Gauhati High Court
Md. Ishaque vs Smt. Samsun Nahar Begum on 30 May, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP 176 of 2013
MD. ISHAQUE .....Petitioner
-Versus-
SMT. SAMSUN NAHAR BEGUM .....Respondent
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. S.P. Roy, Mr. R.P.N. Singh, : Mr. K. Rajbongshi, Mr. B.K. Das, : Mr. A. Talukdar, Mr. A.K. Rai.
Advocates for the Respondents : Mr. P.J. Saikia.
Date of hearing : 21.03.2017, 22.03.2017, 04.04.2017.
25.04.2017
Date of judgment and order : 30.05.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. S.P. Roy, the learned Counsel for the petitioner and Mr. P.J. Saikia, the learned Counsel for the respondent.
2) The challenge in the present revision under section 115 of the Civil Procedure Code is the first appellate judgment and decree dated 31.07.2012 passed by the learned Civil Judge, Dibrugarh in Title Appeal No. 6/2011, thereby dismissing the appeal and allowing the cross objection filed by the respondent/ plaintiff as well as the judgment and decree dated 11.11.2008, passed by the learned Munsiff No.1, Dibrugarh, in Title Suit No. 160/2008.
CRP 176/2013 Page 1 of 223) This court, while admitting this revision by order dated 17.06.2013, stayed the operation of the impugned judgment and decree in so far as it related to the Schedule-B land.
4) The defendant in the suit is the petitioner herein and the plaintiff in the suit is the respondent herein.
5) The case projected by the respondent/plaintiff in the plaint is that the plaintiff is an old widow and she is the owner of a plot of land described is Schedule-A at Lohar Patty, Marwari Patty, Dibrugarh, on which she had constructed a bamboo wall and tin roof house measuring 21 feet X 9 feet. The petitioner/ defendant occupied it as a tenant, agreeing to pay monthly rent of Rs.300/- per month, further agreeing to vacate the same and deliver khas possession thereof as and when demanded. After paying rent for some time, taking advantage of weakness and loneliness of the old widow, the petitioner stopped paying rent since October, 2001. Sometime in the year 2001, the petitioner had also occupied Schedule-B land of the respondent containing two kutcha tin roof houses and established a saw mill over the vacant portion of the said land. But unable to run the business, the petitioner removed his belongings and returned khas possession thereof to the respondent. The land described in Schedule-A and Schedule-B is partitioned by a kutcha wooden wall. It is projected that on 16.09.2008, the respondent came to know that by dismantling the said boundary wall, the petitioner illegally trespassed into the Schedule- B land and illegally occupied the same. The petitioner did not vacate the suit land and houses described in Schedule-A and Schedule-B despite demand, and on 29.08.2008, the petitioner also tried to repair the house situated in Schedule-A. Thereafter, by issuing and serving two notices dated 12.09.2008, the respondent asked the petitioner to vacate the suit premises. Thereafter, the suit, which was numbered as T.S. No. 160/2008 was filed on 11.11.2008, which was tried by the learned Court of Munsiff No.1, Dibrugarh. The prayer in the plaint is as follows:-
(A) Decree of the suit;CRP 176/2013 Page 2 of 22
(B) Ejectment of the Defendant, his workers, employees and dependants from house and land of the suit premises of Schedule-(A) and (C) Permanent injunction restraining the defendant from constructing any new structure in the suit premises.
(D) Cost of the suit.
6) The petitioner/ defendant contested the suit by filing his written statement. It was stated that the suit was bad for non joinder of Smt. Anuwara Begum, the co-pattadar. While denying that any construction was made by the respondent in Schedule-A land, it was projected that the said construction was made by him with the permission from the said Smt. Anuwara Begum. It was denied that the respondent had any title or that the petitioner was a tenant under the respondent. It was projected that the land was in two parts, but the land was jointly owned by 9 persons named therein, including the respondent/ plaintiff and the said Smt. Anuwara Begum and that there was no partition of the said land. It was further projected that the land described in Schedule-1 (no land is described as Schedule-1 in the written statement) was leased out to him by Smt. Anuwara Begum and the petitioner/ defendant had constructed a residential house thereon by spending Rs.1,00,000/- and he was paying yearly rent to the said Smt. Anuwara Begum. It was the further defence of the petitioner that the Schedule-B land originally belonged to Azizur Rahman, Smt. Rafika Rahman and Ms. Sehnaz Akhtar and they entered into an Agreement to sell the said land to him in the year 1998 at a total consideration of Rs.59,000/-, out of which he had paid a sum of Rs.47,000/- and the balance was to be paid on getting development permission and on delivery of possession, the petitioner claimed to have constructed a Assam Type Pucca House at a cost of Rs.2,00,000/-.
