Gauhati High Court
On The Death Of Satya Gopal Saha His Legal ... vs Amiyabala Ghosh And Ors on 22 November, 2016
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
RSA No. 95/2004
On the death of Satya Gopal Saha his
legal heirs Rinku Saha & Ors. ......Appellant
VERSUS
Amiyabala Ghosh & Ors. ......Respondent
BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM For the Appellant : Mr. B. Chakraborty, Advocate For the Respondent : Mr. P. Sundi, Advocate Date of Hearing and Judgment : 22-11-2016 Judgment and Order (Oral) Heard Mr. B. Chakraborty, learned counsel for the appellant. Also heard Mr. P. Sundi, learned counsel appearing for the respondents.
2. This appeal has been preferred against the judgment and decree dated 31-03-2004 passed by the court of Civil Judge (Sr. Div.), Sonitpur, Tezpur in connection with Title Appeal No. 16/1998 partly allowing the appeal filed by the respondents and decreeing the suit for recovery of possession by evicting the appellant/ defendant thereby reversing the judgment and decree of dismissal dated 22-06-1998 passed by the Civil Judge (Jr. Div.) No. 1, Sonitpur, Tezpur dismissing the Title Suit No. 18/1995 filed by the respondents.
3. At the very outset, Mr. Chakraborty learned counsel for the appellant submits that the suit filed by the respondents/ plaintiffs was one RSA No. 95/2004 Page 1 of 11 under the Assam Urban Area Rent Control Act, 1972 seeking ejectment of the appellant from the suit premises and for recovery of arrear rent. Such being the position, no second appeal is maintainable against the appellate decree and hence, Mr. Chakraborty prays for converting this second appeal into a revision petition and permit him to make submission on the law points involved in the present proceeding. Mr. Sundi, learned counsel appearing for the respondents fairly admits that no second appeal is maintainable against the appellate decree and, therefore, this appeal can be treated as revision peititon.
4. Having heard the submission made by the learned counsel for both the parties and considering the fact that this appeal had been admitted in the year 2004, I am of the considered opinion that dismissing the appeal on a technical point at this belated stage would cause grave injustice to the appellant. As such, having regard to the facts and circumstances of the case and for the ends of justice, this appeal is hereby treated as a revision petition and the appellant is allowed to assail the impugned judgment and decree only on grounds raising questions of law. Accordingly, Registry to re-number this appeal as a Civil Revision.
5. The brief facts of the case, as emerging from the record, is that the respondents as plaintiffs had instituted Title Suit No. 18/1995 against the appellant seeking a decree for recovery of the suit premises by evicting the defendant; for a decree for arrear rent of Rs. 900/-; for recovery of further house rent from the month of February, 1992 @ Rs. 25 per month; RSA No. 95/2004 Page 2 of 11 for recovery of mesne profit and for other consequential reliefs. The case projected in the plaint is that the predecessor-in-interest of the plaintiffs, viz. Haripada Ghosh was the original owner of the property described in the schedule to the plaint. After the death of Haripada Ghosh the plaintiff inherited the suit property and the defendant entered into the suit premises in the year 1979 as a monthly tenant under the plaintiffs on condition of paying rent of Rs. 25/-. The rent was to fall due and become payable on the 7th days of every succeeding English calendar month. The case of the plaintiffs was that the defendant used to regularly pay monthly rent as per the existing agreement and continued to pay the rent up to the month of April, 1985 but has failed to pay the rent for the month of May, 1985. As a result of the same, the defendent has become a defaulter in the eye of law. Plaintiffs have also claimed that the suit premise was bonafide required for their own use. On the basis of the aforementioned pleadings, the suit was filed by the plaintiffs under Assam Urban Area Rent Control Act, 1972 (hereinafter referred to as the Act of 1972 in short) seeking the aforementioned reliefs.
6. The defendant contested the suit by filing written statement. While raising the formal plea as regards maintainability of the suit on the ground of want of cause of action, non-joinder of necessary parties and on the point of limitation etc. the defendant, in his written statement, had categorically denied the averments made in the plaint to the effect that he had entered into the suit premises as a tenant on condition of payment of RSA No. 95/2004 Page 3 of 11 monthly rent of Rs. 25/- and that he had become defaulter due to non- payment of rent. According to the defendant, Haripada Ghosh, the deceased father of the plaintiff, who was the owner of the land, during his lifetime had executed a deed of agreement for sale dated 03-12-1970 agreeing to sell the vacant land measuring 1K-10L covered by Dag No. 47(old)/147(new) of PP No. 53(old)/218(new) situated at Balisiha Gaon under mouza Borsola for an amount of Rs. 2250/- out of which a sum of Rs. 300/- was paid by the defendant as the first installment. It was agreed between the parties that the balance amount of Rs. 1750/- would be paid at the time of execution of the sale deed in favour of the defendant. The aforesaid land, according to the defendant, constitutes the suit property and he was put in actual physical possession of the land by Haripada Ghosh (then alive) where-after, the defendant had constructed a permanent dwelling house upon the said plot of land at his own cost and has also paid the balance amount of Rs. 1750/- to Haripada Ghosh but the registered deed of sale could not be executed since the Haripada Ghosh had died prematurely. Claiming that he has been in continuous physical possession in respect of the suit property since 03-12-1970, the defendant had taken the plea of protection under Section 53-A of the Transfer of Property Act, 1882 and also the alternate plea of adverse possession, thereby praying for dismissal of the suit.
