Page No.# 1/ vs Bijoy Kumar Ajitsaria
2025 Latest Caselaw 5434 Gua

Gauhati High Court

Page No.# 1/ vs Bijoy Kumar Ajitsaria on 17 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                     Page No.# 1/10

GAHC010118672023




                                                               2025:GAU-AS:8143

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

                                  Case No. : RSA/103/2023

            RADHESHYAM HARLAKA
            S/O LATE RAGHUNATHJI HARLAKA, RESIDENT OF JYOTI NAGAR, ( BACK
            SIDE OF B.N AGARWAL) PO, PS AND DIST HAILAKANDI, ASSAM 786001



            VERSUS

            BIJOY KUMAR AJITSARIA
            S/O LATE MOTILALA AJITSARIA,
            RESIDENT OF G.N.B ROAD, TINSUKIA, PO. PS AND DIST TINSUKIA,
            ASSAM 786125



For the Petitioner(s)      : Mr. D.K. Bagchi, Advocate
For the Respondent(s)       : Mr. S.C. Keyal, Advocate

Date of Hearing                           : 17.06.2025
Date of Judgment                         : 17.06.2025


                                       BEFORE
                        HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                              JUDGMENT AND ORDER (ORAL)

Heard Mr. D.K. Bagchi, the learned counsel appearing on behalf of the appellant. Mr. S.C. Keyal, the learned counsel appears Page No.# 2/10

on behalf of the respondent.

2. The instant appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 (for short, "the Code") challenging the judgment and decree dated 03.03.2023 passed by the learned Court of the Civil Judge, Dibrugarh (hereinafter referred to as, "the learned First Appellate Court") in Title Appeal No. 15/2018 whereby the judgment and decree dated 25.07.2018 passed by the learned Court of the Munsiff No. 1, Dibrugarh (hereinafter referred to as, "the learned Trial Court") in Title Suit No. 113/2010 was affirmed.

3. It is seen that the learned Coordinate Bench of this Court vide an order dated 16.06.2023 admitted the instant appeal by formulating 2 (two) substantial questions of law which reads as under:

"a. Whether the learned court below in absence of any documentary evidence are justified in believing the fact that the status of the appellant is that of a tenancy and that the interest on the security deposit of Rs. 90,000/- (Rupees Ninety Thousand) only which comes out to be Rs. 675/- per month (Rupees Six Hundred Seventy five) only which the defendant was asked to address the same against the rent of Rs. 90,110/-?

b. Whether the learned courts below are justified in not taking into consideration the admitted fact in the evidence of plaintiff of PW 1 with regard to investment and supervising the construction work of the suit premises?"

4. The question arises in the instant proceedings, as to whether, the 2 (two) substantial questions of law so formulated are involved in the Page No.# 3/10

instant appeal.

5. This Court has duly heard the learned counsels appearing on behalf of the parties on the 2 (two) substantial questions of law.

6. Before deciding, as to whether, the said 2 (two) substantial questions of law are involved in the instant appeal, this Court finds it relevant to take note of the brief facts which led to the filing of the present appeal.

7. The respondent herein as plaintiff had filed the suit being Title Suit No. 113/2010 seeking right, title and interest over the suit premises; for ejectment/eviction of the defendant, his dependants, relations, agent, men, workers etc. from the suit premises; for recovery of Rs. 14,300/- as arrear rent on and from December, 2008 up to December, 2009 and Rs. 8,800/- as compensation on and from 01.01.2010 up to 31.08.2010; for recovery of future compensation from September, 2010 till recovery of khas and vacant possession of the suit premises.

8. The case of the plaintiff in the said suit was that he is the owner of a plot of land admeasuring 1 Katha 5 Lechas covered by part of Dag No. 396/730 (New) of P.P. Patta No. 267 (New) of Gabharupathar

Ward, Dibrugarh (2nd Khanda). The plaintiff after obtaining a permission from the Dibrugarh Municipal Board in the month of Page No.# 4/10

January, 1987 started construction of the work of a two-storied building on a portion of his aforesaid land through his uncle Sri Gopal Ajitsaria who resides in Dibrugarh. The appellant herein who is the defendant in the said suit is the brother-in-law of the plaintiff and the son-in-law of Sri Gopal Ajitsaria. Sri Gopal Ajitsaria engaged the defendant to supervise the construction at a monthly remuneration of Rs. 1000/- and a temporary loan was taken by Sri Gopal Ajitsaria in the month of March, 1987 from the defendant and thereafter the defendant claimed that he had spent Rs. 47,110/- from his pocket to which the plaintiff agreed to pay. The construction was completed in the month of September, 1987 and the defendant requested the plaintiff, through Sri Gopal Ajitaria to allow him to reside in the ground floor of the house/two-storied building for some time, as his landlord of his rented house at Naliapool was pressing him hard to vacate the same and considering the difficulties of the defendant, the plaintiff allowed him to reside therein for four to five months.

9. It was further averred in the plaint that the defendant agreed to stay in the suit premises as a tenant at a monthly rent of Rs. 1,100/- per month and to vacate the same as and when needed. The amount of Rs. 90,000/- was to be kept as a security deposit out of his dues of Rs. 90,110/- free of interest. It was also agreed to that an amount of Rs. 675/- would be deducted per month from the amount of Rs. 90,000/- and the remaining amount of Rs. 425/- per month shall be Page No.# 5/10

paid by the defendant to the plaintiff. It was further averred that in the month of March, 1991, the defendant, on account of financial difficulty, requested the plaintiff to adjust from the amount of Rs. 90,000/-. The plaintiff continued to adjust the said amount and in the month of November, 2008, the entire amount of Rs. 90,000/- was exhausted.

