Tripura High Court

Sri Niranjan Kanu vs Smt. Mayna Rani Kanu on 19 February, 2021

                            Page 1 of 15




                   HIGH COURT OF TRIPURA
                         AGARTALA
                     RSA NO.47 OF 2018

1. Sri Niranjan Kanu
S/o. Late Srinath Kanu

2. Sri Jagadish Kanu
S/o Late Jagannath Kanu
Both are resident of Rajbari, M.B. Unit Road,
P.O. Rajbari, P.S. Dharmanagar, District-North Tripura.

                                      ------ Appellants
                            Versus
1. Smt. Mayna Rani Kanu
W/o. Late Biswanath Kanu

2. Smt. Sima Debi Kanu
W/o. Late Rajesh Kanu

3. Ritika Kanu
D/o. Late Rajesh Kanu
SL. No.1 to 3 are resident of Rajbari, M.B. Unit Road, P.O.
Rajbari, P.S. Dharmanagar, District-North Tripura,
SL. No.3 being minor represented by her natural guardian SL
No.2 Smt. Sima Debi Kanu.

4. Smt. Rina Kanu
W/o. Sri Bechulal Kanu of
Kukital, P.S. Karimganj, Assam State.

5. Smt. Anjana Kanu
W/o. Sri Agar Chan Kanu of
Kukital P.S. Krimganj, Assam State.

                                      ------Respondents

For the Appellant(s) : Mr. A. Nandi, Advocate.

For the Respondent(s) : Mr. S. Bhattacharjee, Advocate.

Date of hearing and delivery of Judgment & Order : 19.02.2021

Whether fit for reporting: NO.

HON'BLE MR. JUSTICE ARINDAM LODH J U D G M E N T & O R D E R(ORAL)

Heard Mr. A. Nandi, learned counsel appearing for the

appellants as well as Mr. S. Bhattacharjee, learned counsel

appearing for the respondents.

2. The instant second appeal arises out of the judgment

and decree dated 28.09.2018 passed by the learned District

Judge, Dharmanagar, North Tripura District in T.A No.6 of

2018, whereby and whereunder, the learned First Appellate

Court had confirmed the judgment and decree dated

14.11.2017 and 20.12.2017 respectively passed by the learned

Civil Judge, Senior Division, Dharmanagar, North Tripura in

connection with Title Suit (Eviction) 02 of 2015.

3. Outlining the relevant facts in short, the plaintiff-

respondents (here-in-after referred to as plaintiff) instituted a

suit for declaration of his right, title and interest and recovery

of the khas possession of the suit land mentioned in the

schedule of the plaint. The main ground urged by the plaintiff is

that due to his son‟s marriage, he had „bonafide requirement‟

to expand his area of occupation of his house in which the

defendants were occupying some parts related to the suit

property. It is the specific pleading of the plaintiff that the

defendants were occupying the suit premise as tenants initially

@ Rs.50/- and subsequently, it was enhanced to Rs.200/- for

each premises. It is the pleaded case of the plaintiff that he

requested the defendants to hand- over the vacant possession

of the suit premises. Initially, they assured the plaintiff that

they would hand over the vacant possession of the suit

premises but they did not do so. Ultimately, the plaintiff had to

issue a notice through his Advocate, wherein, the plaintiff

stated that the suit property was his „bonafide requirement‟.

4. The defendants had replied to the said notice stating

inter alia that the suit premises were part of joint property and

they were the co-owners since the entire land and the house

were purchased by their predecessor in the name of the

plaintiff in good faith. As such, the defendants were not ready

to hand-over the vacant possession of the suit premises

compelling the plaintiff to institute the present suit for eviction

of the defendants. Since the defendants had denied the right,

title and interest of the plaintiff over the suit premises, the

plaintiff had claimed for declaration of the right, title and

interest as well as confirmation of the possession over the suit

premises and for recovery of khas possession.

5. After the exchange of pleadings, the learned Civil

Judge, Senior Division had framed the following issues:-

"1) Whether the suit is maintainable in its present form?

2) Whether there is any cause of action for filing the instant suit?

3) Whether the plaintiff has got right, title and interest in the suit property?

4) Whether the plaintiff is entitled to get the decree as prayed for?

5) Whether the suit land is a joint family property of the plaintiffs and defendants and other family members?

6) Whether the suit land has been purchased in the name of plaintiff on good faith by the money of the defendants grandfather namely Gour Baran Kanu(now deceased)?

7) Whether at the time of the purchase of the suit land the said Gour Baran Kanu plaintiff, plaintiff‟s mother, brother, sisters, defendants and others were same family members?

8) Whether at the time of purchase of the suit land the said Gour Baran Kanu told in presence of all family members along with plaintiff, that in future the said land will be divided/partitioned among the family members equally as and when required and the plaintiff consented to the same?

