Khalilur Rahman vs Nabi Hussain and Others

C.S. Nayudu, J.—This second appeal is directed against the judgment and decree of the Subordinate Judge''s Court, Upper Assam Districts at Dibrugarh, reversing those of the Munsif''s Court, Dibrugarh, decreeing the Title Suit No. 5 of 1960 in favour of the Plaintiff.

The suit, out of which this appeal has arisen, had been brought by the Plaintiff, Appellant herein, for ejectment of the Defendants on the ground that the first Defendant was his ant of the suit house and site, on a rent of Rs. 10/- per month and that in spite of notice of demand asked him to vacate the premises, the first Defendant as well as the other defends, who claimed through him, failed to vacate. It may thus be seen that the suit is simpliciter a suit for ejectment by a landlord of his tenant, and in addition for arrears of rent due under the tenancy together with some compensation for use and occupation of the premises. Hence the only point that requires to be considered on the allegation in the plaint the whether the first Defendant is a tenant of the Plaintiff of the suit premises.

The first Defendant in his written statement denied the tenancy and claimed that the suit premises belonged to one Abu Hussain and not to the Plaintiff. In fact, the first Defendant denied having any interest whatsoever in suit premises. Defendants 2 to 5 remained exparte.

The learned Munsif framed a number issues, some of which do not at all arise on the pleadings, for example, the issue relating to ownership of the suit premises, an issue which is totally irrelevant in a suit by a landlord for ejecting his tenant based on tenancy. On Issue No. 4, which is the main issue arising in the case, as to whether there was any relationship of landlord and tenant between the Plaintiff and the first Defendant, the learned Munsif found that the first Defendant was a tenant of the Plaintiff, the former having taken the suit premises from the Plaintiff on a monthly rent of Rs. 10/-. He also found that a sum of Rs. 360/- was due to the Plaintiff from the first Defendant towards the arrears of rent and that in addition he allowed a compensation of Rs. 2/- to the Plaintiff for use and occupation for the period subsequent to the ejectment notice. He accordingly decreed the suit against all the Defendants directing their ejectment from the suit premises and also decreed the claim for rent and compensation to the extent of Rs. 362/-.

Aggrieved by this decision, the first Defendant preferred an appeal to the Subordinate Judges Court, Upper Assam District at Dibrugarh and the learned Subordinate Judge instead of addressing himself to the main question that arose for determination in the appeal, as to whether the finding of the learned Munsif that the first Defendant was a tenant of the Plaintiff in respect of the suit premises was correct or not, embarked upon consideration of various other matters which have no relevancy to the appeal. The learned Subordinate Judge focused his attention on the question as to who constructed the suit house, a point which as already pointed out, has no relevancy at all to the point that arises for determination in the appeal and fell completely outside the scope of the dispute between the parties.

The learned Subordinate Judge made a cursory reference to the evidence adduced on behalf of the Plaintiff and characterised the witnesses P.Ws. 2, 3, 4 and 8 as interested, and, therefore, unreliable, and finally holding, strangely enough, that there was no evidence that the Defendant No. 1 took settlement of the suit premises as tenant under the Plaintiff, reversed the judgment and decree of the learned Munsif and dismissed the suit not only against the first Defendant but also against Defendants 2 to 5 who never contested the suit and who never appealed against the decision of the learned Munsif. The learned Subordinate Judge also held that Abu Hussain, who is said to have constructed the house, was a necessary party to the suit, and that, therefore, the suit was bad for non-joinder of parties.

It is contended by Mr. Goswami, the learned Counsel for the Appellant, that the learned Subordinate Judge embarked upon a consideration of matters completely extraneous to that which arose for consideration in the appeal before him and that the learned Subordinate Judge committed a serious error when he held that there was no evidence that the Defendant No. 1 took settlement of the suit premises as tenant under the Plaintiff. My attention has been drawn, in view of this observation of the learned Subordinate Judge, to the evidence of the Plaintiff''s witnesses, namely P.Ws. 2 to 5 and 8 whose evidence supported the case of the Plaintiff that there was a settlement of the suit premises with the first Defendant who took the suit premises as a tenant under the Plaintiff.

