Gauhati High Court
Page No.# 1/3 vs Md Habibur Rahman And 5 Ors on 4 February, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/31
GAHC010019412015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/172/2015
SMT MOTI KUMARI and 3 ORS
W/O LATE GANGADHAR SARMA
2: PITAMBAR SARMA
S/O LATE GANGADHAR SARMA
3: SMT. SARASWATI SARMA
W/O LATE ANIL SARMA
4: SMT. JUNTI SARMA
D/O LATE ANIL SARMA
ALL ARE R/O HAFIZ NAGAR
ULUBARI
GUWAHATI 781007
DIST. KAMRUP M
ASSAM
VERSUS
MD HABIBUR RAHMAN and 5 ORS
S/O LATE HAFIJUDDIN AHMED, R/O HAFIZ NAGAR, ULUBARI, GUWAHATI
781007 DIST. KAMRUP M, ASSAM.
2:SAIFUDDIN AHMED
3:MD. REJIBUDDIN AHMED
4:MD. REKIBUDDIN AHMED
ALL ARE SONS OF LATE HAFIJUDDIN AHMED AND R/O HAFIZ NAGAR
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ULUBARI
GUWAHATI 781007 IN THE DIST. OF KAMRUP
ASSAM.
5:SMT. RIMA SHARMA
D/O LATE ANIL SHARMA
6:KRISHNA SHARMA
S/O LATE DEBILAL SHARMA
BOTH ARE R/O ULUBARI
HAFIJ NAGAR
GUWAHATI -07
DIST. KAMRUP M
ASSA
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
For the Appellants : Mr. B.D. Deka .... Advocate.
For the respondents : Mr. S. Ali. ..... Advocate
Date of hearing : 07.12.2021
Date of judgment : 04.02.2022
JUDGMENT AND ORDER (CAV)
The instant appeal was admitted on 25.06.2016 on the following
substantial questions of law :
1. Whether plaintiff being an assignee of a part of the tenanted
premises could split the unity and integrity of a tenancy by
issuing a notice under Section 11 of the Assam Non-Agricultural
Urban Areas Tenancy Act, 1955 in respect of his alleged part on
the leasehold?
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2. Whether a tenant is entitled to protection under Section 5(3)
although he may not have succeeded in proving protection
under Section 5(1) of the Assam Non-Agricultural Urban Areas
Tenancy Act, 1955?
2. For the purpose of deciding the two substantial questions of law as
above framed it is required that the facts of the case are taken into
consideration. For the purpose of convenience the parties herein are
referred to in the same status as they stand before the Trial Court.
3. One Hafijuddin Ahmed (since deceased) the father of the plaintiff
was the owner and in possession of a plot of land measuring 1 Bigha 2
Kathas 5 Lechas comprised in K.P. Patta No.309 (old) of Sahar Ulubari,
Mouza-Ulubari in the District-Kamrup (M) along with other lands in the
said patta. Late Hafijuddin out of love and affection vide a registered
Deed of Gift bearing Deed No.6758/72 dated 08.08.1972 gifted the said
plot of land measuring 1 Bigha 2 Kathas 5 Lechas comprised in K.P.
Patta No.309 (old) to the plaintiff and his brothers who duly accepted
the gift. It may be relevant herein to mention that K.P. Patta No.309 (old)
contains inter alia the following 4 (four) dags with the respective area
which is the gifted land :
Patta No. Dag No. Area
309 (old) 241 1 Katha 18 Lechs
309 (old) 282 2 Kathas 12 Lechs
309 (old) 275 2 Kathas 4 Lechs
309 (old) 279 0 Katha 10 Lechs
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Total 1 Bigha 2 Kathas 5 Lechas
4. At this stage it is further relevant to take note of that during the
town re-settlement operation ending in 1987, the Revenue Authority had
on the basis of the plaintiff's title and possession issued a separate patta
in the name of the plaintiff being K.P. Patta No.630 (new)/309 (old)
comprising of Dag No.270 (new), 271 (new) of Sahar Ulubari, Mouza-
Ulubari. Dag No.270 contains an area of land measuring 4.26 Are (1
Katha 12 Lechas) and Dag No.271 contains land measuring 5.05 Are (1
Katha 18 Lechas).
5. During the lifetime of the father of the plaintiff, one Gobinda
Brahmin was a tenant under a lease in respect of 1 Katha 10 Lechas of
the land comprised in K.P. Patta No. 309 (old)/630 (new) of Sahar
Ulubari, Mouza-Ulubari since around the year 1933 at different annual
rents at different times. Presently the said land is covered under Dag
No.270 of K.P. Patta No. 630 (new) and the said land has been
specifically described in Schedule-A to the plaint. Late Gobinda
Brahmin paid rent for leasehold land at different times and different
rates and he continued payment of rent up to the year 1961 @ Rs.30
p.a. to the father of the plaintiff. It is the case of the plaintiff that since
1961, Late Gobinda Brahmin did not pay any rent till his death in the
year 1962 and thereupon his successors-in-interest, the defendants did
not pay any rent. Under such circumstances the plaintiff instituted a
suit being Title Suit No.116/1998 in the Court of the Civil Judge, Junior
Division No.1 at Guwahati against the defendants i.e. the successors-in-
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interest of Late Gobinda Brahmin under the Assam Urban Area Rent
Control Act, 1972 for ejectment. The said suit was dismissed vide a
judgment and decree dated 31.07.2007 holding inter alia that the claim
of the plaintiff is not tenable in law as the suit is based under the Assam
Urban Area Rent Control Act, 1972 whereas the suit ought to have been
under the Assam Non Agricultural Urban Areas Tenancy Act, 1955 (for
short 'the Act of 1955'). It is also the further case of the plaintiff as
pleaded in the plaint that during the pendency of the said suit i.e. Title
Suit No.116/1998 the defendants i.e. the successors-in-interest of Late
Gobinda Brahmin removed the thatch houses and put CI sheets in place
of thatch and bamboo posts were replaced by wooden posts in spite of
the order of injunction from the Court.
