IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT Page No.1 (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) 1. Md. Abdul Khalique Borbhuiya, S/o Late Ibrahim Ali Borbhuiya, On the death of the appellant, his legal heirs: 1 (a). Musstt. Shabira Khatun Borbhuiya, 1 (b). Musst. Farhana Begum Borbhuiya, 1 (c). Fuzail Ahmed Borbhuiya, 1 (d). Imrana Begum Borbhuiya, 1 (e). Billal Ahmed Borbhuiya, 1 (f). Musstt. Narbana Begum Borbhuiya, 1 (g). Musstt. Safwana Begum Borbhuiya, 1 (h). Musstt. Noor Ahmed Borbhuiya, 1 (i). Musstt. Sukrana Begum Borbhuiya, 2. Md. Abdul Kadir Borbhuiya, S/o Late Ibrahim Ali Borbhuiya, 3. Musstt. Khayrun Nessa Borbhuiya, W/o Late Abdur Rashid Borbhuiya, 4. Musstt. Fulara Bibi Borbhuiya, W/o Late Abdur Rashid Borbhuiya, 5. Miss Monuwara Begum Borbhuiya, D/o Late Abdur Rashid Borbhuiya, 6. Miss Rina Begum Borbhuiya, D/o Late Abdur Rashid Borbhuiya, 7. Md. Anam Uddin Borbhuiya, S/o Late Abdur Rashid Borbhuiya, - All residents of Hailakandi town, Ward No. 1 (Bandorgram), P.S. and District Hailakandi. 8. Musstt. Morion Bibi, W/o Md. Morom Ali, D/o Late Ibrahim Ali Borbhuiya, Village Bilpar-Dhumkar, P.S. and District Hailakandi, 9. Musstt. Fatima Bibi, W/o Md. Maybbur Rahman, D/o Late Ibrahim Ali Borbhuiya, Village Nimaichandpur, Part-IV, Police Station Lala, District Hailakandi. - Appellants/plaintiffs - Versus 1. Md. Basir Uddin, S/o Late Azfor Ali,

2 2. Md. Nashir Uddin, S/o Late Azfor Ali, 3. Md. Khalil Uddin, S/o Late Azfor Ali, 4. Md. Abdul Jalil, S/o Late Azfor Ali, 5. Musstt. Fatima Bibi, W/o Late Makhbul Ali, 6. Musstt. Amirun Nessa, D/o Late Afzor Ali, 7. Musstt. Kutina Bibi, D/o Late Afzor Ali, 8. Musstt. Monai Bibi, D/o Late Afzor Ali. Page No.2 - All residents of Hailakandi town, Ward No. 1 (Bandorgram), P.O., P.S. and District Hailakandi. - Principal Respondents/ Principal defendants 9. Md. Kutub Ali Borbhuiya, S/o Late Arjod Ali Borbhuiya, 10. Md. Alim Uddin Borbhuiya, S/o Late Arjod Ali Borbhuiya, 11. Md. Azir Uddin Borbhuiya, Late Arjod Ali Borbhuiya, 12. Md. Zohir Uddin Borbhuiya, Late Arjod Ali Borbhuiya, 13. Musstt. Julu Bibi, D/o Late Arjod Ali Borbhuiya, - All residents of Hailakandi town, Ward No. 2, Lala Road, P.O. and District Hailakandi. 14. Musstt. Suna Bibi, W/o Late Moyfar Ali, Village and P.O. Paikan, District Hailakandi, 15. Musstt. Kamlai Bibi, W/o Erman Ali Borbhuiya, Village Vichingeha, Part-II, District Hailakandi, 16. Musstt. Champa Bibi, W/o Asman Ali, Village and P.O. Paikan, District Hailakandi, 17. Md. Abdul Khalique Laskar, S/o Late Ajob Ali Laskar, 18. Md. Matiur Rahman Laskar, S/o Late Ajob Ali Laskar, Hailakandi town, Ward No. 2, N.S. Road, P.O., P.S. and District Hailakandi. - Pro forma respondents/ Pro forma defendants

