Gauhati High Court
Biswajit Bhattacharjee & 5 Ors vs Pranati Kana Das @ 2 Ors on 19 June, 2015
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CRP NO. 58/2011
1. Shri Biswajit Bhattacharjee
S/o Late Paresh Chandra Bhattacharjee.
2 Smti Supriya Bhattacharjee
D/o Lt. Paresh Chandra Bhattacharjee,
(Wife of Shri Mahadev Bhattacharjee).
3 Miss Seema Bhattacharjee
D/o Lt. Paresh Chandra Bhattcharjee,
All are R/o Subhash Nagar, Karimganj Town,
P.O., P.S. & Dist. Karimganj,
4 Smti Mira Bhattacharjee
D/o Lt. Paresh Chandra Bhattacharjee,
(Wife of Shri Subhash Chandra Bhattacharjee)
R/o Udalbhakra, Lalganesh,
Dist. Kamrup, Assam.
5 Smti Ira Bhattacharjee
D/o Lt. Paresh Chandra Bhattacharjee,
(Wife of Shri Rathindra Bhattacharjee)
R/o Quinton Road,
P.O. Shillong-1, Meghalaya.
6 Smti Shila Bhattacharjee
D/o Lt. Paresh Chandra Bhattacharjee,
(Wife of Shri Swapan Kumar Bhattacharjee),
R/o Joymoti Nagar, Pandu,
Dist. Kamrup, Assam. ... Petitioners/Judgment-Debtors.
VERSUS
1. Smti. Pranati Kana Das is Struck off Vide Order Dated 4.5.2011.
2 Smti Nibadita Das,
3 Smti Nobonita Das
Both are D/O Lt. Saroj Kumar Das,
All are R/o Lakshmicharan Road, Kariganj Town,
P.O., P.S. & Dist. Karimganj. ...Respondents/Decree-Holders
BEFORE THE HON'BLE MR JUSTICE HRISHIKESH ROY For the petitioners : Mr. B.R. Dey, ... Sr. Advocate.
Ms. D. Chowdhury
Mr. P. Sen ... Advocates.
For the respondents : Mr. D. Mozumder. ...Sr. Advocate.
Mr. R. Sharma,
Mr. B. Deori.
Mr. T. Saikia. ... Advocates.
Date of hearing and Judgment : 19.6.2015.
CRP No.58/2011
Page 1 of 6
2
JUDGMENT AND ORDER
Heard Mr. B.R. Dey, the learned Senior Counsel appearing for the petitioners (Judgment-Debtors). Also heard Mr. D. Mazumdar, the learned Senior Counsel appearing for the respondents (Decree-Holders).
2. The Title Suit No.332/1992 was filed by Saroj Kumar Das (predecessor of the respondents) against Paresh Bhattacharjee (predecessor of the petitioners) for ejectment of the defendant from the shop house in Ward No.119 of Karimganj Municipality. The tenanted premises was described in the Schedule to the plaint and the plaintiff claimed that the tenant failed to pay the rent from the month of Baishak, 1398 B.S. After receiving summons from the Court, the defendant filed his Written Statement (W.S.) and denied that he is a tenant under the plaintiff. On the contrary the defendant claimed to be the owner of the suit house on the basis of purchase made from the successors of Surajit Das, vide Sale Deed dated 15.12.1992 (Exbt.A).
3. The learned Civil Judge (Jr. Division) No.1, Karimganj observed that while the plaintiff claimed ownership to the extent of 50% of the property, the said claim was beyond his pleadings. But nevertheless the defendant being a tenant and defaulter under the plaintiff was found to be established. But since the suit related to un-partitioned property, the Trial Court opined that relief can't be given and thus the suit was dismissed on 24.2.1995 (Annexure-III).
4. The aggrieved plaintiff then filed the Title Appeal No.12/1995 and the Appellate Court observed that the plaintiff succeeded in proving that the defendant is a tenant under him. Proceeding on this basis, the learned Civil Judge (Sr. Division) observed that a co-owner can sue for eviction and on this perception the ejectment suit at the instance of the 50% owner was held to be maintainable. The Appellate Judge noted that the defendant did not adduce any evidence to prove the legitimacy of the title of their vendors in respect of the Exbt.-A Sale Deed. Moreover they failed to adduce any evidence in support of their pleaded case that they were initially inducted as tenants under Surajit Das CRP No. 58/2011 Page 2 of 6 3 and thereafter they purchased the tenanted premises from the legal heirs of Surajit Das. That apart, the boundary description as given in the Sale Deed (Exbt.-A) did not tally with the boundary given in the plaint and accordingly the Trial Court on the basis of evaluation of the evidence opined that the landlord tenant relationship is established and since the defendant did not pay rent to the plaintiff since Baishakh 1398 B.S., the ejectment suit was found to have merit and accordingly the defendant was ordered to be evicted, by reversing the judgment of the Trial Court.
5. The J.Ds made a belated challenge to the ejectment decree through the CRP No.256/2003 accompanied by a delay condonation application i.e. the Misc. Case No.4452/2006. But after due consideration of the fact that the petitioners despite their knowledge about death of respondent No.1 Saroj Kumar Das as far back as on 22.11.2005 failed to take any steps for substitution, no merit was found in the delay condonation application and the same was thus dismissed by the order dated 1.2.2008 (Page-25) leading to consequential dismissal of the CRP No.256/2003, filed by the Judgment-Debtors.
