Gauhati High Court
Assam Apex Weavers & Artisans ... vs Smti Banee Hazarika And Ors on 7 August, 2015
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL REVISIONAL JURISDICTION)
CRP No. 140 of 2008
Assam Apex Weavers & Artisans
Cooperative Federation Limited (ARTFED)
& another.
... ... ... Petitioners/Defendants
-Versus-
On the death of Shri Subodh Ch.
Hazarika his legal heirs -
Smti. Banee Hazarika & others.
... ... ... Respondents/Plaintiffs.
BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM For the petitioners : Mr. J. Sharma, Advocate.
For the respondents : Mr. S. Ali, Advocate.
Date of hearing : 23.07.2015.
Date of Judgment : 07.08.2015.
JUDGMENT AND ORDER (CAV)
1. This Revision Petition has been preferred against the
concurrent judgment and decree dated 30.04.2008 passed by the Page 1 of 24 Court of Additional District Judge (FTC) No.4, Guwahati in Title Appeal No.56/2006 affirming the judgment and decree passed by the Court of Civil Judge (Senior Division) No.1, Kamrup, Guwahati in Title Suit No.265/1993 thereby decreeing the suit filed by the predecessor of the respondents, Subodh Chandra Hazarika, as plaintiff for ejectment of the appellant and for recovery of arrear rent.
2. Heard Mr. J. Sharma, learned counsel for the petitioners. Also heard Mr. S. Ali, learned counsel appearing on behalf of the respondents.
3. The brief factual matrix of the case may be noticed as follows. The original plaintiff Subodh Chandra Hazarika was the absolute owner in possession in respect of a plot of land measuring 4 Katha 8 ½ Lechas covered by dag Nos.1027, 1030 and 1035 of KP Patta No.437 of Sahar Guwahati, Block No.IV under Ulubari Mouza falling in Ward No.XXIII of the Gauhati Municipal Corporation. The plaintiff had constructed two storied RCC building with CI sheet roof and an Assam Type tin chali covered by Municipal Holding No.44(A) of Ward No.XXIII of Gauhati Municipal Corporation over a plot of land measuring 3 Katha 17 ½ lechas, more fully described in the Schedule-A to the plaint by leaving aside a plot of land measuring 11 lechas as vacant on the southern side situated by the side of GNB Road, Guwahati. The defendant No.1 was inducted as a Page 2 of 24 tenant under the plaintiff in respect of the premises described in Schedule-A to the plaint with effect from the month of July, 1961 on condition of paying rent on monthly basis as per the English calendar. Initially, the monthly rent was fixed at Rs.1600/- which was payable within the 7th day of the succeeding month against the written receipts. Subsequently, with effect from 01.10.1979 the rent was enhanced to Rs.2200/- per month as per mutual agreement between the parties. It is the case of the plaintiff that since the very inception of the tenancy, the defendant No.1 was irregular in payment of the monthly rent and despite repeated demands made by the plaintiff, the defendant No.1 has failed to pay the monthly rent in respect of the tenanted premises since the month of March, 1988 as a result of which the defendant No.1 has become a defaulter. It is also the case of the plaintiff that the tenanted premises being very old construction was in a dilapidated condition requiring re-construction of the same by the plaintiff. Being situated by the side of the GNB road, Guwahati, the plinth level of the said premises gets submerged by rain water during the rainy season since the adjoining road was at a much higher level as a result of which the tenanted premises gets damaged every year during the water logging requiring urgent reconstruction. The plaintiff's further case is that the suit premises were also bona fide required for his own use and occupation since his two grown up sons were intending to construct a multistoried building thereon so as to set up Page 3 of 24 a supermarket, hotel and restaurant business with all modern amenities after carrying out new construction over the said land by demolishing the old structure.
