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2019 DIGILAW 394 (GAU)

Mridul Mazumdar v. Ajay Kumar Gupta

2019-03-28

PRASANTA KUMAR DEKA

body2019
JUDGMENT : 1. Heard Mr. S.K. Ghosh, learned counsel for the petitioner and Mr. S. Biswas, learned counsel for the respondent No. 1 and Mr. S.P. Choudhury, learned counsel for the respondent No. 2. 2. Respondent No. 1 as the plaintiff filed Title Suit No. 239/1995 in the Court of Munsiff No. 1 at Dhubri for ejecment of the present defendant-petitioner on the ground of default in payment of monthly rent. The defendant-petitioner entered into a tenancy agreement in the year 1995 in respect of the suit premises described in the said tenancy agreement. Even after possessing the tenanted premises for three months from the date of execution of the tenancy agreement with plaintiff-respondent No. 1, the said defendant-petitioner failed to pay monthly rent to the landlord plaintiff-respondent No. 1. The defendant-petitioner filed his written statement and raised the defence that the plaintiff-respondent No. 1 is not the owner of the suit property and as such he is not covered by the definition “landlord” under Assam Urban Areas Rent Control Act, 1972. It is further contended that the suit was bad for non-joinder of necessary parties, i.e., the heirs of Kanailal Prasad (Gupta), the original owner of the suit property and in addition to that, the tenancy with respect to the suit premises with the plaintiff-respondent No. 1 was denied. The defendant-petitioner took the stand that Smt. Kunti Devi, wife of late Kanailal Prasad after his death became one of the co-owners with respect to the suit premises, as such, the defendant-petitioner attorned her as the landlord and entered into a tenancy agreement with respect to the suit premises and paying the rent regularly. The suit was initially decreed whereafter an appeal was preferred. The First Appellate Court held the suit to be defective on the ground of non-joinder of necessary party. On the said ground the suit was remanded back to the trial court after setting aside the judgment of the trial court. After remand the respondent No. 2 filed application impleading herself as one of the defendants in the suit. The trial court rejected the said petition whereafter a revision petition was filed and the said revision petition was disposed of by this court directing the trial court to consider the said application for impleading her as the defendant afresh. On being impleaded the defendant respondent No. 2 filed written statement in the suit. The trial court rejected the said petition whereafter a revision petition was filed and the said revision petition was disposed of by this court directing the trial court to consider the said application for impleading her as the defendant afresh. On being impleaded the defendant respondent No. 2 filed written statement in the suit. In the said written statement the defendant respondent No. 2 pleaded that the plaintiff-respondent No. 1 without having any right, title and interest over the suit premises playing fraud on the defendant-petitioner induced him to enter into the tenancy agreement and subsequently executed the agreement dated 27.4.1995. Prior to the execution of said agreement with the plaintiff-respondent No. 1, the defendant-petitioner entered into a tenancy agreement with Smti Kunti Devi on 1.6.1994 with respect to the suit premises and subsequent thereto the said agreement dated 27.4.1995 was entered into by the plaintiff-respondent No. 1. 3. It would not be out of place to mention that Smt. Kunti Devi is the mother of the defendant respondent No. 2 and the daughter of Kanailal Prasad (Gupta). On the death of Kanailal Prasad (Gupta), Kunti Devi along with the defendant respondent No. 2 inherited the property and as such Kunti Devi is the rightful owner along with defendant respondent No. 2 with respect to the suit premises. The plaintiff-respondent No. 1 is not the owner of the suit premises and as such the tenancy alleged by the plaintiff-respondent No. 1 is fraud one and on the other hand, the defendant-petitioner is paying the rent regularly to the defendant respondent No. 2 without any default. On the basis of the said pleadings the trial court framed the following issues: “1. Whether the suit maintainable? 2. Whether there is any cause of action for the suit? 3. Whether the plaintiff has locus standi to file the suit? 4. Whether the suit is bad for non-joinder of necessary parties as alleged? 5. Whether the defendants is monthly tenant under the plaintiff? 6. Whether the plaintiff is the owner and landlord to the defendant with respect to the suit premise? 7. Whether the defendants is a defaulter as alleged? 8. Whether the plaintiff is entitled to get the decree as prayed for?” 9. To what relief or reliefs if any parties are entitled to? 4. 6. Whether the plaintiff is the owner and landlord to the defendant with respect to the suit premise? 7. Whether the defendants is a defaulter as alleged? 8. Whether the plaintiff is entitled to get the decree as prayed for?” 9. To what relief or reliefs if any parties are entitled to? 4. The learned trial court on the basis of the evidence both oral and documentary decided all the issues in favour of the plaintiff-respondent No. 1 and decreed the suit. The said judgment and decree dated 18.2.2014 was put under challenge in Title Appeal No. 23/2014 in the court of learned Civil Judge, Dhubri by the defendant-petitioner. The said appeal was also dismissed vide judgment and decree dated 12.4.2018. 