9) Whether as legal heirs the defendants are occupying 0.025 acre of land of the suit land and constructed residential huts thereon by their own money and as a owner of the land they obtained electric

service connection, domestic water supply connection etc from the concern Govt. department and they have been paying property tax to the Dharmanagar Nagar Panchayet (now the Dharmanagar Municipal Council)?

10) Whether the defendants have right, title and interest and possession over the suit land?

11) To what other relief or relieves the parties are entitled to?"

6. Based on aforesaid issues, the learned Trial Court had

permitted the parties to lay evidence. Accordingly, the evidence

was recorded. The plaintiff produced two witnesses including

himself in support of his case. On the other hand, the

defendants had produced five witnesses including themselves.

Thereafter, the learned Trial Judge had heard the arguments of

both the parties and considering the submissions of the learned

counsels and on perusal of the relevant documents which were

exhibited on proof, had passed the judgment decreeing the suit

in favour of the plaintiff, thereby, declared the right, title and

interest of the plaintiff over the suit premises as well as the

learned Court confirmed the possession of the plaintiff over the

suit premises and consequently, passed a decree of recovery of

khas possession evicting the defendants from the suit

premises.

7. Feeling aggrieved and dissatisfied with the said

judgment and decree, the defendants, the appellants in this

appeal had preferred an appeal under Section 96 of the CPC.

The appeal was registered as Title Appeal No.06 of 2018.

Having heard the learned counsels and considering the

documents on record, the learned District Judge dismissed the

appeal, thus, confirming the judgment and decree passed by

the learned Trial Judge.

8. Being aggrieved by and dissatisfied with the said

judgment and decree dismissing the first appeal, the

defendants have preferred the present second appeal before

this Court.

9. At the time of admission of the appeal, the following

substantial questions of law were formulated as urged by the

appellants:-

" i) Whether a decree of recovery of khas possession can be passed in absence of the pleadings of date of dis-possessions?

ii) Whether the decree of eviction of tenants without complying the mandatory service of notice under Section 106 of TP Act is sustainable in law?

iii) Whether Civil Court have competence to pass a decree of eviction of tenants within municipal area?"

10. None of the learned counsels appearing on behalf of

the parties to the lis have urged any other substantial question

of law. As such, this Court has proceeded to decide the present

second appeal based on the above noted substantial questions

of law.

11. Now, taking into account the first substantial question

of law:-

"i) Whether a decree of recovery of khas possession can be passed in absence of the pleadings of date of dis-possessions?"

In the instant case, undisputedly, the defendants have

been in possession of the suit premises. The question of

dispossession of the plaintiff from the suit premises arose when

in reply to the notice issued by the plaintiff, the defendants

stated inter alia that they were not the tenant under the

plaintiff but they were the co-owners of the suit property.

According to me, this reply itself amounts to dispossession of

the plaintiff from the suit premises. As such, I repel the

submission of the learned counsel for the defendant-appellants

that unless the date of dispossession is not specifically

mentioned in the pleadings, in that case, the suit of the plaintiff

must fail due to non-mentioning of a specific date of

dispossession. Accordingly, the first substantial question of law

is answered.

12. Next, coming to the question of second substantial

question of law i.e:-

"ii) Whether the decree of eviction of tenants without complying the mandatory service of notice under Section 106 of TP Act is sustainable in law?"

In this regard, Mr. Nandi, learned counsel for the appellants

submits that the plaintiff had served the notice upon the

defendant-appellants through his Advocate which amounts to

non-compliance of mandatory provision of Section 106 of T.P.

Act. He further submits that in the notice, the plaintiff must

state the grounds for eviction and quote the section under

which he was issuing the notice. I repel the submission of Mr.

Nandi, learned counsel appearing on behalf of the defendant-

appellants for the reasons that Section 106 of the T.P. Act does

not contemplate that a notice server has to quote the particular

provision under which he was serving notice and to assign the

reasons in detail. I find no merit in the said submission

accordingly it is repealed.

13. The last substantial question of law as urged and

formulated is that:

" iii) Whether Civil Court have competence to pass a decree of eviction of tenants within municipal area?"

To answer the substantial question of law, I find that

this question was neither raised before the Trial Court nor

before the First Appellate Court. After perusal of the written

statement, I find that the defendants had nowhere stated that

the suit premises would be governed by the Tripura Building

(Lease and Rent Control) Act because of the fact that it is

situated within the Municipal area. There is no dispute in this

Bar that Tripura Building (Lease and Rent Control) Act is

applicable within the Agartala Municipal Corporation area and

by the intendment of the legislature, this Act has not been

extended throughout the State of Tripura as per Section 1(3) of

the Tripura Building (Lease and Rent Control) Act. As such, this

substantial question of law also has got no merit and,

accordingly, rejected.

