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Judgment
Heard Mr.G.N.Sahewalla, learned Senior Counsel assisted by Ms.B.Sarma, leaned counsel appearing for the appellants. Also heard
Mr.B.Banerjee, learned Senior Counsel assisted by Mr.D.N.Bhattacharyya appearing on behalf of the respondent.
The appellants herein are the defendants in Title Suit No. 46/1989 in the Court of learned Munsiff No. 1, Sivasagar which was preferred
originally by Sri Satya Borua as plaintiff and on his death substituted by his son Joy Madhab Borua, the present main respondent No. 1. It is the
case of the plaintiff respondent that Satya Barua alongwith one Lakhinath Bezborua purchased land measuring 2 Bighas 2 Lechas which includes
the suit land the total land being described in schedule A of the plaint. The said land was purchased jointly by way of a registered sale deed dated
1.5.1951 and the schedule of the land shown to be purchased was corrected by way of rectification deed No. 201/1955. The original land
described in schedule A covered total land measuring 2 bighas 2 lechas which belongs to M/s Phulchand Agarwalla. Later on, it devolved on
Bhagwandas Agarwalla and after the purchase of the said land the same was partitioned between the two purchasers i.e. Satya Barua and
Lakhinath Bezbarua and separate pattas were issued to the said purchasers. The suit land described in schedule- B is the land under the share of
Satya Barua. The portion of ''B'' schedule land was leased out to one Jatin Singh by the original owner in the year 1946 and he continued his
possession in that portion out of the total land till the date of purchase by Satya Barua and Sri Lakhinath Bezbarua. At the time of such purchase, a
thatched house was standing thereon of Jatin Singh who was a tenant of Bhagawandas Agarwalla, the vendor of Satya Barua and Lakhinath
Bezbarua. After purchase of the suit land as per request of Jatin Singh, Satya Barua, the plaintiff allowed him to stay there as the plaintiff has his
own residence at Betbari. There was a cordial relationship between the two and the plaintiff entrusted Jatin Singh to look after his entire land as a
custodian. Jatin Singh also took responsibility for looking after the entire land and discharging the responsibility till his death in October, 1986,
though he could not pay rent from February, 1985 due to illness. After the death of Jatin Singh the defendants/ appellants used to live in the said
house but they did not pay the rent inspite of requests made by the plaintiff/respondent. Though Jatin Singh originally constructed a temporary
thatched house, later on some goomti houses were constructed blocking the front portion of the said land and blocked the entry towards the back
side land without permission of the plaintiff respondent. The said defendants appellants also inducted tenants who are made parties to the suit. The
plaintiff respondent requires the suit land for his own use and occupation and as such the plaintiff respondent asked the defendants appellants to
vacate the land by removing the unauthorised construction and to deliver the possession of the entire land and house. The plaintiff respondent
issued legal notices to the defendants appellants through his counsel on
4.1989 and 22.6.1989 but on receiving the same defendants appellants denied the relationship of landlord and tenant and refused to vacate the
suit land. Hence the suit was filed for recovery of khas possession by evicting the defendants appellants, for arrear and future rents till the actual
delivery of land. The plaint was amended by introducing the pleading that a proposal was placed by defendants/appellants to exchange land
belonging to them and allow the defendants appellants to reside over the suit land. 3. The defendants appellants contested the suit by filing written
statement pleading the regular pleas like non-maintainability of the suit, bad for non-joinder of necessary party, barred by limitation etc. The
defendants appellants admitted that ''A'' schedule land originally belonged to M/s Phulchand Agarwalla Firm but disputed the fact that the same
devolved on Bhagawandas Agarwalla. As per written statement Bhagawandas Agarwalla was not owner of schedule land of the plaint and as such
he had no title to transfer the suit land. The defendants appellants had no knowledge that the plaintiff Satya Barua, purchased the said land jointly
and separate patta was issued to the said plaintiff, Satya Barua . It is the plea of the defendants appellants that late Nandi Singh, their predecessor-
in-interest entered into the suit land in the year 1940 and started to live there. After his death, late Jatin Singh and thereafter the defendant
appellants have been possessing the said land and their possession all along was hostile against the actual owner for about 50 years and they
acquired right, title and ownership over the suit land by virtue of their long, open and hostile possession against the actual owner. They denied the
relationship of landlord tenant between the plaintiff and Jatin Singh. Accordingly they sought for dismissal of the suit.
On the basis of pleadings the learned trial Court framed the following issues:
Whether the suit is maintainable ?
Whether there is cause of action for the suit?
Whether the suit is bad for non-joinder and mis-joinder of necessary party?
Whether the suit is bad for non-service of proper notice ?
Whether the suit is barred by law of limitation?
Whether the suit land has been leased out to late Jatin Singh as stated in the plaint?