However, instead of selling the land to the petitioner, the said vendors had cheated him and sold the land to the respondent/ plaintiff, which did not confer any right to the respondent. It was prayed that the suit be dismissed with cost.
CRP 176/2013 Page 3 of 227) The respondent/ plaintiff examined two witness including herself and the said Smt. Anuwara Begum and the petitioner/ defendant also examined 2 witnesses including himself and one Sarfaraz Ahmed Khan. The suit filed by the respondent was decreed for evicting the petitioner from Schedule-A land and house. However, in appeal, the decree against the petitioner was passed for evicting him from the suit premises described in Schedule-A and Schedule-B of the plaint. Aggrieved by the decree for eviction passed against the petitioner, the present revision has been filed.
8) The learned counsel for the petitioner submits that although there was a mention about Schedule-A and Schedule-B in the plaint of Title Suit No. 160/2008, but the respondent/ plaintiff did not make any prayer in respect of eviction of the petitioner from the Schedule-B land.
9) It is submitted that the learned Trial Court decreed the suit on 08.12.2010 and ordered the ejectment of the petitioner herein from the suit land described in Schedule-A of the plaint and the decree was drawn up accordingly. After the suit was decreed, the respondent herein had filed petition No. 3714 dated 15.12.2010 under the provisions of section 152 read with section 151 of the Civil Procedure Code, and prayed that by amending the judgment, the plaintiff be allowed to insert Schedule-B for the ends of justice. The learned Trial Court, by an order dated 23.12.2010, rejected the said prayer for amendment. It is further submitted that the said order, rejecting the insertion of prayer in respect of Schedule-B premises had attained finality, as the same was not assailed by the respondent herein.
10) Against the said decree, the petitioner preferred an appeal under section 96 of the Civil Procedure Code, which was registered as Title Appeal No. 6/2011. The respondent/ plaintiff filed their cross objection, wherein it was prayed that the cross objection be admitted from the decree in respect of land of Schedule-A and also to pass a decree for eviction of the appellant/ defendant (i.e. petitioner herein) from the land of the Schedule-B of the plaint. As stated above, the CRP 176/2013 Page 4 of 22 appeal was dismissed and the cross objection was allowed by the learned First Appellate Court, thereby decreeing that the petitioner herein be ejected from the house and land of the suit premises described in Schedule-A and Schedule-B of the plaint.
11) The learned counsel for the petitioner has submitted that the learned first appellate court did not frame any points of determination. As per the submissions made by the learned counsel for the petitioner, the judgment of the first appellate court was not sustainable because -
a. the learned trial court did not frame any issue of whether the respondent herein was the owner of the suit land and, as such, the learned Trial Court did not decide whether the respondent was the owner of the suit premises described in Schedule-B, yet the learned first appellate court observed that the learned Trial Court had held that the respondent was the owner of the suit premises and further held that the right of the respondent over Schedule-B land was declared, which is a perverse finding, not based on records; and b. the finding recorded by the learned First Appellate Court was that the learned Trial Court had not committed any error or illegality in coming to a conclusion that the respondent had right, title and interest over both the Schedule-A & B land, but on perusal of the judgment passed by the learned Trial Court, the same would not be found, for which the appellate judgment suffered from perversity; and c. The learned First Appellate Court had held that the petitioner herein had to prove that he was not a tenant under the landlord and the landlord need not prove his status, which was totally erroneous and perverse because there being no prayer in the plaint for decree in respect of Schedule- B land or house standing thereon, the burden of proving that the petitioner herein was not the tenant under the respondent herein could not have been shifted on the petitioner. It CRP 176/2013 Page 5 of 22 is further argued that the learned first appellate court appeared to have proceeded as if the learned Trial Court had passed a decree in respect of land described in Schedule-B; and d. It is argued that the decree in respect of Schedule-B property was vitiated by legal infirmity. The decree for eviction from Schedule-B land was passed, but as per the provisions of The Assam Urban Areas Rent Control Act, 1972, any tenancy in respect of the land is not covered thereunder, but the tenancy must be in respect of the house. It is argued that a tenancy in respect of land is covered under the provisions of The Assam Non- Agricultural Areas Tenancy Act, 1955. Hence, the decree passed stands vitiated by perversity; and e. In para 7 of the plaint, there is a statement that the petitioner encroached the land described in Schedule-B. There is no reference of any house and, as such, the first appellate court committed grave miscarriage of justice by passing a decree for eviction of the petitioner from the land of and house on Schedule-B land; and f. The plaint was not verified as the plaint did not contain the signature of the respondent at the verification, for which the suit ought to have been dismissed and could not have been decreed even for land described in Schedule-A of the plaint. On this count, the learned counsel for the petitioner has relied on the case of Meea Bora V. Hiranath, 2011 (1) GLT 69; and g. The respondent had proved the records of a few Misc.