premises for passage was inconsistent with the plea of bona fide requirement of the suit premises for business of the son. By referring to the evidence of DW-1 and DW-2, it was submitted that the DW-2 had denied the existence of building behind the shop. It is submitted that if the trial court records are called, it could be seen that the DW-1 had admitted in his cross examination that in the Advocate's notice issued by the respondent, the suit premises was stated to be required for residential use. It is submitted that the petitioner, now a senior citizen, is doing her business in the suit premises since the year 1968 and that the disconnection of electricity connection to the suit premises proved that all throughout, the intention of the respondent was to evict the petitioner, for which the respondent had refused to accept rent tendered for the month of September, 1989. Hence, it is submitted that the revision be allowed by setting aside the judgment and decree passed by both the learned courts below. In support of his submissions, the learned counsel for the petitioner has placed reliance on the case of (i) Baldev Singh Vs. Manohar Singh, AIR 2006 SC 283, (ii) Pratap Rai Tanwani Vs. Uttam Chand, AIR 2005 SC 1274 , (iii) Smt. Parmeshwari Devi Vs. Thakur Natthu Singh, (1998) 1 MPJR 462 . 13. Per contra, the learned Advocate for the respondent had submitted that the respondent is seeking the suit premises partly for use as passage to develop the back-side building as commercial market and partly for settling his elder son in business, who is now unemployed for about 14-15 years now after 10 years of litigation. It is submitted that the scope of a revisional court is limited and it is not permissible for a fresh appreciation of evidence as in an appeal. It is also submitted that the bona fide requirement of the suit premises by a landlord is a finding of fact, which cannot be interfered in revision owing to concurrent finding of fact by both the learned Courts below. It is further submitted that the concurrent finding by both the learned courts below is not vitiated by any jurisdictional error. In support of his contention, the learned Advocate for the respondent has relied upon the following cases, viz., (i) Krishna Kumar Rastogi Vs. Sumitra Devi, (2014) 9 SCC 309 , (ii) Rishi Kumar Govil Vs. Maqsoodan & Ors., (2007) 4 SCC 465 , (iii) Siddalingamma & Anr. v. Mamtha Shenoy, (2001) 8 SCC 561 , (iv) Phiroze Bamanji Desai vs. Chandrakant M. Patel, AIR 1974 SC 1059 , (v) Ranjit Kr. Dey & Ors., Vs. Krishna Gopal Agarwala, 2004 (2) GLT 435. 14. Upon perusal of the materials on record, it is seen that the PW-1 had admitted in his cross examination that there is an incomplete house of the landlord in the backside of the suit premises. He could not state the profession of the elder son of the respondent. The PW-1 had admitted that a 4 wheeler could not pass to the backside building. Therefore, with the said evidence on record, it cannot be said that the respondent did not have any sincere or honest bona fide requirement of the suit premises. He could not state the profession of the elder son of the respondent. The PW-1 had admitted that a 4 wheeler could not pass to the backside building. Therefore, with the said evidence on record, it cannot be said that the respondent did not have any sincere or honest bona fide requirement of the suit premises. The petitioner has not been able to show that his son was not unemployed as the petitioner could not state about the source of livelihood of the elder son of the respondent. Moreover, the petitioner has also established that the backside building was incomplete and that there was no motorable passage to backside building. 15. Therefore, the only issue which is required to be seen is whether the plea of the respondent of requirement of suit premises for business of his elder son is inconsistent with the plea of passage for ingress and egress for backside building for putting the said structure for commercial use. In this connection, the learned Advocate for the petitioner has relied on the case of Smt. Parmeshwari Devi (supra). The said case was for eviction of tenant from residential premises. Plea was taken that vacant possession was also required for reconstruction of the premises. It is in this context that the Hon'ble Single Judge of High Court of Madhya Pradesh had interpreted the facts to the effect that unless there was sanctioned plan, demolishing of house and reconstruction was not possible and in the said context, it was held that the pleas were inconsistent. The said ratio is found to be inapplicable in the present case in hand because the situation in Guwahati is different. Judicial notice can be taken of the fact that construction in Guwahati is being carried out under the Guwahati Building Construction (Regulation) Byelaws, 2014, which prescribes for height restrictions based on available passage into the land. Therefore, in Guwahati, unless there is an existing passage, construction of upper constructions is not possible. In