Whether late Jatin Singh took a part of the suit land from the original owner and latter was allowed to look after the entire land by the plaintiff as
stated in the plaint?
Whether defendants have acquired right, title and interest by way of adverse possession over the suit land by open uninterrupted and hostile
possession for more than statutory period against the true owner and as such they are not liable to be evicted from the suit land?
Whether defendants advanced an alternative suggestion of giving some other land in lieu of suit land to the plaintiff as stated in the plaint?
Whether plaintiff is entitled to get a decree as claimed?
To what other relief the parties are entitled ?
The plaintiff respondent examined 7 witnesses and exhibited documents. Defendants appellants also examined four witnesses and also exhibited
documents. The learned trial Court dismissed the suit.
The learned trial Court took up issue Nos. 6 and 7 and decided the same against the plaintiff/respondent. While discussing the said issues the
learned trial Court came to the findings that the witnesses of the plaintiff respondent side failed to prove that late Jatin Singh was a tenant under
him. However it took note of Ext 14(1) to 14(3), the valuation lists issued by the Sibsagar Municipality wherein it was recorded that Jatin Singh,
the predecessor-ininterest of the defendants appellants was a tenant. However the learned trial court did not take the said piece of evidence as a
conclusive proof to show the relationship of landlord tenant. The learned trial Court thereafter taking the issue No. 8 misdirected itself and did not
discuss at all as to whether the defendant appellants by way of adverse possession had acquired right title and interest over the suit land. The
learned trial court while discussing the said issue No. 8 rather took up the discussion with regard to the ostensible owner so far vendor of plaintiff
appellant is concerned as defined u/s 41 of Transfer of Property Act. The plea of ostensible owner with respect to the sale of suit land was never
pleaded by the plaintiff respondent. The said plea was taken by the learned trial Court on a submission made by the counsel for the plaintiff
respondent that even if the defendants appellants took the plea of devolution of the Schedule ''A'' land on two brothers, Bhagawandas Agarwalla
and Narayandas Agarwalla but the same was sold by only one brother Bhagawandas Agarwalla as the ostensible owner on behalf of the other
brother. The registered sale deed of the year 1951 is exhibited as Ext. 1 by the plaintiff respondent alongwith the rectification deed as Ext. 2 which
were not challenged. The learned trial Court considering the said plea of ostensible owner came to the finding that the plaintiff, Satya Barua had
failed to show through the evidence that at the time of transfer of the suit land he took reasonable care as transferee as required u/s 41 of Transfer
of Property Act. The learned trial court after such observation also took note of the fact that the plea of ostensible ownership, so far the vendor of
plaintiff respondent is concerned, was not pleaded and as such no argument could be forwarded by the plaintiff respondent. The learned trial court
took up Exts 6 (Ka),(Kha) and (Ga) the lease deeds executed by Jatin Singh, predecessor-in-interest of the defendants appellants in favour of the
original owner of the ''A'' schedule land and came to the observation that at the time of purchasing the suit land it was under the occupation of third
party and the plaintiff respondent made no reasonable enquiry about the fact of the possession of the suit land and the learned trial court on its own
sweet will, came to the conclusion that Narayandas Agarwalla and Bhagawandas Agarwalla knew it very well that they could not recover the
possession of said land from Jatin Singh and so Bhagawandas Agarwalla sold the suit land to plaintiff respondent as ostensible owner and
Narayandas Agarwalla did not object to it as they got the price of the suit land. For the said reasons Narayandas Agarwalla had no interest to
challenge the transfer made by Bhagawandas Agarwalla .
This finding is totally perverse inasmuch as the defendants appellants failed to prove that the suit land belonged to Narayandas Agarwalla and
Bhagawandas Agarwalla jointly. Except the plea that Bhagawandas Agarwalla was not the owner of the suit land there was no mention about
Narayandas Agarwalla as the owner of the suit land in the written statement. On the face of specific denial of the PW 5, Joy Madhab Barua to the
effect that Bhagawandas Agarwalla had one brother, the DW 1, Putuli Singh in her cross-examination deposed that she is unaware as to who is the
owner of the suit land. Further she deposed that she had never seen Phulchand Agarwalla or Bhagawandas Agarwalla and under such
circumstances, the learned trial Court on its own held that the suit property devolved on Bhagawan and Narayandas Agarwalla. Finally the trial
Court came to the conclusion that there is no requirement for discussion of the issue on adverse possession and the case of the plaintiff respondent
cannot be decided on the facts pleaded by the defendants appellants and further holding that plaintiff has to prove his case on his own, finally held
that the plaintiff failed to establish landlord tenant relationship to get decree in his favour and dismissed the suit.
