Page No.# 1/18 vs Bichitra Bhagawati
2025 Latest Caselaw 10 Gua

Gauhati High Court

Page No.# 1/18 vs Bichitra Bhagawati on 1 April, 2025

                                                                     Page No.# 1/18

GAHC010248952018




                                                               2025:GAU-AS:3745

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

                             Case No. : CRP/88/2019

           AMIYA KUMAR BHATTACHARYYA
           S/O LT. RAMANI MOHAN BHATTACHARYA, R/O BAIUNTHAPUR,
           GUWAHATI-781029, P.S. BASISTHA, DIST.-KAMRUP (M), ASSAM

           VERSUS

           BICHITRA BHAGAWATI
           S/O LT. NARAYAN SARMA, R/O BAIUNTHAPUR, GUWAHATI-781029, P.S.
           BASISTHA, DIST. KAMRUP (M), ASSAM



Advocate for the Petitioner : MR. B D DEKA, N CHAUDHURY,MR. M DEKA,MR H NATH
Advocate for the Respondent : MR. P UPADHYAY, MR A UPADHYAY

BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

For the Petitioner : Mr. B. D. Deka, Advocate

For the Respondent : Mr. P. Upadhyay, Advocate,

Date of Judgment : 01.04.2025

JUDGMENT & ORDER (CAV)

1. Heard Mr. B. D. Deka, learned counsel for the petitioner. Also heard Mr. P. Upadhyay, learned counsel for the respondent.

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2. This revision petition under Section 115 of the Code of Civil Procedure, 1908 has been preferred by the petitioner, namely, Sri Amiya Kumar Bhattacharyya, impugning the judgment and decree dated 06.08.2018 passed by the learned Civil Judge No. 2, Kamrup(M), Guwahati in Title Appeal No. 22/2016, whereby it allowed the appeal and set aside the judgment and decree dated 08.02.2016 passed by the learned Munsiff No. 2, Kamrup(M) at Guwahati in Title Suit No. 65/2011.

3. The facts relevant for consideration of the instant revision petition, in brief, are as follows:-

i. That the present respondent, namely, Sri Bichitra Bhagawati as plaintiff had instituted a Title Suit No. 65/2011 for ejectment of the present petitioner/defendant from a tenanted "Tin-Chali House" measuring about 24 Ft. in length and 20 Ft. in breadth standing over a plot of land, measuring 2 Kathas, covered by Dag No. 15 of Village-Maidamgaon under Mouza-Beltola, Kamrup(M), Guwahati. The present respondent/plaintiff also prayed for relief for permanent injunction as well as realization of arrear rent from the present petitioner.

ii. In the plaint filed by the respondent before the Trial Court in Title Suit No. 65/2011, it has been pleaded that the present petitioner/defendant is the brother-in-law of the plaintiff and the aforementioned "Tin-Chali House" was let out to the present petitioner/defendant by the respondent/plaintiff in the year 1994 and there was a verbal agreement between them for a payment of monthly rent, which was fixed at Rs.300/- in the year 2004, which was payable within the first week of the succeeding month. It was further pleaded in Page No.# 3/18

the plaint that the defendant/petitioner paid the monthly rent up-to 30.06.2006 and thereafter he stopped payment of rent and on this he was asked to vacate the tenanted premises. However, when he did not leave the tenanted premises, the present respondent/plaintiff filed an ejectment suit and also prayed for realization of arrear rent of Rs.3600/- for the period of 01.07.2006 to 30.06.2007. The said suit was registered as Title Suit No. 400/2007. The said suit was also contested by the present petitioner/defendant by filing a written statement.

iii. In the said Title Suit No. 400/2007, the present petitioner/defendant contended that 1 Katha 5 Lecha of land was purchased by him at Village Garbhanga in the year 1990 and since then he was in possession over said 1 Katha 5 Lecha of land by constructing an Assam type house on the said land. It was also contended that he was not staying in the rented premises of the present respondent/plaintiff and there was no question of payment of house rent. The said suit (Title Suit No. 400/2007) was dismissed by the Trial Court and the present respondent/plaintiff preferred an appeal challenging the judgment of the Trial Court. The appeal was registered as Title Appeal No. 47/2010. The said appeal was dismissed by the judgment dated 29.11.2010 by the learned Civil Judge No. 2, Kamrup(M), Guwahati in Title Appeal No. 47/2010 on the ground that the default by the present petitioner/defendant could not be proved in the title suit. However, the Appellate Court held that the present petitioner/defendant was a tenant under the respondent/plaintiff in respect of the scheduled premises. None of the party challenged the judgment dated 29.11.2010 passed by the Appellate Court.