3 Page No.3 Advocates: For the appellants : Mr. N. Dhar, Advocate. For the respondents : Mr. B. R. Dey, Senior Advocate, Mr. B. Sarkar, Advocate, BEFORE HON BLE MR. JUSTICE A.K. GOSWAMI Dates of hearing : and Date of judgment : JUDGMENT AND ORDER This Second Appeal is preferred by the plaintiffs/appellants against the judgment and decree dated , passed by the learned Civil Judge (Senior Division), Hailakandi, in Title Appeal No. 28/02 dismissing the appeal and affirming the judgment and decree dated , passed by the learned Civil Judge (Junior Division), Hailakandi, in Title Suit No. 35/ The plaintiffs filed a suit for declaration and confirmation of right, title and possession of the plaintiffs over the suit land, described in the Schedule, measuring about 5 Katha and odd, covered by Dag No. 855 of 2 nd R.S. Patta No. 212, curved out from R.S. Dag No. 422/944 of Patta No. 104, Borgang, Hailakandi; for declaration that the principal defendants were trespassers over the suit land and liable to be evicted; for declaration that the permission, dated , for construction of the pucca building, obtained by the defendants from the Municipal Board, Hailakandi, is illegal, void and inoperative and liable to be cancelled; for delivery of khas possession to the plaintiffs by evicting the defendants; cost of the suit; injunction restraining the principal defendants and their agents from proceeding with the construction of pucca building over the suit land and restraining them from changing the feature and structure of the suit land; for restraining them from alienating /wasting the suit land by any means. 3. The case projected in the plaint is that the father of pro forma defendant Nos. 19 and 20, Azob Ali Laskar, was the original owner of the suit land and the predecessor of the plaintiffs and pro forma defendant Nos. 10 to 18 had purchased

4 Page No.4 the suit land, vide a registered Sale Deed dated and possessed the purchased land by way of an amicable partition. The predecessor of defendant Nos. 10 to 18, namely, Arjod Ali, had gifted away land measuring about 4 Katha and odd from his purchased share for construction of a mosque and a tank and, thus, exhausted his share. At the same time, the predecessor of the plaintiffs, Ibrahim Ali Borbhuiya, out of his purchased share measuring about 8 Katha 3 Chattak 6 Gonda 12 Kora and 2 Kranti, sold about 3 Katha to the father of pro forma defendant Nos. 10 to 18 and delivered khas possession to him. It is pleaded that the plaintiffs were enjoying their possession of the suit land through the principal defendants, who were their licensees and were staying in Kachha houses over the suit land. They were prohibited from making any permanent construction over the suit land. The principal defendants, in collusion with the pro forma defendants, falsely claiming jote right over the suit land, obtained permission from the Municipal Board, Hailakandi, on , by furnishing wrong Dag number and Patta number for construction of a pucca building. It was asserted that the principal defendants were not tenants of the plaintiffs and they had become trespassers over the suit land and Kachha houses from as they denied relationship of licensee and licensor. Objection being filed before the Municipal Board, Hailakandi, they were prohibited from proceeding with the construction, but they illegally started construction and raised construction up to plinth level. 4. The principal defendant Nos. 1 to 9 filed written statement. Apart from taking the legal pleas, such as non-maintainability of the suit, non-joinder of parties, etc., it was stated that Dag No of 2 nd R.S. Patta No. 212 consisted of 3 Katha, and Dag No of the said Patta consisted of 8 Katha 15 Chattak; that the predecessor of the principal defendant Nos. 1 to 9, Late Abjor Afjor Ali was a tenant of Late Azob Ali Laskar, the original owner of the land, covered by Dag No. 422/994 of R.S. Patta No. 104, and that the 2 nd R.S. Patta No. 212 with its Dag Nos. 1853, 1954 and 1855 was curved out from R.S. Patta No It was also stated that Late Azob Ali Laskar had sold his land to Ibrahim Ali and Arjod Ali. However, as the predecessor of the principal defendants, Abjor Afjor Ali was staying there as tenant with homestead, possession of the land could not be handed over to them and Abjor Afjor Ali continued to stay in the land as tenant. A rent suit, being Rent Suit No.

5 Page No.5 12/54, was filed by Ibrahim Ali and Arjod Ali against Abjor Ali and the suit was compromised on and, thereafter, Abjor Ali was paying rent to the new landlord at the rate of Rs for 1360 BS, and they were also issuing receipt in respect of the rent paid by Abjor Ali. On the death of Ibrahim Ali, his son Abdul Rashid, who is predecessor of the plaintiff Nos. 4 to 8,pro forma defendant No. 11and plaintiff No. 4, granted receipt of rent to Abjor Ali and, thereafter, to defendant No. 1.Rent was received from time to time and the same was paid up to During lifetime of Abjor Ali, his sister Kuti Bibi came over to the suit land and presently her son Akhtar Ali is in possession of about 2 Katha 10 Chattak of the suit land and the defendant Nos. 1 to 9 are in possession of 7 Katha 10 Chattaks of land. They were also granted Municipal Holding number and are paying municipal taxes. The case of the plaintiff that the defendants were licencees was stoutly denied by setting up the claim of tenancy as aforesaid. 5. On the basis of the pleadings of the parties, following issues were framed: (i) Is there any cause of action for the suit? (ii) Whether the principal defendants are licencees or tenants in respect of the suit land? (iii) Whether the title of the plaintiffs is curved out or not? (iv) Whether the plaintiffs are entitled to get equitable relief of injunction? (v) To what relief or reliefs the plaintiffs are entitled? 6. During trial, the plaintiffs examined 4 witnesses and the defendants examined 3witnesses. Both the parties also exhibited some documents. 7. The learned trial Court recorded a finding that the plaintiffs failed to prove that there was an amicable partition and as both the plaintiffs and pro forma defendants had issued rent receipts, held that the plaintiffs right, title and interest over the suit land alone cannot be justified as the right, title and interest of pro forma defendants are not extinguished. A finding was also recorded that the defendants are tenants and they are not licensees under the plaintiffs. It was also held that the plaintiffs ought to have served notice under Section 11 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (for short, the Act of 1955 ) and that a suit is maintainable only after expiry of 1 month from the date of receipt of the notice by the defendants.