It is surprising that learned Subordinate judge should have made that observation when in an earlier paragraph of his judgment, as already stated, he very cursorily dealt with the evidence of P.Ws. 2, 3, 4 and 8 and characterised them as interested. It has to be pointed out that the method of appreciation of evidence followed by the learned Subordinate Judge is not at all correct. At the outset, the learned Subordinate Judge overlooked the important fact that both the Plaintiff and the first Defendant were related to each other through their common relationship with P.W. 2. Hence, any-witness who is a relation of the Plaintiff would also be a relation of the first Defendant.

Another and a more important point that Subordinate Judge should have (sic) is that mere interestedness of a witness is no ground for rejecting his evidence. Witnesses may be related to parties, but that relationship alone would not make them ipso facto interested and on that ground their evidence cannot be rejected. The correct method of appreciation of evidence is to weigh the evidence of each witness on its own merits and in the light of the circumstances proved or admitted, in the case, and if the evidence appears to the Presiding Judge to be doubtful, the reason for the same may be sought and the interestedness, of the witness for the party on whose behalf he gives evidence may be then taken into consideration in determining the final value to be attached to his evidence. A witness who is a relation of a party is undoubtedly an eligible witness and is competent to give evidence, and, for aught we know, may be telling the truth. Hence, the learned Subordinate Judge was clearly wrong in perfunctorily rejecting the evidence of P.Ws. 2, 3, 4 and 8 without discussing the same on the merits merely because they are related to the Plaintiff.

I am not satisfied that the lower appellate Court, which was a Court of fact, had discharged its duty by correctly, fully and properly, appreciating the evidence adduced in the case. The learned Subordinate Judge had apparently led himself to be influenced by the conclusions reached by him in the concluding portion of his judgment that there was no evidence on behalf of the Plaintiff proving the tenancy between him and the first Defendant.

The learned Subordinate Judge also had apparently felt that the learned Munsif had not discussed the documentary evidence in the case. Another circumstance which had influenced the judgment of the learned Subordinate Judge is that he apparently was of the impression that he had to investigate the title to the house in question, and therefore, the question as to who constructed the house. As the suit is merely a suit for ejectment by a landlord of his tenant, it will fail if the tenancy is not established, and if the tenancy could be said to have been established, then the first defendant, who would be a tenant on such finding, would be estopped under law from setting up title of a third party or from disputing the title of the landlord. Hence, it would idle and completely irrelevant to enter into exa of the question whether Abu Hussain or some other person constructed the house, and, therefore was the owner thereof, these proceedings.

It would have been a different matter had the Plaintiff brought a suit based on title and paid Court-fee thereon, in which case the question of title to the house would be required to be investigated, but this is not such a suit. The learned Counsel for the Appellant drew my attention in this connection to the case of AIR 1955 234 (Nagpur) , which, in my opinion, supports the above view. The learned Subordinate Judge therefore allowed himself to be misled with the impression that he had to investigate into the title of the suit property, and it is this that has apparently led him to hold that the suit was bad for non joinder of Abu Hussain as a Defendant.

From the above it is clear that the learned Subordinate Judge had not properly appreciated the scope of the appeal before him; nor did he properly and correctly appreciate the evidence adduced in the case. In the circumstances the only proper order to make is to send the case back to the learned Subordinate Judge for giving a proper disposal to the appeal. I would accordingly set aside the judgment and decree passed by the learned Subordinate Judge and direct that the appeal be remanded to the lower appellate Court with a further direction that that Court should rehear the parties and deal with the appeal and dispose of the same in accordance with law and in the light of the observations made herein. The costs of this appeal would abide and follow the result of the appeal in the Court below. A certificate shall be issued to the Appellant''s Counsel for the refund of the Court fee payable on the appeal memorandum.