5. Being aggrieved the defendant-petitioner has filed this revision petition challenging the judgment and decree passed by the First Appellate Court. 6. Mr. Ghosh submits that the First Appellate Court decided wrongly the point for determination inasmuch as the suit premises along with land belongs to Kunti Devi and the defendant respondent No. 2 which they inherited from their predecessor-in-interest, Kanailal Prasad (Gupta). Further the courts below failed to consider that in the month of June, 1994, the defendant-petitioner entered into the tenancy agreement in respect of the suit premises with Kunti Devi and subsequent thereto with the plaintiff-respondent No. 1. The plaintiff-respondent No. 1 fraudulently and on the basis of misrepresentation induced the defendant-petitioner to enter into the tenancy agreement in the year 1995. The First Appellate Court failed to consider the evidence on record inasmuch as the agreement in the month of June 1994 Ext.A. itself speaks about the date of execution which is very much prior in point of time than the agreement in the year 1995. The trial court though discussed the said evidence but left out the relevant piece of evidence and as such the finding of the courts below are perverse. 7. Mr. Biswas defending the judgment of courts below supports the finding of the First Appellate Court inasmuch as the First Appellate Court rightly pointed out that the issue raised in the suit and for its proper decision the parties ought to have filed regular civil suit but not in a suit under the Rent Control Act. 7. Mr. Biswas defending the judgment of courts below supports the finding of the First Appellate Court inasmuch as the First Appellate Court rightly pointed out that the issue raised in the suit and for its proper decision the parties ought to have filed regular civil suit but not in a suit under the Rent Control Act. It is further submitted that the First Appellate Court has rightly concluded that in a suit under the Rent Control Act for ejectment of a tenant the court has to see whether the parties to the suit are maintaining relation of landlord tenant. In the present case in hand the plaintiff-respondent No. 1 exhibited Ext. 1 rent agreement of the year 1995 which is admitted by the defendant-petitioner and as such there exists a landlord tenant relationship between the parties. Accordingly the First Appellate Court confined its jurisdiction with respect to the relevant issues required to resolve the dispute between the landlord and tenant. 8. Mr. Chaudhury, on the other hand, submits that the suit by the plaintiff-respondent No. 1 itself creates a cloud over the title which the defendant respondent No. 2 inherited in respect of the suit premises and as such she on her own impleaded in order to bring on record the actual fact. The trial court though framed the issue No. 6 with respect to the ownership in respect of the suit premises held the plaintiff-respondent No. 1 as the owner and landlord of the defendant-petitioner. Accordingly Mr. Choudhury sought for interference of the judgment impugned in this revision petition. 9. I have given due consideration to the submissions of the learned counsel. The right of the appellant to file an appeal is one of the most precious right inasmuch as it is the final court of facts and the duty is cast upon the First Appellate Court to consider each and every evidence put on record by the parties to the suit and appreciate the same in order to arrive at a correct finding and setting aside the finding of the trial court if there is any incorrect finding by the trial court. Even if the suit is not maintainable or any other issues framed by the trial court are decided on the basis of the materials on record, the First Appellate Court cannot blink its eyes on the ground that there is wrong application of jurisdiction by the trial court. In fact the First Appellate Court took note of 10 Nos. of issues and while deciding the first appeal confined itself to issue No. 5 only. There are other issues which the First Appellate Court has recorded in order to examine the finding of the trial court. The First Appellate Court is not correct in holding that the court exercising its jurisdiction under the Rent Control Act has no jurisdiction to decide the title with respect to the suit premises involved in the proceeding. In the event the First Appellate Court was satisfied that the learned trial court ought not entered into all the issues with respect to the right, title and interest of the suit premises, it ought to have set aside the findings of the court below and remand for a fresh trial confining the jurisdiction of the trial court to the extent allowed under the Assam Urban Rent Control Act. On one hand the First Appellate Court clearly violates the mandate under order 41, rule 31 of the CPC and on the other hand, the issue of ownership in respect to the suit premises was raised not only by the tenant but one of the family members and this fact ought to have been considered by the First Appellate Court. 