Anand Singh @ Sarmah vs Anil Kumar Jain
2021 Latest Caselaw 464 Gua

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GAHC010166632017




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

                                   Case No. : CRP/70/2020

            ANAND SINGH @ SARMAH
            R/O MANCOTTA ROAD, NEAR OVER BRIDGE, P.O. AND P.S. AND DISTRICT
            - DIBRUGARH, ASSAM



            VERSUS

            ANIL KUMAR JAIN
            S/O LATE GULABCHAND JAIN, R/O MANCOTTA ROAD, NEAR OVER
            BRIDGE, P.O. AND P.S. AND DIST. DIBRUGARH, ASSAM


Advocate for the Petitioner   : MR.S BORTHAKUR

Advocate for the Respondent : MS. B SARMA

                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                           ORDER

Date : 10.02.2021

Heard Mr. P. Sundi, learned counsel for the petitioner and Mr. G.N. Sahewalla, learned senior counsel, assisted by Mr. H.K. Sharma, learned counsel for the respondent.

2) By this revision filed under section 115 read with section 151 of the CPC, the petitioner- defendant has assailed the first appellate judgment and decree dated 12.09.2014, passed by the learned Civil Judge, Dibrugarh in Title Appeal No. 43/2011, thereby dismissing Page No.# 2/8

the appeal and affirming the judgment and decree dated 08.08.2011, passed by the learned Munsiff No.2, Dibrugarh in Title Suit No. 104(A)/2007, by which the suit for ejectment, recovery of khas possession, recovery of arrear rent and for permanent injunction filed by the respondent- plaintiff was decreed.

3) By virtue of sale deed dated 10.06.2005, registered as deed no. 900, serial no. 1322 dated 14.06.2005, the respondent- plaintiff had purchased the land together with the suit premises standing thereon from the proforma defendant nos. 3 and 4. The petitioner and his father (since deceased) was the existing tenant in respect of the suit premises under the proforma defendant nos. 3 and 4, paying monthly rent at the rate of Rs.600/- per month for the same. The land was mutated in the name of the respondent. By separate letters dated 02.09.2005, the proforma defendants as well as the respondent had informed the petitioner (defendant no.2) and his father Chandraket Singh @ Sarmah (defendant no.1) about sale of the land together with suit house to the respondent and the petitioner and his father were asked to pay monthly rent for the suit premises to the respondent due on and from 10.06.2005. By their said notice, the proforma defendants had also informed the petitioner and his father that the tenancy between them had been terminated with effect from 10.06.2005. As no rent was tendered, and the suit premises was bona fide required by the respondent, the suit was filed.

4) The petitioner contested the suit by filing his written statement - cum- counter claim, wherein he had stated that his father had died. The petitioner took a plea that the respondent was not his landlord and that he never attorned the respondent to be their landlord, as such, paying rent to the respondent did not arise and it was stated that the respondent had no right to claim to be the landlord of the petitioner. It was stated that on refusal to receive rent, the petitioner had started to deposit rent before the Rent Controller, Dibrugarh. In the counter-claim, the petitioner had prayed to declare the sale deed no. 900/2005 as void, illegal and inoperative in the eye of law, for declaration to delete the mutation of the suit premises in the name of the respondent in the jamabandi, for declaration Page No.# 3/8

that the petitioner was the tenant of M/s. B.N. Mahatoo & Sons, cost, and other relief(s). The respondent had filed his written statement against the counter-claim filed by the petitioner.

5) In course of trial, the learned trial Court had framed 8 issues for trial, viz., (1) Whether the suit premises is maintainable in law and facts? (2) Whether plaintiff has right, title and interest over the suit premises, vide sale deed no. 900 of 2004? (3) Whether there exist landlord and tenant relationship between plaintiff and defendant? If yes whether defendants are liable to ejected from suit land? (4) Whether plaintiff is entitled to decree as prayed for? (5) To what other relief(s) parties are entitled to? (6) Whether the counterclaim is maintainable in law and facts? (7) That the sale deed no. 900 of 2004 is illegal, void and inoperative in law? (8) What other relief(s) are entitled for?

6) The respondent had examined two witnesses including himself as PW-1 and had exhibited 7 documents, viz., sale deed (Ext.1), jamabandi (Ext.2), land revenue paid receipt (Ext.3 & 4), notice to petitioner and his father (Ext.5 & 8), postal receipts (Ext.6 & 9), acknowledge due card (Ext.7). The petitioner had examined himself as DW-1, and had exhibited the following documents, viz., old rent payment receipts (Ext.A-1 to A-10), rent payment receipt (Ext.B-1 to B-10), electricity bill payment receipt (Ext.C-1 to C-10), municipal notice and receipts (Ext.D-1 to D-10), rent payment challans (Ext.E-1 to E-25). In respect of issue no.1, the learned trial Court had held that the suit was maintainable. In respect of issue nos.2 and 6, it was held that as the petitioner had admitted the sale deed, under section 116 of the Transfer of Property Act, he could not dispute the title of the respondent. It was held that when the property is transferred, there is a transfer of the interest and incidents to the transferee and the right to receive rent is a legal incidence of transfer. It was mentioned that under section 5(2) of the Assam Urban Areas Rent Control Act, it was provided that right of the tenant was not affected by transfer of interest of the landlord provided that the tenant pays rent allowable under the Act. It was held that the DW-1 had admitted that after two months of sale he came to know that the respondent had purchased the suit land. Hence, issue no.2 was decided in the affirmative and the issue no.6 was decided in the negative. In Page No.# 4/8

