Md Abdul Salam vs Smti Nilima Bhattachariya
2021 Latest Caselaw 3567 Gua

                                                                       Page No.# 1/9

GAHC010114192015




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : CRP/79/2015

            MD ABDUL SALAM
            S/O LT. MD. MAINUDDIN R/O MORIANI TOWN, NEAR BAPUJI STAIDUM
            ROAD, UNDER P.S. MAIRANI DIST. JORHAT, ASSAM.



            VERSUS

            SMTI NILIMA BHATTACHARIYA
            W/O LT. BIMAL BHATTACHARIYA R/O RUPOHI ALI, JORHAT P.O. and P.S.
            JORHAT, DIST. JORHAT, ASSAM.



Advocate for the Petitioner   : MS.S DASGUPTA

Advocate for the Respondent :




             Linked Case : CRP/80/2015

            RUSHNARA BEGUM and 5 ORS
            W/O LT. ABDUL MOTIN

            2: MD. NIZAM UDDIN
            S/OLT. ABDUL MOTIN

            3: MD. KAZIM UDDIN
            S/O LT. ABDUL MOTIN

             4: MD. SHAMS UDDIN
                                                          Page No.# 2/9

S/O LT. ABDUL MOTIN

5: MD. NAIM UDDIN
S/O LT. ABDUL MOTIN

6: FIRDUSARA YASMIN
D/O LT. ABDUL MOTIN ALL ARE RESIDENTS OF MORANI TOWN
NEAR BAPUJI STADIUM ROAD
POLICE STATION
MORIANI DIST. JORHAT
ASSAM.
VERSUS

SMTI NILIMA BHATTACHARIYA
W/O LT. BIMAL BHATTACHARIYA R/O RUPOHI ALI
JORHAT
P.O. and P.S. JORHAT DIST. JORHAT
ASSAM.


------------
Advocate for : MS.S DASGUPTA
Advocate for : appearing for SMTI NILIMA BHATTACHARIYA



Linked Case : RSA/186/2016

MD ABDUL SALAM
S/O LT. MAINUDDIN
R/O MARIANI NEAR BAPUJI STADIUM ROAD
P.O. MARIANI
DIST. JORHAT
ASSAM.


VERSUS

SMTI NILIMA BHATTACHARYA
W/O LT. BIMAL BHATTACHARYA
R/O RUPAHI ALI
JORHAT TOWN
P.O. JORHAT
DIST. JORHAT
ASSAM
PIN 785001
                                                           Page No.# 3/9

------------
Advocate for : MR.H R A CHOUDHURY
Advocate for : appearing for SMTI NILIMA BHATTACHARYA



Linked Case : RSA/120/2017

SMTI HASINA BEGUM
W/O LATE S.K. JANIF
R/O MARIANI NEAR BAPUJI STADIUM
P.O.
P.S. MARAINI
JORHAT


VERSUS

SMTI NILIMA BHATTACHARYYA
W/O LATE BIMAL BHATTACHARYYA
R/O RUPAHI ALI
JORHAT TOWN
P.O.
P.S. and DIST. JORHAT


------------
Advocate for : MS.R CHOUDHURY
Advocate for : appearing for SMTI NILIMA BHATTACHARYYA



Linked Case : CRP/137/2017

HASINA BEGUM
W/O LT. S.K. JANIF R/O MARIANI NEAR BAPUJI STADIUM P.O.
P.S. MARAINI
JORHAT


VERSUS

NILIMA BHATTACHARYYA
W/O LT. BIMAL BHATTACHARYYA R/O RUPAHI ALI
JORHAT TOWN
P.O.
P.S. and DIST. JORHAT
                                                             Page No.# 4/9


------------
Advocate for : MS.R CHOUDHURY
Advocate for : MR. S K GHOSH appearing for NILIMA BHATTACHARYYA



Linked Case : RSA/139/2016

ON THE DEATH OF ABDUL MOTIN HIS LEGAL HEIRS RUSHNARA BEGUM
and 5 ORS
W/O LT. ABDUL MOTIN

2: MD. NIZAM UDDIN
S/O LT. ABDUL MOTIN

3: MD. KAZIM UDDIN
S/O LT. ABDUL MOTIN

4: MD. SHAMS UDDIN
S/O LT. ABDUL MOTIN

5: MD. NAIM UDDIN
S/O LT. ABDUL MOTIN

6: FIRDUSARA YASMIN
D/O LT. ABDUL MOTIN ALL ARE THE MARIANI NEAR BAPUJI STADIUM
ROAD
P.O. MARIANI
DIST. JORHAT
ASSAM.
VERSUS

SMTI NILIMA BHATTACHARYA
W/O LT. BIMAL BHATTACHARYA
R/O RUPAHI ALI
JORHAT TOWN
P.O. PATHERKANDI
DIST. JORHAT
ASSAM
PIN


------------
Advocate for : MR.H R A CHOUDHURY
Advocate for : MS.F AHMED appearing for SMTI NILIMA BHATTACHARYA
                                                                               Page No.# 5/9


                                  BEFORE
                 HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                       JUDGMENT

21.12.2021

Heard Mr. N. Dhar and Ms. R. Choudhury, learned counsels appearing for the petitioners. Also heard Mr. S. K. Ghosh, learned counsel appearing for the respondent.

