RSA 157/2004. Gauhati High Court

Case NumberRSA 157/2004
Judgement DateFebruary 17, 2019
CourtGauhati High Court

IN THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

RSA 157/2004

On the death of Abdul Matlib Majarbhuiya his legal heirs :

  1. Md. Mohi Uddin Majarbhuiya & 13 others.

    ….……Plaintiff/Appellants.

    -Versus-

    On the death of Achab Ali, his legal heirs:

  2. Abdul Hasim Mazumdar & another.

    ….……..Defendant/Responden

    BEFORE

    HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA

    Advocate for the Plaintiff/Appellants: Ms. R. Choudhury/ Ms. N. Begu Advocate for the Defendant/Respondents: Mr. S. Banik.

    Date of hearing : 31-01-2017

    Date of Judgment & Order : 17-02-2017

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    JUDGMENT & ORDER( ORAL)

    Heard Ms. R. Choudhury, learned counsel appearing on behalf the appellants and Mr. S. Banik, learned counsel appearing on behalf the respondents.

  3. The appellants are the plaintiffs and the respondents are t defendant in Title Suit No. 86/ 1999, which was filed in the Court of the then the Civil Judge, (Junior Division) No. 1, Silchar. case of the plaintiffs/ appellants is that they become the ow

    of the suit land after the death of their predecessor Abdul Mat Majarbhuiya. One Achab Ali, the predecessor defendant/ respondents was a tenant over the suit land, which

    a bhit land along with 3 Kathas of other land under t predecessor of the plaintiff/ appellants on the condition of paying an annual rent of Rs. 20.00 according to Bengali calendar year. Achab Ali, accordingly occupied the land by constructing houses. Later on, an area of 3 Kathas of land from the west boundary was acquired by the Government. defendant/ respondents were irregular in payment of the

    and as such the predecessor of plaintiff/ appellant filed eviction suit being Title Suit No. 107/ 1972 against t predecessor of the defendant/ respondents for eviction on t

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    ground of defaulter and bonafide requirements. The said

    was decreed in the Trial Court and the same was affirmed the First Appellate Court in Title Appeal No. 12/ 75. The Second Appeal No. 165/ 1984 was preferred by the predecessor of t defendant/ respondents before this Court against the Judgeme and the decree dated 27/ 08/ 1984 passed in Title Appeal 12/ 75. This Court dismissed the appeal on the technical ground of non-service of legal notice as required U/ s 106 of the

    Act, 1882 upon the respondents/ predecessor-in-interest. plaintiff/ appellants thereafter issued afresh and served ejectment notice upon the predecessor defendant/ respondents on 08/ 06/ 1998 by way of regist

    post asking him to vacate the suit land and deliver possession of the same to the plaintiff/ appellants within a fix time. But the predecessor of the defendant/ respondents f

    to vacate and deliver the suit land in spite of receipt of notice Achab Ali and hence the plaintiff/ appellant’s filed this Title

    No. 86/ 1999 for eviction of the defendant/ respondent predecessor-in-interest who died subsequent to the issuance and receipt of the notice by him, (Achab Ali) and on his deat against his legal heirs, the defendant/ respondents.

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  4. The defendant/ respondents being the heirs of Achab contested the suit and submitted written statement. defendant/ respondents took the defence that the suit was

    for want of notice as required under the T.P. Act. The same w barred under the provisions of Assam Non-Agricultural Urban Areas Tenancy Act, 1955. I t is the case of t defendant/ respondents that their predecessor, Achab Ali been possessing the 2 Bigha 2 Katha 11 Lecha of land in holding described in the Schedule of the written statement w comprises land of different patta including the suit land paying annual rent of Rs. 20/ -. They never paid any separat rent for the suit land as the suit land does not make a separat holding. Achab Ali, the predecessor in interest of t defendant/ respondents constructed permanent structure acquired permanent, heritable, transferable and non-evict tenancy right over the land as stipulated under the Assam Non Agriculture Urban Tenancy Act, 1955. I t was also pleaded t

    the suit was not maintainable as the same was filed only for part of a holding leaving aside the total land holding under t tenancy. As such the suit was liable to be dismissed.

  5. Upon the pleadings of the parties to the suit the following issues were framed:-

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    (

    1. I s there any cause of action for filing the suit?

    (b) Whether the suit is maintainable?

    (c) Whether the suit is barred by the principle of Res-judicata? (d) Whether the suit is bad for non-service of notice, provided under the Transfer of Property Act?

    (e) Whether the suit is barred under the Assam Non-Agricult

    Urban Areas Tenancy Act?

    (f) Whether the suit is bad for non-joinder of necessary party? (g) Whether the suit land has been properly described identifiable?

    (h) Whether the defendants acquired any non-ejectable tenancy right over the suit schedule property?

    (i) To what relief, if any, the plaintiffs are entitled?

  6. Both the plaintiff and the defendant sides examined 2 (tw witnesses each along with documents in support of t respective claims.

  7. After hearing the parties, the learned Trial Court vide judgm and decree dated 24/ 12/ 2002 and 09/ 01/ 2003 respectively dismissed the Title Suit No. 86/ 1999. Subsequent to that, t plaintiff/ appellant preferred the Title Appeal No. 5/ 2003 in t learned Court of...

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