6 Page No.6 It was further held that the defendants were entitled to get protection under Section 5 of the Act of The learned trial Court noted that during evidence of the plaintiffs, it was projected that the defendants had surrendered their tenancy and came back again after about 10/12 years of their surrender and started living there as permissible occupier, though the same was not the pleaded case. With the aforesaid findings, the suit was dismissed. 8. The learned Lower Appellate Court held that rent receipts proved uninterrupted and continuous possession of the suit land since the time of Azob Ali Laskar, original owner of the suit land, and, therefore, the plea of the plaintiffs that the defendants were licencees or permissible occupiers in respect of the suit land has no substance. The learned Lower Appellate Court found that there was no infirmity in the decision of the learned trial Court and, accordingly, dismissed the appeal. 9. This Second Appeal was admitted to be heard vide order dated on the following substantial question of law: Whether the provisions of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 is applicable to the case in view of the fact that the tenancy claimed by the defendants over the suit land is situated in an urban area in the State of Assam and if so, whether the defendants are entitled to protection from eviction from the suit land under Section 5 of the aforesaid Assam Non-Agricultural Urban Areas Tenancy Act, 1955? 10. Mr. N. Dhar, learned counsel for the appellants has submitted that the finding of the courts below that the defendants are protected under Section 5 of the Act of 1955 is not sustainable in law as it is not established from the evidence on record that the conditions precedent for protection from eviction, as envisaged under Section 5 of the Act of 1955, were satisfied. In this connection, the learned counsel relies on the decision of this Court in the cases of Niranjan Chandra Saha vs. Bibhuti Prasad Singh, reported in (1992) 2 GLR 263 and Uma Kanta Das Mahajan vs. Tribeni Prasad Kalwar, reported in AIR 1974 GAU 71. He has also drawn attention of the Court to the Full Bench judgment of this Court in Surendra Narayan Sukul vs. Hirendra Chandra Chakravorty and others, reported in 2006 (4) GLT 432(FB). Reference was also made to the decision of the Apex Court in the case of Isswar Dass Jain (dead) through L.Rs. vs. SohanLal (J) by L.Rs. reported in (2000) 1

7 Page No.7 SCC 434 to contend that in a Second Appeal, interference with the finding of fact is permissible in a case where material or relevant evidence was not considered, which, if considered, would have led to an opposite conclusion. It is submitted that interference with the finding of fact is also permissible in a situation where a finding has been arrived at by placing reliance on inadmissible evidence, which, if omitted, would have led to an opposite conclusion. The argument of Mr. Dhar is that if the evidence on record was appreciated in the correct perspective, the finding that the defendants were protected under Section 5 would not have been reached. 11. Learned counsel for the appellants has further submitted that no issue was framed with regard to the question as to whether the defendants were entitled to protection under Section 5 of the Act of 1955 and, in that view of the matter, this Court may also consider remitting the matter to the learned trial Court enabling the defendants to file additional written statement and also to lead further evidence. 12. Mr. B. R. Dey, learned Senior counsel, appearing for the respondents, by placing reliance in the case of Punjab Urban Planning and Development Authority vs. Shiv Saraswati Iron & Steel Re-Rolling Mills, reported in (1998) 4 SCC 539, submits that the plaintiff must succeed on his own case and cannot take advantage of weakness in the defendant s case to get a decree. Learned Senior counsel submits that the plaintiffs have failed to establish that the defendants were in permissive occupation of the suit land and the learned courts below, on the basis of the evidence adduced by the defendants, had come to a categorical finding that the defendants were tenants under the plaintiffs and, therefore, the ground on which eviction was sought falls through. He has also accepted the position that no issue was framed with regard to the question as to whether the Act of 1955 is applicable and/or whether the defendants were entitled to protection under Section 5 of the Act of Mr. Dey has also drawn attention of the Court to the Full Bench decision of the Court in Ram Akhaibat Upadhyay vs. Srikrishna Prasad, reported in (1984)2 GLR 458, on the interpretation of Section 5(1)(b) of the Act of It is also submitted that in the plaint, it was not indicated as to whether the suit land was included in the urban area. 13. I have considered the submissions of the learned counsel for the parties and have perused the materials on record.

