Sankar Chandra Paul vs Prakash Chandra Saha And Ors

Heard Mr. S. Borthakur, learned counsel for the petitioner. Also heard Mr. R. L. Yadav, learned counsel for the respondents.

In this Revision Application, judgment and decree dated 23.09.2005 passed by the learned Civil Judge (Sr. Dvision), Nagaon in Title Appeal No.

12/2004 is put under challenge. The plaintiff/respondent filed Title Suit No. 32/1997 in the Court of Civil Judge (Jr. Division) Hojai at Sankardev Nagar

for ejectment and arrear rent from the defendant/petitioner. It is pleaded in the plaint that the tenanted premises measuring 10 ft X 10 ft in size under

holding No. 44 Ward No. 6, Hojai Town, Mouza Hojai, Dist- Nagaon pertaining to Dag No. 496, Periodic Patta No. 82 under Hojai town, Kisam No.

2, Mouza Hojai, dist- Nagaon Assam originally belonged to one Late Tirath Singh Punjabi. During his life time he let out to various tenants after

construction of shop premises over the said land. The defendant/petitioner is one of such tenant occupying the tenanted premises described in the

schedule of the plaint. Out of the said tenants, late Tirath Singh Punjabi sold the said land to various tenants possessing the same. The

plaintiffs/respondents were also tenants under the said Tirath Singh Punjbai. Both the plaintiffs/ respondents purchased 6 Lechas and 40 sq. ft. 6 sq.

inches of land each by two registered sale deeds bearing Nos. 1114 and 1115 dated 04.05.1993 and the khas possession was delivered to them. The

plaintiffs/ respondents after having purchased the said land measuring more or less 12 lechas 80 sq. ft. and 12 sq inches became the owners of the

said premises and the defendant/petitioner attorned the plaintiffs/respondents as the landlord and agreed to pay the monthly rent to them but the said

defendant/petitioner did not pay the rent to the plaintiffs/respondents even after receipt of the notice issued by the plaintiffs. Pleader’s notice was

issued to the defendant but the defendant/petitioner informed the plaintiffs/respondents that he had deposited the monthly rent in the Court in the name

of Tirath Singh Punjabi and on his death in the name of legal heirs of deceased Tirath Singh Punjabi. It is the plea taken by the plaintiffs/respondents

that the defendant/petitioner denied the ownership/title of the plaintiffs/respondents over the suit premises for which the suit was filed for ejectment of

the defendant/petitioner along with arrear rent.

The defendant/petitioner filed written statement and took various plea in respect of the maintainability of the suit. The pleadings of the

defendant/petitioner is that he was a monthly tenant under Tirath Singh Punjabi in respect of suit premises and he has been paying the monthly rent to

Tirath Singh Punjabi and on his death to his legal heirs. The plaintiffs/respondents never informed about the sale transaction of the land between the

plaintiffs and its owner Tirath Singh Punjabi. Though Tirath Singh Punjabi sold land to other tenants but he failed to mention the respective boundaries

of the land purchased by the said tenants and as such the suit premises is not identifiable. On the basis of the said defence, the defendant/petitioner

sought for dismissal of the suit. The following issues were framed by the learned trial court:-

“Issues:

Is there any cause of action for the suit?

Is the suit maintainable in its present form?

Is the suit barred by law of limitation?

Is the suit bad for non-joinder of necessary parties?

Whether the plaintiff is the owner of the house (suit)?â€​

Whether the defendant No. 1 is the tenant under the plaintiff?

Whether the defendant No. 1 is a defaulter in respect of payment of rent of the suit house?

Whether the plaintiff is entitled to get a decree as prayed for?â€​

In support of the respective claims of the parties to the suit, plaintiffs/respondents adduced five witnesses and exhibited some documents including

sale deeds and notices issued to the defendant/petitioner informing about the sale transaction. On the other hand, the defendant/petitioner examined

some other witnesses along with him and also exhibited various records of NJ Cases. The learned trial court took up issue Nos. 5, 6 & 7 and on the

basis of the findings decided the issue No. 5 in favour of the plaintiffs/respondents and issue Nos. 6 & 7 were decided against the

plaintiffs/respondents. The learned trial court took note of the Exhibits 6 and 7 which are the registered sale deed on the basis of which the plaintiffs

purchased land measuring 6 Lechas 40 sq.feet and 6 sq. inches each from the vendor Tirath Singh Punjabi. It also took into consideration other

Exhibits 10, 11 & 12 which are the sale deeds on the basis of which three other tenants purchased land from Tirath Singh Punjabi. The fact of the

possession of the plaintiffs/respondents is also affirmed on the basis of the admission by defendant/petitioner as DW 1 along with Municipal tax

receipts issued by Hojai Municipal Board i.e. Exhibits 4 & 5 in their favour. It took note of the deposition of the defendant/petitioner as DW-1 that he

had no objection to attorn the plaintiffs/respondents in the sale deed but on confirmation of the sale transaction by Tirath Singh Punjabi. The said fact

of sale transaction was admitted by the son of Tirath Singh Punjabi who was examined as DW-2 and on the basis of the said appreciation of evidence,

the learned trial court affirmed that the plaintiffs/respondents are the owners in respect of the land measuring 12 lechas 40 sq. ft 6 inch each.