10. In the present case in hand the case of the plaintiff-respondent No. 1 is that Kanailal Prasad (Gupta) was the original owner of the land who by way of a gift deed in the year 1975 gifted a portion of his land along with the suit premises to his mother. The plaintiff is the grandson of the said mother of Kanhailal Prasad (Gupta) and the grandmother (mother of Kanhailal) gifted the same to the plaintiff-respondent No. 1 and as such he is the owner of the suit premises. The plaintiff is the grandson of the said mother of Kanhailal Prasad (Gupta) and the grandmother (mother of Kanhailal) gifted the same to the plaintiff-respondent No. 1 and as such he is the owner of the suit premises. The claim of the plaintiff-respondent No. 1 is denied specifically by one of the legal heirs of Kanailal Prasad (Gupta), i.e., the defendant respondent No. 2 who impleaded herself in the suit as one of the defendants and claimed herself as one of the co-sharers of the suit premises along with her mother Kunti Devi. The said pleading is not by the tenant only but by a person other than the tenant not bound by the tenancy agreement. So issue No. 6 as to whether the plaintiff-respondent No. 1 is the owner and landlord of the defendant-petitioner with respect to the suit premises was framed. The issue is expressly raised by the parties to this suit. The decision thereof may operate as res judicata in subsequent suit for declaration of title and recovery of possession in a suit between the plaintiff-respondent No. 1 and defendant respondent No. 2 involving the same subject-matter. 11. The present case is an exceptional one. Section 11, CPC uses the words “directly and substantially in issue” for a decision rendered in an earlier suit to be barred by principles of res-judicata. There are various decisions by the hon'ble Apex Court holding that title decided in eviction suit under the Rent Control Act which is in issue are only “collaterally or incidentally” and the finding therein would not ordinarily be res-judicata in a latter proceeding where the matter is directly and substantially in issue. A collateral or incidental issue is one that is ancillary to a direct and substantive issue. There is difficulty in distinguishing whether a matter is directly in issue or collaterally or incidentally in issue. The hon'ble Apex Court in Sajjadanashin Sayed Md. B.E.Edr (D) by LRs. v. Musa Dadabhai Ummer, (2000) 3 SCC 350 : AIR 2000 SC 1238 accepted the tests to decide the aforesaid intricacies and the caution as referred by Mulla, CPC 15th Ed. P.104 reproduced hereinbelow: “18. In India, Mulla has referred to similar tests (Mulla, 15th Ed.p.104). The hon'ble Apex Court in Sajjadanashin Sayed Md. B.E.Edr (D) by LRs. v. Musa Dadabhai Ummer, (2000) 3 SCC 350 : AIR 2000 SC 1238 accepted the tests to decide the aforesaid intricacies and the caution as referred by Mulla, CPC 15th Ed. P.104 reproduced hereinbelow: “18. In India, Mulla has referred to similar tests (Mulla, 15th Ed.p.104). The learned author says : A matter in respect of which reliefs claimed in an earlier suit can be said to be generally a matter ‘directly and substantially’ in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was ‘directly and substantially’ in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was ‘necessary’ to be decided for adjudicating on the principal issue and was decided, it would have to be treated as “directly and substantially” in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case, (Mulla, p. 104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Isher Singh v. Sarwan Singh, AIR 1965 SC 948 Mohd. S. Labbai v. Mohd. Hanifa, AIR 1965 SC 1559 (sic). We are of the view that the above summary in Mulla is a correct statement of the law. 19. We have here to advert to another principle of caution referred to by Mulla (p. 105).’it is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision.” 12. Thus, the First Appellate Court should consider the pleadings and as the First Appellate Court is the final court of facts should look into the factual matrix of each and every cause. Merely the suit is for eviction of a tenant must not apply the general principle that in a suit for eviction under the Rent Control Act question of title cannot be looked into. Every case has its own factual matrix and for the said reason the First Appellate Court has a responsibility much higher than the trial court to look into the facts of a particular case and examine all the points involved which in the present case are lacking. 13. Summing up and keeping in view the dispute projected by the plaintiff-respondent No. 1 and the stand in defence taken by the defendants, even after the issues are framed and the decisions are given thereof effecting the right, title and interest of the parties to the suit, the same cannot be concluded to be a casual finding unless the aforesaid tests are applied. Accordingly, there is a glaring mistake on the part of the First Appellate Court and as such it is a fit case for interference of the judgment and decree passed by the First Appellate Court which I accordingly do by setting aside the same and remand the Title Appeal 23/2014 to decide afresh, keeping in view the observations made hereinabove. Accordingly, this revision petition stands disposed of. 14. Send back the LCR. Parties to this petition shall appear before the First Appellate Court on 29.4.2019. After appearance of the parties the First Appellate Court shall make an endeavour to dispose of the appeal within a period of three months from the date of appearance. No cost.