Gauhati High Court
Sri Basanta Kumar Ray vs Sri Ratneswar Ray on 14 November, 2019
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/8
GAHC010005912017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 67/2018
1:SRI BASANTA KUMAR RAY
R/O VILL. BORIGAON, P.O. AND P.S. ABHAYAPURI, DIST. BONGAIGAON,
ASSAM.
VERSUS
1:SRI RATNESWAR RAY
VILL. BORIGAON, P.O. AND P.S. ABHAYAPURI, DIST. BONGAIGAON,
ASSAM, PIN 783384
Advocate for the Petitioner : MR. S S SARMA
Advocate for the Respondent : MR. P SARMAH
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 14-11-2019 Heard Mr. S.S. Sharma, learned Senior Counsel assisted by Mr. R.T. Mashod, learned counsel for the appellant and Mrs. R. Choudhury, learned counsel appearing for the respondent.
2. This appeal under section 100 CPC is directed against the first appellate judgment and decree dated 26.04.2017 passed by the learned Civil Judge, Bongaigaon in T.A. No. 15/2015 by which the judgment and decree dated 24.09.2015 passed by the learned Munsiff, North Salmara, Abhayapuri in T.S. No. 76/2010 was set aside and reversed and thereby the Page No.# 2/8 suit filed by the respondent/ plaintiff was decreed for eviction and recovery of khas possession. This appeal was admitted by order dated 27.04.2018 on the following 2 (two) substantial questions of law "1. Whether the reversal of the findings of Issue No.2 is arrived at by the learned Lower Appellate Court by ignoring the vital evidence i.e. the tenancy agreement (Ext-A)?
2. Whether the construction of the tenancy agreement (Ext-A) which is foundation of the rights of the appellant is wrongly interpreted by the learned lower appellate court?"
3. The respondent/ plaintiff had filed a suit against the appellant/ defendant for declaration, eviction and for recovery of khas possession by projecting in the plaint that he was the owner of a plot of land measuring 2.4 lessas at Abhayapuri Town which originally belonged to the proforma defendants. It was claimed that the suit land was purchased from the proforma defendants vide registered sale deed No. 1601 dated 27.11.2000 and on obtaining delivery of possession, the suit land was mutated in the name of plaintiff/ respondent jointly with the proforma defendants (vendors). In course of time, the original patta was converted to new patta No.163. It is projected that after obtaining delivery of the suit land, the plaintiff/ respondent had renovated the old house standing thereon and started stationary business from the same. The house had been allotted holding No. 215 of Abhayapuri Municipality Ward No.2. It is projected that in order to give employment to his younger brother, the plaintiff/ respondent allowed the appellant/ defendant to manage and run his business. After carrying out business for 4-5 years, the defendant got separated from the respondent after his marriage and ousted the respondent from the suit premises by claiming that the suit premises belonged to him. Accordingly, the suit for declaration of his right, title and interest was filed by the respondent in respect of suit premises, claiming recovery of khas possession after eviction of the appellant/ defendant.
4. The appellant/ defendant contested the suit by filing his written statement jointly with the proforma defendants No.1, 2 and 3 i.e. original landlords/ vendors of the appellant/ plaintiff, claiming that he was a co-sharer of the suit land. It was projected that the respondent and the appellant were both brothers and they were living together as a joint family and after death of their parents, the respondent became the "karta" of the joint family.
Page No.# 3/8 It was projected that on 06.06.1996, the appellant had taken the suit premises on rent from the proforma defendant No.1 for 5 (five) years for doing business with effect from 06.06.1996 to 06.06.2001 for which an advance payment was made as house rent and for the remaining amount, a monthly rent was fixed. It was further stated that the appellant had also paid his share of the purchase money of Rs.30,000/- out of the total consideration amount of Rs.60,000/-, but on the date when the sale deed was registered, the appellant was unable to go to the Sub-Registrar's Office as he was busy in his business, but the respondent had surreptitiously executed the sale deed in his own name but reported before the appellant that the sale deed was executed in their joint names. It was claimed that the appellant was in possession of the suit premises and accordingly, denied all the statements made in the plaint. By claiming that the appellant was in continuous possession of the suit land for 15 (fifteen) years, it was stated that he was not a trespasser and being a co-sharer of the suit premises, he was not liable to evicted. On the aforesaid facts, the learned trial court framed the following issues for trial "1. Whether there is any cause of action for the suit?