While giving the findings in issue Nos. 6 & 7, the learned trial court scrutinized the schedule of land sold in the sale deed i.e. Exhibit 6 and 7

wherefrom the court below came to the finding that each of the plaintiff/respondent purchased 6 Lechas 40 sq. ft and 6 sq inch of land but both sale

deeds mention common boundaries. For the said reason, the learned trial court came to the conclusion that from the sale deeds it could not be inferred

that the suit premises was purchased by the plaintiffs/respondents. Accordingly it held that the defendant/petitioner cannot be branded as a tenant

under any of the plaintiffs. On the basis of the said findings, learned trial court dismissed the suit.

Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs/respondents preferred Title Appeal No. 12/2004 in the

Court of learned Civil Judge (Sr. Dvision), Nagaon which was allowed vide judgment and decree dated 23.09.2005. The learned First Appellate Court

having scrutinized the evidence on record reversed the findings of the learned trial court in issue Nos. 6 & 7. It was held that the suit premises is

situated on the land purchased by the plaintiffs/respondents and to that effect it was taken into consideration that leaving aside the plaintiffs/

respondents three other tenants purchased land measuring 2.4 25/48 lechas of land and as such the remaining land out of the total land measuring 15

lechas was purchased by the plaintiffs/respondents. So logically the suit premises would fall on the land purchased by the subsequent tenants i.e.

plaintiffs/respondents. After holding that the suit premises falls within the land purchased by the plaintiffs/respondents, the First Appellate Court took

note of Exhibit 1 i.e. notice by way of which the plaintiffs/respondents vide registered post issued the same informing the change of ownership after

the sale transaction between Tirath Singh Punjabi and the plaintiffs/respondents. By the said Exhibit-1 the plaintiffs/respondents requested the

defendant/petitioner to enter into fresh agreement of tenancy in respect of the suit premises. The fact that the said notice was served on the

defendant/petitioner is also taken note by the First Appellate Court by examining Exhibit 1(B) which is the acknowledgment card. Accordingly it was

held that as the tenant cannot deny or dispute the title of the landlord, the First Appellate Court held that the plaintiffs/respondents are owners of the

suit premises and as such the defendant/petitioner is liable to pay the monthly rent to the plaintiffs/respondents. The First Appellate Court keeping in

view the contention of the defendant/petitioner that there was no mode of period for payment of rent, it was held that when there is no written

contract for the tenancy the rent falls due at the end of the month. Thereafter, the First Appellate Court having affirmed that there is relationship of

landlord and tenant between the plaintiffs/respondents and the defendant/petitioner took note of the various N.J. cases in order to examine whether he

is a defaulter in paying the monthly rent. Holding that the defendant was paying the rent in the court but there was no evidence that necessary steps

were taken as required under provision of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972, finally, on the basis of the said discussion,

the learned First Appellate Court decided issue Nos. 6 & 7 in favour of the plaintiffs/respondents that the defendant/petitioner is a defaulter in paying

the monthly rents and decreed the suit.

Mr. Borthakur, submits that the findings of the First Appellate Court are totally perverse and it is his contention that as both the sale deeds consist

of common boundaries under such circumstance, it was difficult on the part of the defendant/petitioner to affirm under whom, the petitioner is a

tenant. In order to support the said contention Mr. Borthakur submits that for the said reason only the petitioner is depositing the monthly rent in the

court in the name of Tirath Singh Punjabi and on his death in the name of his legal heirs. Supporting the finding of the learned trial court that the suit

premises are not identifiable, Mr. Borthakur submits that the findings of the First Appellate Court more specifically in the issue Nos. 6 & 7 are liable to

be interfered.

