Gauhati High Court
Assam Apex Weavers And Artisans ... vs On Death Of Subodh Ch. Hazarika His Legal ... on 12 March, 2020
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/7
GAHC010301622019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 174/2019
1:ASSAM APEX WEAVERS AND ARTISANS CO-OPERATIVE FEDERATION
LTD. AND ANR.
IN SHORT ARTFED WITH ITS REGISTERED OFFICE AT G.N.B. ROAD
(AMBARI) GUWAHATI-1, DIST. KAMRUP (M), REP. BY ITS MANAGING
DIRECTOR
2: THE MANAGING DIRECTOR
ASSAM APEX WEAVERS AND ARTISANS CO-OPERATION FEDERATION
LTD. G.N.B. ROAD (AMBARI)
GUWAHATI-
VERSUS
1:ON DEATH OF SUBODH CH. HAZARIKA HIS LEGAL HEIRS
ASSAM
1.1:BANEE HAZARIKA
W/O LT. SUBODH CH. HAZARIKA
R/O MATHGHORIA
ZOO-NARANGI ROAD
GUWHATI
1.2:SUBRATA HAZARIKA
S/O LT. SUBODH CH. HAZARIKA
R/O MATHGHORIA
ZOO-NARANGI ROAD
GUWHATI
1.3:PRASANTA HAZARIKA
S/O LT. SUBODH CH. HAZARIKA
R/O MATHGHORIA
ZOO-NARANGI ROAD
Page No.# 2/7
GUWHATI
1.4:NANDITA CHOUDHURY
R/O MATHGHORIA
ZOO-NARANGI ROAD
GUWHAT
Advocate for the Petitioner : MR J SHARMA
Advocate for the Respondent : FOR CAVEATOR
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 12-03-2020
JUDGMENT & ORDER (ORAL)
Heard Mr. J Sharma, learned counsel for the petitioner. Also heard Mr. S Ali, learned counsel for the respondents.
2. The respondents plaintiffs herein had instituted TS. No.265/1993 claiming the following reliefs:
"i). A decree for eviction of the defendants from the suit premises described in the schedule A to the plaint by removing their men and material there from:
ii). A decree for realization of Rs.1,51,800/- (Rupees One Lakh Fifty One Thousand Eight Hundred) only from the defendants on account of arrear rent from march 1988 to November, 1993 etc."
3. The plaint describes the suit premises as follows:
"Schedule 'A' (Description of the suit premises) Page No.# 3/7 A two storied RCC building except a room on the extreme eastern part of the ground floor covered by holding No.44 together with the two Assam Type C I sheet roofed house (transformed into one A.T house by the defendants) by Holding No.44A standing on a plot of land measuring about 3 Kathas 17 ½ Lechas (10.37 Are) covered by Dag Nos. 1027, 1030, and 1035 of Kheraji periodic Patta No.437 of Sahar Guwahati Block No.VI under Ulubari Mouza, within ward No. XXIII of the Guwahati Municipal Corporation District Kamrup and bounded as follows:
On the North : Plaintiff's own land and house.
On the South : G.N. Bordoloi Road and land of Schedule 'B'
On the East : Municipal drain
On the West : Land and building of Sri Bhatia and land of
Schedule 'B'."
"Schedule 'B'
Land measuring about 11 lechas (1.47 Are) covered by part of Dag Nos.1027 and 1030 of Kheraj periodic patta No.437 of Sahar Guwahati Block No. VI under Ulubari Mouza, District Kamrup and bounded as follows:
On the North : Suit premises described in Schedule 'A' On the South : G.N. Bordoloi Road On the East : Suit premises described in Schedule 'A' above. On the West : Land and building of Sri Bhati."
4. By the judgment dated 05.07.2005, T.S No.265/1993 was decreed in favour of the plaintiffs in the following manner:
"a). The suit premises are bonafide required by the plaintiff and the defendants are liable to be evicted from the suit premises on the ground of defaulter as well as bonafide requirement of the plaintiff.
b). The defendants are declared to be defaulter for non payment of the monthly rent in respect Page No.# 4/7 of the suit premises with effect from 01.03.88 and the plaintiff is entitled to realize an amount of Rs.1,51,800/- as an arrear rent and also the monthly rent since 01.12.93 for every succeeding month till the suit premises is vacated by the defendants or evicted."
5. Against the said judgment of the learned Civil Judge (Senior Division) No.1, Kamrup Guwahati, an appeal was carried by the petitioner defendant before the learned Additional District Judge No.4 which was registered as TA No.56/2006 and by the judgment dated 30.04.2008, the appeal stood dismissed.
6. Against the dismissal of the title appeal, CRP No.140/2008 was preferred by the petitioner defendant and by the judgment dated 07.08.2015, the CRP No.140/2018 was dismissed. Against the dismissal of the CRP No.140/2018, the petitioner defendant also approached the Hon'ble Supreme Court, but such proceeding also was dismissed. In the consequence, the respondents plaintiffs instituted, Title Execution No.32/2016 in the Court of the learned Civil Judge No.1, Kamrup (M) Guwahati. In the execution proceeding, an order dated 11.11.2019 was passed by which the Misc.(J) Case No.383/2017 preferred by the petitioner defendant under Section 47 of the CPC resisting the execution of the decree in respect of the schedule B land was dismissed. Upon such dismissal, a warrant to the bailiff was also issued by which the petitioner defendant was sought to be evicted both from the schedule A and schedule B land.