Being aggrieved the plaintiff respondent preferred Title Appeal No. 14/06 in the Court of Civil Judge at Sibsagar. The said appeal was decided
in favour of the plaintiff respondent vide judgment and decree dated 18.5.2009. The defendants appellants thereafter preferred this second appeal
which was admitted on 16.9.2009 on the following substantial questions of law :
Whether the appellants, who are the tenants under the plaintiff is protected from eviction under Section 5 of the Assam Non-Agricultural Urban
Areas Tenancy Act, 1955 ?
Whether the judgment and decree passed by the learned First Appellate Court is legally sustainable in view of non discussion about the evidence
adduced by the appellants relating to the protection, as claimed by them under Section 5 of the Assam Non-Agricultural Urban Areas Tenancy
Act,1955 ?
The matter came up for hearing on 31.10.2017 and after almost completion of the argument of the learned Senior counsel for the appellants, it
was submitted that the substantial questions of law formulated earlier had no bearing as the same was not pleaded so far the protection of Assam
Non-Agriculture Urban Areas Tenancy Act, 1955 of the defendants are concerned.
Thereafter the following Substantial Questions of law were framed on 31.10.2017:
Whether the findings of the learned first appellate court are perverse in so far as the issues reversed by the first appellate court against the finding
of the learned trial court?
Whether the learned courts below erred in not considering the plea of adverse possession of the present appellants/defendants and whether the
same has bearing in the findings of the learned courts below?
Mr Sahewalla, the learned Senior Counsel appearing for the appellants submits that the finding of the learned trial Court was just and proper
inasmuch the plaintiff respondent failed to prove the existence of relationship of landlord tenant between the parties to the suit. The first appellate
court failed to discuss the findings of the trial Court in issue Nos.6 & 7. With regard to the exchange offer which was subsequently introduced in
the plaint by way of amendment, Mr Sahewalla submits that the plaintiff respondent had totally failed to produce any document before the courts
below in order to establish that the defendants appellants had any other land at Sivasagar. Even if it is presumed to be proved, the same at all
cannot be believed inasmuch as the plot at Sivasagar of defendants appellants is only 17 Lechas and it is not at all believable that the defendants
appellants would offer the said 17 lechas in order to exchange the suit land measuring 1 Bighas 1 lechas . The first appellate Court while accepting
the plea introduced by way of amendment of plaint there is no discussion of material piece of evidence. There is no discussion by the first appellate
court with respect to relationship of landlord tenant between the parties to the suit. In fact the plaintiff respondent failed to prove the existence of
said relationship. It is also submitted that judgment of the first appellate court is hit under the provision of Order 41 Rule 31 CPC as the issues
framed were not discussed. Considering the same Mr Sahewala submits that the judgment passed by the first appellate court is liable to be set
aside and it is a fit case for remand considering the perversity.
Mr.Banerjee, learned Senior Counsel for the plaintiff respondent submits that the case is not fit for remand at all. There is no pleadings in the
written statement with respect to requisite ingredients to show and/ or to prove adverse possession of the defendants appellants over the suit land.
The issue of ostensible owner is purely a creation of the learned trial court itself. There is no pleadings to that effect by either of the parties to the
suit. Merely on the argument of the learned counsel on behalf of the plaintiff respondent, the Court ought not to have gone into it leaving aside the
main issue to be discussed i.e. the question of adverse possession. It is not the case pleaded by the defendants appellants that they are entitled for
the benefits u/s 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955. There is no pleadings that after entering into the suit land by
way of lease with Bhagawandas Agarwalla they constructed house with permanent structure immediately within five years of the said lease. The
date of entry of the predecessor-in-interest of defendants appellants and/or lease deeds are exhibited as Exts.6 (Ka) to 6 (Ga). In the year 1951
the suit land was transferred to Satya Barua and Lakhinath Bezbarua. Thereafter also they tried to carry out construction of permanent nature but
owing to timely action on the part of the Sivsagar Municipal Authority they failed to carry out any such construction. Accordingly the requisite
ingredients u/s 5 of the Assam Urban Areas Non-Agricultural Act, 1955 cannot be pressed in the second appeal. Mr Banerjee thus submits that
the substantial question of law are not at all attracted in the present facts and circumstances of the case.
Countering the submission of Mr.Banerjee, Mr.Sahewalla submits that there are strong pleadings with respect to adverse possession in the
written statement. In fact, the entry of the defendants appellants dates back to 1940 and the suit was filed in the year 1989. However during this
period there was no discussion of any rent being paid by the defendants appellants to the plaintiff respondent or his predecessor in interest.
Accordingly the said possession can be termed very well as the adverse possession against the interest of the plaintiff respondent. Pointing to para
7 of the written statement, Mr Sahewalla learned Senior counsel submits that it has been pleaded that Bhagawandas Agarwalla was not absolute
owner of the suit land. It is also pleaded in para 9 of the written statement that late Nandi Singh, predecessor interest of the defendant appellant
entered into the suit land in the year 1940 and started living by constructing permanent construction immediately and thereafter, defendants
appellants are maintaining the said possession over the suit land inasmuch as Mr Sahewalla submits that there are requisite pleadings in support of
adverse possession pleaded in the written statement which Mr.Banerjee disputes strongly.