4. The plaintiff has further stated that the plot of land measuring 11 lechas described in Schedule-B to the plaint, originally had a semi RCC house with tin roof which was let out to one N. Enow Singh who was running a furniture business thereon. In the year 1977 the plaintiff had instituted Title Suit No.38/1977 in the Court of Assistant District Judge No.1, Kamrup, Guwahati for ejectment of his said tenant. Title Suit No.38/1977 was eventually compromised on 06.03.1985 whereafter the tenant viz. N. Enow Singh vacated the suit premises under the compromise decree. After the possession of the Schedule-B land was regained by the plaintiff, he had demolished the house standing thereupon in the month of April, 1985 since the same was also in a dilapidated condition and since then the said plot of land has been lying vacant. The plaintiff had alleged that on 27.09.1993, taking advantage of the fact that the Schedule-B land was lying vacant, the defendants had trespassed into the said land and unauthorisedly started raising a plinth measuring about 21 ft. X 34 ft. for the purpose of raising a construction therein. Being aggrieved by such illegal action on the part of the defendants, the plaintiff was compelled to institute Title Suit No.265/1993 against the defendants praying for a decree of permanent injunction and Page 4 of 24 mandatory injunction. It is the categorically pleaded case of the plaintiff that the Schedule-B land was neither let out to the defendants nor were defendants ever put in possession in respect of the said plot of land. However, notwithstanding the same, the defendants had illegally trespassed into the said plot of land thereby violating the terms of tenancy. On such account and in view of the fact that the defendants had become defaulters in respect of the payment of rent applicable to the tenanted premises they are liable to be evicted by a decree of ejectment under Section 5(A) of the Assam Urban Areas Rent Control Act, 1972. The plaintiff had also pleaded that on 10.10.1988 the plaintiff had issued a legal notice calling upon the defendants to vacate the suit premises and thereafter by another notice dated 19.02.1990 the plaintiff had demanded of the defendants to vacate the suit premises and also to pay the arrear rents due and payable in the aforementioned rate since the month of March, 1988 but to no avail. The plaintiff had therefore, instituted Title Suit No.265/1993 in the Court of Assistant District Judge No.1 (as it was then called), Guwahati seeking a decree for ejectment and for recovery of arrear rent together with interest calculated at the rate of 18% per annum on the amount found due from the date of institution of the suit till realization.
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5. The defendants contested the suit by filing written statement raising several grounds regarding maintainability of the suit including want of cause of action, the suit being bad for waiver, estoppels and acquiescence as well as on account of non-joinder and mis- joinder of necessary parties. The defendants had also questioned the maintainability of the suit on the ground of non-service of notice as per requirement of Section 11 of the Assam Non-Agricultural Urban Areas Tenancy Act. While denying the plaintiff's case in toto, the defendants had projected their version in paragraph 17 of the written statement. The defendants, while admitting the fact that the tenancy had commenced in the year 1961 had taken the plea that by an agreement dated 21.04.1978 the plaintiff had allowed the defendants to raise new structure and/or to repair the existing structure with their own cost and thereafter adjust the cost of construction from the monthly rent at the rate of Rs.200/- per month . Thereafter since the defendants were in requirement of more space for expansion of their business, by means of an agreement dated 30.08.1979 a total land measuring 1 bigha 1 lecha with the standing structure thereon was leased out to the answering defendants by the plaintiff. It is also the case of the defendants that by the agreement dated 30.08.1979 the plaintiff had authorized the defendants to make construction of new structure and/or extending the existing structure with new design so as to make a central show room with the financial assistance under Page 6 of 24 the NCDC scheme of Cooperative Societies and that the plaintiff had also agreed to allow the defendants to run their business on a long term lease for unspecified period with an assurance that the plaintiff would not take any step for eviction of the defendants from the leased out land. The defendants had stated that as per the agreement dated 30.08.1979 they had raised construction over the leased land, the total cost of which comes to Rs.3,88,724.60 paisa. Besides the above, the defendants had also paid Municipal taxes for several years amounting to Rs.26,019.00 in total. That apart, the plaintiff had also realized advance rent of Rs.44,390/- from the defendants on different dates. It is also the case of the defendants that the plaintiff had asked the defendants not to pay the rent to him and adjust the entire amount including the cost of construction as well as the taxes paid by them from the rent till the time the entire amount stood adjusted. Based on such instructions given by the plaintiff the defendants did not pay the rent to the plaintiff and started adjusting their outstanding claim against the rent to such an extent that a sum of Rs.2,14,933.60 paisa still remains recoverable from the plaintiff on account of the constructions and other expenditure incurred by the defendants towards the tenanted premises. On such pleadings the defendants had prayed for dismissal of the suit.
