Gauhati High Court
M/S Rajani Kanta Paul And Ors vs Nasima Khatoon on 25 June, 2015
Author: A. K. Goswami
Bench: A. K. Goswami
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
R.S.A. NO. 167/2004
1. M/s. Rajani Kanta Paul & Sons
New Chowk Bazar, Masjid Road,
Tezpur Town, Mouza Mahabhairab,
P.O. and P.S. - Tezpur,
District - Sonitpur.
2. Sri Rabindra Kumar Paul
3. Sri Indrajit Kumar Paul
Nos. 2 and 3 are sons of Late Rajani Kanta Paul,
Partners of M/s Rajani Kanta Paul & Sons,
New Chowk Bazar, Masjid Road,
Tezpur Town, Mouza Mahabhairab,
P.O. and P.S. - Tezpur,
District - Sonitpur.
.......APPELLANTS
- Versus -
Musstt. Nasima Khatoon,
Wife of Md. Abdul Jalil,
Resident of Nepalipatty,
Tezpur Town, Ward No. 13,
Mouza - Mahabhairab,
P.O. and P.S. - Texpur,
District - Sonitpur.
......... RESPONDENT
BEFORE
HON'BLE MR. JUSTICE A. K. GOSWAMI
For the Appellants : Mr. S. Nath, Advocate.
For the Respondent : Mr. T.C. Khatri, Sr. Advocate.
Date of hearing & Order : 25.06.2015
R.S.A. No. 167/2004 1|Page
JUDGMENT AND ORDER (ORAL)
Heard Mr. S. Nath, learned counsel for the appellants. Also heard Mr. T.C. Khatri, learned Senior Counsel for the respondent/plaintiff.
2. This second appeal is preferred by the defendants against the judgment and decree of reversal passed by the learned Civil Judge (Senior Division), Sonitpur, Tezpur, setting aside the judgment and decree dated 21.12.2001 passed by the learned Civil Judge (Junior Division) No. 1, Tezpur in Title Suit No. 51/1998.
3. This second appeal was admitted to be heard by an order dated 08.10.2004 on the following substantial questions of law:
"1. Whether the learned lower appellate Court committed illegality in reversing the judgment and decree of the trial Court by wrongly applying the provisions of the Assam Urban Areas Rent Control Act, 1972 instead of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955?
2. Whether the learned lower appellate Court committed illegality in reversing the judgment and decree passed by the learned trial Court without setting aside the findings recorded by the learned trial Court?"
3. Whether the learned lower appellate Court committed illegality in decreeing the suit for ejectment of tenant from land without serving notice under Section 11 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955?
4. Whether non-consideration of the documentary evidence adduced by the parties has vitiated the judgment and decree passed by the learned lower appellate Court?"
4. The facts pleaded in the plaint, in short, is that the plaintiff is the absolute owner of land measuring 12½ Lechas as fully described in the Schedule of the plaint and the defendants have been carrying on business in their shop premises R.S.A. No. 167/2004 2|Page taking the land on leasehold arrangement for a period of 10 years, commencing from 01.12.1983 to 30.11.1993. For the said purpose, a lease deed was executed on 28.11.1983 and the same was also registered. In terms of the tenancy, the defendants were required to pay Rs. 100/- every month in advance against annual rental of Rs. 1200/- and the defendants are required to vacate the land by demolishing their constructions and handing over khas possession to the plaintiff on expiry of the lease period on 30.11.1993, unless the parties agreed for fresh lease arrangement. With the allegation that despite requests made the defendants had neither renewed the lease nor paid any rent, the suit was filed on 26.08.1998 treating them to be trespassers on and from 01.12.1993. It was also pleaded that though there was an attempt to make constructions, on protest, somehow, construction activities could be stopped but they are apprehensive that the defendants may again start constructions. In the suit, prayer was made for recovery of khas possession by demolishing the constructions and for injunction.
5. The defendants filed a written statement taking pleas that the suit was not maintainable in view of bar under Section 5(1)(a) and Section 5(3) of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, for short, Act of 1955 as well as for non-service of notice under Section 11 of the Act of 1955 and also under Section 111(g) of the Transfer of Property Act, 1882 on the allegation of forfeiture. Other legal pleas such as non-joinder of necessary parties and there being no cause of action were also pleaded. In the written statement, they traced the origin of the tenancy, which dated back to 10.05.1938, on execution of a registered deed of lease on that date. The suit land had, subsequently, fallen in the share of the plaintiff.