(N.J.) Cases as Ext.9 to Ext.13, which was totally denied by the petitioner at the time of his cross examination, and even the relationship of landlord and tenant was denied by the petitioner, but the respondent did not prove the signature of the petitioner, yet both the courts below by relying on the said certified copies, held that the same proved the tenancy of the petitioner under the respondent, which was assailed as perverse; and CRP 176/2013 Page 6 of 22 h. The Ext.16 i.e. Jamabandi was questioned, being photocopy. It is stated that although the petitioner raised his objection as to the admissibility, but the learned Trial Court, by an order dated 11.11.2009 had ordered that the admissibility of the document will be considered in due time. However, no decision was given thereon at the final hearing and, as such, the judgments of both the learned courts below were urged to be vitiated by perversity, non application of judicial mind and failure to exercise of jurisdiction illegally or with material irregularity; and i. It is argued that the respondent/ plaintiff did not prove the 'due date' on which the alleged monthly rent fell due, and in the absence of any finding as regards the date on which the monthly rent fell due, the petitioner could not have been declared to be a defaulter. In this regard, the learned counsel for the petitioner relied on the case of Jugal Kishore Joshi V. Babulal Kucheria, 2016 (3) GLT 72; and j. It was argued that at the time of filing of plaint, only 8 documents were filed and, as such, the other exhibits marked by the respondent were inadmissible, having been introduced without any leave. In this connection, the learned counsel for the petitioner has relied on the cases of (i) Subhas Trading Co., (2011) 5 GLR 133, (ii) Nepal Das V. Aditi Deori & Ors., 2011 (2) GLT 336, (iii) Madanlal V Shyamlal, (2002) 1 SCC 535; and k. The learned First Appellate court had misread or misconstrued the pleadings on record. The case in the plaint was that the petitioner had vacated the suit land described in Schedule-B and after some time again trespassed into the said land and dispossessed the respondent. However, there was no pleadings of the date of alleged dispossession.
CRP 176/2013 Page 7 of 2212) Per contra, the learned counsel for the respondent has countered the said arguments advanced by the learned counsel for the petitioner by submitting that there was no infirmity in the decree passed by both the courts below and, as such, the finding of facts by both the courts below ought not to be disturbed in this revision. He submits that the condition precedent of invoking section 115 of the Civil Procedure Code are totally absent in the present case in hand. It was submitted as follows:-
a. The non framing of issues by the learned trial court on whether the respondent herein was the owner of the suit land did not vitiate the trial, because both the parties were aware of the dispute raised in the plaint. It was argued that in an eviction suit, the landlord is not required to prove his title and, as such, the non declaration of ownership or title of the respondent over the suit land described in Schedule-A and Schedule-B by the learned Trial Court was not at all material which in itself cannot render the decision of the learned First Appellate Court as wrong. The respondent was the owner of the suit premises described in Schedule-B and that the right of the respondent over Schedule-B land was correctly declared. b. The learned First Appellate Court had not committed any error or illegality in coming to a conclusion that the respondent had right, title and interest over both the Schedule-A & B land because from reading the judgment passed by the learned Trial Court, there cannot be any doubt that the respondent had proved his ownership over the suit land described in Schedule-A and Schedule-B land and houses standing thereon.
c. The learned First Appellate Court had committed no illegality in holding that it was for the petitioner to prove that he was not a tenant under the landlord and in an eviction suit by the landlord, a landlord need not prove his status. It is submitted that the two lands were contiguous land and the rooms and the land of both Schedule-A and B land were mentioned in the plaint and, as such, CRP 176/2013 Page 8 of 22 the burden of proving that the petitioner herein was not the tenant under the respondent had to be discharged by the petitioner. d. It is argued that the plaint must be read as a whole and paragraph 7 of the plaint could not be read in isolation. The rooms mentioned in Schedule-B of the plaint was indicative of the fact that the houses described therein was a temporary (kutcha) house. Hence, the non-mentioning of houses in the decree is a curable defect, for which the decree cannot be held to be inexecutable at this stage.