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iv. The present respondent/plaintiff has pleaded in the plaint, which he had filed in Title Suit No. 65/2011, that after the judgment of the Appellate Court in Title Appeal No. 47/2010, which held that the present petitioner/defendant is a tenant of present respondent/plaintiff, the rent for the month of December, 2010 became due in the next month. However, he failed to pay the same in spite of the demand for the payment by the present respondent/plaintiff. Hence, the present respondent/plaintiff again prayed for ejectment of present petitioner/defendant in Title Suit No. 65/2011.

v. The Title Suit No. 65/2011was contested by the present petitioner/defendant by filing written statement wherein he denied that he is a tenant under the plaintiff since 1994. He has also pleaded that the earlier suit filed by the present respondent/plaintiff i.e., Title Suit No. 400/2007 has already been dismissed. He had also stated that he has purchased the plot of land measuring 1 Katha 5 Lecha in the year 1993 and there is no question of residing in the rented premises of the present respondent/plaintiff as the Assam type house in which he is residing belongs to him. The present petitioner/defendant denied the case of the plaintiff and also denied of any landlord tenant relationship between them.

vi. On pleadings of both the parties, the Trial Court framed following issues:-

"(i) Whether there is cause of action for this suit?

(ii) Whether defendant is a defaulter in payment of rent?

(iii) Whether the plaintiff is entitled to a decree as prayed for?

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(iv) To what relief the parties are entitled to."

vii. It is pertinent to mention herein that a preliminary issue was raised by the present petitioner/defendant i.e., whether the suit is barred by law of res judicata and by order dated 24.02.2012, the Trial Court decided the issue in negative i.e., the suit is not barred by res judicata.

viii. Both the parties adduced evidence in support of their respective case. However, by the judgment dated 06.02.2016, passed in Title Suit No. 65/2011, the learned Munsiff No. 2, Kamrup(M) dismissed the suit by holding that the present respondent/plaintiff failed to prove that the present petitioner/defendant was a defaulter in payment of rent.

ix. Aggrieved by the aforesaid judgment and decree passed by the Munsiff No. 2, Kamrup(M), in Title Suit No. 65/2011, the present respondent preferred an appeal against the said judgment. The said appeal was registered as Title Appeal No. 22/2016 before the Court of the learned Civil Judge No. 2, Kamrup(M).

x. By the judgment and decree dated 06.08.2018 passed in Title Appeal No. 22/2016, the Court of the learned Civil Judge No. 2, Kamrup(M), Guwahati held that in absence of any challenge to the judgment dated 29.11.2010 passed in Title Appeal No. 47/2010, the relationship between the present petitioner and the respondent is that of tenant and a landlord. It was also held that since the factum of tenancy has been established and since admittedly the present petitioner did not pay rent to the present respondent, he was held to be a defaulter and accordingly the decree of ejectment was passed. The aforesaid judgment Page No.# 6/18

and decree dated 06.08.2018 passed in Title Appeal No. 22/2016 has been impugned in this revision petition by the present petitioner.

4. Mr. B. D. Deka, learned counsel for the petitioner has submitted that neither the Trial Court nor the First Appellate Court famed any issue regarding the main contentious issue between the parties as to whether there exist any relationship of tenant and landlord between the present petitioner and the respondent. He also submits that both the Courts were wrong in presuming that there was no necessity of framing such an issue in view of the finding in the judgment dated 29.11.2020 passed in Title Appeal No. 47/2010.

5. The learned counsel for the petitioner has submitted that in the impugned judgment the Court of the learned Civil Judge No. 2, Kamrup(M) based its finding on Exhibit-7 i.e., the judgment passed in Title Appeal No. 47/2010 dated 29.11.2020 wherein the present petitioner was held to be a tenant of the present respondent.

6. The learned counsel for the petitioner has submitted that the Appellate Court had virtually invoked the principle of res judicata to discard the contention of the petitioner as the present petitioner did not challenge the judgment dated 29.11.2010 passed in Title Appeal No. 47/2010, the present petitioner was held to be tenant under the respondent.

