Gauhati High Court
Ramji Sarmah vs Saraswati Devi & 2 Ors on 9 June, 2015
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
CRP No. 416 of 2010
Shri Ramji Sarmah,
S/O Late Nathuni Sarmah,
Netaji Subhash Road, Near Hanuman Temple,
Sarab Bhati, Guwahati.
......Petitioner/Defendant.
-Versus-
1. Smt. Saraswati Devi.
2. Smt. Munna Devi.
3. Shri Dinash Dubey.
Sl. No.1 is the wife and Sl. Nos.2 and 3 are the daughter and son
respectively of Late Rajmangal Dubey,
Sati Jaymoti Road, Athgaon, Guwahati.
......Respondents/Plaintiffs.
Advocate(s) for the Petitioner : Mr. A. Sattar,
Mr. Z. Mukit,
Mr. R.P. Gupta,
Mr. P. Singh.
Advocate(s) for the Respondents : Ms. M.D. Choudhury,
Mr. G. Agarwal,
Ms. A.B. Gogoi.
BEFORE
THE HON'BLE MR. JUSTICE HRISHIKESH ROY
Date of Hearing and Judgment : 9 th June, 2015
JUDGMENT AND ORDER (ORAL)
Heard Mr. Z. Mukit, the learned counsel appearing for the petitioner/defendant. Also heard Ms. M.D. Choudhury, the learned counsel appearing for the respondents, who are the successors of the original plaintiff Late Rajmangal Dubey in the Title Suit No.47/1996.
CRP 416/2010 Page 1 of 72. Claiming himself to be the owner of a Assam Type House consisting of one room situated on govt. land at the Netaji Subhash Road, Guwahati, the plaintiff Rajmangal Dubey applied for ejectment of the defendant on the ground that the tenant defaulted in paying the due rent of Rs.150/- per month from July 1994 to January 1996. Declaratory relief of title over the suit property was also claimed by the plaintiff. In his WS, the defendant however denied that he is a tenant under the plaintiff. The occupation of the suit premises standing on govt. land is claimed on his own count, by the defendant.
3. After exchange of pleadings, 7(seven) issues were framed in the suit and the 4th issue relates to whether the plaintiff is the owner of the suit house and the defendant is a tenant under the plaintiff. The Court noted that no written tenancy agreement exists. But to prove the relationship of landlord tenant, the plaintiff produced rent receipts (Exbts.-1 to 5). But the Court noted that the rent receipts should contain the signatures of the landlord, whereas the signatures of the defendant were available. Therefore the Court did not accept the defendant to be the tenant under the landlord and accordingly the 4th issue was decided against the plaintiff. Consequently the 6th issue of rent default was also answered in defendant's favour. On the basis of its findings on the key issues, the learned Civil Judge (Jr. Division) No.3, Kamrup, Guwahati, by his order dated 23.09.1997 (Annexure-C) dismissed the suit.
4. Then the aggrieved plaintiff filed the Title Appeal No.63/1997 and the Appellate Court noted that the Exbts.-1 to 5 are not rent receipts, as those do not contain the signatures of the landlord showing acceptance of rent. Although the documents do indicate that the defendant paid rent, but on this basis the connection with the plaintiff as the landlord was not accepted to be established. Because of this conclusion, the plaintiff's Title Appeal No.63/1997 was dismissed by the learned Civil Judge (Sr. Division) No.2, Guwahati, through the judgment dated 21.09.1998 (Annexure-D).
5. Aggrieved by the concurrent order of dismissal of the suit, the plaintiff filed the CRP No.411/1998 and this was disposed of on 10.01.2001 by remanding the matter to the Appellate Court to decide 2(two) relevant issues i.e.
(i) whether there is relationship of landlord and tenant between the plaintiff and the defendant; (ii) whether any of the ground as mentioned in the Rent Control CRP 416/2010 Page 2 of 7 Act is available for ejectment of the tenant. The Court further observed that the claim of title need not be decided and with this observation the matter was remanded for a fresh decision by the Appellate Court.
6.1 Upon remand of the matter, the learned Appellate Court proceeded to examine whether there was relationship of landlord and tenant between the plaintiff and the defendant and to decide the issue the Appellate Court noted the evidence in the case. While the plaintiff proved Exbts.-1 to 5 by claiming them to be rent receipts in respect of the suit premises, the defendant denied execution of those receipts and further contended that there is no mention of the plaintiff's name in the exhibited receipts and therefore it cannot be said from Exbts.-1 to 5 that the defendant paid rent to the plaintiff Rajmangal Dubey.