6. It was pleaded that the lease was renewed from time to time by execution of agreements and details of such subsequent agreements such as 16.11.1949, 22.02.1956, 27.05.1963, 28.02.1973, etc. were given. It was pleaded that they had raised permanent constructions in the year 1940 within a period of 5 years from entering into the tenancy agreement in the year 1939. It was also stated that a registered agreement dated 28.11.1983 was executed with the plaintiff. Another unregistered deed of tenancy dated 26.10.1983 was executed for a year for land R.S.A. No. 167/2004 3|Page measuring 33½ ft. x 3 ft. from Nasima Khatun for the purpose of a passage. It was pleaded that the tenancy cannot be determined by afflux of time as the tenancy was created way back in the year 1939 and they were all along ready to execute a fresh tenancy agreement and to pay such rent as may be fixed but the plaintiff with an ulterior motive refused to execute a fresh lease. Reference was also made to certain sales made in the meantime.
7. On the basis of the pleadings, learned Trial Court framed 8 issues which are as follows:
"1. Is there any cause of action for the suit?
2. Whether the suit is barred U/s. 5(1)(a), 5(3) of the Assam Non-
Agricultural Urban Areas Tenancy Act, 1955?"
3. Whether the suit is barred for non-service of notice U/s. 11 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 as well as U/s. 111(g) of the Transfer of property Act?
4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether the terms and conditions of the lease has expired and the defendant in occupying the suit premises wrongfully?
6. Whether the defendant is liable to be evicted by demolishing the structure over the suit land?
7. Whether the plaintiff is entitled to a decree as prayed for?
8. To what other relief(s) the parties are entitled to?"
8. The plaintiff examined one witness whereas the defendants examined 5 witnesses. A number of documents were also exhibited by both the parties. The lease deed dated 28.11.1983 was exhibited as Exhibit - '1'. While deciding Issue No. 2, the learned Trial Court took note of the registered deeds of lease dated 10.05.1938 (Exhibit - 'N'), and 16.11.1949 (Exhibit - 'O'). On the basis of oral as well as documentary evidence, the learned Trial Court recorded the finding that the R.S.A. No. 167/2004 4|Page tenant had built permanent constructions within 1940 and they were covered by Holding No. under Tezpur Municipal Board from the year 1940. The learned Trial Court took note of Exhibit - 'S', Exhibit - 'S(1)', Exhibit - 'S(2)', Exhibit - 'S(3)' and Exhibit - 'S(4)' in this connection. It also recorded a finding with the aid of Exhibit
- 'H' that the plaintiff took Rs. 12,000/- as rent for the period 1983 to 1993 as yearly rent for 10 years, and accordingly, held that defendants are entitled to protection under Section 5(1)(a) and Section 5(3) of the Act of 1955.
9. Issue No. 3 was also decided against the plaintiff holding that in absence of notice under Section 11 of the Act of 1955 as well as Section 111(g) of the Transfer of Property Act, 1882, the suit was barred. With the determination of the two aforesaid crucial issues i.e. Issue Nos. 2 and 3, the suit was dismissed.
10. The appeal was allowed by the learned Appellate Court by deciding the Issue Nos. 2 and 3 as follows:
"I have also gone through the decisions reported in - 1. AIR 1979 SC 1745 relating to Notice U/s. 106 of T.P. Act, 2. AIR 1980 SC 1756, 3. 1990 (2) GLR 183 relating to Eviction of tenant for default, 4. 1987 (1) G.L.R. 316, 5. 1985 (2) GLR 376/377, 6. 1992 (2) GLR 263, 7.
AIR 1966 Assam and Nagaland 118 and 8. 1987 (1) GLR (NOC) 7 submitted by learned counsel for the defendants/respondents side in course of his argument relating to Notice U/s. 106 of T.P. Act. I have carefully gone through these decisions and found that the decisions of above cited Hon'ble Court, in my opinion, are not applicable in the facts and circumstances of the suit as the facts and circumstances of these cases are quite distinguishable.
Ultimately considering all the discussed facts, I am of the considered view that the defendants/respondents who have been continued to be in possession of the land in dispute without any renewal of lease and without paying rent to the appellant after the expiry of the period of lease and accordingly having authority from R.S.A. No. 167/2004 5|Page the Hon'ble Full Bench Decision in AIR 1979 Supreme Court 1745 V. Dhanapal Chettiar, Appellant V. Yesodai Ammal, Respondent wherein it was held -
"Transfer of Property Act (1882), Ss. 106, III(g) and (h) - Eviction against tenant under any State Rent Control Act - Giving of notice U/s. 106 T.P. Act - Not necessary -
Determination of lease by forfeiture.
I find hereto interfere with the decision of the learned court below and so decided these two issues in favour of the appellant."
