Gauhati High Court
Mridul Chandra Borbora vs Narayan Saikia & 8 Ors on 12 May, 2016
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
CRP No. 151 of 2011
Shri Mridul Chandra Borbora
Son of Late Nakul Chandra Borbora
Assam Agriculture University, Jorhat
.......... Petitioner
-Versus-
1.sri Narayan Saikia
2.Sri Naren Saikia
3.Smti Bhoni Saikia
4.Smti Rita Dutta
Wife of Sri Dilip Dutta
5.Sri Raju Saikia
6.Smti Monomati Saikia
7.Smti Ronju Saikia
8.Smti Manju Saikia
9.Sri Ajit Kumar Phukan
............Respondents.
PRESENT HON'BLE MR. JUSTICE N. CHAUDHURY For the Petitioner : Mr. A C Sharma, Advocate For the Respondent : Mr. D Baruah, Advocate Date of hearing Date of Judgment : 12.05.2016 CRP No.151 of 2011 Page 1 of 7 JUDGMENT AND ORDER(ORAL) The order dated 25.2.2011 passed by the learned District Judge, Jorhat in Title Execution No. 1 of 2006 dismissing the execution case has been called in question in the present revision petition under Article 227 of the Constitution of India. The aforesaid execution case was instituted by decree holder Mridul Chandra Borbora against the opposite party Nos. 1 to 8 herein for execution of a decree passed in Title Suit No. 44 of 2000. The decree was for recovery of khas possession evicting the defendants upon declaration of right of possession of the plaintiff over the suit land and also for mesne profit of Rs.3000/- along with interest @ 9% per annum from the date of decree till realization. The judgment debtors filed an application before the learned executing court challenging the execution on the ground that the aforesaid decree passed by the learned civil court was a nullity and so there was no question of execution of any decree at all. It was the case of the judgment debtors that the executing court may not have jurisdiction to go behind the decree but once it is established that a decree is a nullity in that event the executing court may refuse to execute the decree. According to them, this is a case of such nature. Reason being that the judgment debtors were original occupancy tenants under the decree holder within the mesneing of Section-5 of the Assam Temporarily Settled Areas Tenancy Act, CRP No.151 of 2011 Page 2 of 7 1971 (hereinafter referred to as Act). The landlord filed three rents cases against the tenant and obtained exparte decree. Thereafter by putting the aforesaid decree in execution tenancy right of the occupancy tenant was sold in favour of the defendant No. 7 of the suit who did never get possession of the land and was not permitted to enter into the suit land. The landlord thereafter instituted the suit for declaration of their right of possession over the suit land and for declaration that defendants are trespassers and are liable to be evicted and also for realization of money.
2. The learned trial court decreed the suit exparte holding that the defendants are trespassers and that they are liable to make payment of Rs.3000/- as mesne profit to the plaintiffs within a period of 2(two) months from the date of decree, failing which interest @ 9% was also decreed from the date of decree till realization . This being the position, the judgment debtors being the occupancy tenants is an admitted fact. Once they are occupancy tenants, they could not have been evicted by a decree as referred to above. The judgment debtors therefore claimed that suit itself was a nullity. It is their further case that in the meantime, the judgment debtors had acquired Maliki right under Section 23 of the Act.
3. The decree holder filed objection contesting the application filed under Section 47 of the Code of Civil Procedure and after hearing both sides, CRP No.151 of 2011 Page 3 of 7 the learned executing court passed the order on 25.2.2011 holding that the decree itself was a nullity and that the execution proceeding is liable to be rejected. This order has been called in question in the present revision petition. I have heard Mr. A C Sharma, learned counsel for the petitioner and Mr. D Baruah, learned counsel for the opposite party.