Learned First Appellate court reversed the finding of the trial Court in issue Nos. 6 & 7. While reversing the said findings the learned First
Appellate Court came to the finding that the original owner of the suit land leased out one part of the suit land to late Jatin Singh before sale of the
suit land to late Satya Barua, the predecessor-in interest of the present plaintiff respondent and another. To that effect the learned first appellate
court took note of Exts.6 (Ka) to 6 (Ga), the original lease deeds executed by late Jatin Singh in favour of the original owner/lessor of the suit land.
The first appellate court came to the finding that the said documents were not challenged by the defendants appellants during the cross examination
of the plaintiff respondent. The learned first appellate Court accordingly held that there was lease in existence between the said Bhagawandas
Agarwalla and late Jatin Singh.
It would not be out of place to mention that the plaintiff respondent during the pendency of the suit amended the plaint by introducing para
10(A) therein by pleading that on being pressurised to vacate the suit land by the plaintiff respondent, the defendants in early part of January 1989
advanced an alternative suggestion for an amicable settlement whereby they offered another plot of land in lieu of the suit land and requested the
plaintiff to accept the said exchange proposal by allowing the defendants to remain on the suit land. On being informed, the son of Satya Barua
alongwith one of his friends, namely, Bolin Bora were accompanied by the defendant appellant No.7 to the site and shown the same which was not
acceptable to the plaintiff and hence the proposal was dropped without proceeding further. As against the said amended plaint, there was no
additional written statement filed by the defendants appellants thereby disputing the pleadings made in the said amended plaint.
The first appellate court while discussing the issue Nos. 8 & 9 came to the finding that the plaint was amended on 22.5.1992 adding para No.
10(A). Issue No. 9 was framed on the basis of the plea taken in para 10(A) of the amended plaint. The defendants appellants did not deny the
plea of para 10(A) by filing additional written statement. Accordingly the learned first appellate court came to the finding that by offering the
proposal for exchange of the suit land with another plot of land, the defendants appellants admitted the title of the plaintiff respondent over the suit
land. The first appellate court considering the absence of any pleadings held that such fact of offer for exchange by the defendants appellants would
amount to admission of the undisputed fact so pleaded, u/s 58 of the Indian Evidence Act. The first appellate court taking up the issue No.8 held
that the learned trial Court failed to discuss the said issue No. 8 with regard to the acquisition of right, title and interest by the defendants appellants
over the suit land by way of adverse possession. The learned first appellate court held that there can be no adverse possession while the title of the
owner is admitted by offering another plot of land in lieu of the suit land. The defendants appellants admitted the title of the plaintiff respondent over
the suit land. Taking into consideration the deposition of DW 1, Putuli Singh that if the owner proposed to sale the land they are ready to purchase
at a nominal price, the first appellate court came to the finding that the defendants appellants had admitted the title of late Satya Barua over the suit
land, holding further that no overt acts could be established by the defendants appellants in order to prove their adverse possession like, mutation
of their names in the land records . The learned first appellate court came to the finding that they have failed to prove their adverse possession over
the suit land . Finally setting aside the finding on issue No. 8 of the trial Court, the issue was decided against the defendants appellants and decreed
the suit in favour of the plaintiff appellant.
From the discussions and the findings of the learned first Appellate Court, though the suit was decreed in favour of plaintiff respondent but the
same was on a wrong approach without proper application of law surfacing out from the facts pleaded in the plaint thereby giving rise to the cause
of action of the suit. Similar is the scenario with respect to the findings of the trial court. The defendants appellants in the written statement denied
the relationship of landlord and tenant rather, they are claiming that they are owners on the strength of adverse possession so far the suit land is
concerned. So there cannot be any application of the provisions of the Assam Non-Agriculture Urban Areas Tenancy Act, 1955 nor any question
of protection of the defendants appellants under the said Act arose. Both the courts below while deciding issue No. 6 accepted the submission of
the counsel for the plaintiff respondent in the trial court that the plaintiff respondent failed to prove the relationship of landlord tenant between the
parties to the suit. The learned first appellate court never tried to take its independent view based on the facts so pleaded, the evidence available
and blending the same with the law holding the field. The trial court though entered into it, but misdirected itself from the law holding the field.
Considered the submissions of the learned counsels and being faced with the wrong approach taken by the courts below, let me examine the
case records again, including the pleadings and evidence both oral and documentary which the parties brought on record in support of their
respective pleadings.