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6. On the basis of the pleadings of the parties the learned trial Court had framed as many as 7 issues which are as follows :-
"1. Whether the suit is maintainable in its present form?
2. Whether there is cause of action for the suit?
3. Whether the defendants are defaulters in payment of rent?
4. Whether the suit premises are bonafide required by the plaintiff?
5. Whether the plaintiff is entitled to realize the arrear rent of Rs.1,51,800/- since the month of March, 1988 to November, 1993 as well as the future rent from the defendants in respect of the suit premises as described in Schedule A?
6. Whether the defendants trespassed and unauthorisedly constructed a permanent structure upon the Schedule B land?
7. Whether the plaintiff is entitled to pay other relief/reliefs as prayed for?"
7. During the course of trial the plaintiff had examined himself as PW 1. The evidence of PW 2 was expunged from the record as he did not offer himself for cross-examination by the defendants. The plaintiff had also exhibited 10 numbers of documents in support of his case. The defendants examined two witnesses and adduced documentary evidence. On appraisal of the evidence available on record and after hearing the learned counsels for both the parties the learned trial Court had recorded findings on all the issues in favour of the plaintiff thereby holding that not only had the Page 8 of 24 defendants become defaulter in respect of payment of rent regarding the suit property but the tenanted premise was also found to have been in bonafide requirement of the plaintiff/ landlord. On the basis of such finding the suit filed by the plaintiff was decreed by the trial Court by granting all the reliefs prayed for in the suit including the relief of recovery of arrear rent for the period claimed . However, the learned trial Court had held that instead of interest at the rate of 18% per annum as claimed by the plaintiff, he would be entitled to realize interest at the rate of 6% per annum on the amount of arrear rent due with effect from the date of filing the suit till realization. It would be pertinent to mention herein that by the judgment and decree passed by the learned trial Court the plaintiff was required to be put in possession of the suit premises by evicting the defendants after a period of 90 days from the date of the order.
8. Being aggrieved by the judgment and decree dated 05.07.2005 passed in Title Suit No.265/1993 the defendants as appellants had preferred Title Appeal No.56/2006 before the Court of Additional District Judge (FTC) No.4, Kamrup, Guwahati on the grounds taken in the memo of appeal. After hearing the learned counsels for the parties and on a re-appraisal of the evidence available on record, the learned First Appellate Court had affirmed the judgment and decree passed by the trial Court with only one Page 9 of 24 modification that the arrear rent claimed by the plaintiff with effect from March, 1988 being barred by limitation reckoned form the date of filing of the suit, the entitlement of the plaintiff for recovery of arrear rent had been kept limited to a period of three years before the date of filing of the suit.
9. Being aggrieved by the concurrent judgment and decree passed by the learned First Appellate Court the defendants as petitioners have preferred this Revision Petition under Section 115 read with Section 151 of the Code Civil Procedure on a number of grounds indicated in the Revision Petition.
10. Mr. J. Sharma, learned counsel for the petitioners submits that since the plaintiff had instituted Title Suit No 57/2001 in the court of Civil Judge (Senior Division ) No.1 Guwahati in respect the same immovable property against the appellants/ defendants here-in seeking a decree of permanent injunction as well as mandatory injunction, hence the subsequent suit filed by the plaintiff against the same party involving the same subject matter was barred under Order 2 Rule 2 CPC. He further submits that the findings recorded by the Court below is vitiated by perversity inasmuch as the learned Courts below failed to consider the admitted document in the form of Ext-A i.e. agreement dated 30.08.1979 entered by and between the parties which goes to show that the total area of land under Page 10 of 24 tenancy was 1 bigha 1 lecha and not 4 katha 8 ½ lechas as claimed by the plaintiff. Placing heavy reliance upon the document Ext-A Mr. Sharma contended that the aforesaid agreement brought in place a of long term lease whereby the landlord/plaintiff had leased out both the Schedule-A and Schedule-B premises to the defendants on a long term basis with a further condition that the petitioners would be entitled to carry out constructions over the said premises by obtaining financial assistance under the NCDC scheme of finance available to the Cooperative Societies. It is under such agreement that a fresh tenancy had been created by and between the parties whereunder the petitioners/defendants had carried out constructions by making heavy investments as mentioned in the written statement and were entitled to adjustment of the said amount as per the mutual agreement by and between the parties. Since the expenditure incurred by the defendants was to the tune of Rs.3,88,724.60 paisa which amount was yet to be fully adjusted and in view of the consent given by the landlord permitting the defendants not to pay the rent till the time the aforesaid amount was fully adjusted, hence, the defendants could not have been held to be defaulter due to non-payment of rent.