Hence, it cannot be said that the provisions of The Assam Urban Areas Rent Control Act, 1972 did not apply in this case or that the tenancy was covered under The Assam Non- Agricultural Areas Tenancy Act, 1955.
e. It was reiterated that neither paragraph 7 nor any other statement made in the plaint could be read in isolation. There existed a reference to the houses standing on Schedule-B land and, as such, the first appellate court committed no illegality or grave miscarriage of justice as alleged by passing a decree for eviction of the petitioner from the land of and house on Schedule-B land. f. The lack of signature in verification appended to the plaint was a mere omission and not as it was a curable mistake. However, the second copy of the plaint was duly signed and, as such, the non- availability of signature in the verification of the plaint did not vitiate the suit.
g. The respondent had proved the records of a few Misc.(N.J.) Cases as Ext.9 to Ext.13 to prove the relationship of landlord and tenant. No evidence to the contrary was introduced by the respondent to disprove the evidence of the petitioner.
h. The respondent proved ownership of Schedule-A land by virtue of inheritance and ownership over Schedule-B land by way of purchase was duly proved. Moreover, the objection as to admissibility of documents were neither argued before the learned CRP 176/2013 Page 9 of 22 Trial Court nor before the learned First Appellate Court, which can be seen from the reading of the Memo of Appeal filed before the learned First Appellate Court, which did not contain any ground on admissibility of documents.
i. It is argued that it was no longer res-integra that if the tenancy was unregistered, it would be a monthly tenancy and the rent becomes payable on the last date of each month and under the Assam Urban Areas Rent Control Act, 1972, it became due within a fortnight. Hence, the 'due date' was liable to be proved. It was submitted that the case of Jugal Kishore Joshi (supra) was not applicable in the present case.
j. It was argued that the filing of few documents at a later stage was never objected to by the petitioner and, as such, this plea cannot be permitted to be entertained at the revisional stage. Hence, the case of (i) Subhas Trading Co. (supra), (ii) Nepal Das (supra), and
(iii) Madanlal (supra), were not applicable in this case. k. The land of Schedule-B being contiguous to the land described in Schedule-A, the suit land described in Schedule-B, being appurtenant to the Schedule-A land, the absence of the date of dispossession did not vitiate the proceedings.
l. In support of his argument, the learned Counsel for the respondent has relied on the following citations:-
i. Bhupati Bhusan Dey V. Julphi Begum, 2006 (1) GLT 161 (para
18) to show that if the plaintiff fails to prove the relationship of landlord and tenant, but proves his title, the court had the discretion under the provisions of Order VII Rule 7 of the Civil Procedure Code to grant equitable relief of ejectment.
ii. Binapani Roy & ors. V. State of Tripura, 1994 (1) GLR 98 (para 13 and 14) to show that if the denial of title is not bona fide, the Rent Control Court can pass the decree.
CRP 176/2013 Page 10 of 22iii. Manoranjan Paul & Ors. V. Narendra Kumar Paul, 1993 (1) GLR Supp 289 (para 11 & 12) to show that if secondary evidence is admitted without objection, the same can be relied upon. iv. Manindra Kumar Dey V. Mahendra Suklabaidya, 1999 (1) GLT 30 (para 8) to show that it is essential that objection to the certified copy of the sale deed being admitted as secondary evidence should be taken at the trial before the document is marked as an exhibit.
v. Sailadhar Dutta V. Kanai Dutta, 1988 (2) GLJ 298 (para 11), to show that the court has power available under sections 151, 152 and 153 of the Civil Procedure Code to correct clerical errors.
vi. Md. Matiur Rahman V. Ramjan Ali, 2001 (2) GLR 576 (para 10 &
11) to show that non signing of exhibits by the Presiding Officer is a defect within the meaning of section 99 of the Code of Civil Procedure and for the same, a decree cannot be set aside.
vii. Naba Kumar Doley V. Bharat Chandra Narah, 2016 (6) GLR 242 (para 23) to show that defect in verification of pleadings are curable defects and such a defect can be cured at any stage of the proceedings.
viii. Kuldeep Kumar Dubey & Ors. V. Ramesh Chandra Goyal (Dead) through LRs., (2015) 3 SCC 525 (para 9) to show that formal defects, not touching the merits of the case can be cured particularly if no objection was raised before the trial court.
13) On perusal of the materials on record, it appears that the learned Trial court had framed the following issues for trial:-
1. Whether the suit is maintainable in law and facts including the point of joinder of parties?
2. Whether there is cause of action for the suit?
3. Whether the plaintiff is the landlord of the defendant?CRP 176/2013 Page 11 of 22
4. Whether the defendant is defaulter in paying rents to the plaintiff?
5. Whether the defendant violated any conditions of lease and constructed the construction over the suit land B without her consent?