The plaintiff respondent sought for the relief of khas possession of the suit land by evicting the defendants appellants alongwith arrear and future
rents @ 25/- per month. Ext.1 is the registered sale deed bearing No. 681 dated 1.5.1951 executed by Bhagawandas Agarwalla son of late
Phulchand Agarwalla in favour of Satya Barua, the father of the present plaintiff respondent and another Lakhinath Bezbarua thereby transferring
the land measuring 1 bigha 3 kathas 19 lechas covered by various dag and patta numbers within the following boundaries:
East: Hem Gogoi, West: Sahaja Bharali and others , North:Hospital Road South: Girindra Nath Gogoi
Ext 2 is the registered rectification deed No. 57 dated 20.1.1955 executed by Bhagawandas Agarwalla in favour of aforesaid purchasers
whereby the area of land sold was shown to be rectified to the extent of 2 bighas 0 katha 2 lechas of the dag No. 1385 of K.P.Patta No. 540
there being no rectification of the boundaries. Possession is shown to be delivered to the purchasers. The said two purchasers divided the land
formally and the suit land measuring 1 bigha 0 katha 1 lecha stands in the name of Satya Barua covered by dag No. 2196 of K.P.Patta No. 540.
The fact of partition is very much apparent from Ext. 3, zamabandi wherein the same is recorded in the remark column which remains undisputed.
Exts. 6 (Ka) to 6 (Ga) are unregistered lease deeds executed by Jatindra Prasad Singh, predecessor in interest of defendants appellants who
took on lease a part of the land before purchase of the total land by the said Satya Barua and another, for construction of house with a promise to
demolish the said construction and deliver the vacant possession to the lessor Bhagawandas Agarwalla. The said lease was monthly one with a
promise by the lessor, Jatindra Prasad Singh to pay monthly rent of Rs. 4/-. The said lease deeds are for a period of one year each spanning from
1.2.1949 to 31.1.1950, 1.2.1948 to 31.1.1949 and 1.2.1947 to 31.1.1948 respectively. The lease deeds were prior to execution of Ext. 1 sale
deed and the boundaries shown therein Ext. 1 clearly shows that the land so leased out to Jatindra Prasad Singh is included, as the boundaries
does not show any land under possession of Jatindra Prasad Singh on the periphery of the land purchased and so encircled by the aforesaid
boundaries. The sale transaction was carried out in 1951 and the lease was created prior to the said sale to Satya Barua and Lakhinath Bezbarua.
From the said lease deeds it is clear that entry of Jatindra Prasad Singh over the part of the land was as a lessee and as apparent from the lease
deeds the intent of Jatindra Prasad Singh was to vacate the land and demolish the structures at the time of vacating the leased out land. Ext. 14(1)
to 14(3) are the certified copies of valuation list of Sivasagar Municipality proved duly by the officials from the office of the said Municipality.
Ext.14(1) is for the period of 1957/58, Ext.14(2) is for the period of 1963/64 and Ext.14(3) is for the period of 1981/82 wherein the possession
of the house is shown to be under Jatindra Prasad Singh. Ext. Kha(2),Kha(3) and Kha(10) are the municipal tax paying receipts for the year,1966
exhibited by the defendants appellants amongst various receipts which show the name of Satya Barua alongwith Jatin Singh @ Jatindra Prasad
Singh. This goes to show that the defendants appellants are possessing the schedule ''B'' land of which Satya Barua is the owner and they had full
knowledge to that effect.
Let me examine the evidence of the plaintiff respondent side on record, leaving the Exhibits already examined. PW 1 Suryya Saikia, in his
cross-examination had described the suit land so far the boundaries are concerned, correctly. It can be believed that he had seen the suit land so
also the possession of the defendants appellants thereon. He supported the fact that Satya Barua allowed Jatin Singh to look after the suit land.
PW 2 Srimanta Barua, in his cross-examination deposed that Satya Barua let out whole land to Jatindra Prasad Singh. PW 5 is the present plaintiff
respondent who denied that Bhagawandas Agarwalla had a brother. He supported the fact of purchase of land by his father and tenancy between
the defendants appellants and Bhagawandas Agarwalla. He denied the suggestion of fraudulent transfer of suit land through Exts. 1 & 2 sale deed
and rectification deed respectively. PW 7 Dhiren Saikia an employee of Sivasagar Municipality proved the Exts 14(1) to 14(2) and 14 (3) as
referred herein above and as per record the nature of construction over the suit land was of bamboo post. In his cross-examination he deposed
that Exts 14(1), 14(2) and 14 (3) were not prepared by him and as such he is unaware about the correctness about the contents therein.