respect of issue no.3, it was held that the petitioner did not give notice to the respondent regarding deposit of rent in Court. It was held that rent for several months as mentioned therein was not deposited in Court in time. Thus, it was held that rent was deposited without refusal. Accordingly, it was held that the petitioner was a defaulter. It was also held that the suit premises was bona fide required by the respondent for his own use and occupation as his son was unemployed. In respect of issue nos. 4 and 7, it was held that as per the notices issued by the respondent and the proforma defendants, monthly rent was claimed at the rate of Rs.600/- per month, but rent was paid to proforma defendants at the rate of Rs.500/- per month and rent was deposited in Court at the rate of Rs.500/- per month. Accordingly, it was held that the respondent was entitled to rent at the rate of Rs.500/- per month from August, 2005 till recovery of possession of the suit premises. Accordingly, the suit was decreed with cost for arrear rent at the rate of Rs.500/- per month and for recovery of vacant possession of the suit premises by evicting the petitioner, and the counter-claim of the petitioner was dismissed.

7) The aggrieved petitioner preferred an appeal and the learned appellate Court formulated a point of determination as to whether the judgment and decree passed by the learned trial Court is just and proper and needs any interference. The learned first appellate Court discussed the evidence on record and concurred with the finding recorded by the learned trial Court on all the issues and the appeal was dismissed with cost.

8) The learned counsel for the petitioner has submitted that the respondent did not plead or prove the date on which the rent fell due and accordingly, it is submitted that without proving due date, the finding by both the learned Courts below that the petitioner was a defaulter and that he had also defaulted in depositing rent in Court were not sustainable in facts and in law. It is further submitted that the learned Courts below did not frame any issue on defaulter and bona fide requirement, as such, the finding returned on the said two points was not sustainable on facts and in law. It is submitted that the learned Courts below could not have discarded the fact that the petitioner had been depositing rent in Page No.# 5/8

Court in the name of his landlord, as such, the petitioner cannot be said to be a willful defaulter.

9) The learned senior counsel for the respondent has made his submissions in support of the concurrent finding contained in the judgment and decree passed by both the learned Courts below.

10) Out of the issues framed by the learned Courts below, the issue no. 2 and 3 appear to be of more relevant for deciding this revision. The issue no.2 relates to question whether the respondent has any right, title and interest over the suit premises vide sale deed no. 900/2005. In this regard, the petitioner could not prove that the sale deed was void, illegal or inoperative. In this regard, the petitioner did not examine the vendor of the said sale deed. As such, there is no evidence on record from which preponderance of probability can be presumed that the said sale deed was void, illegal or inoperative. Thus, there is no dispute that the respondent did not have right, title, or interest over the suit property. On the other hand, the respondent produced the notice issued by his vendor to the petitioner, thereby terminating the tenancy of the petitioner and by informing the petitioner about the sale of suit property, asked him to pay rent to the respondent. Similarly, the respondent also claimed rent from the petitioner and his father on the strength of title flowing from the said sale deed. However, the petitioner has admitted in his written statement that he was paying monthly rent to M/s. B.N. Mahatoo & Sons, his erstwhile landlord. There is also an admission in the evidence tendered by the petitioner that rent challans towards rent deposited before the Rent Controller were in the name of M/s. B.N. Mahatoo & Sons. The DW-1 has admitted having received notice from the petitioner and the proforma defendants regarding purchase of the suit premises by the respondent and the DW had also categorically admitted in his cross- examination that he had received information after two months of registration of sale deed that the respondent had purchased the land and suit premises standing thereon.

11) In light of such admission, the purported lack of pleading of due date, or Page No.# 6/8

defaulter, or bona fide requirement did not cause any prejudice to the petitioner because he knew about the nature of suit filed and relief claimed in the suit. As soon as the petitioner has admitted having knowledge regarding transfer of ownership of the suit premises in favour of the respondent, backed by receipt of notice for attornment, by his refusal to attorn his tenancy under the respondent and to pay monthly rent to the respondent, the petitioner had become a defaulter on and from the succeeding English calendar month falling immediately after the date on which such notice was serve on him. The petitioner had challenged the title of the respondent, and miserably failed to prove that the sale deed no. 900/2005 was illegal, void and inoperative, as such, the assertions of the petitioner could not be proved. Thus, the title of the petitioner, flowing from the sale deed stood established, as the respondent as transferee, steps into the shoes of the landlord with all rights and liabilities, thereby rendering the petitioner as a defaulter. The petitioner does not have a valid and sustainable ground to urge that he was paying rent to his erstwhile landlord because of his candid and clear admission that he became aware of such sale after two months of such sale. Therefore, there is nothing on record from which it can be demonstrated that the concurrent finding returned by both the learned Courts below on the issue of defaulter cannot be defaulted with.