6. Whether the plaintiff is entitled to relief as claimed for?
7. To what relief/s the parties are entitled to?
14) On appreciating the evidence of the PW-1, it appears that the respondent/ plaintiff had proved certified copies of Misc. (N.J.) Case records as Exhibits No. 9 to 13 to prove that there existed relationship of landlord and tenant between the plaintiff and the defendant and that the defendant had irregularly deposited rent in court for the months of November, 20001 to June, 2002. The said PW-1 filed her evidence-on- affidavit on 11.11.2009 and she had faced her cross examination on 19.12.2009. However, from the perusal of the record of the Trial Court, it appears that the plaintiff had filed petition No. 2634/10 on 02.09.2010 to call for the original record of the Misc. (N.J.) Case Nos. 776/01, 840/01, 76/02, 227/02, 465/02, on the ground that the defendant had denied the same in his cross examination and he had also denied his signatures. However, the learned Trial Court had rejected the said petition No. 2634/2010. It is, therefore, the admitted case of the respondent/ plaintiff that the defendant had denied having filed the said Misc. (N.J.) Cases. Thus, a mere exhibiting of Misc. (N.J.) Case records by the plaintiff does not amount to proving the contents thereof. It appears that there was no attempt to prove the signatures of the person filing those Misc. (N.J.) Cases in Court for depositing rent in court. Hence, contrary to the concurrent finding by the learned Courts below this court is constrained to hold that as per the evidence on record, the respondent/ plaintiff has not been able to prove the relationship of landlord and tenant between her and the petitioner/ defendant. Resultantly, the concurrent finding of fact on the issue No.3 - whether the plaintiff is the landlord of defendant?, and on issue No.4 - whether the defendant is defaulter in paying rents to the plaintiff?, are both liable to be interfered with as this court does not CRP 176/2013 Page 12 of 22 find that the decision by the learned Trial Court as well as the First Appellate court are in any manner sustainable on the basis of evidence of the respondent/ plaintiff.
15) Moreover, the case projected by the plaintiff in paragraph 6 of the plaint is that the defendant occupied the vacant portion of schedule-B land and had set up a saw mill thereon and as he could not run his business, he had removed his belongings from and over the schedule- B land and delivered khas possession of the same to the plaintiff in the same year. Later on, the defendant trespassed into Schedule-B land after dismantling boundary wall separating Schedule-A and B land, which came to her knowledge on 16.07.2008. Thus, as per the pleadings set up in the plaint, the defendant was a tenant in respect of Schedule-A land and an illegal trespasser in respect of Schedule-B land. Thus, having taken the said stand, there is no way that a valid tenancy can co-exist with trespass so far as the schedule-B land is concerned. Therefore, the finding of the first appellate court that "the landlord need not prove his status" is also not sustainable because in the case of trespass, the plaintiff is required to prove the alleged trespass, which has not been done in the present case in hand. This court is of the further view that once the defendant denies the relationship of tenancy and the landlord embarks on proving the existence of tenancy as well as trespass, the landlord was required to prove the same, but the plaintiff has failed to discharge her burden in the present case in hand. In any case, there are two distinct cause of action in the suit, first being the cause of action for eviction of a defaulter tenant and second being the cause of action to evict an illegal trespasser and two distinct facts are required to be proved. However, in the present case in hand, the learned First Appellate Court appears to have clubbed both the said issues and arrived at a totally erroneous conclusion by holding that it found no ground to interfere with the decree, which is not sustainable either on facts or in law.
CRP 176/2013 Page 13 of 2216) However, by proving Ext.14, Ext.15, Ext.17 to Ext.22, the respondent has successfully proved her ownership in respect of the suit land described in Schedule-A and Schedule-B. The petitioner had set up the case of joint ownership of 9 persons, including the respondent, in respect of the suit land described in Schedule-A. Therefore, notwithstanding the fact that the respondent had successfully proved her title over the suit land described in Schedule-A, there is also an admission by the petitioner that the respondent was one of the co- owner. It is a well settled law that a co-owner can maintain a suit for eviction. On the perusal of the evidence on record, this court does not find that the petitioner has been able to prove that the construction which is standing on the Schedule-A land was constructed by him with the consent of Smt. Anuwara Begum, the landlord projected by him. Therefore, if the petitioner has changed the nature and character of construction by taking advantage of old age, weakness and loneliness of the respondent, the petitioner, having not been able to prove that he had made the original construction, is not entitled to protection under section 5 of the Assam Non- Agricultural Areas Tenancy Act, 1955, as argued by the learned Counsel for the petitioner.
17) Moreover, in respect of the suit land described in Schedule-B, although the respondent had been able to prove her title over the same, this court on the perusal of the records has observed that there is no mention of Schedule-B in the prayer of the plaint. By the filing of the petition for amendment after the decree was drawn, which was rejected by order dated 23.10.2010, which is available in the record of the learned Trial Court, it is apparent that the respondent/ plaintiff was aware of the fact that there was an inadvertent omission in the plaint as there was no prayer for decree in respect of Schedule-B land. Thus, the result of the omission to include Schedule-B property in the plaint was that no decree was passed by the learned Trial Court to evict the petitioner/ defendant from the land described in Schedule-B of the plaint. On the other hand, the petitioner had set up a defence that the suit land described in Schedule-B belonged to Azizur Rahman, Smt. Rafika Rahman and Ms. Sehnaz Akhtar and they entered into an CRP 176/2013 Page 14 of 22 Agreement to sell the said land to him in the year 1998 at a total consideration of Rs.59,000/-, but he has not been able to dislodge the ownership of the suit land by the respondent. The Agreement for Sale also could not be proved by the vendors named therein. Therefore, this court is not inclined to accept the argument advanced by the learned counsel for the petitioner that the petitioner had some independent right over the Schedule-B land. Nonetheless, as there was no prayer in the plaint in respect of the said Schedule-B land, no purpose would be served for any further academic discussion on the said land.