6. Being aggrieved by the judgment and decree dated 31.07.2007, the
plaintiff preferred an appeal before the Court of the Civil Judge No.2,
Guwahati which was registered and numbered as Title Appeal
No.70/2007. The Court of the Civil Judge No.2, Kamrup (M) at
Guwahati vide the judgment and decree dated 18.05.2009 also
dismissed the said Title Appeal No.70/2007 taking the same view as
that of the Trial Court that the suit ought to have been filed under the
provisions of the Act of 1955. Consequently the plaintiff issued a Notice
of ejectment dated 12.08.2009 upon all the defendants as contemplated
under Section 11 of the Act of 1955 through his engaged counsel by
registered post with A.D. By the said notice, the plaintiff asked and
required the defendants to surrender possession of the leasehold land
unto the plaintiff within a period of 30 (thirty) days from the date of
receipt of the said notice and it was mentioned that the tenancy would
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terminate and cease to have effect on and from 31.08.2009. Each of
the defendants received the said notice dated 12.08.2009 in time and
they duly acknowledged the same. It is also relevant to mention that in
the said notice, it was mentioned that the plaintiff requires the leasehold
land bonafidely and genuinely for their own use and occupation and
construction of a RCC building. In spite of receipt of the said notice as
the defendants did not vacate, the suit was filed by the plaintiff seeking
inter alia for a declaration of the right title and interest of the plaintiff in
respect to the suit land as described in Schedule-A to the plaint; for a
decree of ejectment of the defendants from the schedule land as
described in Schedule-A to the plaint by removing their men, materials,
articles and other belongings and restore the possession of the suit land
unto to the plaintiff; for permanent injunction; for a money decree for
realisation of sum of Rs.1440/- being the arrear rent since year 1962 to
2009 with interest thereon @ 18% p.a etc. The said suit was registered
and numbered as Title Suit 150/2010.
7. The defendant nos.1, 2, 3 and 5 contested the suit by filing a joint
written statement. In the said written statement, the contesting
defendants took various preliminary objections but relevant for the
purpose of substantial question of law framed in the instant proceedings
are that the suit is barred under Section 5 of the Act of 1955 and that
the suit was barred by limitation under the provisions of Article 64/65
of the Limitation Act. While denying the statements and allegations
made in the plaint, the contesting the defendants in their written
statement took the plea that in the year 1933 Late Hafijuddin Ahmed
leased out 5 Kathas of land to Late Gobinda Brahmin and was realising
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annual rents but when the population in Ulubari gradually increased
Late Hafijuddin Ahmed took away 3 Kathas of land of the leasehold land
from Gobinda Brahmin leaving 2 Kathas of land in possession of
Gobinda Brahmin who constructed permanent houses within 5 (five)
years from the date of the lease in the said leasehold land with the
permission of Hafijuddin Ahmed for residence as well as for keeping
cows over the said leasehold land. It was also mentioned that the
original holdings of the said house as constructed by Gobinda Brahmin
were assessed as Holding No.36 of Ward No.10 by the then Guwahati
Municipality. Subsequently the said Holding No.36 has been changed to
Holding No.101 and finally to Holding No.130 and then Holding No.268.
In paragraph 12 of the said written statement, it was mentioned that
during the lifetime of Hafijuddin Ahmed he himself or through his
agents used to realise the rent and after the death of Hafijuddin, the
plaintiff realised rent but no receipts were issued. At this stage it may be
relevant to mention that in paragraph 13 of the plaint the plaintiff had
specifically mentioned about the issuance of notice dated 12.08.2009,
but a perusal of the written statement would show that there is no
denial to the statements made in paragraph 13 of the plaint. In short
the stand of the contesting defendants in their written statement was
that the defendants are protected under Section 5 of the Act of 1955 as
they constructed permanent structures over the leasehold land within
five years from the date of commencement of the tenancy with the
permission of Hafijuddin Ahmed for residence as well as for keeping
cows over the said leasehold land. The proforma-defendant nos.7 & 8
also filed the written statement supporting the case of the plaintiffs.
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8. On the basis of the pleadings as many as 9 (nine) issues were
framed which are quoted hereinbelow :
(i) Whether there is cause of action for this suit?
(ii) Whether the suit is barred Order 2 Rule CPC?
(iii) Whether the suit is barred Under Section 5 of the
Assam Non-Agricultural Urban Areas Tenancy Act, 1955?
(iv) Whether the suit is properly valued and proper
court fees is paid?
(v) Whether the suit is barred by limitation?
(vi) Whether the suit is bad for non-joinder of
necessary parties?
(vii) Whether the plaintiff has got the right, title and
interest over the suit land?
(viii) Whether the plaintiff is entitled to get a decree
ejectment?
(ix) To what relief/reliefs the parties are entitled to?
9. The plaintiff examined 2 (two) witnesses and exhibited various
documents marked as Exhibit-1 to Exhibit-14. The defendants
examined 3 (three) witnesses and exhibited various documents marked
as Exhibit-A to Exhibit-G. Vide the judgment and decree dated
25.07.2013, the Trial Court i.e. the Court of the Munsiff No.2 decreed
the suit in favour of the plaintiff thereby holding that the plaintiff has
the right, title and interest over the suit land which the plaintiff is
entitled to recover back from the defendants by evicting them, their men
and materials. The plaintiff was also entitled to recover arrear rent w.e.f.