11. Mr. Sharma has further argued that the evidence on record did not constitute sufficient basis for the Courts below to record an affirmative finding on Issue No.4 holding that the suit premises were Page 11 of 24 bonafide required by the plaintiff. He submits that the learned Court below had committed manifest illegality in failing to appreciate the settled position of law so as to accept the plea of bona fide requirement as set out by the plaintiff.
12. Mr. Sharma further submits that since from the materials available on record, it is established that the total area of land under occupation of the defendants under the Ext-A was 1 bigha 1 lehcas, hence, the defendants are in occupation of both the Schedule-A and Schedule-B properties constituting a composite tenancy. Since the plaintiff has not sought for a decree for ejectment of the defendants from the Schedule-B property, hence, it is a clear case of split up of tenancy which is not permissible in the eye of law. In support of his argument, as above, Mr. Sharma has relied upon the following decisions of the Hon'ble Apex Court :-
1. (2005) 11 SCC 279 [CHARANJIT LAL MEHRA AND OTHERS v. KAMAL SAROJ MAHAJAN (SMT) AND ANOTHER]
2. (2002) 6 SCC 678 [ NILESH NANDKUMAR SHAH v.
SIKANDAR AZIZ PATEL]
3. (2000) 1 SCC 74 [ HABIBUNNISA BEGUM AND OTHERS v.
G. DORAIKANNU CHETTIAR (DEAD) BY LRS.]
4. (1988) 3 SCC 63 [ MOHAR SINGH (DEAD) BY LRS. V. DEVI CHARAN AND OTHERS]
5. AIR 1968 SC 438 [S. SANYAL v. GIAN CHAND].
Page 12 of 24
13. By relying upon a decision of the Hon'ble Apex Court reported in (2003) 4 SCC 161 [BONDAR SINGH AND OTHERS v. NIHAL SINGH AND OTHERS] Mr. Sharma has further submitted that even if it is held that the Ext-A is a document which was required to be registered and stamped under Section 17 of the Registration Act, 1908 and, therefore, was not admissible in evidence, even in that case, the said document could be looked into for collateral purposes. A such, the learned Courts below were not justified in totally discarding the Ext-A holding the same as inadmissible in as much as the said document could have been looked into for collateral purposes so as to record a satisfaction that the total area of land leased out was 1 bigha 1 lecha and that the plaintiff had consented to the defendants making permanent construction over the suit land. On the basis of the aforesaid submissions, Mr. Sharma has contended that the plaintiff had completely failed to prove and establish his case by leading cogent evidence so as to get a decree as prayed for in the Title Suit. In that view of the matter, the impugned judgment and decree passed by the Court below is not sustainable in the eye of law and hence liable to be set aside by this Court.