7. The learned counsel for the petitioner submits that the First Appellate Court failed to appreciate the fact that as the Title Appeal No. 47/2010 was dismissed, there was no occasion for the petitioner to agitate the said judgment and decree as it was not against him. He also submits that as the aforesaid appeal was eventually dismissed, no appeal would have lie against the mere finding. The learned counsel for the petitioner has cited a ruling of the Apex Page No.# 7/18

Court in the Case of "Ganga Bai -Vs- Vijay Kumar & Ors" reported in "(1974) 2 SCC 393" in support of his submission.

8. The learned counsel for the petitioner has also cited a ruling of the Apex Court in the case of "Deva Ram and Anrother-Vs- Ishwar Chand AndAnr.,"reported in"(1995) 6 SCC 733" in support of his submission that where

a decree is wholly in favour of a person, he has no right to appeal so as to enable him to contest adverse finding and such adverse finding cannot operate as res judicata.

9. The learned counsel for the petitioner has, therefore, submitted that as no issue was framed as regards the fact as to whether the petitioner is a tenant of the respondent or not, this is a fit case to remand the case back to the Trial Court for framing the said issue and for determining as to whether their exist any such relationship between them.

10. The learned counsel for the petitioner has also submitted that in any suit where the plea of default of payment of rent by the tenant to the landlord is taken by the plaintiff, it is incumbent upon the landlord to establish the due date as well as rate of rent, however, in the instant case, the respondent has failed to produce any material regarding said facts. It is submitted that the Appellate Court also failed to record any findings in this regard.

11. The learned counsel petitioner has also cited the following rulings in support of his submission:-

(i) "Tushar Kanti Dey -Vs- Sulata Choudhury and Ors.," reported in "2002 (1) GLT 51"

(ii) "Upendra Chandra Deb Roy -Vs- Smti. Subhashini Deb and two Ors."

reported in "1989 (2) GLR 7"

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12. The learned counsel for the petitioner has also submitted that the land over which the suit property is situated is admittedly a Government land. However, the respondent has failed to produce any material to show that he had any vested right over the property to pose as landlord of the petitioner, therefore, the learned counsel for the petitioner has prayed for allowing the present revision petition by setting aside the impugned judgment of the First Appellate Court.

13. On the other hand, Mr. P. Upadhyay, the learned counsel for the respondent/plaintiff has submitted that the First Appellate Court by the impugned order dated 06.08.2018, passed in Title Appeal No. 22/2016, has correctly held the present petitioner/defendant as defaulter in payment of rent and rightly passed the decree for his ejectment from the suit premises. The learned counsel for the respondent has submitted that the Trial Court i.e., the Court of the learned Munsiff No. 2, Kamrup(M) at Guwahati in Title Suit No. 65/2011, while deciding the issue No. 2, has held that there is a relationship of landlord and tenant between the plaintiff and the defendant. He has submitted that the petitioner/defendant being aggrieved by the said finding could have challenged the finding by filing a cross appeal. However, as the same was not done the said finding has attained finality and, therefore, the said issue may not be raised again. In support of his submission, the learned counsel for the respondent has cited a ruling of the Apex Court in the case of " Biswajit Sukul -Vs- Deo Chand Sarda and Ors., " reported in "(2018) 10 SCC 584" wherein it was observed as follows:-

"13. This question i.e. first part of Issue 4 was decided by the trial court in the plaintiff's favour wherein it was held that Defendant 1 was the plaintiff's tenant. So far as second part of Issue 4 is concerned, it was in relation to the question as to whether Defendant 1 was a defaulter in payment of rent to the plaintiff. This question was answered by the trial court against the plaintiff and in Defendant 1's favour wherein it was held that Defendant 1 did not commit any default in payment of rent to the plaintiff. It is for this reason, the suit was dismissed.

14. The plaintiff in his first appeal did not challenge the finding of the trial court Page No.# 9/18

recorded on the first part of Issue 4 and rightly so because it was already answered by the trial court in his favour. The first appellate court, therefore, could not examine the legality and correctness of this finding in the plaintiff's appeal unless it was challenged by the defendants by filing cross-objection under Order 41 Rule 22 of the Code in the appeal.