2007 till eviction. In passing the decree in favour of the plaintiff, the
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Issue No.3 which relates to as to whether the suit was barred under
Section 5 of the Act of 1955, the Trial Court after taking into
consideration the evidence on record as well as the provisions of Section
5 of the Act of 1955 held that Late Gobinda Brahmin, the original lessee
did not construct any permanent structure over the suit land within five
years of the lease so the defendants are not protected under Section 5 of
the Act of 1955. The Issue No.5 which relates to bar of limitation, the
Trial Court held that Article 64/65 are not attracted to the instant case
as the suit was for eviction of tenant/lessee and the defendants did not
put up any plea of adverse possession. As regards the applicability of
Article 66 and 67, the Trial Court held that on the facts of the instant
case the said Articles were not applicable. As regards the claim of
recovery of rent it was held that the plaintiff was not entitled to rent
prior to 2007. While deciding the Issue No.8 as to whether the plaintiff
was entitled to get the decree for ejectment it was held that as the
plaintiff had complied with the condition of Section 11 of the Act of 1955
by serving notice dated 12.08.2009, the plaintiff was entitled to a decree
for ejectment of the defendants as the defendants were not protected
under the Act of 1955.
10. The contesting defendants i.e. the defendant nos.1, 2, 3 and 5
being aggrieved by the judgment and decree dated 25.07.2013 preferred
an appeal before the Court of the Civil Judge No.2, Kamrup (M) at
Guwahati which was registered and numbered as Title Appeal
No.6/2014. The First Appellate Court upheld the judgment and decree
passed by the Trial Court by a judgment and decree dated 09.04.2015.
In the said appeal the First Appellate Court while deciding the issues as
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regards the bar under Section 5 of the Act of 1955 came to a finding
that the defendants failed to prove that their predecessor-in-interest
constructed any permanent structure within five years from the year
1933 and as such the protection under Section 5 of the Act of 1955 was
not available to the appellant/defendants. In doing so the First Appellate
Court also took into consideration Exhibit-C which is the Municipality
assessment extract for the year 1956 and came to a finding that the said
Exhibit-C do not in any manner show that there was any construction
made within a period of five years from the year 1933. It was also held
that as the notice under Section 11 of the Act of 1955 was duly served,
the lease stood terminated and there was no illegality in the findings of
the Trial Court as regards the issuance of the decree of ejectment.
Accordingly the said appeal was dismissed by confirming the judgment
and decree passed by the Trial Court.
11. Feeling dissatisfied and aggrieved, the appellants herein have
preferred the instant appeal under Section 100 of the Code of Civil
Procedure on the substantial questions of law as formulated by this
Court vide the order dated 25.06.2016 which have already been quoted
hereinabove.
12. Before deciding the contentions raised by the parties, it would be
necessary to look into the jurisdiction of this Court in exercise of the
power under Section 100 of the CPC. It is relevant herein to mention
that the instant appeal arises out of a concurrent findings of facts.
Section 100 of the CPC permits the High Court to exercise the
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jurisdiction against an appellate decree only when there arises a
substantial question of law. The word 'substantial' prefixed to 'question
of law' does not refer to the stakes involved in the case, nor intended to
refer only to questions of law of general importance, but refers to impact
or effect of the question of law on the decision in the lis between the
parties. 'Substantial question of law' means not only 'substantial
question of law' of general importance, but also a substantial question of
law arising in a case as between the parties. In the context of Section
100 of the CPC, any question of law, which affects the final decision in a
case is a 'substantial question of law' as between the parties. A question
of law which arises incidentally or collaterally having no bearing in the
final outcome will not be a substantial question of law. Where there is a
clear and settled enunciation of a 'question of law', it cannot be said that
the case involves a 'substantial question of law'. It is said that a
substantial question of law arises when a question of law, which is not
finally settled, arises for consideration in the case but this statement
has to be understood in the correct perspective meaning thereby that
where there is a clear enunciation of law and the Lower Court has
followed or rigidly applied, such clear enunciation of law, obviously the
case will not be considered as giving rise to a substantial question of
law, even if the question of law may be one of general importance. On
the other hand, if there is a clear enunciation of law, but the Lower
Court had ignored or misinterpreted or misapplied the same, and
correct application of the law as declared or enunciated by the Supreme
Court or this Court would have led to a different decision, the appeal
would involve a 'substantial question of law' as between the parties.
Even where there is an enunciation of law by the Supreme Court or this
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Court and the same has been followed by the Lower Court, if the
appellant is able to persuade this Court i.e. that the enunciated legal
position needs reconsideration, alteration, modification or clarification
or that there is a need to resolve an apparent conflict between two
different viewpoints, it can be said that a substantial question of law
arises for consideration. In that view of the matter, there cannot,
therefore be a straight jacket definition as to when a substantial
question of law arises in a case, it shall depend on the facts of each case
along with the decision rendered by the Courts below
13. The Supreme Court in the case of Santosh Hazari Vs.
Purushottam Tiwari (Deceased) by LRs reported in (2001) 3 SCC 179
discussed what would be a substantial question of law in paragraphs
12, 13 & 14, which are quoted herein below :
"12. The phrase substantial question of law, as occurring in the
amended Section 100 is not defined in the Code. The word substantial,
as qualifying "question of law", means - of having substance, essential,
real, of sound worth, important or considerable. It is to be understood
as something in contradistinction with - technical, of no substance or
consequence, or academic merely. However, it is clear that the
Legislature has chosen not to qualify the scope of "substantial question
of law" by suffixing the words of "general importance" as has been
done many other provisions such as Section 109 of the Code or Article
133(1)(a) of the Constitution. The substantial question of law on which
a second appeal shall be heard need not necessarily be a substantial
question of law of general importance. In Guran Ditta Vs. T. Ram Ditta,
the phrase "substantial question of law" as it was employed in the last
clause of the then existing Section 110 of the C.P.C. (since omitted by
the Amendment Act, 1973) came up for consideration and Their
Lordships held that it did not mean a substantial question of general
importance but a substantial question of law which was involved in the
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case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs.