14. Mr. Nandi, learned counsel during his submissions has

tried to persuade this Court that the issue of „bonafide

requirement‟ was not framed by the learned Courts below and

in absence of such pleadings regarding „bonafide requirement‟

both the Courts below have committed a blatant error in law to

return the finding that the suit premises was a „bonafide

requirement‟ of the plaintiff.

15. I have perused the pleadings of both the parties. In

Para-6 of the plaint, the plaintiff has specifically stated that

after the marriage of his son, the family was grown up and

there was no enough space in the rooms to accommodate the

whole family and, as such, suit premises were required for the

plaintiff and his family members. Therefore, the plaintiff on

20.10.2014 asked the defendants to vacate the said suit huts

over the suit land, more specifically mentioned in the schedule

of the plaint. Initially, the defendants assured the plaintiff that

they would hand-over the vacant possession of the suit

premises in favour of the plaintiff but ultimately, they did not

do so.

16. In Para-7 of the plaint, the plaintiff has specifically

stated that:-

"On 01-01-2015 I once again requested the defendants to vacate the suit hut on this they assured that they will within two months i.e. within 01-03-2015 vacate the suit huts, but instead of vacating the same they further wanted some more time in this way the defendants are consuming time after time with no real intention to vacate the suit houses. Thereafter, I am having no alternative compelled to file this suit against the defendants for evicting them from the suit huts."

17. The defendants at Para-10 of their reply have denied

the statements of „bonafide requirement‟ of the plaintiff over

the suit premises. They have stated thus:-

" 10. That, it is not a fact that, after the marriage of the son of the plaintiff the family has grown up and there is no enough space in the rooms to accommodate the whole family as such there is much need of personal use for the plaintiff and his family members and it is also not a fact that, therefore the plaintiff on 20.10.2014 asked the defendants to vacate

the suit hut over the suit land more specifically mentioned in the Schedule-„B‟ and on this the defendants told that, very son they will vacate the suit land and hut and it is not a fact that the word were not acted upon by the defendants till today and the plaintiffs also stopped taking and rent from defendants since after 20.10.2014, as stated in par No.6 of the plaint. "

18. Subsequently, the defendants have further denied that

they have ever assured the plaintiff to handover the vacant

possession of the suit premises.

19. On the basis of submissions of the learned counsel for

the appellants that without proper pleadings and in absence of

issue both the Courts below have committed an error to return

the findings on „bonafide requirement‟, I may profitably rely

upon a decision of the Apex Court in Bachhaj Nahar Vs.

Nilima Mandal and anr., reported in 2009 STPL 1497 SC,

wherein, the Apex Court relying upon its previous decisions

held thus:-

"The principle was reiterated by this Court in Ram Sarup Gupta (dead) by LRs., vs. Bishun Narain Inter College [AIR 1987 SC 1242]:

"It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial

it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance if the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issue by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."

12. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo moto."

20. Appling the above well-delineated principle, in the

instant case, it transpires that the plaintiff in his plaint though

has not used the term "Bonafide requirement" but they have

specifically stated that due to the marriage of his son he needs

more spaces and as the space, the plaintiff and the family

members were occupying, was not sufficient to accommodate

all members of the family, the defendants were apprised of the

said facts time and again. In the written statement, the

defendants had dealt with this pleading where they denied that

the plaintiff required more space due to the marriage of his

son. As such, the issue of „bonafide requirement‟ was dealt with

by both the parties to the lis. They also had laid evidence in

this respect. The plaintiff in his examination-in-chief has

specifically stated that he needed more space due to the

marriage of his son and to accommodate his family members.

The defendants in their evidence have also deposed that no

more space was required for the plaintiff. Above all, the

defendants have pleaded that they are the co-owners of the

entire property and they have been enjoying the suit premises

as co-owners along with the plaintiff. Both the Courts below

have held that the plaintiff requires more space for

accommodating his family members. This is purely a finding of

fact and this Court exercising its jurisdiction under Section 100

of the CPC should not interfere with the concurrent finding of

fact which is found to be well-founded and reasonable.

Accordingly, I find no merit in the instant second appeal and

thus, the same is dismissed.

21. When the judgment is concluded, at that instant, Mr.

Bhattacharjee, learned counsel appearing on behalf of the

respondents has drawn my attention to the order dated

26.04.2019 in I.A. No.01 of 2019 arising out of the instant

second appeal wherein an undertaking was offered by the

learned counsel on behalf of the appellants which was duly

accepted by the Court. The order dated 26.04.2019 speaks

thus:-

"Heard Mr. A. Nandi, learned counsel appearing for the appellant-applicant as well as Mr. S. Bhattacharjee, learned counsel appearing for the respondents.

The further proceeding of Case No. Execution(Title) 03/2018 (arising out of T.S. 02/2015) shall remain stayed till disposal of the appeal on the undertaking that the appellant-applicant shall handover the vacant possession of the suit property on his own within a period of 15 days from the date of judgment if the appeal is failed.