6.2 While the Court accepted that the Exbts.-1 to 5 do not indicate to whom the defendant paid house rent, the Court assumed the signatures of the defendant (although his signatures on the exhibits was denied specifically by the DW-1) and concluded that if the defendant is the owner, then he cannot be paying house rent to some other person. The Appellate Court then inferred that the rent must have been tendered to the plaintiff, as he is the custodian of the exhibited receipts. On this basis, the plaintiff was declared to be the landlord of the defendant in respect of the suit premises.
6.3 Because of the above finding on the landlord tenant relationship and since the defendant denied his liability to pay house rent to the plaintiff, the defendant was declared to be a defaulter.
6.4 On the basis of the above finding on the two key issues, the appeal after remand was decided in plaintiff's favour and accordingly the Title Suit No.47/1996 was decreed by directing ejectment of the defendant through the impugned judgment dated 11.03.2003 (Annexure-E) in the Title Appeal No.63/1997.
7. The judgment of the First Appellate Court was initially challenged through the WP(C) No.3040/2004 by the defendant, but when the maintainability of the writ petition was questioned by the Decree Holder (plaintiff) on the ground that the ejectment order was revisable under Section 115 of the CPC, the writ CRP 416/2010 Page 3 of 7 petition was dismissed on 03.08.2009 (Annexure-F). However, liberty was given to the petitioner to challenge the impugned judgment through appropriate proceeding.
8. Soon after the tenant's writ petition was dismissed, he filed this Revision Petition along with the Misc. Case No.890/2010 for condonation of delay of 2029 days in preferring the Revision Petition. After due consideration, this Court condoned the delay on 04.10.2010 by ordering the Misc. Case No.890/2010 in favour of the plaintiff and accordingly the Revision Petition came to be numbered and listed thereafter.
9.1 Assailing the legality of the ejectment decree, Mr. Z. Mukit, the learned counsel submits that when the Appellate Court in the first round concluded that the Exbts.-1 to 5 do not establish the landlord tenant relationship, the same Court without any other evidence could not have reached a different conclusion in the 2nd round after remand of the matter. As the Exbts.-1 to 5 do not contain the signatures of the plaintiff, who claims that these are the rent receipts in respect of the tenanted premises, Mr. Mukit argues that without his signature, the rent receipts cannot be connected to the plaintiff and therefore the conclusion drawn by the Appellate Court is questioned as one without the support of evidence.
9.2 Referring to the evidence of DW-1, the learned counsel submits that when the signatures on the Exbts.-1 to 5 were denied by the defendant, unless the signatures are proved to be of the defendant, the Court could not have inferred without necessary proof that the signatures on the exhibits are that of the defendant.
9.3 The learned counsel relies on the definition of landlord given under Section 2(c) of the Assam Urban Areas Rent Control Act (hereinafter referred to as the "Rent Act") to project that although title is not required to be proved in an ejectment suit, the plaintiff must nevertheless establish that he is receiving rent from the defendant in order to come within the definition of landlord and unless this vital legal obligation is discharged by the plaintiff, ejectment decree cannot be passed in favour of the plaintiff.
CRP 416/2010 Page 4 of 710.1 On the other hand, Ms. M.D. Choudhury, the learned counsel for the plaintiff/Judgment Debtor submits that on the basis of similar rent receipts under the same landlord in respect of other tenants like Rajnarayan Sarma, Bechan Mahato, the ejectment decrees were passed by the Appellate Courts in the Title Appeal No.17/1998 and Title Appeal No.6/1999 and these orders were upheld by the Revisional Court in the CRP No.142/2005 and CPC No.266/2005 respectively. Therefore Ms. Choudhury argues that similar conclusion reached by the Appellate Court should be left undisturbed, in the present Revision.
