IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) PRINCIPAL SEAT AT GUWAHATI (CIVIL REVISIONAL JURISDICTION) CRP No. 329 of 2000 On the death of Rajmangal Dubey his legal heirs Smt. Saraswati Devi & others. Petitioners -Versus- On the death of Maya Shankar Bharati his legal heirs Smt. Kalawati Devi (wife) & others. Opposite parties. BEFORE HON BLE MR. JUSTICE N. CHAUDHURY For the petitioners : None appeared at the time of hearing. For the Opp. party : Mr. J. C. Gaur, Advocate. Date of hearing : Date of Judgment : JUDGMENT & ORDER (Oral) 1. This revision petition under Section 115 of the Code of Civil Procedure has been preferred by the plaintiff of Title Suit No.216/1986 challenging the concurrent findings of the learned two Page 1 of 10

2 courts below whereby it was held that there is no landlord and tenant relationship between the plaintiff and the sole defendant and that the suit for eviction of the defendant was not maintainable. 2. The predecessors of the present petitioner No.1 along with petitioner No.2 instituted Title Suit No.216/1986 in the court of learned Munsiff No.1 at Guwahati stating that the sole opposite party occupied two rooms of the suit premises on forcefully and thereafter in view of the settlement arrived at between the parties the plaintiff No.1 allowed the defendant to stay as a tenant with respect to the suit premises. It was decided that the defendant would pay Rs.100/- as monthly rent for the big room and Rs.75/- as monthly rent for the small room. It was agreed between the parties that rent would be paid within 7 th day of the next month as per English calendar and receipts would be issued by the plaintiff No.1 on behalf of himself and the plaintiff No.2, who is the deity of Hanumanji Mandir. The defendant went on paying rent till June, 1986 and obtained receipts but thereafter failed to make payment of rent and became a defaulter. Plaintiff No.1 asked the defendant to vacate the suit premises as it was necessary to reconstruct the Assam Type house. The defendant did not comply with the request but for which a notice under registered cover was issued on Page 2 of 10

3 3. On being summoned, the sole defendant appeared and by filing written statement pleaded that there is no landlord and tenant relationship between the plaintiff and the defendant. The defendant claimed to have taken the suit premises on rent from the Hanumanji Mandir Trust which was actually looking after the daily puja of plaintiff No.2, Hanumanji Mandir, and the plaintiff No.1 had no locus standi to institute the suit. The plaintiff No.1 had previously instituted Title Suit No.232/1985 against the defendant and others for the same cause of action and on transfer to the court of learned District Judge it was numbered as Title Suit No.4/1987. According to the defendant, the plaintiff No.1 was pujari of the Hanuman Mandir Trust but not the Sebait and there was no landlord and tenant relationship between the plaintiff No.1 and the defendant. With these pleadings the defendant prayed that the suit be dismissed with cost. 4. Upon perusal of the respective pleadings of the parties the learned trial court framed as many as nine issues and the same are as follows :- 1. Whether there is cause of action for the suit? 2. Whether the suit is barred by limitation? 3. Whether the suit is bad for non-joinder or necessary parties? 4. Whether the suit is barred by estoppels and acquiescence? 5. Whether the suit is maintainable? Page 3 of 10

4 6. Whether the defendant is a tenant under the plaintiff or a tenant under the Hanuman Mandir Trust? 7. Whether the defendant is a defaulter in payment of rent? 8. Whether the suit house is bonafide required by the plaintiffs? 9. What reliefs, if any, the plaintiffs are entitled? 5. In course of trial plaintiff examined three witnesses but it does not appear that any document was exhibited by the plaintiff on their behalf. On the other hand, the defendant examined two witnesses and exhibited Exts-Ka to Dha in support of his pleadings. 6. The learned trial court took up Issue No.6 as the crux of the case and decided the same first on the basis of the materials available on record. Upon consideration of exhibits brought on record by the defendant and on perusal of the depositions of both sides it was held that plaintiff No.1 is neither owner of plaintiff No.2 nor is the defendant a tenant under the plaintiff No.1 since as pleaded in the plaint. Having decided that there is no landlord and tenant relationship between the parties, the other issues were not gone into in detail and the suit was dismissed by judgment and decree dated Aggrieved, the plaintiff instituted Title Appeal No.28/1995 in the court of learned Civil Judge (Senior Division) No.1, Kamrup at Guwahati. The learned First Appellate Court considered the matter Page 4 of 10

5 afresh, perused the materials available on record and after discussing the depositions of both sides and the exhibits brought on record held that the plaintiff could not establish landlord and tenant relationship with the sole defendant and so there was no question of decreeing the suit for eviction of the defendant either on the ground of default or on bonafide requirement. The learned First Appellate Court appears to have independently considered the evidence brought on record and thereupon dismissed the appeal preferred by the plaintiff by judgment and decree dated These two judgments and decrees have been challenged in the present revision petition. 8. This revision petition was called up for hearing yesterday when no one had put up appearance on behalf of the parties for which it has been fixed today. Although at the mention hours an engaged counsel of this case appeared and made a prayer for adjournment but when he was asked to take consent of the learned counsel appearing for the other side he disappeared and did not come up even when the matter was called up for hearing and displayed on the electronic notice board. The revision petition is of 2000 and about 16 years have elapsed in the meantime. Under such circumstances, Mr. J. C. Gaur, learned counsel for the opposite party is heard. Mr. S. P. Roy, learned counsel appearing for the appellant in the Second Appeal No.152/2004, also rendered Page 5 of 10

