Gauhati High Court
Sanat Ranjan Baruah vs Swapan Dey & Ors on 4 June, 2015
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CRP NO. 374/2010
Sanat Ranjan Baruah,
S/o Late Sanat Kr. Baruah,
R/o Down Saraswati Colony,
Rangia, Ward No.6,
P.O. & P.S. - Rangia,
District - Kamrup, Assam. ... Petitioner/ plaintiff.
VERSUS
1. Sri Swapan Dey.
2. Sri Babul Dey.
Both Sons of Late Munindra Dey.
3. Smti. Ranibala Dey,
W/o Late Munindra Dey,
All are residents of Ward No.6, Rangia,
Town, P.O. & P.S. - Rangia,
District - Kamrup, Assam.. ...Respondents/Defendants
BEFORE THE HON'BLE MR JUSTICE HRISHIKESH ROY For the petitioner : Ms. P. Chakraborty, Ms. G. Deka ... Advocates.
For the respondents : Mr. B.C. Talukdar
Mr. P. Chakraborty. ... Advocates.
Date of hearing and Judgment : 4.6.2015.
JUDGMENT AND ORDER
Heard Ms. P. Chakraborty, the learned Counsel appearing for the petitioner (plaintiff). Also heard Mr. B.C. Talukdar, the learned Counsel appearing for the respondents (defendants).
2. The Title Suit No.17/2007 was filed under the Assam Urban Areas Rent Control Act,1972 (hereinafter referred to as "the Rent Act") for ejectment of the defendants and recovery of arrear rent. In their Written Statement (W.S.), the defendants denied that they are tenants under the plaintiff and in fact claimed to be in occupation of the suit property as permissible occupier of the land owner Jyotsna Rani Dey. As the plaintiff tried to establish the landlord tenant CRP No.374/2010 Page 1 of 9 2 relationship on the basis of an agreement dated 15.6.1974, the defendants made a counter claim for declaring the said agreement to be fraudulent, void and not binding on the defendants in respect of the Holding No.41, Ward No.6 under Rangia Municipality.
3. After pleadings were exchanged, the learned Munsiff, Rangia framed five issues for the suit and 4 additional issues for the counter claim. For ready reference, they are extracted hereinbelow :
1. Whether this suit is maintainable in its present form?
2. Whether the defendants are the tenants of the plaintiff?
3. Whether the defendants are defaulters in respect of the premises and is liable to be evicted ?
4. Whether the plaintiff is in bonafide requirement of the suit premises ?
5. Whether the plaintiff is entitled to the reliefs as prayed for?
Issues for the Counter Claim :
6. Whether the counter claim is maintainable in its present form ?
7. Whether the alleged rent agreement between the plaintiff's father and late Munindra Dey dated 15.6.1974 is fraudulent, void inoperative and not binding between the parties ?
8. Whether the defendants are entitled to the reliefs as prayed for ?
9. Whether the defendants are residing at Holding No.40 as claimed by the plaintiff ?
4. To decide the issue whether the defendants are the tenants of the plaintiff, the learned Trial Judge noted that the following facts pleaded by the plaintiff :
4.1 That the plaintiff's father Sanat Kumar Baruah purchased the land measuring 1 Katha 3 Lechas from the land owner Jyotsna Rani Dey in the year 1969 through a registered Sale Deed dated 21.1.1969 (Exbt.1). After the purchase, the plaintiff's father constructed 2 Assam type house, 2 single roofed houses and a temple in the purchased land. But when the plaintiff joined the Air Force and his father was residing alone, the defendants' late father Munindra Dey requested for accommodation in the roadside house described in the plaint and accordingly he was inducted as a tenant by the plaintiff's father on a monthly rent of Rs.20/-. Subsequently, with the increased need of the tenant's family, the other house on the western side of the rented house together with pucca floored Assam type house was also given on rent to Munindra Dey and the CRP No.374/2010 Page 2 of 9 3 rental was enhanced to Rs.350/- P.M. 4.2 In proof of the tenancy, the plaintiff adduced the agreement dated 15.6.1974(Exbt.5). Following his retirement in the year 1984, the plaintiff returned back to Rangia and until 2 years after his father died, the defendants were paying the house rent but w.e.f. April 2006, rent was not paid by the defendants.