8 Page No The positive case of the plaintiffs was that the principal defendants were not tenants and, in between them there was a relationship of licensor and licensee. The principal defendants Nos. 1 to 9 controverted the pleadings of the plaintiffs and asserted that they were tenants since the time of their predecessors. In the written statement of the principal defendant Nos. 1 to 9, no pleading was offered with regard to raising of any permanent construction. 15. Having regard to the pleadings, no issue was framed relating to the question as to whether the suit land is within an urban area attracting the provisions of the Act of 1955 and also as to whether the defendants are protected under Section 5 of the Act of The case of the plaintiffs, as noted earlier, was founded on a relationship of licensor and licensee and eviction of principal defendants were sought on the ground of breach of conditions of licencee. 16. At this stage, it will be relevant to take note of Section 5 of the Act of 1955, which is as follows:- 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 build 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: Provided that where the 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

9 Page No.9 tenancy from the landlord of the land wherein the said structure stand, 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 competent 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. 17. A perusal of the aforesaid provision goes to show that the tenant shall not be ejected by the landlord from the tenancy except on the ground of non-payment of rent, only when a tenant had built a permanent structure on the land of the tenancy for residential or business purposes, where under the terms of a contract he is entitled to build and has in pursuance of such term actually built within a period of five years from the date of such contract, or where a tenant not so being entitled to build, has actually built any such structure with the knowledge and acquiescence of the landlord. 18. Issue No. 2 was decided by the learned trial Court holding that the defendants were tenants. However, the learned trial Court, while deciding the issue No. 5 with regard to what relief the plaintiffs are entitled, recorded that the plaintiffs ought to have served notice under Section 11 of the Act of 1955 and that the defendants, having raised permanent construction, are entitled to protection under Section 5 of the Act of 1955.The applicability of the Act of 1955 was not even referred to in the pleadings of the parties. The defendants in the written statement also did not take any plea of protection under Section 5 of the Act of 1955 and their only plea was that they are tenants. 19. Having regard to the case set up by the plaintiffs, it was not necessary for the defendants to have also set up a plea of protection, if any. Pleading is to contain only

10 Page No.10 statement in a concise form of the material facts on which the party relies for his claim or defence, as the case may be. The plaintiffs would have been entitled to a decree for ejectment in the event they succeeded in establishing breach of conditions of permissive occupation. The parties certainly did not go to trial with any understanding that the Act of 1955 will come into play. In the impugned judgment, the learned trial court did not say when the permanent construction was raised. The period within which the permanent construction was made is a relevant consideration under Section 5 of the Act of This Court will not examine the correctness or otherwise of the aforesaid findings of the learned trial Court to record a finding either way or appreciate the evidence to find out whether any permanent structure was raised at all, the same being not the projected case of either of the parties.the finding of the learned trial Court that the defendants are entitled to protection under Section 5 of the Act of 1955, which is affirmed by the learned lower appellate Court, was uncalled for and unwarranted. Bearing in mind the frame of the suit, I am not inclined to accept the submission of Mr. Dhar to expand the scope of adjudication by permitting the defendants to file additional written statement, if any, to enable them to claim protection under Section 5 of the Act of Such a course of action, in the face of the pleadings as disclosed in the plaint, is not warranted. 20. On the basis of the cases projected by the respective parties, no issue had fallen for consideration as to whether the Act of 1955 is applicable or as to whether the defendants are entitled to protection from eviction from the suit land under Section 5 of the Act of Accordingly, it is held that the substantial question, as framed, does not arise for consideration in this case. But, at the same time, this court cannot be oblivious of the fact that a finding has been recorded by the courts below that the defendants are protected under Section 5 of the Act of Such finding, if allowed to stand good on record, will be prejudicial to the plaintiff. No occasion having arisen for recording such a finding and, more particularly, taking note of the fact that the defendants had not taken the plea of protection under Section 5 of the Act of 1955, this Court is constrained to observe that such finding cannot be allowed to stand and, therefore, while not interfering with the judgment of the learned courts below, the finding recorded that the defendants are protected under Section 5 of the Act of 1955 is set aside. It will, however, be not construed that this Court has held that the defendants have failed to establish that they are protected under Section 5 of

11 Page No.11 the Act of The said finding is set aside only on the ground that there was no occasion for deliberation on the question of availability of protection under Section of the Act of 1955 and therefore, such finding was uncalled for. 21. In view of the above discussion, the impugned judgments of the learned Courts below are modified to the extent as indicated above. The appeal stands disposed of with such modification. No cost. 22. Registry will send back the records. JUDGE RK