6 valuable assistance in deciding the case as both the Second Appeal and the Revision Petition are listed together and are related to the same suit property. I have perused the evidence on record both oral and documentary. 9. A suit for eviction of tenant under Section 5 of the Assam Urban Areas Rent Control Act, 1972 can be instituted by a landlord praying for eviction on the grounds enumerated under Section 5 of the Act. The plaintiff in the present case claimed to be landlord of the defendant with respect to the suit premises and pleaded that defendant being a tenant, defaulted in payment of rent since July, 1986 and thus he became a defaulter. Moreover, the suit premises are required bona fide for reconstruction. The defendant appearing in the case totally denied landlord and tenant relationship with the plaintiff No.1 and claimed that he is a tenant with respect to the suit premises under the Trust of Hanumanji Mandir. He specifically took the plea that plaintiff No.1 does neither represent the Trust nor does he had any authority or locus standi to institute the suit as he is not a landlord under Section 2(c) of the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as the Act). To be a landlord within the meaning of the aforesaid section it has to be established by producing relevant evidence that the person concerned has been receiving or entitled to receive rent for the time being in respect of any house whether on his own account or on account of or on Page 6 of 10

7 behalf of for the benefit of any other person or as a trustee, guardian, or receiver for any other person. Here, in the present case, plaintiff did not lead any evidence by producing a scrap of paper to show that he was authorized by the Mandir Trust to collect the rent from the tenants. Rather, by bringing on record Exts-Cha, Chha and Ja the defendant has shown that even earlier the same plaintiff had instituted eviction suit against one Sova Banerjee praying for eviction claiming to be landlord along with Hanumanji Mandir with respect to one of the shop rooms of the suit building and the suit was numbered as Title Suit No.67/1981. In that suit also the tenant had taken a plea that plaintiff did not have landlord and tenant relationship with the defendant in his written statement. The written statement has been exhibited as Ext-Ja herein. The learned court after considering the evidence of both sides passed the judgment in that suit on and the judgment and the decree have been exhibited as Exts-Cha and Chha in the present suit. On perusal of the judgment Ext-Cha I find that even in that case a competent civil court had arrived at a finding that the same plaintiff is not a landlord with respect to the same suit premises and so the eviction suit was dismissed. No material has been brought on record by the plaintiff to show that the judgment dated in Ext-Cha did not attain finality and that it was subsequently varied or modified by a judgment of higher court. Even in the present case the learned First Appellate Court appears to have perused and Page 7 of 10

8 considered the judgment passed in Title Suit No.67/1981 and thereupon arrived at the finding that even in the present case the plaintiff cannot claim the status of landlord. This finding of the learned First Appellate Court after taking into consideration Ext-Cha has not been specifically challenged to be perverse by the revision petitioners in the body of the application. As no one came forward to argue the case of the petitioner, this Court had to go through the averments made in the Revision Petition. Although no specific grounds have been enumerated but submissions have been made from paragraphs 6 to 10 of the revision petition. These submissions are not specific on which point the findings of the learned two courts below are perverse. After all, the concurrent finding of the two courts below is that there is no landlord and tenant relationship between the parties. 10. In a catena of judgments the Hon ble Supreme Court has held that relationship between landlord and tenant is a finding of fact. A reference to the judgment of the Hon ble Supreme Court in the case of Raja Durga Singh of Solan vs. Tholu & others, reported in AIR 1963 SC 361, would be instructive in this case. It is also an established law that concurrent findings of fact arrived at by learned two courts below cannot be interfered with either in civil revision or in second appeal unless specific perversity is pleaded and established. Having gone through the detailed evidence in Page 8 of 10

9 documents adduced by defendant, particularly from Ext-Ka to Ext- Dha, it appears that the same plaintiff had tested his fortune in a number of earlier litigations against co-tenants of the present defendant and in all those litigations it was held that plaintiff No.1, Rajmangal Dubey, is not a landlord with respect to the suit premises. The present suit premises is one of the shop rooms of the premises with respect to which Title Suit No.67/1981 was litigated between the parties. Present plaintiffs were the plaintiffs in that suit though tenants were different. Even in that suit the learned court arrived at the finding that plaintiff could not establish his status as a landlord. Even in the present case, apart from his own assertion, the plaintiff could not bring any material whatsoever on record which even can remotely show that plaintiff No.1 used to collect rent from the defendant and that rents were paid upto June, When the defendant raised a specific issue that plaintiff No.1 does not have any locus standi to institute the suit as the suit premises are managed and maintained by a regular trust constituted under Ext- Ja, the plaintiff No.1 did not lead any evidence to show that it is he who had been collecting rent from the defendant. In the absence of any specific evidence in support of the claim of the plaintiff and more particularly on the failure of the present revision petitioner to show that concurrent findings as to fact of landlord and tenant relationship is perverse there is no scope to interfere with the two judgments impugned in the present revision petition. The revision Page 9 of 10

10 petitioner has failed to make out as to how the findings of the learned two courts below are not based on the materials on record. The learned First Appellate Court has applied its mind and has independently perused the documents apart from considering the judgment of the learned trial court on the issue of landlord and tenant relationship. Such a considered opinion arrived at by the learned two courts below cannot be interfered with on mere ipse dixit of the present petitioners. 11. The Revision Petition is devoid of any merit. It is accordingly dismissed. No order as to cost. Send down the LCR. JUDGE T U Choudhury Page 10 of 10