18) This court finds that the respondent/ plaintiff had filed a cross- objection in connection with the proceeding of Title Appeal No. 6/2011, inter-alia, on the ground that the learned Trial Court had erred in not allowing petition dated 22.12.2010 for correction of prayer in respect of Schedule-B. The stand of the respondent/ plaintiff is that the plaint was filed in duplicate, where the second copy contained the prayer in respect of Schedule-B property, and that there was an omission to include prayer in respect of Schedule-B property in first copy of the plaint. In this regard, notwithstanding such a stand taken in appellate stage, this court is of the view that this stand cannot be an acceptable stand because the plaint is required to be filed in duplicate and only the first copy is allowed to be kept in Part-A file, which contains court fees, filing slip, duly sworn affidavit, etc. The learned court would proceed on the basis of the first copy of plaint. The inclusion of Schedule-B in the prayer in second copy of the plaint is found to be in pen without there being any signature of the person carrying out such correction. Be that as it may, the present case in hand, the specific plea in cross objection of the respondent/ plaintiff was that the learned Trial Court ought not to have rejected the petition dated 22.12.2010 and ought to have passed the decree in respect of Schedule-B land. However, upon perusal of the impugned first appellate judgment, it appears that the said learned court totally failed to appreciate the stand of the respondent and proceeded as if the learned Trial Court had passed the decree for eviction of the petitioner/ defendant from both Schedule-A and B land. In the opinion of this court, it was open for the CRP 176/2013 Page 15 of 22 respondent/ plaintiff to move an application to amend the decree in the appellate stage also, but having taken a plea that the petition dated 22.12.2010 for amendment of plaint was erroneously rejected, the respondent/ plaintiff allowed the plaint and/or the decree passed by the learned trial Court to remain un- amended.
19) It was the specific case of the respondent/ plaintiff in her cross objection that a decree be also passed in respect of Schedule-B premises. Therefore, without allowing amendment of the plaint and the consequent decree passed in the original suit, it was not open for the learned First Appellate court to uphold the decree in respect of Schedule-B premises, as no decree existed in respect of the Schedule-B premises.
20) The learned First Appellate Court has held in its first appellate judgment dated 31.07.2012 that the learned Trial Court had "... also declared right, title and interest of the respondent over the schedule-B land." It was also held that "... the Trial Court has not committed any error or illegality in coming to a conclusion that the respondent/ plaintiff had right, title and interest over both the schedule-A and B land." However, the said findings are absolutely not borne by the records as the learned Trial Court did not declare right, title or interest of the respondent/ plaintiff in respect of either or both schedule-A and B land. It is seen that the learned Trial Court in respect of issue No. 3 and 4 had, inter-alia, held as follows "(quote)... the defendant is a tenant under plaintiff, defaulter of payment of rent as the defendant was allowed to stay temporarily in 2001 to occupy the kutcha house situated at schedule-B and which he vacated in the same year. The defendant thereafter dismantled the partitioned wall existing between the land of schedule-A & B to which after known to the plaintiff, the plaintiff asked the defendant to vacate the schedule-B land on 4/8/2008 and vide ex.1/4 the legal notices demanded the defendant to vacate the from the schedule A and B land to which he did not pay heed. More over the defendant is defaulter in payment rent of Schedule-A land after June, 2002. Hence, these issues go in favour of the CRP 176/2013 Page 16 of 22 plaintiff (unquote)." In respect of issue No. 6 and 7, it was held that the plaintiff had established its case as defendant is illegal occupier for schedule-A land and was entitled for eviction of defendant from Schedule-A land. Thus, neither any issue was framed as to whether the plaintiff had any right, title or interest over the land described in Schedule-A and B of the plaint and nor there was any decision of that sort by the learned Trial Court. Hence, the first appellate judgment appears to be vitiated by total non appreciation of the judgment passed by the learned trial court. The first appellate court proceeded on an incorrect or erroneous premise that the learned Trial Court had declared the right of the plaintiff over the land described in Schedule-A and B and lost sight of the specific pleading by the respondent/ plaintiff in her cross objection filed in appeal that she wanted inclusion for prayer for eviction of the petitioner/ defendant from the land described in schedule-B of the plaint.