5.1 On the other hand, the defendants' case was that their predecessor was invited to stay in the house of the land owner Jyotsna Rani Dey and the defendants were residing in the Holding No.40, as permissive occupier of Jyotsna Rani Dey. Furthermore the plaintiff's father never constructed any house on the plot occupied by the defendants. Moreover none of the plaintiff's documents relate to the occupied house of Jyotsna Rani Dey and she never sold her entire land to the plaintiff's father and she retained possession and ownership of her house and the balance land.
5.2 In their evidence, the plaintiff Sanat Ranjan Baruah as P.W.1 stated that he received the agreement dated 15.6.1974 (Exbt.5) from his mother in respect of one house but there was no agreement for other 2 houses occupied by the tenants. P.W.4 Tara Nath Sarmah was an employee of the Rangia Municipal Office and he stated that Holding No.40 was merged with Holding No.41 w.e.f 1.4.2001. The defendant No.2 Babul Dey as D.W.1 stated that the suit land belonged to Jyotsna Rani Dey and that the defendants are not the tenants under the plaintiff or his father and they are residing in the property of Jyotsna Rani Dey 6.1 The learned Trial Judge noted that the agreement executed on 15.6.1974 (Exbt.5) produced by the plaintiff is a 30 year old document and accordingly drawing up presumption under Section 90 of the Indian Evidence Act (hereinafter referred to as "the Evidence Act") on the signature and the attestation of the old document, the Court held that the Exbt. 5 is admissible. The Court also considered that the defendants are staying in the Holding No.41 and since the Holding No.40 was transformed to Holding No.41 where the plaintiff has paid the municipal tax, the trial Judge declared that the plaintiff is the owner of the CRP No.374/2010 Page 3 of 9 4 Holding No.41 and on this basis, the defendants were declared to be tenants under the plaintiff.
6.2 Since the defendants denied that they are tenants under the plaintiff and therefore they are not obliged to pay any rent to the plaintiff for the occupied house, the defaulter issue was answered in landlord's favour and against the defendants. However the plea of bona fide requirement claimed by the plaintiff was rejected and therefore Issue No.4 was answered against the plaintiff. 6.3 On the basis of the above conclusions on the key issues, the defendants were found to be defaulters and accordingly the suit was decreed on 5.5.2009 (Annexure-3) by ordering ejectment and directing recovery of arrear rent of Rs.13,720/- from the defendants.
7. The defendants then filed the Title Appeal No.51/2009 and the learned Appellate Court formulated 3 key points for the decisions in the Appeal -
(i) Whether the learned Court mis-appreciated and mis-read the evidence and thereafter came to an erroneous finding in deciding the suit ?
(ii) Whether the Trial Court took a wrong presumption as to the correctness of the Exbt.5 document under Section 90 of the Evidence Act.
(iii) Whether the issues were decided correctly in favour of the plaintiff?