2. Whether the suit is maintainable in law as well as in facts?
3. Whether the plaintiff has got any right, title and interest over the suit land?
4. Whether defendant is liable to be evicted from the suit premises?
5. Whether the plaintiff is entitled to a declaration of khas possession over the suit land?
6. To what other relief or reliefs the plaintiff is entitled to?"
5. The respondent/ plaintiff examined 3 (three) witnesses including himself and exhibited 7 (seven) documents viz., (1) Ext.1- Sale permission dated 20.11.2000, (2) Ext.2- Original copy of the sale deed vide no.1601 dated 27.11.2000, (3) Certified copy of order of mutation dated 10.08.2002 passed by Asst. Settlement Officer, Goalpara in Misc Case No. 5/2002-03, (4) Ext.4- Certified copy of Jamabandi, (5) Ext.5- Revenue Tax Paying receipt dated 16.09.2010, (6) Ext.6- Municipality Tax Paying receipt vide No. 1271 dated 02.09.2010, and (7) Ext.7- Land holding certificate dated 21.09.2010. The appellant/ defendant examined 2 (two) witnesses including himself and one Debajit Das, proforma defendant No.1 and exhibited 2 (two) documents viz., (1) Ext.A- Lease Agreement dated 06.06.1996, and (2) Page No.# 4/8 Ext.B- Loan sanction latter issued by S.B.I., Abhayapuri Branch dated 22.07.2002. The learned trial court on examining the evidence on record, in respect of issue No.1, held that the plaintiff had failed to prove that any cause of action has arisen on 29.08.2006 and accordingly, the issue was decided in the negative and in the favour of the appellant herein. In respect of issues No.2 and 3, the same was taken up together, and it was held that although the lease agreement was for more than a year and though it was not registered, but it could be examined for collateral purpose. Accordingly, it was held that the appellant was in possession of the suit premises on the basis of the said rent agreement (Ext.A). It was also held that at the time of execution of the sale deed (Ext.2), the appellant was occupying the suit premises as a tenant and on purchase of the suit land, the status of landlord was also transferred to the respondent and, as such, the respondent should have filed a suit under the appropriate tenancy law. Hence, it was held that the suit was not maintainable in law and on facts. It is seen that although there is a specific finding to the effect that respondent/ plaintiff had no right, title and interest over the suit land, but in respect of decision on issue No.3, it was held that the said issue was decided "in the affirmative and against the respondent/ plaintiff" and issue No.2 was decided "in the negative and in favour of the appellant".
Accordingly, on the basis of the discussions on the issues No.1, 2 and 3, the other issues No.4, 5 and 6 were decided "against the respondent by holding that the appellant was not liable to be evicted from the suit premises and the respondent was not entitled to recovery of khas possession of the suit land". Accordingly, the suit was dismissed on contest.
6. The learned first appellate court had examined the pleadings and evidence on record and had formulated the following point of determination - " whether the judgment dated 24.09.2015 and decree dated 09.10.2015 passed by the learned trial Court in Title Suit no. 76/10 is sound in law and facts or whether the same lacks propriety requiring interference in appeal?" Accordingly, the learned first appellate court had revisited all the issues again. In respect of issue No.1, the learned first appellate court, by referring to the well settled law for cause of action that it is not an isolated event, held that as per the pleadings while the respondent had alleged infraction of his right to enjoy the suit land and had sought for redressal of his injury to his alleged right to enjoying the suit land, it was held that there was a cause of action for the suit and disagreed with the findings recorded by the Page No.# 5/8 learned trial court and the issue No.1 was answered in favour of the respondent/ plaintiff. In respect of issue No.3, the learned first appellate court had referred to the various exhibits and statement of witnesses on record. By referring to the evidence of D.W.2, it was observed that the said evidence discloses that the sale deed (Ext.2) was executed by the proforma defendants in favour of the respondent, as such, it was held that the respondent had an undisputed title of the proforma defendants in respect of the suit land. The learned first appellate court had referred to the evidence of D.W.2 wherein he, being one of the sellers had expressed his ignorance that the appellant had given Rs.30,000/- and had specifically mentioned that the money (i.e. sale consideration) was received from the hands of the respondent. Accordingly, it was held that the sale deed (Ext.2) which remained undisputed goes on to show that the respondent had purchased the suit property from the proforma defendants for consideration and accordingly, good title had passed on him from the proforma defendants in respect of the suit land. Accordingly, the said issue No.3 was decided in the affirmative. In respect of issue No.2, it was held that the said tenancy agreement (Ext.A) was between D.W.2 and the appellant and that the D.W.2 was only one of the co- owners and that there were other co-owners of the said property. Referring to the description of the tenanted premises, it was held Ext.A, the said premises was covered by khatian No.728 and dag No.1259, but as per Ext.2 (sale deed), the land was covered by dag No.1260/264, patta No.1051/157 and accordingly, it was held that the appellants had failed to show that the land described in Ext.A was same as described in Ext.2 which was purchased by the respondent. The learned first appellate court also had recorded the finding that the appellant had failed to submit any rent receipt or electricity charges payment receipt. It was held that the suit premises i.e. shop stood in the name of the respondent and accordingly, it was held that the title of the respondent over the suit land stood established, the appellant was a permissive possessor, as such, it was held that the suit was maintainable for declaration of right, title and interest and for recovery of the khas possession. Thus, the finding by the learned trial court was reversed and issue No.3 was answered "in the affirmative and in favour of the respondent". Resultantly, in respect of issues No.4, 5 and 6, the findings recorded by the learned trial court was reversed by holding that the respondent was entitled to a decree for declaration of his right, title and interest over the suit land and for recovery of khas possession of the suit land and accordingly, by referring to the findings by the learned Page No.# 6/8 trial court, the issues No.4, 5 and 6 were decided in favour of the respondent. Accordingly, the point of determination was answered in favour of the respondent herein and the suit was decreed with cost.