Now let me examine the evidence of defendants appellants side. DW.1 Putuli Singh is the wife of late Jatin Singh @ Jatindra Prasad Singh who
admitted about the fact of possession of the suit land by her but could not say the name of owner of the said land. She also in her cross-
examination deposed that as they are possessing the suit land for long as such they are ready to purchase the same if sold at a nominal price by the
owner. She is unaware as to how her husband or his father Nandi Singh entered into the suit land , but denied the tenancy relation of her husband
even with Phulchand Agarwalla. She admitted that she knew Satya Barua but denied the tenancy with him. She admitted that her husband on his
own paid municipality tax and further admitted the fact of receipt of notice from the development authority where after stopped construction of
house of permanent nature during the pendency of the suit. In her cross examination, she deposed that she had no knowledge regarding Phulchand
Agarwalla and Bhagawandas Agarwalla. DW 2 Pankaj Kr.Singh, son of late Jatindra Singh who is also unaware of Phulchand Agarwalla and
Bhagawandas Agarwalla or Narayandas Agarwalla. He is unaware who is the owner of the suit land nor he is aware about the lease with
Phulchand Agarwalla / Bhagawandas Agarwalla entered by his father. DW 3 Ramraja Singh is a relative of defendants appellants. In his cross-
examination he admitted the fact of purchase of the suit land by Satya Barua and Lakhinath Bezbarua which was told to him by Lakhinath
Bezbarua . He also deposed that he had good relation with Satya Barua but denied the fact of partition of schedule ''A'' land between the said two
purchasers which could not be believed after the aforesaid cordial relation with Satya Barua. DW 4, Tarun Singh is one of the brothers of late Jatin
Singh. He deposed that there exists permanent structure over the suit land constructed during the life time of his elder brother Jatin Singh but there
was no permission from the competent authority as the suit land was not in their names. He admitted that one person from the Marowari
community allowed them to possess the suit land and for the said reason they had not paid any ''khajana'' to any other persons. He further deposed
that as they have been possessing the suit land for 80/90 years so the same belonged to them. In his cross-examination he admitted that he is
''Raiyat'' under the said person from the Marowari community but not under Satya Barua. He is not ready to accept Satya Barua or his son as the
owner of the suit land. Thus he admitted the tenancy with the original lessor, Phulchand Agarwalla and continued to be so.
Combining both documentary and oral piece of evidence of the witnesses it can be concluded that the suit land was purchased both by Satya
Barua and Lakhinath Bezbarua vide Ext.1 read with Ext.2 , the rectification deed. The land under possession of Jatin Singh and the defendants
appellants was leased out by Bhagawandas Agarwalla which is included in the total land purchased and out of said total land the suit land alongwith
the possession of defendants appellants fell in the share of Satya Barua who became the absolute owner of the ''B'' schedule land after the
partitition, if the Municipal taxpaying receipts exhibited by defendants appellants and referred herein above are considered as the municipality tax
was paid by Jatin Singh as per deposition of DW 1 Putuli Singh, the wife of late Jatin Singh coupled with Jamabandi,Ext.3. The lease deeds
Ext.6(Ka) to 6(Ga) as held by the learned first Appellate Court remained unrebutted as there were no endeavour to that effect by the defendants
appellants. If the said 6(Ka) to 6(Ga) are considered and read with the evidence of DW 4 Tarun Singh, it can be concluded that entry of Jatindra
Prasad Singh and the said DW 4 and other family members over the suit land was through a person of ''Marowari'' community under whom they
are ''Raiyot'' inasmuch Ext. 6(Ka) to 6(Ga) were executed by Jatin Singh @ Jatindra Prasad Singh in favour of Phulchand Agarwalla Firm
represented by Bhagawandas Agarwalla. The defendants appellants failed to show that the land sold to Satya Barua and Lakhinath Bezbarua
belonged to any other person/persons, other than Bhagawandas Agarwalla who is a person from the Marowari community. On the basis of said
piece of evidence and its appreciation it can be held that Jatindra Prasad Singh entered into the lease agreement and possessed the suit land as a
lessee of the said Firm represented by Bhagawandas Agarwalla. As such the status of Jatin Singh with respect to Schedule ''B'' land was that of a
tenant/lessee is supported by documentary piece of evidence and corroborated by the DW 4, Tarun Singh and it can be held that the brothers and
other legal heirs of Jatindra Prasad Singh derived the said tenancy and possessing the schedule ''B'' land. The lease deeds are specific to the effect
that Jatindra Prasad Singh entered into the suit land with an intent to deliver back the vacant possession of the land to the lessor, Bhagawandas
Agarwalla after determination of the lease. If that be the intent, question of carrying out of permanent nature of construction over the suit land does
not arise at all. The lease had its effect prior to purchase of the schedule ''A'' land by Satya Barua and Lakhinath Bezbarua.
