Malina Bhowmik & Ors vs Mustt. Nurjahan Borbhuyan & Ors on 5 November, 2015

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Gauhati High Court

Malina Bhowmik & Ors vs Mustt. Nurjahan Borbhuyan & Ors on 5 November, 2015

Bench: A. K. Goswami

IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

R.S.A. NO. 80/2007

1. Smti Malina Bhowmik
2. Smti Bijoy Bhowmik
3. Smti Soma Bhowmik
4. Smti Sunanda Bhowmik
No. 1 is the wife and Nos. 2 to 4 are the daughters of Late Sudhir Chandra
Bhowmik.
All are residents of Sati Jaymati Road, Athgaon, Guwahati-8, in the district of
Kamrup, Assam.
Nos. 3 and 4 are minors represented by their mother Smti Malina Bhowmik.

- Appellants
-Versus -
1. Mustt. Nurjahan Borbhuyan
W/o Late Enamul Haque Borbhuyan
2. Salma Rahim
W/o Abdul Rahim
3. Matiur Rahman
4. Hasna Ahmed
W/o Jamir Ahmed
5. Rasna Ahmed
W/o Samsuddin Ahmed
6. Miss Ashma Borbhuyan
7. Rajib Borbhuyan
Nos. 2 to 7 are sons of daughters of Late Enamul Haque Borbhuyan, resident
of Athgaon, Bye Lane, Guwahati-8, P.S.- Guwahati, Dist. Kamrup, Assam.

- Respondents
8. Sri Subhas Ch. Saha
Son of Late Ramesh Chandra Saha
9. On the death of Nani Gopal Mitra, his legal heir:
(a) Gautam Mitra
10. On the death of Gauranga Banikya, his legal heir:
(a) Ranjit Banikya
11. Sri Nitai Banikya
Son of not known
All are residents of Sati Jaymati Road, Athgaon, Guwahati-8, in the district of
Kamrup, Assam.
- Pro forma respondents

BEFORE
HON'BLE MR. JUSTICE A. K. GOSWAMI

For the Appellants : Mr. S. K. Ghosh, Advocate
For the Respondents : Mr. Sheeladitya, Advocate
Dates of hearing : 04.11.2015 and 05.11.2015

R.S.A. NO. 80/2007
2

Date of Judgment : 05.11.2015

JUDGMENT AND ORDER
(ORAL)

Heard Mr. S. K. Ghosh, learned counsel for the appellants. Also heard Mr. Sheeladitya, learned counsel appearing for the respondents.

2. This Second Appeal is preferred by the defendants against the judgment and decree dated 29.05.2007, passed by the learned Civil Judge (Senior Division) No. 2, Guwahati, in Title Appeal No. 55/2005, dismissing the appeal and affirming the judgment and decree dated 28.06.2005, passed by the learned Civil Judge (Junior Division) No. 2, Guwahati, in Title Suit No. 116/85.

3. The appeal was admitted to be heard by an order passed on 07.09.2007 on the following two substantial questions of law:

"1. Whether the plaintiff's suit is maintainable without service of proper notice under Section 11 of the Assam Non Agricultural Urban Areas Tenancy Act, 1955?

2. Whether without quantifying the amount of default, the learned court below is permitted under Section 5 of the Act to pass a decree of ejectment without allowing the appellants to exercise their rights under Section 5(3) of the Act?"

4. At the outset, it is pointed out by Mr. Ghosh that Appellant No. 1, Malina Bhowmik, has since expired and her legal representatives are already on record.

5. The case of the plaintiff is that he is the absolute owner of the land measuring 1 Katha 17 Lecha, fully described in Schedule-A, by way of purchase from Md. Jaban Ali and he was delivered clear possession and, subsequently, the land was duly mutated in his name. Principal defendant Nos. 1 and 2, namely, Sudhir Chandra Bhowmik and his mother, Nirmala Bhowmik, respectively, after attornment in the year 1969, had been residing on the suit land as monthly tenant and they illegally sub-let some of the rooms of the house constructed thereon to pro forma defendant Nos. 3 and 8 without consent and permission of the plaintiff. Repeated approaches were made to the principal defendant Nos. 1 and 2 to vacate the suit land and to deliver possession, but to no avail. A written notice was issued on 06.04.80 by registered post asking the principal defendants to quit, vacate and handover possession of the land and premises on expiry of 19.05.80, but both the notices were returned by the postal authority with the remark "refused" by the principal defendants. It is pleaded that the defendants continued to pay rent of Rs. 100/-, per month, till the month of January, 1975, for which rent was paid on 18.01.75.