10.2 The respondents contend that the present ejectment decree was passed as far back as on 21.09.1998 and thereafter the decree was executed on 10.05.2004 by the Court's Nazir in the Title Execution Case No.1/2004. But although he was ousted through Court process, the Judgment Debtor broke open the lock and the red flag on the night of 12.05.2004 and re-entered the suit premises. But when the matter was brought to the notice of the Executing Court, the learned Civil Judge (Jr. Division) No.3, Guwahati, opined that since execution was once effected and the possession was given to the Decree Holder, the Executing Court is incompetent to re-execute the decree and accordingly through the order dated 15.05.2004, the Title Execution Case No.1/2004 was disposed of. Referring to these developments, Ms. Choudhury argues that the defendant has re-entered possession even after he was ejected through due process and therefore she submits that the Decree Holder should be permitted to obtain vacant possession, on the basis of the impugned ejectment decree in the Title Appeal No.63/1997.
11. The issue here is whether the landlord tenant relationship is convincingly proved by the plaintiff. As earlier noted, there is no tenancy agreement in respect of the suit premises and the PW-1 himself admitted that he is not maintaining any diary for taking rent from the tenant. But the plaintiff claims that the Exbts.-1 to 5 are the rent payment receipts of the defendant. If these be the basis on which the plaintiff claims to be the landlord of the defendant, the impact of the exhibits is required to be weighed to confirm whether the Appellate Court correctly declared the defendant to be a tenant under the plaintiff.
CRP 416/2010 Page 5 of 712. The 5(five) documents proved as Exbts.-1 to 5 do not contain the signatures of the plaintiff, but the purported signatures of Ramji Sarmah in Hindi is available in these exhibits. But the defendant in his evidence has denied that those are his signatures in the exhibited documents. But nevertheless by assuming the signatures in the documents to be that of the defendant, the Appellate Court noted that the defendant paid house rent to some person without identifying that payee through evidence. But although no evidence was available to prove that the rent was received by the plaintiff, the Court inferred that since the plaintiff was the custodian of the exhibited documents, he is assumed to be the person to whom the defendant paid the house rent. Thus on the basis of such inferences, the Court held that the defendant is a tenant under the plaintiff.
13. But I find serious difficulty in accepting the above inference drawn by the Appellate Court because they do not appear to be logical. For instance in normal rent receipts, the signatures of the landlord will be available, but in this case, in the Exbts.-1 to 5, the signatures of the recipient/plaintiff is missing. 2ndly the signatures of the defendant in the exhibited documents were not proved, but despite the defendant's specific assertion that those signatures are not his, the Court irrationally assumed that the signatures are that of the defendant. But the most absurd inference drawn is the assumption that when the defendant paid rent to someone, that someone is the plaintiff, although there is no evidence to show that rent was received by the plaintiff from the defendant. According to me, these illogical inferences were drawn by the Appellate Court without support of any evidence and therefore they are declared to be perverse conclusion.
14. But the respondents try to seek support for the above inference by projecting that similar inferences drawn for the same plaintiff for other tenants in the Title Appeal No.17/1998 and Title Appeal No.6/1999, were upheld by this Court, through rejection of the CRP No.142/2005 and CRP No.266/2001 respectively. But when it is the burden of the litigant to prove his case through appropriate evidence, just because the same plaintiff was able to prove his case in two other ejectment proceedings, the same according to me cannot be the basis for concluding that in the present case also, the plaintiff is similarly CRP 416/2010 Page 6 of 7 convincing in proving his case. In fact the concerned exhibits in the other ejectment proceedings have not been furnished by the respondents and thus even a comparative exercise is not possible. Therefore the arguments advanced by the respondents' lawyer on this point is rejected.
15. In this ejectment proceeding, there is no other evidence barring Exbts.-1 to 5 to prove the landlord tenant relationship and as discussed in the preceding paragraphs, the exhibited documents do not establish that the defendant is a tenant under the plaintiff. In fact the conclusion on the existence of the relationship was reached not on the basis of evidence but was drawn through surmises and inference and this cannot be allowed to be done in a judicial proceeding.
16. For the foregoing discussion and reasons, the petitioner is found to have made out a case for revision and accordingly the impugned judgment dated 11.03.2003 (Annexure-E) in the Title Appeal No.63/1997 is set aside and quashed. However, this decision will not foreclose the option of the plaintiff to file a fresh case against the petitioner, if there is fresh cause of action.
17. With the above order, this case stands allowed by leaving the parties to bear their respective costs. The Registry should return the LCR along with a copy of this order.
JUDGE Roy CRP 416/2010 Page 7 of 7