15. As mentioned above, the defendants though suffered the adverse finding on first part of Issue 4 but did not file any cross-objection questioning its legality. In the light of these admitted facts arising in the case, the first appellate court had no jurisdiction to examine the legality and correctness of the finding on first part of Issue 4 in the plaintiff's appeal and reverse it against the plaintiff."

14. The learned counsel for the respondent has also submitted that though no specific issue was framed by the Trial Court regarding the relationship of landlord and tenant between the plaintiff and the defendant, however, while discussing the issue No. 2, the said aspect was discussed and it was held by the Trial Court that there exists a relationship of landlord and tenant between the plaintiff and the defendant. He has also submitted that the present petitioner/defendant has failed to show as to how he was prejudiced by non- framing of specific issue regarding relationship of landlord and tenant between the present respondent and him. He submits that both the parties went to trial fully knowing their rival cases and let all the evidence in support of their contention as well as in refutation of the other side's case and, therefore, not framing of specific issue has in no manner prejudiced the present petitioner. In support of his submission, the learned counsel for the respondent has cited following cases:-

(i) "Nedunuri Kameswaramma vs Sampati Subba Rao" reported in "AIR 1963 SC 884".

(ii) "Hazi Abdul Salam Borlaskhar v. Ruttonepore Plantation Ltd. & ors"

reported in "2000 (1) GLT 291".

15. The learned counsel for the respondent has also submitted that in the present revision petition, this Court is exercising its revisional jurisdictions which is distinguishable from the appellate jurisdiction of the First Appellate Court and unless the finding of the First Appellate Court is perverse or has been arrived at Page No.# 10/18

without consideration of the material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous, only in such circumstances this Court can interfere with the finding of that Court in exercise of its revisional power. However, in the instant case, the learned counsel for the respondent submits that there has been no such illegality or impropriety in the finding of the Trial Court as well as the First Appellate Court. In support of his submission, the learned counsel for the respondent has cited a ruling of the Apex Court in the case of "Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh" reported in "(2014) 9 SCC 78" wherein the Apex Court has observed as follows:-

"43. We hold, as we must, that none of the above Rent Control Acts

entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated Page No.# 11/18

above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity".

16. The learned counsel for the respondent has also submitted that in a case under Rent Control Act for eviction on the ground of defaulter in payment of rent, the onus to show the payment of rent lies on the tenant and if he fails to relieve that burden, he is liable to be ejected, and in the instant case the respondent has failed to relieve that burden, hence, he is liable to be ejected. In support of his submissions, the learned counsel for the respondent has cited a ruling of the Allahabad High Court in the case of "Sukhanand -Vs- The IV Additional District Judge, Bulandshahr and Anr.," reported in "(1994) AIR (Allahabad) 59".

17. I have considered the submissions made by the learned counsel for both the sides and have gone through the case records of Title Appeal No. 22/2016 as well as Title Suit No. 65/2011, which were requisitioned from the respective Courts in connection with this revision petition.

18. It is a settled principle of law that while exercising its revisional jurisdiction the High Court is expected to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it. It is also well settled while exercising its jurisdiction as a Revisional Court, its powers cannot be equated with the power of re-consideration of all questions of fact as a Court of Page No.# 12/18

first appeal. However, it may examine whether the order impugned before it suffers from any procedural illegality or irregularity.

19. In the instant case, we have seen that the Title Suit No. 400/2007 which was filed by the present respondent against the present petitioner for eviction of the present petitioner was dismissed by the Trial Court. Against the said order of the dismissal, the present respondent had preferred an appeal which was registered as Title Appeal No. 47/2010 which was also dismissed by the Appellate Court. However, in that appeal a finding was given by the Appellate Court that there exists a relationship of tenant and landlord between the present petitioner and the respondent. None of the parties preferred any appeal or approached any higher forum impugning the said judgment.