this context, it is seen that the PW-1 had admitted that the said building is still incomplete. Therefore, in Guwahati, unless there is an existing passage, construction of upper constructions is not possible. In this context, it is seen that the PW-1 had admitted that the said building is still incomplete. Thus, the bona fide requirement of the suit premises cannot be doubted because the categorical finding of fact by the learned trial court was that the suit premises was a considerably big room measuring 33X13 feet, as such, even after creating a passage, considerable space would be left out for business of the son of the respondent. Thus, the plea of the respondent is not found to be contradictory and, as such, the three cases cited by the learned Advocate for the petitioner is distinguishable on facts. 16. The scope for revisional court to interfere against concurrent finding of fact by both the Courts below is very limited. In the case of P.D. Chougule V. Maruti Hari Jadav & Ors., AIR 1966 SC 153 , the Constitution Bench of the Hon'ble Supreme Court had held that error of lower court in question of law, which is not related to question of its jurisdiction, interference with the judgment passed by the learned Courts below was not justified. Moreover, the Hon'ble Supreme Court in the case of Phiroze Bamanji Desai (supra), has held that the finding of bona fide requirement was a finding of fact and it was held that it is not enough that the landlord should merely desire to use and occupy the suit premises, but he should need them for his own use and occupation. Applying the said test, the suit premises was bona fide required by the respondent for his own use and occupation for facilitating business of his son and for creating a passage to and fro his backside building, which was still incomplete when PW-1 was being cross examined. 17. Thus, the concurrent finding by the learned courts below do not warrant any interference from this Court in exercise of revisional powers, as the said judgments and decrees are not found to be vitiated by any jurisdictional error. Hence, this revision fails and the same is dismissed. 18. Resultantly, the first appellate judgment and decree dated 30.08.2017, passed by the learned Addl. Hence, this revision fails and the same is dismissed. 18. Resultantly, the first appellate judgment and decree dated 30.08.2017, passed by the learned Addl. District Judge No. 2, Kamrup (Metropolitan), Guwahati in Title Appeal No. 86/2013, thereby dismissing the appeal and affirming the judgment and decree dated 26.03.2013, passed by the learned Munsiff No. 2, Kamrup (Metropolitan), Guwahati in the counter-claim in connection with Title Suit No. 283/2008, for recovery of the vacant possession of the suit premises evicting the petitioner, her men and materials are both affirmed. 19. Before parting with the records, considering the long period of tenancy, this Court grants the respondent 4 (four) month's time from today to make alternative arrangements and to vacate the suit premises described in Schedule of the plaint and to deliver khas possession thereof to the respondent, subject to the following conditions:- i. Within 1 (one) month from today, the petitioner would give an undertaking before the learned Trial Court i.e. Court of Munsiff No. 2, at Guwahati to the effect that in compliance of the judgment and decree of the said Court, she would vacate the suit premises after expiry of 4 (four) months from to-day within outer period of 31.10.2018, without execution. ii. On vacating, the possession of the suit premises shall be handed over only to the respondent and to no one else. iii. For this period of 4 (four) months upto 31.10.2018, the petitioner shall continue to pay monthly rent at the rate of Rs. 990/- (Rupees Nine hundred ninety only) per month to the respondent, who would issue money receipt to the petitioner, by keeping one copy of such money receipt for his own record as a proof of having received such payment. But this payment of money shall not create any new tenancy or any right whatsoever in favour of the petitioner, save and except to enable her to stay in the suit premises upto 31.10.2018. iv. The petitioner shall not sub-let or part with the possession of the suit premises in favour of any third party during this period. But this payment of money shall not create any new tenancy or any right whatsoever in favour of the petitioner, save and except to enable her to stay in the suit premises upto 31.10.2018. iv. The petitioner shall not sub-let or part with the possession of the suit premises in favour of any third party during this period. v. If the respondent fails to give such undertaking within 1 (one) month from today as provided in sub-para (1) above, or if she violates any of the conditions imposed hereby, or violates any of the conditions of the undertaking, or fails to vacate the suit premises described in Schedule of the plaint within the outer period of 31.10.2018, the petitioner shall be entitled to put the decree in execution.