10. Subsequent thereto, the defendant did not pay any rent since December, 2008 and he became a heavy defaulter. Under such circumstances, a legal notice was issued to the defendant to vacate

the suit premises w.e.f. 31st of December, 2009 and also to pay the arrear rent. The defendant after receipt of the said notice requested the plaintiff to allow him to reside for another 3 (three) months for making alternative arrangements and the plaintiff considering the relationship, as he was his brother-in-law allowed the defendant to reside till 31.03.2010. Even after 31.03.2010, as the defendant did not vacate the suit premises, the suit was filed seeking the reliefs as already above mentioned.

11. The defendant filed the written statement along with the counter claim wherein he denied each and every averment made in the plaint. It was the specific case of the defendant in the written statement that he was not a tenant of the plaintiff. He had invested an amount of Rs. 2,00,000/- to lay the foundation of the three-storied building on the Page No.# 6/10

suit land and construct the pucca R.C.C. ground floor for himself. The defendant filed the counter claim, seeking declaration that he is the owner of the suit premises and is in peaceful possession thereof; declaration that the mutation of holding is not proof of title in respect of the suit premises in favour of the plaintiff as well as for perpetual and mandatory injunction.

12. To the said counter claim, the plaintiff had filed the written statement denying to the statements and averments made in the written statement cum counter claim and further reiterating the statements made in the plaint.

13. On the basis of the pleadings, the learned Trial Court framed as many as 7 (seven) issues, which being relevant are reproduced herein under:

               "i.     Is there any cause of action for the suit?

                ii.    Is the suit bared by limitation?

iii. Whether the plaintiff and the counter claimant got right, title and ownership over the suit premises?

iv. Whether the mutation of holding is any proof of title for suit premises in favour of plaintiff?

v. Whether defendant is liable for eviction from the suit premises?

vi. Whether plaintiff is entitled for recovery of Rs. 14300/- as arrear of rent from December, 2008 up to December, 2009 and Rs. 8,800/- as Page No.# 7/10

compensation as on and from 01.01.2010 up to 31.08.2010?

vii. To what other reliefs the plaintiffs are entitled to?"

14. On behalf of the plaintiff, 3 (three) witnesses were examined and several documents were exhibited. On behalf of the defendant, 4 (four) witnesses were examined and certain documents were exhibited which were Exhibit A and Exhibit B to L.

15. The learned Trial Court vide the judgment and decree dated 25.07.2018 decreed the suit of the plaintiff and dismissed the counter claim. While deciding the issue No. (iii), the learned Trial Court categorically came to a finding that the defendant had duly admitted the right, title and interest of the plaintiff over the suit land as well as over the suit premises. It was further observed that the defendant had failed to prove that he had spent any amount of money on the construction. On the question of limitation, which was the issue No.

(ii), the learned Trial Court came to a categorical finding that the tenancy was determined only on 31.12.2009 and the suit having been filed in the year 2010, was within the period of limitation.

16. The defendant being aggrieved, preferred an appeal before the learned First Appellate Court, which was registered and numbered as Title Appeal No. 15/2018 and the appeal was dismissed by the learned First Appellate Court vide the judgment and decree dated 03.03.2023. It is under such circumstances, the present appeal has Page No.# 8/10

been preferred.

17. In the backdrop of the above, let this Court consider, as to whether, the substantial questions of law so formulated by the learned Coordinate Bench of this Court arises in the instant appeal.

18. The first substantial question of law so formulated pertains to, as to whether, the learned Courts below were justified in absence of any documentary evidence in believing the fact that the status of the appellant is that of tenant and the interest on the security deposit of Rs. 90,000/- which comes to Rs. 675/- per month, which the defendant was asked to adjust the same against the rent of Rs. 90,110/-. With due respect, the said question so formulated, under no circumstances, can be said to be a substantial question of law involved in the instant appeal as the learned Courts of facts have categorically adjudged that the defendant/appellant herein was a tenant and the said amount stood exhausted in November, 2005.

19. Apart from that, this Court finds it very pertinent to take note of that the defendant/the appellant had duly admitted the plaintiff's right, title and interest over the suit premises. The plaintiff further, by way of his evidence, had also proved his right, title and interest over the suit premises. The question therefore arises that the defendant/the appellant, had to prove before the Court that he had a better right to remain in possession. The defendant/the appellant Page No.# 9/10

completely failed to prove anything to that effect as would be very much apparent from the materials on record including the findings so arrived at by the learned Courts below. Considering the above, the first substantial question of law so formulated, in the opinion of this Court is not involved.

20. The second substantial question of law, so formulated, pertains to, as to whether, the learned Courts below were justified in not taking into consideration the admitted fact in the evidence of the plaintiff Witness No. 1 with regard to investment and supervising the construction work of the suit premises. The said substantial question of law so formulated, in the opinion of this Court does not arise at all in the present proceedings inasmuch as there is no denial to the fact by the plaintiff that the defendant was permitted to supervise and the plaintiff had duly agreed to pay the amount of Rs. 90,110/- which was the amount of Rs. 43,000/- + Rs. 47,110/-. Under such circumstances, the said substantial question of law, so formulated, cannot be a substantial question of law involved in the instant appeal inasmuch as any decision so rendered in respect to that substantial question of law would not change the course of the proceedings.

21. Accordingly this Court does not find any merit in the instant appeal, for which, the appeal stands dismissed with cost quantified at Rs. 22,000/-.

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22. The Registry shall return the LCR to the learned Court below.

JUDGE

Comparing Assistant