Gauhati High Court
Smti Hiranmayee Deka (Mahanta) vs Abdul Kalam Azad on 31 May, 2024
Author: Devashis Baruah
Bench: Devashis Baruah
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GAHC010244052023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/172/2023
SMTI HIRANMAYEE DEKA (MAHANTA)
W/O LT. BABUL DEKA, R/O 1ST FLOOR, TINIALI WARD NO. 7, RANGIA
TOWN, P.S.-RANGIA, DIST-KAMRUP, ASSAM
VERSUS
ABDUL KALAM AZAD
S/O LT. AISH ALI, R/O VILL AND P.O.-BIHARPARA, P.S.-TAMULPUR, PIN-
781367, DIST-TAMULPUR, BTAD, ASSAM
For the petitioner (s) : Mr. P. Upadhyay, Advocate
For the respondent (s) : Mr. S. K. Goswami, Advocate
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
ORDER
31.05.2024
This is an application under Section 115 of the Code of Civil Procedure,
1908 (for short, 'the Code') challenging the judgment and decree dated
19.08.2023 passed by the learned Civil Judge, Kamrup, Amingaon in Title
Appeal No.14/2019 whereby the judgment and decree passed by the learned
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Trial Court dated 25.03.2019 in Title Suit No.7/2009 was affirmed.
2. From a perusal of the plaint, it reveals that the suit so filed was a suit
for ejectment of the defendant on the basis that the defendant is a tenant
occupying the suit premises on monthly rent basis. However, the petitioner
herein who was the defendant took a plea that the plaintiff was not the
landlord having right, title and interest upon the suit premises and the
defendant was not a tenant during the lifetime of Late Madhab Das and did
not become a tenant under the plaintiff. It was also the specific case of the
defendant that he had acquired title upon the suit premises from 01.04.1994
on the basis of adverse possession. Taking into account the said stand which
has been specifically taken by the defendant thereby contesting the title of
the plaintiff, the suit becomes a suit based in title. In fact, a perusal of Issue
No.6 (a) shows that the learned Trial Court has framed an Issue as to
whether the defendant occupied the suit premises against the will of the
proforma defendant since 01.04.1994 and acquired hostile title upon the suit
premises after 12 years in 31.05.2006. Be that as it may, the learned Trial
Court came to a specific finding that the defendant was a tenant and
accordingly decreed the suit in favour of the plaintiff vide the judgment and
decree dated 25.03.2019. The defendant thereupon preferred an Appeal
before the Court of the Civil Judge (Senior Division), Kamrup at Amingaon
which was registered and numbered as Title Appeal No.14/2019. In the said
Appeal also the defendant categorically raised the Issue of adverse
possession and claimed hostile title as against the predecessor-in-interest of
the plaintiff as well as the plaintiff. The learned First Appellate Court however
decided the Issue No.6 (a) against the defendant holding inter-alia that as
the defendant was a tenant, the question of adverse possession did not
arise. The Issue No.6 (a) was also again decided against the defendant. The
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learned First Appellate Court dismissed the said Appeal vide the judgment
and decree dated 19.08.2023. It is against that, the instant application has
been filed under Section 115 of the Code.
3. Mr. P. Upadhaya, the learned counsel for the petitioner submitted that
the defendant is not a tenant of the plaintiff and the defendant claims right
over the suit premises on the basis of adverse possession. The learned
counsel for the petitioner further submitted that the learned Trial Court as
well as the learned First Appellate Court did not decide the Issue No.6 (a) in
the proper perspective, and as such, the judgment and decree passed by
both the Courts below should be interfered with.
4. This Court put a specific query upon the learned counsel for the
petitioner as to why the revision application has been filed invoking the
jurisdiction under Section 115 of the Code and not a Second Appeal. The
learned counsel for the petitioner submitted that in view of the findings of
fact arrived at that the defendant is a tenant coming within the ambit of the
Assam Urban Area rent Control Act, 1972 (for short, 'the Act of 1972') and in
view of the bar under Section 8 of the said Act of 1972, the revision
application has been filed.
5. Be that as it may, the learned counsel for the petitioner further
submitted that the petitioner continues to agitate that the petitioner had
acquired right over the suit premises on the basis of adverse possession, and
as such, the suit which was filed was barred by limitation.
6. Taking into account the specific stand taken by the petitioner in the
opinion of this Court, the said stand cannot be taken up in a proceedings
under Section 115 of the Code in as much as if the question of title over the
suit premises is the question, the same goes outside the purview of the Act
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of 1972.
7. Considering the above, this Court therefore holds that the instant
proceedings under Section 115 of the Code is not maintainable in as much as
an Appeal lies under Section 100 of the Code.
8. This Court duly holds that the petitioner herein has been bonafidely
litigating before this Court in the instant revision petition. Accordingly, this
Court further is of the opinion that the petitioner is entitled to the benefit
under Section 14 of the Limitation Act, 1963. Accordingly, this Court though
dismisses the instant petition on the ground of maintainability, however
liberty is given to the petitioner to file an Appeal under Section 100 of the
Code subject to the same being permissible in terms with the mandate of
Section 100 of the Code.
9. This Court further observes that the period from 17.10.2023 till date be
excluded while computing the period of limitation if the petitioner herein files
an Appeal. In addition to that, this Court grants liberty to the counsel
appearing on behalf of the petitioner to file an application before the Registry
of this Court for obtaining the certified copy of the judgment and decree
passed by both the Courts below which are presently in the records of the
instant proceedings. If such an application is being filed, the Registry shall
provide the certified copies of so enclosed to the instant revision application
forthwith and not later than 5 (five) days.
10. With the above, the instant petition stands dismissed.
11. Interim order if any stands vacated.
JUDGE
Comparing Assistant