The Century Spinning and Manufacturing Co., Ltd., the Constitution
Bench expressed agreement with the following view taken by a Full
Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony
Veeraju :
"When a question of law is fairly arguable, where there is room
for difference of opinion on it or where the Court thought it
necessary to deal with that question at some length and discuss
alternative view, then the question would be a substantial
question of law. On the other hand if the question was practically
covered by the decision of the highest Court or if the general
principles to be applied in determining the question are well
settled and the only question was of applying those principles to
the particular fact of the case it would not be a substantial
question of law."
and laid down the following test as proper test, for determining
whether a question of law raised in the case is substantial:-
"The proper test for determining whether a question of law raised
in the case is substantial would, in our opinion, be whether it is of
general public importance or whether it directly and substantially
affects the rights of the parties and if so whether it is either an
open question in the sense that it is not finally settled by this
Court or by the Privy Council or by the Federal Court or is not free
from difficulty or calls for discussion of alternative views. If the
question is settled by the highest Court or the general principles
to be applied in determining the question are well settled and
there is a mere question of applying those principles or that the
plea raised is palpably absurd the question would not be a
substantial question of law."
13. In Deputy Commr., Hardoi Vs. Rama Krishna Narain also it was
held that a question of law of importance to the parties was a
substantial question of law entitling the appellant to certificate under
(the then) Section 110 of the Code.
14. A point of law which admits of no two opinions may be a
proposition of law but cannot be a substantial question of law. To be
"substantial" a question of law must be debatable, not previously
settled by law of the land or a binding precedent, and must have a
material bearing on the decision of the case, if answered either way, in
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so far as the rights of the parties before it are concerned. To be a
question of law "involving in the case" there must be first a foundation
for it laid in the pleadings and the question should emerge from the
sustainable findings of fact arrived at by court of facts and it must be
necessary to decide that question of law for a just and proper decision
of the case. An entirely new point raised for the first time before the
High Court is not a question involved in the case unless it goes to the
root of the matter. It will, therefore, depend on the facts and
circumstance of each case whether a question of law is a substantial
one and involved in the case, or not; the paramount overall
consideration being the need for striking a judicious balance between
the indispensable obligation to do justice at all stages and impelling
necessity of avoiding prolongation in the life of any lis."
14. In the backdrop of the above facts and the scope of the interference
as envisaged under Section 100 of the CPC, let this Court take into
consideration the contentions raised by the parties herein. Mr. B.D.
Deka, learned counsel appearing on behalf of the appellants submits
that irrespective of the protection granted under Section 5(1)(a) or 5(1)(b)
of the Act of 1955, as the appellants are tenants within the ambit of
Section 3(g) and only be ejected by the landlord from the land of the
tenancy in execution of a decree for ejectment passed by a competent
Civil Court in terms with Section 5(2) and as such the Appellants were
further protected by the provisions of Section 5(3) whereby it mandates
that no decree for ejectment passed on the ground of non-payment of
rent shall be executed within a period of 30 days from the date of the
decree if the tenant pays into the Court whose duty it is to execute the
decree, the entire amount payable under the decree within the said
period, the Court shall record the decree as satisfied. On the basis of
Section 5(3) of the Act of 1955, it is the submission of the learned
Counsel for the appellants that even if there is a decree for ejectment
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under the Act of 1955 then also if the tenant deposits the arrear rent
then the Executing Court cannot execute the decree by virtue of Section
5(3) of the Act of 1955. He submits that the Act of 1955 has been
enacted for the purpose of protection of tenants and as such Section
5(3) has to be read to give the benefit to a tenant in a case where he is
sought ejected under the Act of 1955 irrespective of whether the said
tenant comes within the ambit of Section 5(1)(a) or 5(1)(b) of the Act of
1955. He further submits that in terms with the Section 5(3) the
appellants filed an application before the Executing Court seeking leave
to deposit the arrear rent which the Executing Court refused vide an
order dated 18.12.2013. The next contention of the learned Counsel for
the appellants is that the plaintiff had filed the suit for ejectment of the
defendants in so far as 1 Katha 10 Lechas of land which is the suit land,
although the defendants are in possession of 2 Kathas and as such
there cannot be any decree of ejectment in as much as, when the
defendants are in occupation of 2 kathas of land the plaintiff who is only
the owner of 1 Katha 10 Lechas of land could not have filed the suit for
ejectment without the other owners who had the title in respect to
remaining 10 Lechas of land. In other words, it is the contention of the
counsel for the appellants that there cannot be a split to the unity and
integrity of a tenancy by issuing a notice under Section 11 of the Act of
1955. He further submits that although this Court did not formulate the
substantial questions of law on limitation on 25.04.2016 but a
substantial question of law arises in the instant appeal as to whether
the Appellate Court was justified in not taking into consideration that
the suit was barred by limitation under Article 66 of the Limitation Act,
1963 in as much as, as per his submission, it being an admitted fact
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that since 1962 there was no rent paid and as such a forfeiture has
incurred or the condition of tenancy have been broken as far as back in
the year 1962 and the period of limitation in terms with Article 66 being
12 years and the suit having been filed in the year 2010 was barred by
limitation. In support of the contentions Mr. B.D. Deka, the learned
counsel relied upon the following judgments:
1. Harihar Banerji and Others vs. Ramsashi Roy and Others
reported in AIR 1918 PC 102,
2. Badri Narain Jha and Others vs. Rameshwar Dayal Singh and
Others reported in AIR 1951 SC 186,
3. Shakuntala S. Tiwari (Smt.) vs. Hem Chand M. Singhania
reported in (1987) 3 SCC 211,
4. Ganpat Ram Sharma and Others vs. Smti. Gayatri Devi,
reported in AIR 1987 SC 2016 and
5. Arun Chandra Dowerah vs. Panchu Modok and Others
reported in AIR 1957 Assam 70.