14. Per contra, Mr. S. Ali, learned counsel for the respondents, has strenuously argued that the present is a clear case where the Page 13 of 24 defendants have not only defaulted in payment of the agreed rent as per the conditions of tenancy but has also illegally continued in occupation of the tenanted premises situated in the heart of the Guwahati City without paying a single farthing to the plaintiff since the month of March, 1988. He submits that both the Courts below have rightly recorded concurrent finding of fact holding that the defendants were defaulters in payment of rent in respect of the tenanted premises. Such finding of fact had been recorded on proper appreciation of evidence available on record including the categorical admission made by the defendants that they had not paid any rent to the plaintiff. He submits that the agreement dated 21.04.1978 (Ext-B) is an admitted document and a perusal of the said document would go to show that the defendants were required to adjust an amount of Rs.200/- per month only from the agreed rent of Rs.1600/- per month with effect from 1st May, 1978. He further submits that as per Ext-B the defendants were merely permitted to carry out renovation and/or modernization of the sales counter subject to a limit of Rs.50,000/- in total. Save and except Ext-B there is no other valid agreement by and between the parties modifying the terms and conditions as recorded on 21.04.1978. He submits that by the own showing of the defendants the purported agreement dated 30.08.1979 introduced as Ext-A is a long term lease agreement which is not registered as per the requirement of Section 17 of the Registration Act. In such view of the matter, the Page 14 of 24 said document is not admissible in evidence in the eye of law and has been rightly held so by the Courts below. Therefore, submits Mr. Ali, the claim of the defendants as regards any modification of the terms and conditions recorded by the agreement dated 21.04.1978 is totally baseless and has been rightly held so by the Court below. In that view of the matter, he submits, the judgment and decree passed by the Court below does not suffer from any illegality or infirmity warranting interference by this Court.
15. Mr. Ali further submits that it is the categorically pleaded case of the plaintiff that the 11 lechas of land described in Schedule-B to the plaint had never been leased out to the defendants. Since the defendants have failed to prove and establish their claim that the Schedule-B land also form part of the tenancy, hence, the question of splitting up of tenancy does not arise in the facts and circumstances of the present case.
16. I have considered the rival submissions made by and on behalf of the learned counsels for the parties and have also perused the materials available on record. As regards the objection raised by the appellant under Order 2 Rule 2 CPC questioning the maintainability of the suit, the learned court below has extensively and adequately dealt with the said objection by holding that since the cause of action for filing both the suits are distinct and different, Page 15 of 24 hence Order 2 Rule 2 CPC will have no application in the facts of the present suit. I am in agreement with the view expressed by the court below on the above issue and therefore, hold the suit to be maintainable.
17. It is the admitted position of fact that the defendants had entered as a tenant in respect of the tenanted premise under the original plaintiff on condition of paying monthly rent as per English calendar in the year 1961. The property is admittedly located in the middle of the Guwahati City by the side of GNB Road and covered by Municipal Holding No.44(A) of Ward No.XXIII of the Gauhati Municipal Corporation. Therefore, the tenancy would be governed under the Assam Urban Areas Rent Control Act, 1972. It is also the admitted position of fact that the parties had signed an agreement dated 21.04.1978 putting on record certain terms and conditions governing the rights and obligations of the parties. The agreement dated 21.04.1978 (Ext-B) is quoted herein below for ready reference:-
"TERMS OF AGREEMENT Agreement in between Assam Apex Weavers & Artisans Co-Operative Federation and Shri Subodh Cahndra Hazarika, Panchabati, Guwahati-3 owner of the two buildings now occupied by the 1st party at Ambari.
1. The first party will immediately take up renovation of both the buildings including modernization of the sales counter within an estimate of Rs.50,000/- (fifty thousand). Page 16 of 24
2. The second party Shri Hazarika agrees to pay the cost of renovation excluding the cost of modernization of the sales counter.
3. Both the parties agrees to fix the monthly rent of the buildings at Rs.1,600/- (sixteen hundred) with effect from 1st May, 1978.
4. The second party Shri Hazarika, agrees to pay the cost of renovation at the monthly installment of Rs.200/- (two hundred) to be deducted from the monthly rent with effect from 1st May, 1978.
Sd/- M. Rahman Sd/- D.D.Barman Sd/- S.C.Hazarika
21.04.78 21.04.78 21.04.78
Managing Director Secretary House owner."