11. Before the findings were recorded by the learned lower Appellate Court as aforesaid, the lower Appellate Court had only noted the submissions of the learned counsel for the parties, and thereafter, rendered his conclusions as aforesaid. With such determination, other issues were also decided in favour of the appellant/plaintiff, and accordingly, suit was decreed.
12. A bare perusal of the findings in Issue Nos. 2 and 3 of the learned lower Appellate Court would demonstrate that the learned lower Appellate Court did not record any findings whatsoever in respect of Section 5(1)(a) as well as Section 11 of the Act of 1955. The plea of being a non-evictable tenant taken by the defendants is plainly ignored and swept under the carpet. There was no reference to any of the exhibits, based on which, the learned lower Appellate Court had reached its conclusions. What is the import of the decisions referred to or what was the ratio of the decisions cited was not even adverted to and by one sentence, it is held that such decisions are not applicable. The impugned judgment of the learned lower Appellate Court cannot be said to a judgment in accordance with law.
13. The substantial questions of law formulated, in essence, encapsulated the mandate of Order XLI Rule 31 of the Code of Civil Procedure, 1908, for short, the Code. This Court in the case of R ualk hum i Vs. Lalvuani & Ors., reported in 2011 (5) GLT 291, had considered the mandate of Order XLI Rule 31 of the Code. It was held as follows:
R.S.A. No. 167/2004 6|Page "(11) The first appellate court is the final court of facts, and therefore, it is incumbent on the appellate court to consider the evidence adduced by the parties and documents exhibited. In a case where the appellate court agrees with the view of the trial court on the evidence, it may not be necessary for the appellate court either to reiterate the reasons given by the trial court or to reaffirm the effect of the evidence. In such a case, expressions of general agreement with the reasoning given in the judgment which is under challenge before the appellate court would normally suffice. In the case of affirmation of a judgment appealed against, the reasoning offered by the trial court can be said to be the view or reasons of the appellate court. However, when it is a case of judgment of reversal, the learned appellate court is required to independently assess the evidence on record. It is in this context the provisions of Order 41 Rule 31 CPC cannot be lost sight of. In the case of judgment of reversal, reasons for decision have to be apparent. A decision rendered without averting to the evidence on record and highlighting, at least, the silent features thereof, cannot be said to be a judgment in conformity with the mandate of Order 41 Rule 31 CPC. Merely saying that it has perused the materials on record, in the considered opinion of the court, would not meet the requirements of Order 41 Rule 31 C.P.C. ............."
14. The instant case being a judgment of reversal, reasons for its decision are required to be apparent. The Appellate Court, in the facts of the case, could have reversed the judgment only after independently assessing the evidence on record. The impugned judgment of the learned lower Appellate Court cannot be said to be a judgment in conformity with the mandate of Order XLI Rule 31 of the Code. A perusal of the impugned judgment of the learned lower Appellate Court, as indicated earlier, unequivocally demonstrates that it had not adverted to the deposition of any of the witnesses and there is also no discussion and decision with regard to crucial defences set up by the defendants under Section 5 as well as under Section 11 of the Act of 1955.
R.S.A. No. 167/2004 7|Page
15. The Substantial Question of Law No. 2 as framed do not really arise for consideration as the findings recorded by the learned Trial Court was set aside. Substantial Question of Law Nos. 3 and 4, in view of the discussions above, are answered in favour of the appellants. Impugned judgment of the learned lower Appellate Court is set aside and the case is remanded to the learned Court of the Civil Judge, Sonitpur, Tezpur for disposal in accordance with law after hearing the parties. It is made clear that this Court has made no final expression on the merits of the case of either of the parties or on the correctness of the judgment of the learned Trial Court. It is also made clear that the decision of the learned lower Appellant Court in Issue Nos. 2 and 3 have not been set aside on merit, but for the reasons hereinbefore mentioned. Reference to pleadings and exhibits in this judgment was only for the purpose of disposal of the case.
16. Appeal is allowed as indicated above. No cost.
17. In view of the long pendency of this case, the learned lower Appellate Court is requested to dispose of the matter within a period of 3 months from the date of appearance of the parties. The parties will appear before the learned Court of the Civil Judge, Sonitpur, Tezpur on 05.08.2015.
18. Registry will take immediate steps to transmit the records so that on the date fixed before the Court of Civil Judge, Sonitpur, Tezpur, the records are available for consideration.
JUDGE
P.K.SINHA
R.S.A. No. 167/2004 8|Page
M.C. NO. 3024/2004
IN R.S.A. NO. 167/2004
BEFORE
HON'BLE MR. JUSTICE A.K. GOSWAMI
25.06.2015:
In view of the disposal of the second appeal today, this petition is also disposed of.
JUDGE
P.K. SINHA
R.S.A. No. 167/2004 9|Page