8.1 The first thing noted by the Appellate Court was that the original land owner Jyotsna Rani Dey sold only 1 Katha 3 Lechas of her 2 Katha land, to the plaintiff's predecessor through the Sale Deed dated 21.1.1969 (Exbt.1) and that she continued to reside in her own house under Holding No.40 (old No.46) until at least upto 1979 when her name was reflected in the same address in the Voters Lists (Exbt.-'Kha'). The Court also noted that just before institution of the ejectment suit, the plaintiff got his name mutated on the land on 21.2.2007 and the Holding No.40 was merged with Holding No.41 by the Chairman of the Rangia Municipal Board on 1.10.2007 - just before the suit was filed. Noticing that these steps were taken by the plaintiff on the eve of the suit, the Appellate Court opined that certain records were created by the plaintiff only for the purpose of the ejectment suit and they can't be accepted. 8.2 Then the Court examined whether the presumption drawn under Section CRP No.374/2010 Page 4 of 9 5 90 of the Evidence Act in respect of the agreement dated 15.6.1974 (Exbt.5) was correct. Here the Judge observed that presumption in law is limited to correctness of the signature, execution and attestation of the document under Section 90 of the Evidence Act but the contents of the document ifsofacto doesn't get proved, by applying the presumptive provision of the Evidence Act. The Court noted that the Exbt.-5 doesn't indicate in whose favour the agreement was executed and for which property and therefore the Court declared that Exbt.5 agreemnt doesn't establish that the defendants are tenants in respect of the occupied premises, under the plaintiff's predecessor. 8.3 Since the original land owner Jyotsna Rani Dey used to reside in the suit house along with the defendants' predecessor Munindra Dey and his wife, even after the sale of a portion of her land in the year 1969 to the plaintiff's father and since the Municipal records continued to reflect the name of Jyotsna Rani Dey as the owner of the property until change was effected after institution of the ejectment suit, the learned Civil Judge concluded that the plaintiff could not establish that he is the owner of the suit house occupied by the defendants. Or in other words the defendants are residing in the property of Jyotsna Rani Dey. 8.4 As the plaintiff could not produce any other evidence barring the agreement dated 15.6.1974 (Exbt.5) to prove the landlord tenant relationship and since the Exbt.5 document was considered to be inadequate to establish the said relationship, the appellate Judge held that the Trial Court committed an error on its positive finding on the on the landlord tenant relationship between the parties.
8.5 Moreover as the plaintiff could not produce any satisfactory evidence to show that the defendants paid any rent to the plaintiff or was obliged to do so, the defaulter finding was reversed against the plaintiff. 8.6 The Court then considered that the defendants are residing under the Holding No.40 and since that holding was recorded in the name of Jyotsna Rani Dey until it was changed on 1.4.2007 in the name of the plaintiff, the Appellate Court declared that the evidence in the case was mis-read by the Trial Court who drew a wrong presumption to declare the landlord tenant relationship between the parties, on the basis of the Exbt.5 document.
8.7 On the above understanding, the ejectment suit was dismissed.
CRP No.374/2010 Page 5 of 9 6Simultaneously the counter claim of the defendants to the effect that Exbt.5 document is not binding on the defendants in respect of the Holding No.41 was allowed.
9.1 Assailing the legality of the impugned verdict, Ms. P. Chakraborty, the learned Counsel submits that when the plaintiff's predecessor purchased the suit land from Jyotsna Rani Dey on 21.1.1969 (Exbt.1), the Appellate Court should have declared the defendants to be tenants under the plaintiff, on the basis of the agreement dated 15.6.1974 (Exbt.5).
9.2 According to the plaintiff, the defendants can't be permissive occupier under Jyotsna Rani Dey as she sold the property to the plaintiff's father on 21.1.1969 and therefore the Counsel argues that the defendants should be considered to be tenants under the plaintiff, on the basis of the agreement dated 15.6.1974 (Exbt.5).
10.1 On the other hand, Mr. B.C. Talukdar, the learned Counsel for the respondents submits that the defendants' counter claim on the agreement dated 15.6.1974 (Exbt.5) being of no application to the Holding No.41 having been decided by the Appellate Court, the same should have been challenged in this Revision case. But since this key finding is left unchallenged, the defendants contend that the plaintiff is now estopped from relying on the Exbt.-5 agreemnt to establish the landlord tenant relationship in respect of the occupied property of the ejectment suit.
10.2 As the plaintiff failed to produce any rent receipt or any other acceptable evidence to establish that the defendants are tenants under the plaintiff and since a finding of fact on the basis of the available evidence was recorded by the Appellate Court against the plaintiff, Mr. Talukdar submits that the said factual finding can't be disturbed by a Revisional Court.