15. On the other hand, Mr. S. Ali, learned counsel appearing on behalf
of the respondent submits that the fact finding Courts have already
come to a finding that the appellants are not entitled to the benefit
under Section 5(1)(a) of the Act of 1955 and as such the provisions of
Section 5(2) as well as Section 5(3) has no application. He submits that
when a tenant within the meaning of Section 3(g) of the Act of 1955 is
not protected under the provisions of 5(1)(a) or under Section 5(1)(b) of
the Act of 1955 the said tenant can be evicted on any ground including
the ground of genuine and bonafide requirement of plaintiff, in as much
as, after the termination of the lease by the notice issued under Section
11 of the Act of 1955 the status of such tenant is that of a permissive
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occupier. He also refers to Section 11 of the Act of 1955 to show that
notice is required to be issued to a tenant except for arrears of rent, for
instituting a suit for ejectment of a tenant under the Act of 1955. The
said notice was duly given in the instant case which have been exhibited
as Exhibit-5 stating the ground on which the plaintiff required the
leasehold land. He submits that the defendants did not reply to the said
notice. He referred to paragraph 13 of the plaint wherein it was
specifically mentioned the fact of the issuance of the notice but the
defendants were completely silent as regards the said notice in their
written statement.
16. As regards the submission made by the learned counsel for the
appellants that Section 5(3) of the Act of 1955 is applicable in respect of
all tenants irrespective of not coming within the purview of the
protection envisaged under Section 5(1)(a) or Section 5(1)(b) of the Act of
1955, Mr. S. Ali, learned Counsel submits that in such case no tenants
can be evicted and the statutory protection so granted to specified
tenants coming within the ambit of Section 5(1)(a) or Section 5(1)(b)
would become meaningless. As regards the submissions made by the
learned counsel for the appellants that the suit was not maintainable in
view of the fact that the defendants were in possession of 2 Kathas of
land and the suit was only filed for ejectment as regards 1 Katha 10
Lechas of land, Mr. Ali, learned counsel for the respondent further
submits that such pleadings are not available in the written statement
and apart from that the plaintiff being the absolute owner only in
respect to 1 Katha 10 Lechas of land, he cannot be barred from filing a
suit in respect to his land.
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17. In view of the submissions made by the learned counsel for the
appellants as regards the point of limitation needs to be framed as an
additional substantial question of law on 02.12.2021, this Court had
requested the counsel appearing on behalf of the respondent to address
arguments in respect to application of Article 66 to the facts of the
instant case. Accordingly on 07.12.2021 the learned counsel appearing
on behalf of the respondent submitted that Article 66 is not applicable
in the instant case as there is a specific provision in the limitation Act
as regards landlord and tenant which is Article 67 and the same shall
only apply from the date of determination of the tenancy and in the
instant case the determination was made on the basis of Exhibit-5
which was dated 12.08.2009 as such the suit which was filed on
07.04.2010 was within the period of limitation. He further submitted
that non-payment of rent does not amount to forfeiture of tenancy. It
only confers a right on the landlord to seek possession and the plaintiff
having filed a suit for possession against the defendants on the basis of
determination of tenancy, such suit is governed by Article 67 alone. In
support of the submissions made by the learned counsel for the
respondent Mr. Ali relied upon two judgments of the Supreme Court
which are Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and
Others reported in (1999) 3 SCC 722 and Nand Ram (Dead) through LRs.
Vs. Jagdish Prasad(Dead) through LRs reported in (2020) 9 SCC 393.
18. After hearing the contentions as raised by the counsel for the
respective parties, let this Court first take into consideration the first
substantial question of law i.e. whether plaintiff being an assignee of a
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part of the tenanted premises could split the unity and integrity of a
tenancy by issuing a notice under Section 11 of the Assam Non-
Agricultural Urban Areas Tenancy Act, 1955 in respect of his alleged
part on the leasehold ? In support of the said substantial question of
law Mr. B.D. Deka has relied upon the judgments of the Privy Council in
the case of Harihar Banerji (supra), the Supreme Court in the case of
Badri Narain Jha (supra) as well as of this Court in the case of Arun
Chandra Dowerah. On the other hand, Mr. S. Ali submitted that this
substantial question of law so formulated cannot be a substantial
question of law involved in the case in as much as, when a point of law
has not been pleaded or is found to be arising between the parties and
in absence of any factual format, the litigant should not be allowed to
raise that question as substantial question of law in the Second Appeal.
The learned counsel for the respondent submits that there is no
pleading in their written statement that the plaintiff did not have a right
to institute the suit on the ground that the plaintiff was only the owner
of 1 Katha 10 Lechas of land and the defendants have a leasehold
interest of 2 Kathas of land. He submits that without such pleadings the
said substantial question of law cannot arise. He refers to the judgment
of the Supreme Court in the case of Santosh Hazari (supra) and more
particularly the paragraph 14 and submits that to be a substantial
question of law "involving in the case" there must be first a foundation
for it laid in the pleadings and the question should emerge from the
substantial finding of fact arrived at by Court of facts and it must be
necessary to decide that question of law for a just and proper decision of
the case.