20. It is pertinent to note that in the Title Suit No. 65/2011, the Trial Court did not frame any issue regarding existence of any relationship of landlord and tenant between the respondent and present petitioner. However, while deciding the issue No. 2 i.e., as to whether the defendant, i.e., the present petitioner, is a defaulter of rent, the Trial Court relied on the judgment of the learned Civil Judge No. 2, Kamrup(M), Guwahati passed in Title Appeal No. 47/2010 in arriving at a finding that there exists a relationship of tenant and landlord between the petitioner and the respondent. It is pertinent to note that though issue No. 2 was decided as aforesaid by the Trial Court, however, ultimately the Title Suit No. 65/2011 was dismissed and, therefore, the present petitioner did not file any appeal against the same. It is also pertinent to note that in the impugned judgment and decree dated 06.08.2018 passed in Title Appeal No. 22/2016, the First Appellate Court also relied on the judgment passed in Title Appeal No. 47/2010 to come to the finding that there exists a relationship of tenant and landlord between the present petitioner and the respondent.

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21. In the case of "Gangabai -Vs- Vijay Kumar" reported in "(1974) 2 SCC 393", the Apex Court has observed as follows:-

"15. It is thus clear that the appeal filed by Defendants 2 and 3 in the

High Court was directed originally not against any part of the preliminary decree but against a mere finding recorded by the trial ourt that the partition was not genuine. The main controversy before us centres round the question whether that appeal was maintainable. On this question the position seems to us well established. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous to claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.

16. Under Section 96(1) of the Code of Civil Procedure, save where otherwise expressly provided by the Code or by any other law for the time being in force, an appeal lies from every decree passed by any court exercising original jurisdiction, to the Court authorised to hear appeals from the decisions of such court. Section 100 provides for a second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court. Section 104(1) provides for appeals against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law for the time Page No.# 14/18

being in force an appeal shall lie "from no other orders". Clause (i) of this section provides for an appeal against "any orders made under Rules from which an appeal is expressly allowed by rules". Order 43 Rule 1 of the Code, which by reason of clause (i) of Section 104(1) forms a part of that section, provides for appeals against orders passed under various rules referred to in clauses (a) to (w) thereof. Finally, Section 105(1) of the Code lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a court in exercise of its original or appellate jurisdiction.

17. These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43 Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. It must follow that First Appeal No. 72 of 1959 filed by Defendants 2 and 3 was not maintainable as it was directed against a mere finding recorded by the trial court".

22. In the instant case also, as there was only a mere finding against the present petitioner in Title Appeal No. 47/2010 as well as Title Suit No. 65/2011, he could not have preferred an appeal against a mere finding recorded by the aforesaid case against him.

23. In this regard, the observations of the Apex Court made in the case of "Deva Ram -Vs- Iswar Chand" reported in "(1995) 6 SCC 733" are also relevant and same are reproduced herein below:-

"25. Let us now consider the plea regarding the effect of an adverse

finding recorded by the court against a party in whose favour the suit or the appeal is ultimately decided.

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26. It is provided in Section 96 of the CPC that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeal from the decision of such court. So also, Section 100 provides that an appeal shall lie to the High Court from every decree passed in appeal. Thus sine qua non in both the provisions is the 'decree' and unless the decree is passed, an appeal would not lie under Section 96 nor would it lie under Section 100 of the Civil Procedure Code. Similarly, an appeal lies against an 'order' under Section 104 read with Order 43 Rule 1 of the Civil Procedure Code where the 'orders' against which appeal would lie have been enumerated. Unless there is an 'order' as defined in Section 2(14) and unless that 'order' falls within the list of 'orders' indicated in Order 43, an appeal would not lie.

27. Thus, an appeal does not lie against mere 'findings' recorded by a court unless the findings amount to a 'decree' or 'order'. Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right of appeal and he cannot question those findings before the appellate court. (See Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393 : (1974) 3 SCR 882] .)

28. In Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy [AIR 1922 PC 241 : 48 IA 49, 55] , it was observed as under:

"Their Lordships do not consider that this will be found an actual

plea of res judicata, for the defendants, having succeeded on the other plea, had no occasion to go further as to the finding against them: but it is the finding of a court which was dealing with facts nearer to their ken than the facts are to the Board now, and it certainly creates a paramount duty on the appellants to displace Page No.# 16/18

the finding, a duty which they have now been able to perform."

29. Similar view was also expressed in an earlier decision in Run Bahadur Singh v. Lucho Koer [ILR (1885) 11 Cal 301 : 12 IA 23 (PC)] .

30. The Oudh Chief Court in Pateshwari Din v. Mahant Sarju Dass [AIR 1938 Oudh 18 : 1937 OWN 1127] held that where a decree in previous suit is wholly in favour of a person and gives him all the reliefs sought for by him, he has no right of appeal against the decree so as to enable him to contest any adverse finding against him in such suit. Hence, such adverse finding cannot operate as res judicata as against him in a subsequent suit".