6. Then the D.Hs applied for execution through the Title Execution Case No.6/2006 where the J.Ds raised objection under Section 47 of the CPC. According to the J.Ds., the decree is in-executable since description of the suit property in the plaint was incorrect. The next objection relates to the J.Ds acquiring ownership of the property through the Sale Deed dated 15.12.1992 (Exbt.-A) from the legal heirs of Surajit Das. Moreover as the co-owner had not authorised the plaintiff to file the ejectment suit, this was pleaded as the 3rd ground to oppose the execution.
7. However the learned Munsiff No.1, Karimganj through the impugned order dated 29.1.2011 (Annexure-VIII) noted that tenanted premises was adequately described in the plaint and more significantly the suit boundary did not tally with the boundary of the property, purchased by the defendant through Exbt.-A. Moreover after the concurrent finding on landlord tenant relationship and the defendant being a defaulter, the Court held that the D.H. can't be CRP No. 58/2011 Page 3 of 6 4 deprived of the fruits of his litigation and accordingly the objection of the J.Ds was dismissed on contest by the order dated 29.1.2011 (Annexure-VIII) in the Title Execution Case No.6/2006.
8. Assailing the legality of the order passed by the Executing Court against the J.D., Mr. B.R. Dey, the learned Counsel submits that when the plaintiff claims to be 50% owner, without partition of the property in metes and bounds, the ejectment proceeding can't be initiated. According to the learned Counsel, as the plaintiff was admittedly 50% owner, the co-owner should have been impleaded in the suit and without their participation in the case, the ejectment decree can't be enforced at the instance of half owner of the property. The J.Ds. contend that although they were initially the tenants of the suit property under Surajit Das, after the death of the landlord, they purchased the property form the landlord's successor Smt. Munna Das and others through the purchase deed dated 15.12.1992 (Exbt.-A) and therefore they are entitled to oppose the execution by the plaintiff who is not the landlord of the defendant.
9. From the judgment given by the Trial Court and the Appellate Court, it can be gathered that concurrent conclusion on existence of landlord tenant relationship and rent default was given by both Courts and this finding couldn't be disturbed by the J.Ds. That apart, the specific case of the plaintiff as can be seen from the schedule is that he is 50% owner of the property and the remaining half is owned by one Monoranjan Kar. The ejectment suit at the instance of the co-owner is maintainable in law and when the other owner has not objected to the ejectment suit or the decree, the defendant in my opinion can't challenge the authority of the plaintiff, to execution of the ejectment decree.
10. As regards the defendants' claim that they are the owner of the suit property, the Appellate Court opined that the defendant failed to adduce evidence to prove the purported title of their vendors who executed the Exbt.-A Sale Deed and thus the defendants' title claim was disallowed and this finding has now attained finality in this proceeding.
CRP No. 58/2011 Page 4 of 6 511. It is also relevant to note that the defendant never disputed the plaintiff's description of the tenanted premises from which eviction was sought and in these circumstances, it will not be correct to allow them to resist execution by alleging wrong boundary of the tenanted premises.
12. Furthermore when the Title Appeal No.12/1995 was disposed of by declaring the J.D. to be a defaulter tenant, the aggrieved party filed the Civil Revision No.256/2003 before the Gauhati High Court by impleading other J.D.s as proforma respondents against Saroj Kumar Das, the predecessor of O.Ps./D.Hs. This Court vide order dated 12.4.2006 passed in Civil Revision No.256/2003 disposed of the case on the ground that respondent No.1 Saroj Kumar Das expired on 4.4.2006 and the appellant has not taken steps for substitution of legal heirs.
13. Subsequently the D.H. filed Title Execution Case No.6/2006 on 24.4.2006 before the Munsiff, Karimganj and accordingly as per procedure of law, the execution case was proceeded and at last, the petitioner No.1 obtained an order of status quo from Gauhati High Court on 8.12.2006 in the Misc. Case No.4450/2006 in connection with the CRP No.256/2003, relating to the disputed property. However after that, vide judgment dated 1.2.2008 (Annexure-V) this Court rejected all prayers of the Revision petitioner and as such it is very much clear that the occupants of suit house being defaulters, are disentitled to resist the execution since the judgment and decree of Title Appeal No.12/1995 is binding upon the petitioners.
14. The tenanted premises is clearly identifiable from the given details and as a co-owner, the plaintiff can certainly initiate an ejectment proceeding for which consent is not necessary to be secured from the other owners. In these circumstances, I am of the considered opinion that the petition filed under Section 47 of the CPC by the J.D. was rightly rejected for the reasons recorded by the Executing Court. When the defendant is a defaulter of rent, he is not entitled to protection from eviction under the provisions of the Assam Urban CRP No. 58/2011 Page 5 of 6 6 Areas Rent Control Act, 1972 and since a valid ejectment decree is secured by the plaintiffs, they are entitled to enjoy the fruits of their long lasting litigation. Taking all these factors into account and appreciating that conclusions are reached upon due evidence, I find no merit in this Revision Petition and the same is accordingly dismissed. The interim order stands vacated accordingly. The parties will bear their respective cost.
15. In view of the dismissal of the Revision, the Registry should send this order to the Court of Munsiff No.1, Karimganj.
JUDGE Datta.
CRP No. 58/2011 Page 6 of 6