18. From a perusal of the aforesaid document it is evident that the monthly rent fixed by agreement of the parties was Rs.1600/- to take effect from 01.05.1978 and the cost of renovation etc. incurred by the defendants for renovation of the building including modernization of the sales counter was to be adjusted at the monthly adjustment of Rs.200/- deducted from the monthly house rent with effect from 1st of May, 1978. The said agreement also categorically records that the renovation and/or modernization of the sales counter made by the defendants would be subject to limit of Rs.50,000/- in total. From the materials available on record and more particularly the admission made by the defendants in para 17 of the written statement it is clear that the defendants had not paid the agreed amount of rent to the plaintiff with effect from Page 17 of 24 01.05.1978 as per the conditions recorded in agreement dated 21.04.1978.
19. As regards the validity of the claim made by the defendants to the effect that the terms and conditions of tenancy had been renewed and/or modified by the agreement dated 30.08.1979 i.e. Ext-A it is apparent from the language of the said document as well as the pleadings contained in the written statement that the same was a document which was compulsorily required to be registered under Section 17 of the Registration Act, 1908. The same not having been done Ext-A was not admissible as evidence in view of the bar contained in Section 49 of the Registration Act, 1908. The learned trial Court had passed an order holding that Ext-A was not admissible in the eye of law and that order had not been assailed by the defendants by filing appropriate proceeding. Rather, the defendants have accepted the fact that Ext-A is document not admissible in evidence. As such, none of the terms and conditions contained in the said document marked as Ext-A can either be taken cognizance of by the Court nor can the said document affect the rights of the parties in respect of any immoveable property.
20. Mr. J. Sharma, learned counsel for the petitioners, while drawing the attention of this Court to the cross-examination of PW 1, had contended that even if it is held that Ext-A was not Page 18 of 24 admissible in evidence, even in that case the PW 1 has not only admitted the fact that an agreement was entered by and between the parties in the year 1979 but had also confirmed the signing of Ext-A. In such view of the matter, there was no further need for the defendants to prove the said document by adducing any evidence since the plaintiff has himself admitted the execution of the same. He submits that since the aforesaid document could have been looked into for collateral purposes under the proviso to Section 49 of the Registration Act, 1908, hence, the learned Court below ought to have accepted the plea raised by the defendants as regards the fresh terms and conditions entered by and between the parties.
21. On a careful scrutiny of the evidence of the PW 1 it is seen that the said witness had mentioned about an agreement entered into by and between the parties in the year 1979. However, there is nothing on record so as to indicate as to what were the terms and conditions of such agreement. There is also no oral evidence available on record to show that the total area of land leased out to the defendants was 1 bigha 1 lecha as claimed by them. Even assuming that there was any oral evidence in the form of admission by the PW 1 as regards any agreement entered in the year 1979 by and between the parties, in view of the specific provisions of Section 92 of the Indian Evidence Act, 1872 no oral evidence can Page 19 of 24 be admitted as between the parties so as to alter the terms and conditions of the agreement dated 21.04.1978.
22. On a careful examination of the judgment and decree passed by the learned Court below it can be seen that the findings recorded on all the issues are based on cogent evidence available on record. The defendants although claimed that there was an understanding between the parties that they would not be required to pay any rent until the time the cost of construction was fully adjusted, yet, they have failed to prove and establish the said fact by adducing cogent evidence on record. As a matter of fact, the petitioners/ defendants have failed to prove and establish the fact that they had made any construction subsequent to the agreement dated 21.04.1978 or that any expenditure had at all been incurred by them which was liable to be adjusted from the monthly rent. They have also failed to prove and establishment the fact that there was any agreement between the landlord and tenant permitting adjustment of rent beyond what appears from the Ext-B agreement.
23. In the case of Bhoja vs Ramesh Agarwala reported in (1993) 2 SCC 443, the Hon'ble Apex Court has held that a tenant cannot save himself from eviction on the ground of default in payment of rent by claiming automatic adjustment of rent unless there is any agreement between the parties for such adjustment. In the case of Page 20 of 24 Harin Chandra Das and ors vs Pradip Chowdhury and others reported in ( 1996) 3 GLR, 334 , this court has also expressed similar views by holding that plea of automatic adjustment of rent by the tenant in the absence of any agreement is not sustainable. Since, It is the admitted position of fact that the defendants have not paid any rent to the plaintiff since the month of March, 1988, hence, I do not find any infirmity in the concurrent finding of fact recorded by the Courts below as regards issue No. 3 holding the appellant / defendants as defaulters .