12) The respondent has specifically pleaded in the plaint that the suit premises was bona fide required and his statement to the effect that his son was unemployed and, as such, he bona fide required the suit premises for his own use. The petitioner has not been able to show that such stand was demolished during cross- examination of PWs.

13) Therefore, the Court is not required to refer to the decision of this Court in a catena of cases including the case of Keshab Chandra Singha Vs. Moulavi Abdul Matin Choudhury, (2006) 3 GLR 635, wherein on the facts that there was no evidence on record to show that the rent has been deposited till date, this Court had held that a tenant has the duty to deposit rent regularly even if a suit is instituted against him for eviction. Reference was made to the case of Sobha Biswas v. Ranjit Lodh, 2006 (1) GLT 479 , wherein a Division Bench of this Court had held that if the court finds that the tenant has defaulted in payment of rent Page No.# 7/8

during the pendency of the ejectment proceeding, the court would be within its jurisdiction to pass an order of ejectment, treating the tenant as defaulter and pass appropriate orders thereon in the same suit by holding that the landlord cannot be subjected to file successive suits for ejectment on each occasion of default by the tenant. Thus, even viewed from this angle, the petitioner, in this present case in hand, is liable to be evicted.

14) The petitioner had contested the suit with full knowledge that the eviction suit was filed against him on the ground of defaulter and bona fide requirement. Evidence was led by both sides on these two facets, which is established from the fact that the petitioner had proved previous rent receipts and rent deposit challans. The petitioner did not take steps for proving rent control records, and moreover, as rent was deposited in the name of M/s. B.N. Mahatoo, the petitioner could not prove taking steps for service of notice of deposit of rent in Court so as to enable the landlord to withdraw rent from Court. This is a mandatory requirement under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 and the non-compliance of such statutory condition cannot save the petitioner from becoming a defaulter. Moreover, in the absence of an offer and refusal thereof, a tenant cannot deposit the rent before the court. Deposit of the rent before the court without offering the same to the landlord and refusal thereof, is contrary to the provisions of Sub-section (4) of Section 5 of the Act. The authority in this behalf is available in the case of Rup Chand Daftary v. Ashim Ranjan Modak and Anr., (2000) 2 GLR 402, decided by this Court.

15) By not proving rent deposit cases, referred to as Non- Judicial Cases, the petitioner had also not proved if such challans were deposited before the Court. Therefore, the Court is constrained to hold that the learned courts below had righty held that the petitioner was a defaulter and no error of facts or law was committed by both the learned Courts below in passing a decree for eviction of the petitioner and for recovery of arrear rent in terms of the decree.

16) Therefore, the petitioner has not been able to show that the learned Courts Page No.# 8/8

below failed to exercise jurisdiction vested in it illegally or with material irregularity. It is not the case of the petitioner that the learned Courts below failed to exercise jurisdiction vested in it by law, or that it had exercised jurisdiction not vested in it by law.

17) It would be relevant to refer to the Constitution Bench judgment of the Supreme Court of India rendered in the case of P.D. Chougule V. Maruti Hari Jadav & Ors., AIR 1966 SC 153, wherein it was held that interference was not justified if the error of lower court in question of law was not related to question of its jurisdiction. In the case of Gandhe Vijay Kumar Vs. Mulji @ Mulchand, (2017) 0 Supreme(SC) 1087, the Supreme Court of India had held that in revisional jurisdiction, the Court is expected to see only whether the findings are illegal or perverse in the sense that a reasonably informed person will not enter such finding and it was further held that the High Court should not venture to look into evidence as if in a first appeal and enter a different finding, though another finding might also be possible and that merely because another view is possible in exercise of revisional jurisdiction, the High Court cannot upset the factual finding.

18) The finding of fact that the petitioner was a defaulter and that the suit premises is bona fide required by the respondent are concurrent finding, which has been examined as indicated herein before and no perversity has been found in returning of such finding by both the learned Courts below. Therefore, the judgment and decree as passed by the first appellate Court, thereby affirming the decree passed by the learned trial Court does not warrant any interference by this Court in exercise of jurisdiction under Section 115 read with section 151 CPC. Therefore, this revision fails.

19)              This revision, therefore, stands dismissed.




                                                                          JUDGE

Comparing Assistant