7. Based on the pleadings of the parties the learned trial court had framed the following issues:
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1. Whether there is relationship of landlord and tenant between the plaintiff & defendant in respect of the suit premises?
2. Whether the suit is for non-joinder of necessary parties?
3. Whether there is cause of action for the suit?
4. Whether the defendant is defaulter in payment of rent?
5. Whether the suit premise is bonafide required by the plaintiff?
6. Whether the plaintiff is entitled to the decree as prayed for?
7. To what relief/ reliefs are the parties entitled?
8. During trial, both parties led oral as well as documentary evidence in support of their respective cases. Upon appreciation of the evidence on record, the learned trial court had answered the issue No. 1 in favour of the defendant by holding that the plaintiffs could not prove and establish the existence of landlord-tenant relationship between the plaintiffs and the defendant pertaining to the suit property. Consequently, the issue Nos. 4, 5, 6 and 7 were also answered by the learned trial court against the plaintiffs and in favour of the defendant.
9. Being aggrieved by the judgment and decree dated 22-06-1998 passed by the learned trial court in Title Suit No. 18/1995, Title Appeal No. 16/1998 was preferred in the court of Civil Judge (Sr. Div.), Sonitpur, Tezpur by the respondents/ plaintiffs. After hearing the parties and on re-
appreciation of the evidence available on record, the learned lower appellate court had affirmed the finding of the trial court as regards issue No. 1 by holding that the plaintiffs had failed to prove and establish the existence of any relationship of landlord and tenant between the parties. Having held so, the learned lower appellate court had gone on to reverse the finding of the trial court as regards issue Nos. 6 and 7 by holding that the plaintiffs were entitled to a decree for recovery of possession of the RSA No. 95/2004 Page 5 of 11 suit premises by evicting the defendant and his men and materials there- from on the ground that the defendant has failed to prove and establish the plea taken by him as regards entitlement of protection under Section 53-A of the Transfer of Properties Act, 1882 and also the fact that the defendant has failed to establish the plea of adverse possession.
10. Being highly aggrieved and dissatisfied with the judgment and decree dated 31-03-2004 passed by the lower appellate court partly decreeing the suit filed by the plaintiffs, the defendant has approached this Court by instituting the present proceeding.
11. Mr. Chakraborty, learned counsel for the petitioner submits that a bare reading of the plaint will go to show that the plaintiff's suit was one for ejectment of the defendant from the suit premises and for recovery of arrear rent and there was no prayer for declaration of right, title and interest of the plaintiffs in respect of the suit property. Such being the position, according to Mr. Chakraborty, the suit was instituted under the provision of the Act of 1972 and hence, once it was held concurrently by both the courts below that there was no landlord-tenant relationship between the parties, the plaintiff's suit ought to have necessarily ended in dismissal. In that view of the matter, according to Mr. Chakraborty, learned lower appellate court clearly erred in exercising jurisdiction vested under the law by partly decreeing the suit filed by the plaintiff/ respondent in the facts and circumstances of the present case. The learned counsel has relied upon a judgment of the Supreme Court rendered in the case of RSA No. 95/2004 Page 6 of 11 R ajendra Tiw ary Vs. Basudeo P rasad & Anr. reported in (2002) 1 SCC 90 in support of his aforesaid contentions.
12. Mr. P. Sundi, learned counsel for the respondents, on the other hand, submits that although the suit filed by the plaintiff was one for eviction of the defendant from the tenanted premises and for recovery of arrear rent and for other consequential reliefs, yet, once the defendant has himself admitted the title of the father of the plaintiffs in respect of the suit land, the lower appellate court had the jurisdiction and the power to mould a relief by invoking provision of Order VII Rule 7 CPC. In that view of the matter, according to Mr. Sundi there is no error in the exercise of jurisdiction by the court below. Mr. Sundi further submits that the plaintiffs had been fighting the litigation since the year 1995 for getting the suit property vacated from the possession of the defendant and as such, requiring the plaintiffs to seek redressal of their grievance by instituting a fresh proceeding for declaration of title and recovery of possession, would cause serious prejudice to the rights and interests of the plaintiffs.