24. Further, in the case of Harin Chandra Das ( supra) this court has held that bonafide requirement of tenanted premises for expansion of business of the son is a cogent ground for ejectment of the tenant. The finding as regards Issue No.4 pertaining to bona fide requirement also appears to be based on cogent evidence and as per the settled principle of law.
25. Now coming to the question of splitting up of tenancy as contended by the appellants, it has been the consistent stand of the plaintiff that the schedule -"B" land was never let out to the defendants but they have illegally trespassed into the said plot of land by violating the terms of the tenancy. It is also the pleaded stand of the plaintiff that he is the owner of a total area of land measuring 4 kathas 8 ½ lechas only and that the land described in Schedule"B" is a part and parcel of the aforesaid area of land. Although the defendants have claimed that the land and building Page 21 of 24 described in Schedule "A" and 'B" measuring a total area of I Bigha I lecha belonging to the plaintiff was let out to them on a long term lease, yet, they have not been able to establish the said fact by leading evidence. Therefore, the plea of splitting up of tenancy merely on the ground that the plaintiff has failed to specifically pray for a decree of eviction of the defendants from the schedule "B' land is found to be untenable in the facts and circumstances of the case.
26. Under the Assam Urban Areas Rent Control Act, 1972, tenancy is created on the condition of payment of rent in respect of a house or a part house and would include the land appurtenant thereto. Under the terms of tenancy, a tenant would be entitled to legitimately occupy only such premise in respect of which the landlord has put him in possession at the commencement of the tenancy. Occupation of any additional area of land or building without the consent of the landlord would be illegal and in violation of the conditions of tenancy. Therefore, a decree of ejectment would not only evict the tenant from the tenanted house but also from the land appurtenant thereto including any further premise which is found to be in illegal occupation of the tenant. In the instant case, it is the admitted position of fact that the tenancy was created in the year 1961 in respect of two RCC building and one Assam type tin chali house described in Schedule "A" to the plaint . Therefore, it is an urban Page 22 of 24 tenancy falling within the ambit of the Act of 1972. Although the defendants/ appellants are admittedly in possession of another 11 lechas of adjoining land belonging to the plaintiff described in schedule "B" yet ,there is no evidence to prove the creation of a separate tenancy in respect of the said land under the provisions of Assam Non-agricultural Urban Areas tenancy Act, 1955 or the Transfer of Property Act, 1882. The appellants/ defendants have also not denied or disputed the title of the plaintiff over the suit premises including the schedule "B" land. Since the tenancy in respect of the buildings in the schedule "A" is admitted and having regard to the fact that the defendants have failed to prove that schedule "B" land had also been let out to them by the plaintiff/ landlord by a separate agreement, once a decree of ejectment is passed against the defendants for eviction from the tenanted premise, it is axiomatic that the said decree would also be applicable in respect of the land appurtenant to the tenanted house which may be under the occupation of the tenant including any other portion of the land and building under illegal occupation of the tenant. In a matter like the one in hand a separate decree of eviction would not be necessary as otherwise the same would lead to multiplicity of suits and legal proceedings.
27. Therefore, in the conspectus of facts it is held that under the decree of ejectment the appellants/ defendants would be automatically liable to be evicted from the suit property belonging Page 23 of 24 to the respondents / plaintiffs including the schedule "B" land. As such, the argument of splitting up of tenancy as made by the appellant is found to be without any substance and hence, stands rejected.
28. In view of what has been held here-in above and since the learned First Appellate Court had already modified the decree limiting the period for which the recovery of arrear rent would be applicable, I do not find any legal justification to cause interference with the judgment and decree passed by the Court below. I also do not find any error in the exercise of jurisdiction by the Court below in passing the impugned judgment and decree. In the result, this Revision Petition is held to be devoid of any merit and the same shall accordingly stand dismissed.
Stay order passed earlier shall stand vacated. However, having regard to the facts and circumstances of the case, there would be no order as to cost.
Registry may send back the LCR.
Prepare a decree accordingly.
JUDGE T U Choudhury Page 24 of 24