Page No.# 20/31
19. From the judgment of the Supreme Court in Santosh Hazari
(supra), it transpires that for this Court to entertain a proceeding under
Section 100 the case should involve a substantial question of law and
for a case to involve a substantial question of law there must be first a
foundation for it laid in the pleadings and the question should emerge
from the substantial findings of fact arrived at by the Court of facts and
it must be necessary to decide that question of law for a just and proper
decision of the case and entirely new point raised for the first time
before this Court is not the question involved in the case unless it goes
to the root of the matter. A perusal of the pleadings would show that it
is the specific case of the plaintiff that 1 Katha 10 Lechas of land which
is the Schedule-A land was leased out to Late Gobinda Brahmin. The
written statement filed by the contesting defendants does not reflect that
the point of maintainability of the suit was taken on the ground that the
lease was of 2 Kathas and the suit could not have been filed by the
plaintiff who claimed to be the owner of 1 Katha 10 Lechas. What has
been pleaded in the written statement that originally in the year 1933, 5
Kathas of land was leased out to Late Gobinda Brahmin and
subsequently 3 Kathas of leased land was taken back by the father of
the plaintiff and Late Gobinda Brahmin was left with 2 Kathas of land in
possession. Thereafter the evidence of the defendants do not in any
manner show that the defendants have been able to establish that they
had any leasehold interest in respect of 2 Kathas of land and not the
suit land of 1 Katha 10 Lechas. In that view of the matter the question
of law so formulated by this Court cannot be a substantial question of
law involved in the instant case.
Page No.# 21/31
20. Be that as it may, the issue so raised has also been settled by the
Supreme Court in the judgment of Mohar Singh (Dead) By LRs. Vs. Devi
Charan and Others reported in (1988) 3 SCC 63 whereby the Supreme
Court taking into consideration the provisions of Section 109 of the
Transfer of Property Act held that although it is a trite principle of law
that landlord cannot split the unity and integrity of the tenancy and
recover possession of a part of the demise premises from the tenant but
Section 109 of the Transfer of Property Act provides a statutory
exception to this Rule thereby enabling an assignee of a part of the
reversion to exercise all the rights of the landlord in respect to the
portion respecting which the reversion is so assigned subject of course
to the other covenants running with the land. In this regard paragraph 7
of the said judgment is quoted hereinbelow :
"7. It is a trite proposition that a landlord cannot split the unity and
integrity of the tenancy and recover possession of a part of the demised
premises from the tenant. But Section 109 of the Transfer of Property Act
provides a statutory exception to this rule and enables an assignee of a
part of the reversion to exercise all the rights of the landlord in respect of
the portion respecting which the reversion is so assigned subject, of
course, to the other covenant running with the land. This is the true effect
of the words "shall possess all the rights............ of the lessor as to the
property or part transferred............" occurring in Section 109 of the T.P.
Act. There is no need for a consensual attornment. The attornment is
brought about by operation of law. The limitation on the right of the
landlord against splitting up of the integrity of the tenancy, inhering in the
inhibitions of his own contract, does not visit the assignee of the part of
the reversion. There is no need for the consent of the tenant for the
severance of the reversion and the assignment of the part so severed.
This proposition is too well settled to require any further elucidation or
reiteration. Suffice it to refer to the succinct statement of the law by
Wallis, C.J. in Kannyan v. Alikutti :
"A lessor cannot give a tenant notice to quit a part of the holding only
Page No.# 22/31
and then sue to eject him from such part only, as pointed out quite
recently by the Privy Council in Harihar Banerji v. Ramasashi Roy.
Consequently, if the suit is brought by the original lessor the answer to
the question referred to us must be in the negative because such a suit
does not lie at all. Other considerations, however, arise, where, as in the
present case, the original lessor has parted in whole or in part with the
reversion in part of the damised premises. Under the general law such an
assignment effects a severance, and entitles the assignee on the expiry of
the term to eject the tenant from the land covered by the assignment." ".
21. In view of the above quoted paragraph of the judgment of the
Supreme Court, it would be clear that splitting the unity and integrity of
the tenancy and recovery of possession of a part of the demised
premises is permitted subject to the application of Section 109 of the
Transfer of Property Act. In the instant case even assuming for
argument sake that the lease was in respect of 2 Kathas, then also, by
virtue of the transfer made in favour of the plaintiff as well as the
proforma-defendant vide the registered deed of gift and the subsequent
amicable partition on the basis of which a separate patta has been
issued to the plaintiff, the plaintiff is now an absolute owner of the
Schedule-A premises and under such circumstances filing the instant
suit for ejectment would not come within the ambit of splitting the unity
and integrity of the tenancy. Accordingly the said substantial question of
law as formulated is not a substantial question of law for the purpose of
the instant appeal.
22. The second substantial question of law is as to whether a tenant is
entitled to protection under Section 5(3) although he may not have
succeeded in proving protection under Section 5(1) of the Assam Non-
Agricultural Urban Areas Tenancy Act, 1955 ? For the purpose of
Page No.# 23/31
consideration of the said substantial question of law it would be relevant
to take note of the purpose behind the enactment of the Act of 1955.
The Preamble of the Act shows that the said Act was enacted to regulate
in certain aspects the relationship between the landlord and tenant in
respect of non-agricultural land in urban areas of the State of Assam.