13. I have considered the submission made by the learned counsel for both parties and have also gone through the materials available on record. From a bare perusal of the plaint it is apparent that the suit filed by the plaintiff was one under the Rent Control Act of 1972 for eviction of the defendant from the suit property and for recovery of arrear rent. The case projected by the plaintiffs in the plaint clearly goes to show that the cause RSA No. 95/2004 Page 7 of 11 of action for the suit arose when the defendant being a tenant under the plaintiffs, had allegedly default in payment of rent. Taking note of the pleadings of the parties the learned trial court had framed issue No. 1 on the point of existence of landlord-tenant relationship between the parties. At the completion of trial, the court of first instance has recorded a finding to the effect that there was no landlord-tenant relationship between the parties and the said finding of fact has also been affirmed by the lower appellate court in its judgment and decree dated 31-03-2004. The aforesaid finding of fact concurrently recorded by both the courts below have remained un-assailed by the plaintiffs/ respondents and have, therefore, attained finality in the eye of law. Under such circumstances, the core question that would arise for consideration by this Court in the present proceeding is as to whether in a suit filed under the Rent Control Act for ejectment and recovery of arrear rent the appellate court would have the jurisdiction to pass a decree for recovery of possession of the suit property even after holding that there was no landlord-tenant relationship between the parties.
14. A question of similar nature had arisen for consideration of the Hon'ble Supreme Court of India in the case of Rajendra Tiwary (Supra) wherein the plaintiffs had filed a suit against the defendant under the provision of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 for eviction of the defendant on the ground of being a defaulter in payment of rent, bonafide requirement of the suit premises RSA No. 95/2004 Page 8 of 11 and for causing damage to the suit premises. In the aforesaid suit the defendant had setup a plea stating that he took the suit premises on rent from the plaintiffs about 33 years back but later on entered into an agreement for purchase of the suit premises and since the date of execution of the agreement for sale, he has been in continuous possession of the suit premises. The defendant in the said suit had also denied the existence of any relationship of landlord-tenant between the parties. On appreciation of the evidence on record, the trial court had dismissed the suit for eviction holding that there was no relationship of "landlord and tenant" between the plaintiffs and the defendant. The title appeal preferred by the appellant also stood dismissed as a result of which, a second appeal was preferred by the plaintiffs before the High Court of Judicature at Patna. The High Court had allowed the appeal taking the view that an equitable decree of eviction could be passed against the defendant on the basis of the title of the plaintiffs and accordingly remanded the matter back to the first appellate court with a direction to record a finding on the question of title of the parties. The said judgment of the High Court was taken in an appeal before the Supreme Court. While allowing the appeal, the Hon'ble Supreme Court had made the following observations in the paragraphs 7 and 8:
"7. It is evident that while dealing with the suit of the plaintiffs for eviction of the defendant from the suit premises under clauses
(c) and (d) of sub-section (1) of Section 11 of the Act, courts including the High Court were exercising jurisdiction under the Act which is a special enactment. The sine qua non for granting the RSA No. 95/2004 Page 9 of 11 relief in the suit, under the Act, is that between the plaintiffs and the defendant the relationship of landlord and tenant should exist.
The scope of the enquiry before the courts was limited to the question: as to whether the grounds for eviction of the defendant have been made out under the Act. The question of title of the parties to the suit premises is not relevant having regard to the width of the definition of the terms landlord and tenant in clauses
(f) and (h), respectively, of Section 2 of the Act.
8. Inasmuch as both the trial court as well as the first appellate court found that the relationship of landlord and tenant did not exist between the plaintiffs and the defendant, further enquiry into the title of the parties, having regard to the nature of the suit and jurisdiction the court, was unwarranted."
15. Following the law laid down by the Supreme Court in the case of Rajendra Tiwary (Supra) it is, therefore, clear that in a suit filed under the provision of Rent Control Act seeking a decree for ejectment of a tenant and recovery of arrear rent, the scope of enquiry for the court has to remain confined to the grounds of eviction arising within the ambit of the Rent Control Act and the question of title of the plaintiff to the suit property would not at all be relevant. Once it is found that the relationship of "landlord and tenant" does not exist between the plaintiff and the defendant, the court would not have the jurisdiction to go into the question of title of the parties and pass a decree for recovery of possession by invoking Order VII Rule 7 of the CPC. In such circumstances, the proper course of action would be to approach the civil court seeking a decree for declaration of right, title and interest over the suit property and for recovery of possession.
16. Although, Mr. Sundi has strongly argued that taking note of the long lapse of time that has taken place since the institution of the suit, this RSA No. 95/2004 Page 10 of 11 Court should enquire into the question of title and thereafter, pass a declaratory decree in the matter, in my opinion, such a recourse would not be permissible inasmuch as High Court in exercise of jurisdiction under Section 100 or Section 115 of the CPC would not record finding of fact for the first time pertaining to the issues that have not been framed by the courts below. The defendant has admitted the title of the predecessor-in- interest of the plaintiffs but has also claimed ownership right over the suit land based on agreement for sale and his long possession over the suit land. These are matters which can be decided by a competent civil court on the basis of evidence led by the parties in support of specific issue framed therein.
17. In such view of the matter, I am of the opinion that the judgment and decree passed by the lower appellate court decreeing the suit filed by the plaintiffs for recovery of possession is unsustainable in the eye of law and the same is accordingly set aside. The suit filed by the plaintiffs would stand dismissed.
This revision petition stands allowed.
There would be no order as to cost.
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