SA No. 154 of 1998. Case: Gopal Chandra Sarkar Vs Santosh Verma and Ors.. Guwahati High Court
| Case Number | SA No. 154 of 1998 |
| Counsel | For Appellant: N. Choudhury and B. Goyal, Advs. And For Respondents: O.P. Bhati, S. Khan and A. Khanal, Advs. |
| Judges | B.P. Katakey, J. |
| Issue | Assam Non-Agricultural Urban Areas Tenancy Act, 1955 - Sections 3, 5, 5(3) and 11; Civil Procedure Code (CPC) - Order 22, Rules 4(1), 4(3) and 11 - Order 41, Rule 31 |
| Citation | 2010 (3) GLT 693 |
| Judgement Date | May 31, 2010 |
| Court | Guwahati High Court |
Judgment:
B.P. Katakey, J.
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This appeal by the Plaintiff is directed against the judgment and decree dated 14.09.1998 passed by the learned Civil Judge (Senior Division), Dibrugarh, in Title Appeal No. 16/1996, setting aside the judgment and decree dated 31.05.1996 passed by the learned Munsiff No. 1, Dibrugarh, in Title Suit No. 2/1979, whereby and whereunder the suit of the Plaintiff/Appellant was decreed.
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The Appellant as Plaintiff instituted the Title Suit No. 2/1979 in the Court of the learned MunsifT No. 1, Dibrugarh, against the predecessor-in-interest of the present Respondent Nos. 1, 1(a) to 1 (e); Respondent Nos. 2, 3, 4; the predecessor-in-interest of the Respondent Nos. 5, 5(a), 5(b) and Respondent Nos. 6 to 8, praying for a decree for recovery of khas possession by evicting the Respondent/Defendant Nos. 1 to 5 from the lamd measuring 1 katha 18 lechas, described in the schedule to the plaint, covered by Dag No. 3988 (old)/142 (new) of periodic patta No. 267 (old)/91 (new), situated at Khalihamari Ward of Dibrugarh Town and included the Municipal Holding No. 902 of Khalihamari Ward of Dibrugarh Municipality; for arrear rent and compensation and also for cost, contending inter alia that late Abdul Aziz, the predecessor-in-interest of the Defendant/Respondent Nos. 6 to 8 was the lawfiil owner of the suit land under whom the original Defendant No. 1 was a monthly tenant for 1 (one) year for rent, who constructed a temporary house thereon and agreed to vacate the land on expiry of lease period. The said period of lease of the suit land, however, was extended twice at the interval of 6 (six) months by enhancing the rate of the rent to Rs. 300/- half-yearly, which came to an end on 10.10.1946. According to the Plaintiff, the original Defendant No. 1 started the sweet meat shop in the temporary house in the name and style of the Defendant No. 2. It has further been pleaded that a fresh lease was thereafter created by Abdul Aziz in favour of the Defendant No. 1 at the rent of Rs. 600/- per year and with the stipulation that the Defendant No. I would not make any permanent structure on the land by changing the structure of the existing house, that he would not sublet the said land or the house to anybody and he shall vacate the land by removing the house therefrom whenever the lardlord ask him to do so. The further pleaded case in the plaint is that taking advantage of the illness of Abdul Aziz, the Defendant No. 1 made some further improvement of the house without taking any permission and sublet the part of the house to some other tenants including the Plaintiff Gopal Chandra Sarkar and thereafter the Defendant No. 1 left for Duliajan. It has further been pleaded that after the death of Abdul Aziz, the Defendant Nos. 6 to 8, the successors-in-interest, sold the suit land to the Plaintiff by a registered deed of sale dated 03.08.1977 (Ext.- 25) for valuable consideration and was delivered the symbolic possession of the land and though the Defendant Nos. 1 to 5 were asked to attorn the Plaintiff as the landlord, they refused to accept the notice of such attornment sent by registered post. According to the Plaintiff, the Defendant No. 1, however, by operation of law, became the tenant under him. It has further been pleaded that since the Plaintiff required the suit land for his own purpose, notice dated 15.12.1977 [Ext.- 9(2)] was issued under registered post with A/D asking the Defendant Nos. 1 and 2 to quit and vacate the suit land and deliver the possession thereof by breaking and removing the houses standing thereon on expiry of 30.01.1978, copies of which were also sent to the Defendant Nos. 3 to 5 and while the Defendant No. 1 received the said notice, the other Defendants refused to accept the same. A fresh notice dated 04.09.1978 [Ext.- 18(2)] was issued by the plaintifFto the Defendant Nos. 1 and 2 through his lawyer under registered post with A/D asking them to quit and vacate the possession of the suit land on expiry of 19.10.1978 and thus terminating the tenancy, which notice however was refused to be accepted by the Defendant No. 1. According to the Plaintiff since they have not vacated the suit land despite such notice, they became the trespasser and hence instituted the suit for their eviction as well as for recovery of arrear rent for the period from 03.08.1977 to 19.10.1978 as well as for compensation.
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The Defendant Nos. 1 and 5 contested the suit filed by the Plaintiff by filing two separate written statements. The Defendant No. 1 in his written statement has contended that the suit is bad for non-joinder of Behari Mali @ Bheri as well as the heirs ofAbdul Aziz and also the other tenants; the suit is bad for want of notice of ejectment as required under Section 11 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (in short the 1955 Act) and that the Defendant No. 1 is protected under Section 5 of the said Act. It has further been pleaded that he took the suit land on rent from the original owner Abdul Ahz and immediately constructed three houses thereon, the main shop house with wooden structure and CI sheet roof having pucca floor and the other houses of semi permanent structures, which houses were subsequently improved in the year 1950-51 with the knowledge and permission of the original landlord as well as of the Municipal Board and as such protected under Section 5 of the 1955 Act.
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In the written statement filed by the Defendant No. 5, it has been pleaded that he is in possession of the part of the suit premises, which was previously under occupation of the Plaintiff as a tenant under the Defendant No. 1. According to this Defendant, the Plaintiff on 12.10.1973 on receipt of a sum of Rs. 500/- transferred his occupancy right of the house together with all furnitures and materials in his favour by executing a kacha deed on 12.09.1974 and delivered the possession and since then he is possessing the same by paying rent to the Defendant No. 1 and in which house he is carrying on the business of sweet meat shop.
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The learned Trial Court on the basis of the pleadings of the parties, framed the following issues for consideration and decisions:
1) Whether the suit is maintainable?
2) Whether there is cause of action for the suit?
3) Whether the suit is bad for want of a valid notice?
4) Whether the suit is bad for non-joinder and misjoinder as alleged in the written statement?
5) Whether the Defendants are protected from eviction from the suit land under the provisions of Assam Non-Agricultural Urban Areas Tenancy Act, 1955 as alleged?
6) Whether the Defendant No. 1 is a defaulter for non-payment of rent as stated in the plaint?
7) Whether the Defendant Nos. 2 to 5 are sub-tenants?
8) Whether the Plaintiff is entitled to decree or prayed for in the plaint?
9) To what relief, the parties are entitled?
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The learned Trial Court vide judgment and decree dated 31.05.1996 decreed the suit of the Plaintiff by deciding all the issues in his favour. The learned Trial Court has held that the valid notice under Section 11 of the 1955 Act was issued; that the Defendant No. 1 is a defaulter for non-payment of rent; that the Defendants are not protected from eviction from the suit land under Section 5 of the 1955 Act; that the original landlord did not permit the Defendant No. 1 to raise any permanent...
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