24. From the above rulings of the Apex Court, it also appears that from the finding of a Court against which the petitioner could not have preferred an appeal, said finding would also not operate as res judicata against him in a subsequent suit, therefore, this Court is of considered opinion that in the impugned order passed by the Court of the learned Civil Judge No. 2, Kamrup(M), Guwahati in Title Appeal No. 22/2016 as well as in the judgment of the Trial Court dated 06.08.2018 passed in Title Suit No. 65/2011, the said Courts could not have decided the question of whether there is a relationship of tenant and landlord between the petitioner and the respondent merely on the basis of the finding of the Court of learned Civil Judge No. 2, Kamrup(M), Guwahati in Title Appeal No. 47/2010 as the petitioner did not have an opportunity of impugning the said judgment by preferring any appeal against the finding against him and, therefore, same did not operate as res judicata against him in the subsequent suit i.e., Title Suit No. 65/2011.

25. In light of the rulings of the Apex Court discussed in the foregoing paragraphs, which has laid down the law that against a mere finding no appeal can be preferred, the present petitioner could not have filed any cross objection Page No.# 17/18

under Order 41 Rule 22 of the Code of Civil Procedure, 1908, in the Title Appeal No. 22/2016. Further, in Title Suit No. 65/2011, the averment made by the present respondent in paragraph No. 2 of the plaint regarding existence of the relationship of a landlord and tenant between the present respondent and the present petitioner has been categorically denied by the petitioner in the written statement filed by him in the said suit, it was incumbent upon the Trial Court to frame a specific issue as to whether the petitioner is a tenant under the respondent in respect of the suit premises. However, in the instant case no such issue was framed. This issue, in the considered opinion of this Court is the most contentious and the main issue to be decided in the dispute between both the parties.

26. The issue as to whether there is any relationship of tenant and landlord between the present petitioner and the respondent has to be decided by the Trial Court independently of the finding of the Court of the learned Civil Judge No. 2, Kamrup(M), Guwahati in Title Appeal No. 47/2010 as said decision does not operate as res judicata in Title Suit No. 65/2011. The issue No. 2 framed by the Trial Court in Title Suit No. 65/2011 and any finding on the issue regarding to the defaulter of rent, would be relevant only upon the finding arrived at in respect of the issue regarding relationship of tenant and landlord between the present petitioner and the respondent.

27. This Court is, therefore, of the considered opinion that ends of justice would be served if this case is remanded back with a direction to frame an additional issue as to whether the defendant is the tenant under the plaintiff in respect of the suit premises as additional issue No. 1A. The Trial Court shall thereafter decide the issue No. 1A and issue Nos. 2, 3 and 4. This Court is of the considered opinion that the First Appellate Court, while passing the impugned Page No.# 18/18

judgment in the Title Appeal No. 22/2016 has failed to take into consideration the above mentioned aspects, which are discussed hereinbefore.

28. Accordingly, the impugned judgment and decree dated 06.08.2018 passed in Title Appeal No. 22/2016 by the Court of the learned Civil Judge No. 2, Kamrup(M), Guwahati is hereby set aside and the Title Suit No. 65/2011 is remanded back to the Court of the learned Munsiff No. 2, Kamrup(M) at Guwahati with a direction to frame the additional issue as mentioned herein above and thereafter decide all the issues afresh.

29. It is also made clear that since the additional issue No. 1A shall be framed afresh, both the parties shall be afforded opportunity to adduce evidence with regard to the said issue and thereafter the Trial Court shall decide all the issue and shall give its judgment on all the issues afresh.

30. The Registry is directed to send back the records of Title Suit No. 65/2011 to the Trial Court as well as records of Title Appeal No. 22/2016 of the First Appellate Court immediately.

31. As both the parties are represented by their learned counsel before this Court, both the parties are directed to appear before the Court of the learned Munsiff No. 2, Kamrup(M) at Guwahati in Title Suit No. 65/2011 on 15.05.2025 so that the Trial Court may proceed in accordance with the above directions given in this judgment.

32. This revision petition is accordingly disposed of.

JUDGE

Comparing Assistant