Mr. Yadav counters the said submission of Mr. Borthakur and it is his contention that the defendant/petitioner failed to prove by any cogent

evidence that he is paying the rent regularly within time and though he stated that he paid monthly rent in the court regularly but the learned First

Appellate Court rightly pointed out that the requirement of Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 were not complied with. It

is further submitted that the defendant/petitioner took the plea that the suit premises does not fall within the land purchased by the

plaintiffs/respondents as such the burden lies upon the defendant/petitioner in order to establish by cogent evidence that the same does not fall within

the land purchased by the plaintiffs/respondents. The defendant/petitioner utterly failed to prove the same and as such the findings by the learned

Court below in respect of the issue nos. 5 and 6 are correct and proper. Reverting back to the default in paying the rent on the part of the

defendant/petitioner, Mr. Yadav submits that Exhibit 1 is sufficient proof notifying the change of ownership and even after receipt of the said notice

which is duly proved, the defendant petitioner deposited the monthly rent in the name of Tirath Singh Punjabi/his legal heirs and that itself is specific

violation of the provision under Section 109 of the Transfer of Property Act, 1882.

I have given due consideration to the submissions of the learned counsel. The learned trial court failed to consider the evidence on record which the

First Appellate Court took note. Tirath Singh Punjabi was the owner in respect of 15 Lechas of land and out of the same land measuring 2. 5 lechas

approximately was sold to three of the tenants under Tirath Singh Punjabi thereby leaving more or less 12.5 lechas of land in the name of the original

owner Tirath Singh Punjabi. Exhibits 6 and 7 are the proof of the valid sale transactions between Tirath Singh Punjabi and the plaintiffs/respondents. It

is the admitted fact that the defendant/petitioner was a tenant under Tirath Singh Punjabi and as such his possession must be within the said 15 lechas

of land. Three tenants purchased as hereinabove stated their respective tenanted premises thereby leaving the defendant/petitioner possessing the suit

premises within the land measuring 12.5 lechas which logically falls within the land described in Exhibits 6 and 7. Though the boundaries are common

but it is a fact that both the plaintiffs purchased 6 Lechas 40 sq ft. 6 inches of land individually. The said fact of purchase could not be dislodged by the

defendant/petitioner. The sale transactions are valid one. Section 109 of the Transfer of Property Act, 1882 stipulates that if the lessor transfers the

property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the

rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but

the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elect

to treat the transferee as the person liable to him. The lessor, transferee and the lessee may determine what proportion of the premium or rent

reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any court having

jurisdiction to entertain a suit for the possession of the property leased. Here in the present case the admitted fact is that there was a tenancy

agreement between Tirath Singh Punjabi and the defendant/petitioner. As per the said tenancy agreement the defendant/petitioner was bound to pay

rent to Tirath Singh Punjabi. The suit premises was transferred by way of valid sale deeds to the plaintiffs/respondents. Under such circumstance, the

defendant/petitioner is bound to oblige the terms of the tenancy he agreed with Tirath Singh Punjabi. From the Exhibits of the NJ Cases it is explicit

that the defendant/petitioner though deposited the rent in the court in the name of the Tirath Singh Punjabi/his legal heirs, the defendant/petitioner was

fully aware in respect of the sale transaction but even then he deposited the rent in the court or he did not come forward to enter into fresh tenancy

terms with the plaintiffs/respondents. This itself goes to show that there was no attornment to the plaintiffs/respondents by the defendant/petitioner nor

as held by the First Appellate Court from the examination of the N J Case record that the defendant/petitioner had failed to comply with the

mandatory provision under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. The defendant/petitioner in order to get the protection

U/S 5(4) Assam Urban Areas Rent Control Act, 1972 must tender the rent and on refusal by the landlord then only he is authorised to deposit the rent

in the court. This is a case wherein the defendant petitioner having full knowledge in respect of the transfer of the ownership even failed to came

forward to enter into a fresh tenancy agreement in order to attorn the tenancy with the plaintiffs/respondents. Under such circumstance, I do not find

any perversity nor any jurisdictional failure on the part of the learned First Appellate Court while decreeing the suit in favour of the

plaintiffs/respondents. This revision petition stands dismissed. No costs.

Admittedly, the defendant/petitioner is possessing the suit premises since long. On a specific query to Mr. Yadav for allowing the

defendant/petitioner sometime to vacate the tenanted premises, he submits that 3(three) months time could be granted to the defendant. I am unable to

accept the said submission of Mr. Yadav on the ground that admittedly, the defendant/petitioner is a businessman running the same from the suit

premises and in order to facilitate for his accommodation, in my considered view, the said three months will not be sufficient and accordingly six

months time from today is granted to the defendant/ petitioner to vacate the tenanted premises. However on failure on the part of the defendant/

petitioner to vacate the tenanted premises on expiry of the stipulated period the plaintiff/ respondent shall be at liberty to go for execution of the decree

for ejectment of the defendant/ petitioner by due process of law through the executing court. It is further directed that during the occupation of

tenanted suit premises, the defendant/petitioner shall pay the rent duly to the plaintiffs/respondents.

Accordingly this revision petition stands dismissed without any cost.