4. Mr. A C Sharma, learned counsel for the petitioner would argue that three rent deposit cases being Case No.4 of 1987, 5 of 1987 and 6 of 1987 were decreed and thereafter Money Execution Case Nos. 9/1990, 10/1990 and 11/1990 were instituted by the plaintiff. These execution cases were really applications filed under Section 39 of the Act. The court thereafter passed order and on the basis of which the defendant No. 10 of Title Suit No.44 of 2000 purchased the tenancy and became occupancy tenants under the plaintiff. Be that as it may, the original occupancy tenants or their descendants drove away proforma defendant No.10 from the suit land and thus they became trespassers. It is for this reason, suit was instituted for declaration that the defendant Nos. 1 to 9 are trespassers and are accordingly liable to be evicted. It does not appear from perusal of the records of the aforesaid Money Execution Case Nos. 9/1990, 10/1990 and 11/1990 were called to verify as to whether the cases were execution proceedings under Order XXI of the Code of Civil Procedure or whether it was really an application under Section 39 of the Act. Without considering those aspects of the matter, the learned trial court was of the view that they CRP No.151 of 2011 Page 4 of 7 were mere execution cases and so such a suit for recovery of khas possession was not maintainable.
5. Even if it is accepted that the Money Execution Cases Nos. 9/1990, 10/1990 and 11/1990 were nothing but applications under Section 39 of the Act, in that event acquisition of tenancy by proforma defendant No.10 may be correct and lawful. But if thereafter the proforma defendant No.10 had inducted the present judgment debtors as sub-tenants as indicated in paragraph -14 of plaint, in that event, the judgment debtors might have acquired status of occupancy tenancy by operation of law under Section 50(a) of the Act. But the judgment debtors did not appear before the learned trial court in Title Suit No. 44 of 2007 and did not place their case. Under such circumstances, a decree has already been passed declaring them as trespassers and so at this stage unless and until the exparte decree passed in title Suit No. 44 of 2007 is set aside or modified it does not fit in the mouth of the judgment debtor to claim that they are tenant and not trespassers. Now, when the claim of occupancy tenancy of the judgment debtors with respect to the suit land does not appear to be sustainable in view of aforesaid facts yet question remains as to whether plaintiff being a landlord within the meaning of 1971 Act can at all claim khas possession of the suit. The scheme of the Act shows that a tenant can be evicted only if the conditions precedent mentioned in Section 51 of the Act is satisfied which provides that if an occupancy tenant changes the nature and CRP No.151 of 2011 Page 5 of 7 character of the tenanted premises, in that event, he can be evicted. The same is not applicable in case of a non occupancy tenant. A non-occupancy tenant can be evicted even for non- payment of rent. But although a suit for eviction of occupancy tenant for non payment of rent is not contemplated under the Act in view of recital made in Section 51 thereof but a scope has been left open for unsettling an occupancy from the tenanted premises under Section 39 of the Act. Section 39 of the Act provides for sale of holding for arrear of rent in the certain cases. According to this section where the unsatisfied rent decree relates to arrear of rent in respect of a holding of any occupancy tenant, he shall not be liable to ejectment for such arrear but his holding shall be liable to sale in execution of unsatisfied rent decree and the landlord shall instead of filing suit for ejectment submit an application accompanied by the rent decree to the competent civil court for attaching and putting the holding of defaulting tenant and the decree for rent shall be satisfied out of the proceeds of due sale. This means that tenant will change and a new person making payment of the arrear rent will step into the shoe of the earlier occupancy tenant. The Act, therefore, contemplates only a situation where tenancy continues to remain but tenants may vary. The irresistible conclusion is that once an occupancy tenancy is established, the landlord does not appears to have any scope to get khas possession of the suit land even by evicting the defaulting tenant. This being the position, the suit of the plaintiff in so far as it relates to recovery of khas CRP No.151 of 2011 Page 6 of 7 possession by evicting the principal defendants, was a nullity but the claim of the plaintiff for mesne profit by holding him a trespasser cannot be said to be unsustainable . The learned executing court, therefore, was correct in holding that no decree for eviction against the defendants can passed or executed in view of the aforesaid provison of law. But at the same time, learned trial court does not appear to have correctly held that the execution case is liable to be dismissed in entirety. The part of the decree in so far as it relates to realization of mesne profit only to the extent of Rs.3000/- along with interest still continues to remain and that part of the decree is executable.
6. Accordingly, the impugned order stands modified. Let the matter be sent back to trial court for further proceeding. Parties shall be at liberty to place their respective cases before the learned trial court. Since both the parties are represented, they shall appear before the learned trial court on 1.8.2016 to receive necessary order.
7. Registry shall transmit the records in the meantime.
JUDGE Nivedita CRP No.151 of 2011 Page 7 of 7