21) Moreover, this court finds force in the submissions made by the leaned counsel for the petitioner that the admissibility of Ext.16 i.e. Jamabandi was questioned on the ground of being photocopy, but the learned Trial Court, by an order dated 11.11.2009 held that the admissibility of the document will be considered in due time. However, as no decision was given thereon, as such, the judgments of both the learned courts below were vitiated by failure to exercise jurisdiction. The proviso of Sub- Rule (1) of Rule 4 of Order XVIII of the Civil Procedure Code provides that the proof and admissibility of the documents which are filed along with the affidavit shall be subject to the orders of the Court. This is so because when documents are exhibited under Evidence- On- Affidavits, the other side has no way to object to its admissibility at the initial occasion and, as such, the said provisions entitle the other party to raise objection as to the admissibility of the documents so exhibited and it would be subject to the decision by the Court. In the present case in hand, it appears that the learned Trial Court did not rely on the entry made in Ext.16 (photocopy as per record). Hence, failure to decide its admissibility is not a defect, error or irregularity, affecting the merits or jurisdiction and, as such, by applying the principles of CRP 176/2013 Page 17 of 22 section 99 of the Civil Procedure Code, this court is of the opinion that failure to decide admissibility of Ext.16 at a later stage, did not vitiate the proceeding.
22) As regards the lack of verification in the plaint. There is no doubt that the ratio of the case of Meea Bora (supra) is now a trite law that lack of verification is fatal. However, in the said case, this court was hearing a case for grant of a Letter of Administration in connection with an application under section 278, 280, and 281 of the Succession Act, 1925, where verification as required under section 280 of the said Act was the issue involved. In the present case in hand, the said objection was not taken before the learned Trial Court or in the Memo of Appeal filed before the learned First Appellate Court. Therefore, this court is not inclined to non-suit the respondent/ plaintiff at this revisional stage as the lack of signature in verification was otherwise a curable defect, which does not vitiate the proceedings. It must also be remembered that prior to the amendment of Civil Procedure Code by Act 46 of 1999, a party was only required to verify the pleadings under Order VI Rule 15 of the Code. However, by the said amendment w.e.f. 01.07.2002, it was the requirement under Sub-Rule 4 of Rule 15 of Order VI of the said Code that the person verifying the pleadings was also required to file an affidavit in support of the pleadings. Hence, the absence of signature in verification can be treated as a curable defect and only if the same was brought to the notice of the court and the same having not been cured, the defect of signature on verification can be said to vitiate the proceedings, but in the present case in hand, the absence of signature on verification of the plaint has been specifically raised for the first time in this revision, for which this objection is not sustained. Thus, the case of Meea Bora (supra) is distinguishable on facts of this case.
23) It may be pertinent to mention herein that the learned Counsel for the petitioner has also raised an issue that few documents were filed at the time of evidence for the first time. It was argued that at the time of filing of plaint, only 8 documents were filed and, as such, the other exhibits marked by the respondent were inadmissible, having been introduced without any leave. In this CRP 176/2013 Page 18 of 22 connection, the learned counsel for the petitioner has relied on the cases of (i) Subhas Trading Co., (2011) 5 GLR 133, (ii) Nepal Das V. Aditi Deori & Ors., 2011 (2) GLT 336, (iii) Madanlal V Shyamlal, (2002) 1 SCC 535. The said argument appears to be a misdirected argument because not only the plaintiff filed some documents on 11.11.2008, but as many as 22 documents were also filed along with a list on 05.05.2009 (available at pg.66 of File 'D' of Trial Court record), in acceptance of which there is also an order dated 05.05.2009. Hence, neither the objection on this count, nor the cases cited on this point have any applicability in the present case.