10.3 On the limited nature of presumption permitted to be drawn for 30 year old document under the Evidence Act, Mr. Talukdar submits that contents of such old document must nevertheless be proved through appropriate evidence and legal presumption is confined only to the validity of the signature, execution and attestation of the document. But such presumption do not establish that the CRP No.374/2010 Page 6 of 9 7 defendants are tenants under the landlord since the Exbt.5 agreement does not indicate for which property, the agreement was executed. But it appears that the trial Court gave undue importance to the contents of Exbt.5 which doesn't get legally proved under Section 90 of the Evidence Act. The legal position is that contents of such 30 year old document has to be proved through proper evidence and the presumption under Section 90 is confined to limited aspects specified in the section.
11. When the Revision petitioner doesn't challenge the order whereby the counter claim of the defendants was allowed on inapplicability of the Exbt.5 for the Holding No.41, the issue of landlord tenant relationship must be available from some other evidence. But unfortunately the plaintiff has not produced any other evidence to establish that the defendants are tenants under the plaintiff. Therefore I feel that the finding of fact on the status of the defendants recorded by the Appellate Court can't be disturbed in Revision. Since the conclusion of the Court is based on the evidence on record, there can be no substitution on the finding recorded by the Appellate Court that the defendants are not tenants of the plaintiff in the absence of any jurisdictional error or perversity in the conclusion drawn by Court.
12. The evidence in the case shows that the landlord Jyotsna Rani Dey sold only 1 Katha 3 Lechas land to the plaintiff's father and retained for herself the balance land measuring about 1 Katha and she herself resided in the Holding No.40 in the retained part of her land for at least 10 years after the sale was executed in the year 1969. Therefore the defendants being a permissive occupier for the suit property under the land owner Jyotsna Rani Dey is a distinct possibility and the evidence do not suggest that they are occupying the premises as tenants under the plaintiff, who purchased only one portion of the land from Jyotsna Rani Dey.
13. Although the written agreement of 15.6.1974 (Exbt.5) was declared to be inapplicable in the appellate court, to test the validity of the argument of the petitioner, this Court nevertheless examined the original Exbt.5 agreement from CRP No.374/2010 Page 7 of 9 8 the case record. This document indicates that one roadside thatched house was taken on rent by the defendants' predecessor Munindra Dey. But when the defendants are occupying 3 houses, the content of the Exbt.5 agreement if applied in the case, doesn't suggests that the defendants' predecessor took on rent the premises under Holding No.40. The defendants are occupying 2 tin roofed houses and one Assam type house with pucca flooring and therefore their occupation can't logically relate to the Exbt.5 document. Therefore even if one assumes the admissibility of the Exbt.5 document, the same in my view doesn't establish the landlord tenant relationship between the plaintiff and the defendants.
14. The evidence of the P.W.4 who is an employee of the Rangia Municipality shows that the Holding No.40 was merged with Holding No.41 w.e.f. 1.4.2001. But admittedly the original holding was in the name of Jyotsna Rani Dey who as the land owner continued to stay in the suit property in the unsold part of her land. In such circumstances the merger of the 2 holdings effected from 1.4.2001 doesn't automatically make the plaintiff to be the owner of the suit property under the Holding No.40 occupied by the defendants. To establish his claim of ownership for the tenanted premises, the plaintiff has to secure a legal declaration from a competent Court and the evidence in the ejectment suit in my view, is insufficient to declare that the plaintiff is the owner of the property under occupation of the defendants.
15. The Appellate Court noticed that several steps were taken by the plaintiff just before the suit was filed and the verdict was that multiple documents were created only for the purpose of the ejectment case. This conclusion according to me was drawn on the basis of relevant evidence and no error can be found with the said conclusion reached by the Appellate Court.
16. Therefore taking all the above facts and circumstances into account and noticing particularly that the finding on the counter claim in favour of the defendants was left unchallenged by the petitioner, no merit is found in this Revision petition and the same is accordingly dismissed by leaving the parties to CRP No.374/2010 Page 8 of 9 9 bear their own cost. However this order will not preclude the petitioner to claim title if so advised, through legal process.
17. The Registry is accordingly directed to return the L.C.R. with a copy of this order to the concerned court.
JUDGE Datta.
CRP No.374/2010 Page 9 of 9