R.S.A. NO. 80/2007 3

6. The defendants filed written statement by taking various legal pleas. It is pleaded that Jaban Ali is the father-in-law of the plaintiff and he had instituted Title Suit No. 21/54 in the Court of Sub-Judge, Lower Assam District, against the father of the defendant No. 1 and his sub-tenants for recovery of possession on declaration of his title over 2 Katha of land including the present suit land. The said suit was dismissed on the ground that father of defendant No. 1 was entitled to protection under Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (for short, '1955 Act'). The appeal, being First Appeal No. 35/58, preferred before this Court was also dismissed and, therefore, the suit is barred by res judicata. The allegation that the houses are dilapidated is denied. It is also denied that the plaintiff had become the owner of the suit land and it is asserted that defendant Nos. 1 and 2 never attorned to the plaintiff and no rent was ever paid to the plaintiff. It is stated that had the plaintiff satisfied the defendants that he had purchased the suit land, they would have had no objection to pay rent to him.

7. Number of issues and additional issues were framed out of which the following are relevant for the purpose of this case:

Issues:

"(2) Whether the defendant No. 1 and 2 have been residing in the suit land on attornment in favour of the plaintiff?

(4) Whether proper legal notice was served upon the answering defendant No. 1 and 2?

(8) Whether there is relationship of landlord and tenant between the parties? (9) Whether the defendants are liable to be evicted from the suit land/premises for non-payment of rent?

Additional Issues:

(10) Whether there is permanent structure over the suit land and whether the defendant No. 1 and 2 built those permanent structures with the knowledge and acquiescence of the plaintiff?

(11) Whether the matter of dispute is also covered under the provisions of Assam Urban Areas Rent Control Act or only under Assam Non-Agricultural Urban Areas Tenancy Act?

8. Additional Issue Nos. 10, 11 and 12 were considered by the learned trial court as Additional Issue Nos. 1, 2 and 3. Issue Nos. 2, 4 and 8 were decided in favour of the plaintiff. Additional Issue Nos. 10 and 11 were decided in favour of the defendants by declaring that the defendants are protected under Section 5 of the 1955 Act. However, in Issue No. 9, learned trial court had recorded a finding that the defendants were defaulters and were liable to be evicted from the suit land.

R.S.A. NO. 80/2007 4

9. The learned lower appellate court observed that the defendant No. 1 was a tenant under Jaban Ali in respect of the suit land and that the plaintiff, by virtue of purchase of the suit land, had entered into the shoes of the original owner/landlord with all the rights and liabilities in respect of the subsisting tenancy. On the basis of the evidence on record, the learned lower appellate court concurred with the finding of the learned trial court and held that though the defendants are, otherwise, entitled to protection under Section 5 of the 1955 Act, they are liable to be ejected for non-payment of rent and, accordingly, the appeal was dismissed.

10. Mr. Ghosh has submitted that the plaintiff having failed to prove service of notice of ejectment in terms of Section 11 of the 1955 Act, the suit was not maintainable and, while the learned trial court wrongly recorded the finding in respect of Issue No. 4 relating to service of notice, the learned lower appellate court did not consider the said issue at all. It is submitted by him that even if the defendants had not paid the rent, passing of the decree by the learned courts below for ejectment of the defendants without specifying the amount liable to be paid by the defendants towards payment of rent is not sustainable in law as, under Section 5(3) of the 1955 Act, if a tenant pays to the court the entire amount payable under the decree within a period of thirty days from the date of the decree, the suit for ejectment is deemed to be satisfied. Learned counsel further submits that in view of the above infirmity of the learned courts below, the impugned judgment and decree for ejectment of the defendants/appellants are liable to be set aside. He has also submitted that when the plaintiff had pleaded that the defendants had not paid rent from February, 1975, as of today, a sum of Rs. 48,900/- has accrued on account of rent payable to the plaintiff. Mr. Ghosh has further submitted that if the amount due to be paid by the defendants on account of non-payment of rent is quantified by the court, the defendants would pay the same in accordance with law.

11. Mr. Sheeladitya, learned counsel for the respondents, has submitted that though the notice dated 06.04.80, or the acknowledgment card containing the noting "refused", were not exhibited, the evidence adduced on the point of issuance of the aforesaid notice and refusal thereof had not been contradicted as no suggestion was put to Motiur Rahman, who was examined as PW1 (though ought to have been recorded as PW4) and, therefore, there is no merit in the contention of the learned counsel for the appellants that due notice was not served. With regard to the 2nd substantial question of law, Mr. Sheeladitya has submitted that it is a finding of fact of both the courts below that the defendants had not paid rent from February, 1975 and, therefore, they are defaulters in the eye of law. He has further submitted that once the courts below had recorded the finding that the defendants are entitled to protection under Section 5 of the 1955 Act, it was obligatory on R.S.A. NO. 80/2007 5 the part of the court to have quantified the amount of rent payable in terms of Section 5(3) of the 1955 Act. Accordingly, he submits that the judgments of the learned courts below are required to be modified by quantifying the rent payable, which has amounted to Rs. 48,900/- as of today so as to enable the defendants to exercise the option of payment of rent as provided under Section 5(3) of the 1955 Act.