7. Being aggrieved, this revision petition is preferred.
8. Mr. J Sharma, learned counsel for the petitioner defendant refers to the conclusion arrived at by the learned Civil Judge (Senior Division) No.1, Kamrup in its judgment dated 05.07.2005 in T.S No.265/1993, wherein it was concluded as follows:
"That being so, the B Schedule land is not relevant in the instant suit and no relief has been claimed by the plaintiff in respect of that land. It is my considered view that issue No.6 is not at all relevant for decision of the suit. Hence the same is struck off."
9. By referring to the said conclusion of the learned Civil Judge (Senior Division) No.1, Kamrup, Page No.# 5/7 Mr. Sharma, learned counsel contends that the decree of eviction from the suit premises would have to be understood to be only in respect of the schedule A land and not schedule B land.
10. Per contra, Mr. S Ali, learned counsel for the respondent plaintiffs contends that the schedule B land is an appurtenant to the tenancy which was made in favour of the petitioner defendant wherein certain constructions were made by the petitioner defendant. Against the constructions T.S 268/1993 was instituted by the respondents plaintiffs before the learned Munsiff No.1, Guwahati and a temporary injunction was granted by the order dated 01.10.1993. Against the said order of injunction, the petitioner defendant preferred an appeal being Misc. Appeal No. 61/1993 in the Court of the learned Assistant District Judge No.1, Kamrup which was dismissed by the judgment by the order dated 17.12.1993.
11. Being aggrieved, the CRP No.423/1993 was preferred by the petitioner defendant which was partly allowed vide judgment dated 19.10.1993. In the meantime, TS No.268/1993 instituted by the respondents plaintiffs was dismissed by the judgment dated 31.08.2005. Against the dismissal TA No.24/2005 was preferred by the respondents plaintiffs in the Court of the learned Additional District Judge No.4 Kamrup which was allowed by the judgment and decree dated 30.04.2008 resulting in the reversal of the judgment by the learned trial court. Against the judgment dated 30.04.2008, the petitioner defendant preferred RSA No.100/2008 which was heard analogously with the CRP No.140/2008. Accordingly, it is the contention of Mr. S Ali learned counsel for the respondents plaintiffs that in the judgment and order dated 07.08.2015 in CRP No.140/2008, it was provided as follows:
"....Once a decree of ejectment is passed against the defendants for eviction from the tenanted premise, it is axiomatic that the said decree would also be applicable in respect of the land appurtenant to the tenanted house which may be under the occupation of the tenant including any other portion of the land and building under illegal occupation of the tenant in a matter like the one in hand a separate decree of eviction would not be necessary as otherwise the same would lead to multiplicity of suits and legal proceedings."
12. Accordingly, by referring to the said judgment dated 07.08.2015 in CRP No.140/2008, Mr. S Ali submits that the judgment of the learned trial court dated 05.07.2005 in T.S No.265/1993 providing Page No.# 6/7 for that the schedule B land is not relevant for a decision of the suit, the same stood modified. In view of such modification that has been provided in the order dated 07.08.2015 in CRP No.140/2008, the decree of the trial court providing for the eviction of the petitioner defendant from the suit premises would now have to be read that the suit premises also includes the schedule B land.
13. Mr. J Sharma, learned counsel for the petitioner defendant on the other hand submits that in the judgment dated 07.08.2015 in CRP No.140/2008, in paragraph 28 this Court had not interfered with the decree passed by the learned court in any manner and, therefore, although the judgment may have been modified and included the schedule B land but the decree was not interfered, as such, the decree has to be understood to be only in respect of schedule A land. It is further submitted that the Executing Court would execute a decree and not the judgment and as the decree was not interfered and neither modified, therefore, the schedule B land could be included for the purpose of execution.
14. We have given a consideration to the rival submissions. When we look into the decree of the learned trial court in TS No.265/1993, it is noticeable that as per the decree, the petitioner defendant is liable to be evicted from the suit premises and the decree does not specifically provide that they are to be evicted from the schedule A land alone. But when the decree is examined on the basis of the judgment of the learned trial court dated 05.07.2005 in TS No.265/1993, it can be inferred that the suit premises would have to mean only schedule A land as schedule B was specifically excluded in the said judgment. But at the same time, as the judgment dated 05.07.2005 stood modified by this Court in the order dated 07.08.2015 in CRP No.140/2008, now the decree of the learned trial court in TS No.265/1993 would have to be interpreted based upon the judgment which is prevailing at present. As the judgment between the parties had attained its finality on 07.08.2015 in CRP No.140/2008, therefore, the expression suit premises in the decree would now have to be interpreted based upon the judgment which is prevailing between the parties i.e., the judgment dated 07.08.2015 in CRP No.140/2008.
15. In the judgment dated 07.08.2015 in CRP No.140/2008, this Court having specifically held that the petitioner defendant is also liable to be evicted from the schedule B land which is appurtenant to the tenanted premises, therefore, the expression suit premises in the decree of the trial court in TS Page No.# 7/7 No.265/1993 would now have to be read to also include the schedule B land.
16. In view of the above, we do not find any merit in this revision petition and the same stands dismissed.
JUDGE Comparing Assistant