2. This common order disposes of the CRP 79/2015, CRP 80/2015, CRP 137/2017 RSA 139/2016, RSA 186/ 2016 and RSA 120/2017as because all these revision petitions and the

regular second appeals are inseparably related to each other.

3. The CRP 79/2015, CRP 80/2015 and CRP 137/2017 are filed against the judgments passed by the learned Civil Judge, Jorhat in Title Appeal No. 52/2013 arising out of the judgment dated 20.09.2013 passed by the learned Munsiff No. 1, Jorhat in Title Suit No. 4/2009; against the judgment dated 08.12.2014 passed by the learned Civil Judge, Jorhat in Title Appeal No. 51/2013 arising out of the judgment dated 19.09.2013 passed by the learned Munsiff No. 1, Jorhat in Title Suit No. 3/2009; and the judgment dated 23.12.2016 passed by the learned Civil Judge, Jorhat in Title Appeal No. 14/2015 arising out of the judgment dated 07.01.2015 passed by the learned Munsiff, Titabar in Title Suit No. 16/2014 (new), 05/2009 (old) respectively.

4. On 08.02.1972, on execution of a registered Sale Deed, the respondent purchase 2 kathas 10 lechas of land from Barindra Nath Chakraborty. Since then, she has been in possession of the aforesaid land. There are three houses standing over the land and the three houses were given on monthly rent to the present petitioners. Subsequently, the petitioners defaulted in payment of rent and, therefore, the respondent asked them to vacate the houses.

5. The petitioners did not vacate the houses. They claimed that the respondent is not the owner of the land nor they are tenants under her. According to the petitioners, the land originally belonged to a tea garden and it was taken away by the government pursuant to the provisions of the concerned land ceiling Act. The Page No.# 6/9

petitioners alleged that the respondent illegally mutated herself in respect of the land and, thereafter, claimed its ownership.

6. While deciding the issues, as to whether the petitioners are tenants under the respondent in respect of the houses, and whether petitioners defaulted in payment of rent, the trial Court held that the tenancy agreements executed between the petitioners and the respondent are lawfully proved. The trial Court further held that the petitioners are defaulters and accordingly, passed the judgment declaring that the respondent is entitled to recovery of possession of the houses after eviction of the petitioners therefrom. The trial court further held that the respondent is also entitled to recover the arrear rent.

7. The learned first appellate court agreed with the decision of the trial court and dismissed the appeal.

8. I have given my anxious consideration to the submissions made by the learned counsels for both the sides.

9. The Assam Urban Areas Rent Control Act, 1972 governs the relationship between a tenant and a landlord. This legislation is beneficial for both sides. It gives protection to tenants from unreasonable and whimsical eviction from the rented premises. The statute further provides that the landlord must keep the rented premises in a good condition so that it remains suitable for human habitation.

10. At this stage, Section 8 of the Assam Urban Areas Rent Control Act, 1972 is relevant. Section 8 of the Act, 1972 bars filing of a second appeal in a High Court. According to Section 8, the decision of the first appellate court is the final decision and no appeal beyond that is provided by the same statute.

11. For the aforesaid reason, the second appeals being RSA 139/2016, RSA 186/2016 and RSA 120/2017 against the connected appellate judgments are barred by law as laid down in Section 8 of the Act of 1972 and thereby stand dismissed.

12. So far as the revision petitions are concerned, the power of the High Court under Article 227 of the Constitution of India and under Section 115 of the Code of Page No.# 7/9

Civil Procedure are supervisory in nature. Under the said provisions, the High Court exercises the power of superintendence over courts and tribunals subordinate to it. When they exceeds their power provided by the statutes or when they fail to exercise their power vested upon them by a particular statute, then only the said power would be exercised by the High Court.

13. By virtue of the law as laid down by Section 116 of the Indian Evidence Act, a tenant is estopped from challenging the title of the landlord over the rented premises. This rule will not apply if the tenancy is created before purchasing the land. In the case in hand, the tenancy was created after purchasing the land and, therefore, the tenant has no right to challenge the title of the landlord over the rented property.