7. Assailing the first appellate judgment and decree, the learned Senior Counsel for the appellant has submitted that the learned first appellate court had misread and misconstrued the tenancy agreement (Ext.A) and failed to appreciate that by virtue of the said tenancy agreement, the fact that the appellant was in actual physical possession of the suit premises, was established. Accordingly, the appellant was in possession of the suit premises from 06.06.1996, the date of execution of the tenancy agreement (Ext.A). It is also submitted that the appellant had paid his 50% share of the sale consideration and therefore, the appellant had the right over his 50% proportionate share of the suit premises and accordingly, it is submitted that, the sale deed was executed in the name of the respondent, the appellant is not entitled to be evicted without the due process of law. While the tenancy agreement subsisted and was in force. It is submitted that as the appellant had the status of a tenant, the suit for eviction should have been filed under the applicable rent laws. Hence, the learned Senior Counsel for the appellant submits that the learned first appellate court had reversed the findings of the learned trial court in respect of issue No.2 by ignoring the tenancy agreement (Ext.A) and by wrongly interpreting the said tenancy agreement (Ext.A).
8. Per contra, the learned counsel for the respondent has made a submission in support of the first appellate judgment and has relied on the evidence of D.W.2, the witness produced by the appellant in support of her submission.
9. Upon examining the evidence on record, it is seen that the appellant had admitted that he had not gone to the Sub-Registrar's Office at the time when the sale deed (Ext.2) was registered. Although, in the written statement, a plea has been taken that though the suit land was jointly purchased, but by practicing fraud, the respondent had got the sale deed registered in his own name. However, along with the written statement, the appellant had not filed any counter claim to assert his right in respect of the suit premises. Moreover, no suit and/ or counter-claim was filed by the appellant for rectification of the sale deed as envisaged under section 26 of the Specific Policy Act, 1963. It is further seen that as per the sale deed Page No.# 7/8 (Ext.2) and the jamabandi (Ext.4), the suit land originally belonged to the proforma defendants and on purchase, the suit land was mutated in the name of the respondent along with the proforma defendants.
10. It is seen that the rent agreement (Ext.A) is dated 06.06.1996, i.e. before the sale deed was executed. Therefore, if the plea of the appellant is accepted that he was a co- owner, having purchased his share of the suit land, the second plea that he was a tenant in respect of the suit premises appears to be mutually destructive because a co-owner cannot be a tenant of himself. Therefore, if the appellant had actually purchased the suit premises along with the respondent, he would have been claiming ownership rights over the suit premises and would not have asserted his tenancy rights against the proforma defendant No.1.
11. This is not a case where the appellant was not aware of the sale of the suit premises to the respondent, but he has not taken a plea that as the landlord never asked for attornment, as such, there was no lapse of his part for non-attornment of his tenancy under the respondent. Rather, the appellant took a plea that he was running the shop over the suit premises on the basis of rent agreement dated 06.06.1996 (Ext.A) but, he has failed to exhibit the Municipal Trade License or any other document to demonstrate that he was operating the shop over the suit premises in his own name and his own right by disowning the absolute right, title and interest of the respondent/ plaintiff. Although by producing a bank sanctioned letter (Ext.B), it is projected that the appellant was the proprietor of the shop, but the appellant had not examined any officer/ staff of the bank to prove the document. On a perusal of Ext.B, it is seen that it contains application of correction fluid at places where the name of the shop and name of the guarantor is mentioned. In this connection, it is seen that the stand by the respondent/ plaintiff was that he had given to run the shop to the appellant and after 4 or 5 years, and that the appellant had ousted the respondent from the said shop which was a ground for filing the suit for eviction. Therefore, the existence of the tenancy agreement (Ext.A), notwithstanding that it is unregistered, does not create any substantive right in favour of the appellant. The appellant had not attorned his tenancy under the respondent herein, as such, the appellant is not a tenant under the Page No.# 8/8 respondent. It is submitted that the case of the respondent/ plaintiff is that the appellant was a permissive occupier. In the present case in hand, as the relation between the appellant and respondent has not been proved, hence, the suit was maintainable for eviction and recovery of khas possession.
12. Accordingly, in light of the discussion above, the first substantial question of law is decided against the appellant by holding that the reversal of findings of issue No.2 was not arrived at by learned first appellate court by ignoring the vital evidence i.e. tenancy agreement (Ext.A) and accordingly, the second substantial question of law is also decided against the appellant by holding that the execution of the tenancy agreement (Ext.A), had not created any foundation of the rights of the appellant and that the said document was not wrongly interpreted by the learned first appellate court. Accordingly, the decision of the learned first appellate court on all the 6 (six) issues are found to be sustainable and the finding thereon is affirmed. Resultantly, it is held that the learned first appellate court had rightly set aside and reversed the judgment and decree passed by the learned trial court.
13. In view of the discussions above and findings recorded in respect of substantial questions of law, the appeal fails and the same is dismissed. The parties are left to bear their own cost for this appeal.
14. The decree of dismissal of appeal may be drawn up.
15. The records of both the learned courts below be send back.
JUDGE Comparing Assistant