The Ext.1, Registered Sale Deed was executed on 1.5.1951 and on the date of tendering the same in evidence it was more than 30 (thirty)
years old. There is no denial by the defendants appellants that the land which they are possessing does not belong to Bhagawandas Agarwalla nor
they could prove the said fact. The municipal tax paying receipts Exts. Kha(2),(3) and (10) and the municipal valuation, Exts 14(1),(2) and (3) also
shows the names of both Satya Barua and Jatin Singh. These are some of the relevant facts and if the evidence of DW 3 is considered who
admitted the fact of purchase of the suit land by Satya 16/20 Barua and Lakhinath Bezbarua then the presumption with respect to execution of the
Ext. 1 by Bhagawandas Agarwalla can very well be accepted in the light of Section 90 of the Indian Evidence Act,1872.
From the perusal of the materials on record, the defendants appellants nowhere stated that they had surrendered the tenancy to the lessor
Bhagawandas Agarwalla prior to purchase of the suit land by Satya Barua and Lakhinath Bezbarua, rather DW 4 Tarun Singh deposed that he is
still a ''Rayat'' under the original lessor. If that be so , the determination of existence of relationship of landlord tenancy between the parties to the
suit is not at all relevant, inasmuch as Section 109 of Transfer of Property Act, 1882 (T.P.Act) stipulates that if the lessor transferred the property
leased or any part thereof or any part of his interest therein, the transferee in the absence of the 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 to it. So it is
not necessary for the plaintiff respondent to prove that rent had actually been paid to him or there was attornment in his favour or his predecessor-
in-interest Satya Barua in the event the plaintiff respondent is able to establish that Satya Barua was the transferee of the lessor, Bhagawandas
Agarwalla of the lease hold property which in my opinion has been well established .
In the present case in hand, the plaintiff respondent has proved that Satya Barua was the transferee of lessor Bhagawandas Agarwalla and as
such Section 109 of T.P.Act has its role to play inasmuch there is no dispute that the defendants appellants are possessing the suit land which fell in
the share of Satya Barua and they had the knowledge to that effect, if Exts Kha (2),(3) and (10) are considered coupled with the evidence of DW
1 who deposed taxes were paid by her husband. The suit was filed for eviction of the defendants appellants for carrying out unauthorised
permanent construction over the suit land which they are not authorised to do. In the written statement the defendants appellants admitted such
construction and the witnesses of defendants appellants deposed that such construction had no permission from the competent authority. This
shows itself that the construction so carried out on the suit land was unauthorised. DW 2, Pankaj Singh admitted the receipt of notice issued by the
competent authority to stop such unauthorised construction. DW 4 also admitted about the unauthorised construction over the suit land. In the
written statement the defendants appellants pleaded that Bhagawandas Agarwalla was not the absolute owner of the total land and as such he had
no right to transfer the suit land. However they failed to prove as such as per the pleadings, though there was no specific issue to that effect.
In Pravati Devi Vs Bakul Chand Nath and anr reported in AIR 1981 Gau 52, the Hon''ble Justice K.N.Saikia(as he then was) referring to the
Constitutional Bench decision of the Hon''ble Apex Court held as follows:
As was observed in Bhagwati Prasad v. Chandramaul, there is no doubt that if a party prays for a relief on clear and specific grounds and in
the issues or at the trial none else is covered expressly or by necessary implication, he may not be allowed to succeed on a new ground, but the
Court should bear in mind that considerations of form cannot override the due consideration of the substance. Though a plea is not expressly or
specifically raised, yet it can legitimately and impliedly be covered by another, and the parties knew their cases and adduced evidence at the trial to
support their cases, then a party may not be disentitled to relief if the plea is otherwise proved at the trial. To the general rule that the relief be
founded on the pleadings of the parties, too technical a view may not always be justified, particularly where the parties knew what was the matter
involved in the trial and led evidence about it and no prejudice is caused to either of the parties.
From the pleadings of the parties more specifically the written statement it can very well be held that the defendants appellants knew what was
the matter involved in the trial and led evidence. Hence no prejudice is caused to either of the parties for non framing of the issue as pleaded in the
written statement, if examined from the point of view of the decision referred herein above.
In the decision reported in AIR 1981 Gau 52 (supra) the facts of the case are almost similar to the present one in hand. Therein, the defendant
petitioner was sued by the plaintiff respondent No. 1 for arrears of rent and compensation. The proforma defendant respondent No. 2 was the
minor landlord. The plaintiff claimed to have purchased the suit holding by a registered sale deed and acquired right, title and interest and claimed
arrear rent from the defendant petitioner. The same was resisted by the defendant petitioner wherein the sale was also challenged thereby denying
the title of the plaintiff respondent No. 1. The issue No. 1 therein was with respect to the existence of any relationship of landlord and tenant
between the plaintiff and defendant No. 1. The suit was decreed by the learned trial court which was upheld by the first Appellate Court. The
defendant petitioner preferred the revision petition raising that without declaration of right, title and interest the plaintiff respondent cannot ask for
the reliefs. While dismissing the said revision petition it was held as follows:
In the instant case, though there was no express and specific issue on title, yet it was implied in the Issue No. 1, namely, ""Is there any
relationship of landlord and tenant between the plaintiff and the defendant No. 1?"" The parties adduced evidence on that issue and the trial Court
found that the registered sale to the plaintiff was valid, which impliedly meant that he had title over the suit holding. Once the transfer is held to be
valid Section 109 of the Transfer of Property Act is clearly applicable and no objection is permissible contrary to the consequences as to
acquisition of rights provided there under. There was really no need for a further prayer for declaration of title. The contention has, therefore, to be
rejected.