14. In Sheela v. Firm PrahladRaiPrem Prakash, (2002) 3 SCC 375 , the Supreme Court has held as under ---

"14. Denial of landlord's title or disclaimer of tenancy, is it an act injurious to interest of landlord? How does this rule operate and what makes it offensive? Evans and Smith state in the Law of Landlord and Tenant (4th Edn., 1993, at p.

89) that it is an implied condition of every lease, fixed-term or periodic and formal or informal, that the tenant is not expressly or impliedly to deny the landlord's title or prejudice it by any acts which are inconsistent with the existence of a tenancy. Disclaimer of the landlord's title is analogous to repudiation of a contract. The rule is of feudal origin; the courts are not anxious to extend it and so any breach of this condition must be clear and unambiguous. Hill and Redman in Law of Landlord and Tenant (17th Edn., para 382, at pp. 445-46) dealing with "acts which prejudice lessor's title" state that there is implied in every lease a condition that the lessee shall not do anything that may prejudice the title of the lessor; and that if this is done the lessor may re-enter for breach of this implied condition. Thus, it is a cause of forfeiture if the lessee denies the title of the lessor by alleging that the title of the landlord is in himself or another; or if he assists a stranger to set up an adverse title or delivers the premises to him in order to enable him to set up a title. It is a question of fact, however, what intention underlies the words or the actions of a tenant, whether in fact he is definitely asserting a title adverse to the landlord or, as the case may be, intending to enable someone else to set up such a title. Thus, it is not sufficient that the lessee does not at once acknowledge the title of the landlord and a general traverse in the defence to an action for possession does no more than put the landlord to proof and does not assert that the title is in another. The essential characteristic of disclaimer by tenant as stated in Foa's General Law of Landlord and Tenant (8th Edn., para 934, at p. 589) is that it must amount to a renunciation by the tenant of his character of tenant, either Page No.# 8/9

by setting up a title in another, or by claiming title in himself. A mere renunciation of tenancy without more, though it may operate as a surrender, cannot amount to a disclaimer. The denial, though it need not be express and can be implied, must nevertheless be a clear denial and it must be clearly proved.

15. In Williams and Jeffery v. Cooper [(1840) 1 Scott NR 36 : 1 Man & G 135 : 9 LJCP 229] Tindal, C.J. stated, "a disclaimer, as the word imports, must be a renunciation by the party of his character of tenant, either by setting up a title in another, or by claiming title in himself". Setting up a title hostile to that of the landlord by the tenant himself or the tenant assisting another person to set up such a claim entails forfeiture of tenancy, said Lord Lyndhurst, C.J. in Doe d Ellerbrock v. Flynn [(1834) 1 Cr M&R 137 : 3 LJ Ex 221] . As held in Doe d Gray v. Stanion [(1836) 1 M&W 695 : (1835-42) All ER Rep 290] at p. 703, the disclaimer may be verbal or written but it must amount to a direct repudiation of the landlord-tenant relationship or it may be a distinct claim to hold possession of the estate, upon a ground wholly inconsistent with the existence of that relationship which is a repudiation of such relationship by necessary implication. Park B. therein explained, "an omission to acknowledge the landlord as such, by requesting further information, will not be enough".

15. The respondent has proved the Tenancy Agreements as Ext. 2 in all the three suits. The petitioners never challenged the execution of the Tenancy Agreements at the time of cross-examination of the respondent in those suits. The petitioners could not clarify as to how and on what authority they entered into the suit premises. Rather, they have taken false pleas, when they tried to explain as to how they came to occupy the suit premises.

16. The denial of landlord's title or disclaimer of tenancy is injurious to the interest of the landlord. In the instant case, the respondents blatantly denied the title of the landlord (the appellant). This Court is of the opinion that denial of landlord's title or disclaimer of tenancy constitutes a valid ground for seeking eviction of a tenant in respect of a house.

17. There is no perversity in the trial court judgments as well as the appellate court judgments. It is proved that the respondents are tenants under the petitioner and they are defaulters in respect of payment of house rents and they are liable to be evicted from the respective suit premises.

18. The impugned judgments do not require interference of this court.

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Accordingly, these three revision petitions are found to be devoid of merit and stand dismissed accordingly. The judgments of the trial court as well as the appellate court are affirmed.

19. Under the aforesaid premised reasons, the CRP 79/2015, CRP 80/2015 and CRP 137/2017 are dismissed and disposed of.

20. Send back the LCR.

JUDGE

Comparing Assistant