The Act of 1955 came into existence on account of various demands to
regulate a relationship between the landlord and tenant in respect of
non-agricultural tenancy within the urban area, as prior to the
enactment of the said Act of 1955 the relationship of landlord and
tenant in respect of land within the urban area was governed by the
provisions of the Transfer of Property Act and the Contract Act. As the
general law was found inadequate and to give further protection to the
tenants of the non-agricultural land within the urban area and with a
view to give further benefits to such tenant, the Act of 1955 was
enacted. Now the question therefore arises as to which tenants are
protected under the Act of 1955. Section 5 of the Act of 1955 stipulates
the protection from eviction and the said Section is quoted hereinbelow :
"5 Protection from eviction :-
(1) Notwithstanding anything in any contract or in any law for the
time being in force -
(a) Where under the terms of a contract entered into between a
landlord and his tenant whether before or after the commencement of this
Act, a tenant is entitled to build, and has in pursuance of such terms
actually built within the period of five years from the date of such
contract, a permanent structure on the land of the tenancy for residential
or business purposes, or where a tenant not being so entitled to build,
has actually built any such structure on the land of the tenancy for any of
the purposes aforesaid with the knowledge and acquiescence of the
landlord, the tenant shall not be ejected by the landlord from the tenancy
except on the ground of non-payment of rent ;
Page No.# 24/31
[Provided that where a tenant having built a permanent structure
within the period specified above and for any of the purposes mentioned
therein, renews the tenancy on expiration of the original contract, he shall
always be deemed to have built such permanent structure within the
period of five years from the date of the renewed contract :
Provided further that a person having a right, title and interest over
a permanent structure by whatever mode of acquisition he may have
taken the tenancy from the landlord of the land wherein the said
structure stands, shall not be ejected except on the ground of non-
payment of rent]
(b) Where a tenant has effected improvements on the land of the
tenancy under the terms whereof he is not entitled to effect such
improvements, the tenant shall not be ejected by the landlord from the
land of the tenancy unless compensation for reasonable improvements
has been paid to the tenant.
(2) No tenant shall be ejected by his landlord from the land of the
tenancy except in execution of a decree for ejectment passed by a com-
petent Civil Court.
(3) No decree for ejectment passed on the ground of non-payment of
rent shall be executed within a period of thirty days from the date of the
decree and if the tenant pays into the Court whose duty it is to execute
the decree the entire amount payable under the decree within the
aforesaid period, the Court shall record the decree as satisfied".
23. Section 5(1) grants two types of protection. While sub-clause (a) of
Section 5(1) grants protection to the tenant who being entitled to build
and has in pursuance of such terms actually built within the period of
five years from the date of such contract a permanent structure on the
land of the tenancy for residential or business purposes or where a
tenant not being so entitled to build has actually built any permanent
structure on the land of the tenancy for any of the purposes aforesaid
Page No.# 25/31
with the knowledge and acquiescence of the landlord shall not be
ejected by the landlord from the tenancy except on the ground of non-
payment of rent. The provisos to sub-clause (a) of 5(1) being not relevant
for the purpose of the instant appeal is not dealt with herein. However,
it is relevant to mention that the protection under Section 5(1)(a) is
granted to a tenant as defined in Section 3(g) provided he complies with
the conditions mentioned in Section 5(1)(a) and he can only be evicted
on the ground of non-payment of rent or in other words if a tenant does
not comply with the provisions of Section 5(1)(a), the tenant can be
evicted on any other grounds and not limited to the ground of non-
payment of rent. Sub-Clause (b) of Section 5(1) stipulates that when a
tenant has effected improvement on the land of the tenancy under the
terms whereof he is not entitled to effect such improvement, the tenant
shall not be ejected by the landlord from the land of the tenancy unless
compensation for reasonable improvement has been paid to the tenant.
While Section 5(1)(a) relates to building a permanent structure within
five years of tenancy, Section 5(1)(b) is a protection provided to a tenant
who had effected improvement on the land of tenancy under the terms
whereof he is not entitled to effect such improvement then the tenant
cannot be evicted unless compensation for reasonable improvement has
been paid to the tenant. Section 5(2) stipulates that no tenant shall be
ejected by the landlord except in execution of a decree for ejectment
passed by a competent Civil Court meaning thereby that for eviction of a
tenant there is a requirement for a decree of ejectment by a competent
Court of law. Section 5(3) is relevant for the purpose of the instant
substantial question of law so formulated in as much as, a reading of
Section 5(3) would go to show that an added protection has been
Page No.# 26/31
granted to the tenant who has suffered a decree for ejectment on the
ground of non-payment of rent that a further chance of 30 days is given
to the said tenant for payment of the entire amount payable under the
decree before the Court whose duty it is to execute the decree.
Therefore, it would be seen from a perusal of Section 5(3) that it is only
in a decree for ejectment passed on the ground of non-payment of rent
that Section 5(3) would be applicable.
24. A reading of both Section 5(1)(a) and Section 5(3) would show that
in a case where a tenant fulfils the condition under Section 5(1)(a) such
tenant cannot be evicted except on the ground of non-payment of rent
and such tenant is further granted an additional chance of 30 days from
the date of the decree to pay the said amount as per the decree before
the Court whose duty it is to execute the decree. An interpretation
which the counsel for the appellants contends that Section 5(3) of the
Act of 1955 shall be applicable to all decrees of ejectment irrespective
whether the decree is the non-payment of rent would do violence to the
language employed by the legislature in Section 5(3) of the Act of 1955.
This aspect of the matter would further be clear from a reading of
Section 11 of the Act of 1955 which is quoted hereinbelow :
"11 Notice of ejectment suit : No suit for ejectment except for arrears of
rent shall be instituted until after the expiration of one month from the
date of the receipt by the tenant of a notice in writing by the landlord
requiring the tenant to surrender possession of the land in favour of the
landlord."
25. A perusal of the said Section would go to show that no suit for
ejectment except for arrears of rent shall be instituted until after
expiration of one month from the date of receipt by the tenant of a
Page No.# 27/31
notice in writing by the landlord requiring the tenant to surrender
possession of the land in favour of the landlord or in other words except
suit for ejectment on the ground of arrears of rent all suits to be filed
under the Act of 1955 has to be preceded by a notice in writing by the
landlord requiring the tenant to surrender the possession of the land in
favour of the landlord and this notice can be referred to as the notice
similar in kind to a notice under Section 111(h) of the Transfer of
Property Act by which a lease can be determined. It also needs to be
taken note of that this Notice under Section 11 is required to enable the
landlord to maintain a suit for eviction of all classes of tenants except
suit for ejectment for arrear rent. In that view of that matter as Section
5(3) is only applicable in a case where a decree has been passed for non-
payment of rent and as in the instant case the decree for ejectment is in
terms of Section 11 whereby the plaintiff requires the suit premises for
his own use and vide the notice under Section 11 had also determined
the lease, the substantial question of law so formulated does not arise
for the purpose of the instant appeal.