In the present case in hand, both the courts below failed to enter into the issue No. 6 involving the relationship of landlord and tenant. The
court below failed to take into consideration the fact of purchase of land by Satya Barua and another from the lessor of Jatindra Prasad Singh. This
Court on scrutiny of evidence on record finds that the transfer of suit land was duly proved. For the said reason Section 109 of T.P.Act is
applicable and said issue No. 6 ought to have been decided in favour of the plaintiff respondent though it is not so relevant. The act of carrying out
of unauthorized construction over the suit land is admitted and as such the plaintiff respondent is entitled for the relief of ejectment of the defendants
appellants from the suit land. So far the claim of the rent is concerned, the plaintiff respondent failed to prove the fact that the defendants
appellants'' predecessor in interest, namely Jatindra Prasad Singh had attorned Satya Barua as landlord and on his death the present defendants
appellants attorned the plaintiff respondent as their landlord and as such the plaintiff respondent is not entitled for the relief of arrear rent.
In Mohendra Raghunathdas Gupta Vs.Vishvanath Bhikaji Mogul and others reported in (1997)5 SCC 329 the Hon''ble Apex Court held that
the transferee of the landlord''s rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the
subsisting tenancy. The Section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him.
Attornment by the tenant is not necessary to confer validity of the transfer of the landlord''s rights. Attornment would however be desirable as it
means the acknowledgement of relation of a tenant to a new landlord. It also implies continuity of tenancy.
The fact that Satya Barua was the transferee of lessor, Bhagawandas Agarwalla remains unrebutted coupled with the agreements for lease with
Bhagawandas Agarwalla and Jatindra Prasad Singh, Exts 6(Ka) to 6(Ga) produced from the custody of the plaintiff respondent and as such the
transfer of the suit land is held to be valid. Again reverting back to the decision of this Court reported in AIR 1981 Gau 52 (supra), Section 109 of
the Transfer of Property Act is clearly applicable and the defendants/appellants cannot raise any objection to the consequences as to acquisition of
right by Satya Barua provided under Sec. 109 of Transfer of Property Act, 1882. The defendants appellants admitted the fact of receipt of notice
by them from the advocate of Satya Barua asking them to vacate the suit premises for unauthorised construction thereon. Such being the position in
hand, invoking the jurisdiction under Section 103 of the Code of Civil Procedure, 1908 I am constrained to decide the Issue No. 10 in favour of
plaintiff respondent thereby confirming the decree of ejectment against the defendant appellant passed by the first appellant court but the plaintiff
respondent is not entitled to other reliefs.
The learned first appellate court though decided the First Appeal in favour of the plaintiff respondent but on the findings based on a totally
wrong approach as hereinabove stated but this court as the Second Appellate Court interferes with the reasonings of the first appellate court which
ought to have decided the appeal as discussed hereinabove. On the other hand the trial court also failed to take the correct approach both under
the facts and law. Consequently the findings of the first appellate court cannot be termed to be perverse so far the reversal of the findings of trial
court are concerned. Accordingly substantial question of law No. 1 is decided against the appellants.
Once the plaintiff appellant(Satya Barua) is found to be a transferee from the lessor owner of the suit premises, he is authorised to take all
requisite steps as if he is the lessor of the defendants appellants and such consequences cannot be questioned by the defendants appellants. The
principles of law of adverse possession is in the true sense a negative right accrued on the defendants appellants owing to failure on the part of the
rightful owner to enforce his right. But once the plaintiff respondent is entitled to the right under Section 109 of the Transfer of Property Act which
springs up once the plaintiff respondent is held to be a lawful transferee of the lessor transferor, the claim of adverse possession shall have no
bearing upon the ownership right of the plaintiff respondent. Moreover in the present case in hand, the defendants appellants before claiming right
on the basis of adverse possession, failed to show that they surrendered the tenancy to Bhagawandas Agarwalla. So the claim of adverse
possession cannot be pleaded when the DW 4, Tarun Singh still claims to be the ''Raiyat'' under a person from ''Marowari'' community. So the
substantial question of law No. 2 is decided in the negative.
The appeal lacks merit and dismissed. Send back the LCR.
No costs.