24) However, upon putting the arguments advanced by the learned counsel for the respondent to test with the ratio of the case of Bhupati Bhusan Dev (supra), it is observed that upon a plain reading of the plaint, it appears that there is no statement therein that this was a suit for ejection of the plaintiff under the provisions of the Assam Urban Areas Rent Control Act, 1972. It was projected that the respondent/ plaintiff is the landowner of the Schedule-A land and taking advantage of the old age, weakness and loneliness of the respondent/ plaintiff, the petitioner/ tenant is enjoying the Schedule-A land and house standing thereon without paying any rent. The respondent/ plaintiff had duly proved her title and ownership over the suit land. In the suit, it has been stated that plaintiff had a right to evict the defendant from the suit premises and the defendant is bound to leave, vacate and deliver the suit premises to the plaintiff and prayer was made in the plaint for ejecting the defendant, his workers, employees and dependants from house and land of the suit premises of Schedule-A. It is seen that in the case claiming eviction under the Assam Urban Areas Rent Control Act, 1972, it is well settled that it is the burden of the tenant to show that he tendered rent to the landlord within the time when it fell due and on refusal of the landlord, the tenant had deposited rent in court by following the procedure prescribed. However, in the present case in hand, the petitioner/ defendant had set up a defence that he was holding the land by virtue of an agreement for sale in respect of Schedule-A land. The erstwhile owner of the CRP 176/2013 Page 19 of 22 Schedule-A suit premises gave her evidence as PW-2 and denied the tenancy of petitioner/ defendant under her, rather, she had asserted that the petitioner/ defendant was a tenant under the respondent/ plaintiff. Therefore, by applying the ratio of the case of Bhupati Bhusan Dev (supra), the decree passed by both the courts below for ejection of the petitioner/ defendant from the land and house described in Schedule-A of the plaint is liable to be upheld as there exists a general prayer for relief of eviction of the defendant from the Schedule-A land. Moreover, the ratio of the case of Binapani Roy (supra) is also found to be applicable in the present case in hand because, the respondent/ plaintiff having proved her right and title over the suit land, the denial of her title by the petitioner/ defendant cannot be accepted to be bona fide, having not enforced his purported agreement, which could not be proved when PW-2 (the original owner) entered the witness box. Thus, it is held that the respondent/ plaintiff, having successfully proved her title over the Schedule-A land by virtue of Exhibits No. 14 to 22 (except Ext.16), is entitled to maintain her suit to evict the plaintiff from the said Schedule-A land, under the Transfer of Property Act, 1882, if not under the provisions of the Assam Urban Areas Rent Control Act, 1972.
25) This court is not inclined to accept the argument of the learned Counsel for the respondent based on the ratio of the rest of the cases cited by him because of a simple fact that there was no prayer for eviction of the petitioner/ plaintiff from the Schedule-B land. Moreover, despite cross objection filed in appeal, the respondent/ plaintiff did not press for a correction of the decree or amendment of the prayers made in the plaint to include prayer to evict the petitioner/ defendant from the Schedule-B suit premises. None of these cited cases are authority on the point that even without amendment of the plaint to include prayer for eviction from Schedule-B premises, a decree for the same can be still passed. In the opinion of this court, the omission to include prayer for eviction from Schedule-B premises or to press for a decree for evicting petitioner/ defendant from Schedule-B land is a formal defect, which definitely touches the merits of the case, and unless specifically ordered to be corrected, such a defect CRP 176/2013 Page 20 of 22 cannot be permitted to be cured particularly because objection was duly raised by the petitioner/ defendant on the matter before the trial court. Thus, without amendment of the plaint or the decree being allowed under sections 151, 152 or 153 of the Civil Procedure Code, the ratio of the case of Sailadhar Dutta (supra) cannot be made applicable at this revisional stage and that too on the basis of oral submissions made by the learned Counsel for the respondent/ plaintiff.
26) In conclusion, this court is of the considered opinion that as per the discussions made above, as there was no prayer in the plaint for eviction of the petitioner/ plaintiff from the Schedule-B land, the finding by the learned First Appellate Court in respect of entitlement of the respondent/ plaintiff to evict the petitioner/ defendant from the Schedule-B land stands disproved as per the evidence on record. Moreover, there being no prayer for eviction of petitioner/ defendant from Schedule-B land, the judgment and decree passed by the learned first appellate court is not sustainable.
27) In view of the discussions above, the other points argued by the learned counsels for both sides are not at all required to be addressed by this Court.
28) Thus, viewed from all these angles, this revision deserves to be partly allowed. It is held that there was no prayer in the plaint for evicting the petitioner/ defendant from the Schedule-B land, as such, the first appellate decree for eviction of the petitioner from the Schedule-B land is not sustainable and the same is set aside. However, the decree passed by both the learned courts below for eviction of the petitioner/ defendant from the suit land described in Schedule-A of the plaint is upheld.
29) The petitioner/ defendant is granted two months time to vacate the Schedule-A premises by giving usual undertaking before the learned Executing Court within a period of 3 (three) weeks from today to vacate the Schedule-A premises by removing all his men, dependents, goods, etc. therefrom within a period of two months from today, failing which the respondent/ plaintiff would CRP 176/2013 Page 21 of 22 become entitled to execute the decree. It is further provided that on vacating the suit premises described in Schedule-A of the plaint, the petitioner/ defendant shall hand over physical possession only to the respondent/ plaintiff without creating any third party right thereon in any manner whatsoever.
30) The interim order passed on 22.03.2017, as extended by orders dated 28.03.2017 and 04.04.2017 are all vacated.
31) The parties are left to bear their own cost.
32) Let the "Lower Court Records" be returned forthwith.
JUDGE
Mkumar.
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