12. I have considered the submissions of the learned counsel for the parties and have perused the materials on record.

13. The 1955 Act was enacted, as the preamble to the Act goes to show, to regulate, in certain aspects, the relationship between the landlord and tenant in respect of non- agricultural land in the urban areas of the State of Assam. Section 4 of the 1955 Act casts an obligation to the tenant to pay rent for his holding at a fair and equitable rate. Sections 5 and 11 of the 1955 Act are relevant for the purpose of this case and, therefore, the same are quoted in their entirety.

"Section 5 - Protection from eviction:

(1) Notwithstanding anything in any contract or in any law for the time being in force-

(a) Where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or whether a tenant not being so entitled to build, has actually build any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non-payment of rent.

Provided that where the tenant having built a permanent structure within the period specified above and for any of the purposes mentioned therein, renews the tenancy on expiration of the original contract he shall always be deemed to have built such permanent structure within the period of five years from the date of the renewed contract:

Provided further that a person having a right, title and interest over a permanent structure by whatever mode of acquisition he may have taken the tenancy from the landlord of the land wherein the said structure stand, shall not be ejected except on the ground of non- payment of rent.

R.S.A. NO. 80/2007 6

(b) Where a tenant has effected improvements on the land of the tenancy under the terms whereof he is not entitled to effect such improvements, the tenant shall not be ejected by the landlord from the land of the tenancy unless compensation for reasonable improvements has been paid to the tenant. (2) No tenant shall be ejected by his landlord from the land of the tenancy except in execution of a decree for ejectment passed by a competent civil court. (3) No decree for ejectment passed on the ground of non-payment of rent shall be executed within a period of thirty days from the date of the decree and if the tenant pays into the court whose duty it is to execute the decree the entire amount payable under the decree within the aforesaid period, the court shall record the decree as satisfied.

Section 11 - Notice of ejectment suit:

No suit for ejectment except for arrears of rent shall be instituted until after the expiration of one month from the date of the receipt by the tenant of a notice in writing by the landlord requiring the tenant to surrender possession of the land in favour of the landlord."

14. It is true that the learned lower appellate court did not advert to the issue relating to service of notice as enjoined by Section 11 of the 1955 Act. However, Mr. Sheeladidtya is right in submitting that PW1 (ought to have been PW4), Motiur Rahman, had deposed specifically with regard to the ejectment notice issued on 06.04.80 and the refusal on the part of the defendants to accept the notice. Though it was pleaded in the written statement that no such notices had been issued, it is found that Motiur Rahman was not cross-

examined on the aspect of notice issued on 06.04.80. This position is also not disputed by Mr. Ghosh. Accordingly, I am inclined to hold that the suit was maintainable as due notice under Section 11 of the 1955 Act has to be deemed to be served on refusal by the defendants to receive the same.

15. Both the courts below had recorded the finding that within a period of five years from the date of tenancy, permanent structures were built by the tenants with the knowledge and acquiescence of the landlord and, therefore, they are protected under Section 5 of the 1955 Act from eviction. Section 5(1)(a) of the 1955 Act provides that the tenant shall not be ejected by the landlord from the tenancy except on the ground of non- payment of rent.

16. Section 5(3) of the 1955 Act provides that a decree for ejectment on the ground of non-payment of rent shall not be executed within a period of 30 days from the date of decree. It also provides that if the tenant pays into the court, whose duty it is to execute R.S.A. NO. 80/2007 7 the decree, the entire amount payable under the decree, the court shall record the decree as satisfied. In other words, if the entire amount payable under the decree on account of rent is deposited by the tenant into the court, the decree for ejectment shall stand satisfied, meaning thereby that the decree of ejectment cannot thereafter be executed. Apparently, the learned courts below had overlooked Section 5(3) of the 1955 Act as no amount, falling due on account of payment of rent, was indicated. In absence of any reflection of the amount due in the decree, the tenant could not have also deposited into the court any amount on account of rent. In absence of recording of the quantum of rent payable, the tenants were denied the statutorily available option of payment of rent into the court to avert ejectment.

17. In the result, this appeal is partly allowed. While upholding the findings of the learned courts below, the impugned judgments are modified recording that, as of today, a sum of Rs. 48,900/- is payable by the defendants/appellants as rent. The aforesaid modification to the impugned judgments and decrees is made in order to enable the defendants to exercise the option of payment of rent as provided under Section 5(3) of the 1955 Act. No cost.

18. Registry shall send back the records.

JUDGE RK R.S.A. NO. 80/2007

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