Apart from the above, it would be seen on perusal of Section 5(3)
of the Act of 1955 that the said Section comes into play after the decree
has been passed and as such the applications of Section 5(3) of the Act
of 1955 has no relevance to the challenge made to the judgment and
decree passed by the Courts below and as such the same cannot be a
substantial question of law involved for the purpose of the instant
appeal.
26. The next aspects which needs to be taken into consideration is as
Page No.# 28/31
to whether the suit was barred by limitation under Article 66 of the
Limitation Act on the ground that a forfeiture has incurred or the
condition of tenancy has been broken as far back as in the year 1962
and the period of limitation in terms with the Article 66 being 12 years
and the suit having been filed in the year 2010 was barred by limitation.
This contention of the learned counsel appearing on behalf of the
appellants is not only misconceived on the ground that it has been the
consistent stand of the appellants throughout the suit proceedings that
they have been tendering rent. Be that as it may, similar question arose
before the Supreme Court in the case of Nand Ram (supra) and the
Supreme Court had held that mere non-payment of rent does not
amount to forfeiture of tenancy. It only confers a right on the landlord to
seek possession and the plaintiff having filed the suit for possession
against the defendants on the basis of determination of tenancy such
suit is governed by Article 67 alone. Paragraph 39 and 40 of the said
judgment being relevant is quoted hereinbelow :
"39. Thus, the suit of the plaintiffs filed within 12 years of the
determination of the tenancy by efflux of time is within the period of
limitation. The defendant has not proved forfeiture of tenancy prior to the
expiry of lease period. Mere non-payment of rent does not amount to
forfeiture of tenancy. It only confers a right on the landlord to seek
possession. The plaintiffs have filed a suit for possession against the
defendant on the basis of determination of tenancy, such suit is governed
by Article 67 alone.
40. In view of the above, the suit for possession would not be covered by
Article 65 since there is a specific article i.e. Article 67 dealing with right
of the lessor to claim possession after determination of tenancy. The
appellants-plaintiffs have claimed possession from the defendant alleging
him to be the tenant and that he had not handed over the leased property
Page No.# 29/31
after determination of the lease. Therefore, such suit would fall within
Article 67 of the Limitation Act. Such suit having been filed on 13-03-1981
within 12 years of the determination of lease by efflux of time on 23-09-
1974, the same is within the period of limitation. Thus, the findings
recorded by the High Court are clearly erroneous in law and the same
cannot be sustained and are, thus, set aside."
27. It would also be relevant herein to take note of that the stand
taken by the appellants in their written statement is that the suit is
barred under Article 65 and there was no stand taken as regards the
bar under Article 66 or 67 of the Limitation Act. Mr. S. Ali, learned
counsel appearing on behalf of the respondent submits that this point of
limitation has not been pleaded or is found between the parties and in
absence of any factual format, a litigant should not be allowed to raise
that question as a substantial question of law in Second Appeal and in
support of his contention, he refers to a judgment of the Supreme Court
in the case of Kondiba Dagadu Kadam (supra) and refers to paragraph 2,
3 and 6 which is quoted hereinbelow :
"2. Despite amendment by the amending Act No. 104 of 1976, Section
100 of the Code of Civil Procedure appears to have been liberally
construed and generously applied by some Judges of various High Courts
with the result that the drastic changes made in the law and the object
behind that appears to have been frustrated. The amending Act was
introduced on the basis of various Law Commission Reports
recommending for making appropriate provisions in the Code of Civil
Procedure which were intended to minimise the litigation, to give the
litigant fair trial in accordance with the accepted principles of natural
justice, to expedite the disposal of civil suits and proceedings so that
justice is not delayed, to avoid complicated procedure, to ensure fair deal
to the poor sections of the community and restrict the second appeals only
on such questions which are certified by the Courts to be substantial
question of law.
Page No.# 30/31
3. After the amendment a second appeal can be filed only if a
substantial question of law is involved in the case. The memorandum of
appeal must precisely state the substantial question of law involved and
the High Court is obliged to satisfy itself regarding the existence of such
question. If satisfied, the High Court has to formulate the substantial
question of law involved in the case. The appeal is required to be heard
on the question so formulated. However, the respondent at the time of the
hearing of the appeal has a right to argue that the case in the court did
not involve any substantial question of law. The proviso to the Section
acknowledges the powers of the High Court to hear the appeal on a
substantial point of law, though not formulated by it with the object of
ensuring that no injustice is done to the litigant where such question was
not formulated at the time of admission either by mistake or by
inadvertence.
......................
6. If the question of law termed as substantial question stands already decided by a larger bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramakrishna Govind Morey held that whether trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference."
Page No.# 31/31
28. From the above judgment in Nand Ram (supra) it would be clear that Article 67 of the Limitation Act, 1963 would be applicable to the instant dispute and the said Article prescribes a period of 12 years from the date of determination of the tenancy. Admittedly vide Exhibit-5 is the Notice dated 12.08.2009, the lease was terminated and thereupon the suit was filed on 07.04.2010 and as such the suit was within the period of limitation. Accordingly the said question which the counsel of the Appellants submitted to be formulated also does not merit as a substantial question of law involved in the instant appeal.
29. Consequently, the Second Appeal stands dismissed. No cost.
JUDGE Comparing Assistant