Arun Chandra Paul vs. Uttam Saha

CRP 88/2007 BEFORE HON'BLE MR. JUSTICE HRISHIKESH ROY

Heard Mr. P. Sen, learned counsel appearing for the petitioner (plaintif f). Also heard Mr. C. Goswami, the learned counsel appearing for the respondents (defendants). Since the T.S. No.12/2003, 13/2003 and 14/2003 for ejectment of d efendants were dismissed through a common judgment by the learned Trial Court on 23.12.2005 (Annexure-3) and the Appellate Court reversed the ejectment decree t hrough the impugned judgment delivered on 6.12.2006 (Annexure-4), arguments were heard and all three cases were considered for analogous disposal.

2. Although three tenants are involved in the three Title Suits, all of the m are represented by one counsel and similar arguments are advanced by both side s. For the sake of gravity, the facts are noted from the CRP No.88/2007, which p ertains to the T.S. No.12/2003 (Arun Chandra Paul vs. Uttam Saha) and T. A. No.2 /2006.

3. The plaintiff who was the common entity in all three suits, applied for ejectment and recovery of arrear rents in respect of the 3 rooms of the Ghumti No.100 (Old) 86 (New) (hereinafter referred to as 'the shop rooms') in the Khar upetia Daily Market. The land (on which the Ghumti was constructed), was allotte d initially by the Mangaldoi Local Board to one Fateh Chand Sarawagi, who made t he construction and paid tolls to the Kharupetia Town Committee (hereinafter ref erred to as 'the Town Committee') for use and occupation of the Ghumti. The orig inal allottee transferred possession to one Shiv Karan Sarmah, who in turn trans ferred his rights to the plaintiff. All 3 shop rooms in the Ghumti were let out to the defendants at a monthly rent @ Rs.500/- each, w.e.f. 1.3.1996 and the def endants were carrying on their respective business from the occupied room. While the rent was regularly paid to the plaintiff uptill April, 2000, the payment st

opped thereafter and accordingly the three cases were filed for ejectment and re covery of arrear rent. In the T.S. No.13/2003, an additional plea of subletting by the defendant Bhaba Ranjan Roy to one Sukhlal Saha was also alleged. 4. In their W.S., the defendants, inter allia, denied that they are tenants

under the plaintiff and also denied the ownership right of Ghumti No.86, claime d by the plaintiff. According to the defendants, the Town Committee is the owner

of the land along with the shop rooms and the defendants are in possession of t he same since 1995, where they are carrying on their respective business by obta ining trade license from the competent authority. It was also stated that the su it is not maintainable as the Town Committee on 5.11.2002 cancelled the allotmen t of Ghumti No.86 in the name of the plaintiff, on the ground that the plaintiff

is not doing any business himself in the allotted shop rooms and third parties are doing business with trade license granted by the Town Committee. Following t he cancellation of allotment to the plaintiff, the occupied shop rooms were orde red to be allotted to the defendants. But the plaintiff challenged the cancellat ion of allotment through the WP(C) No.7073/2002 in the High Court.

5. On the basis of the above pleadings, the seven common issues were framed in all the three suits and additionally in the T.S. No.13/2003, an extra Issue (A) was framed on the allegation of subletting of a portion of the suit room. Fo r ready reference, the issues are extracted here-in-below:-

1. Whether the plaintiff's suit is maintainable in its present form? 2) Whether the suit is barred by limitation?

2. Whether the plaintiff's suit is barred by the principle of waiver, estoppel a nd acquiescence?

3. Whether the suit is bad for non-payment of proper Court Fee?

4. Is the defendant is a tenant under the plaintiff?

5. Whether the defendant is a defaulter in payment of rent? If so what extent? 7) To what relief, reliefs, if any, the plaintiff is entitled?

(A) Whether the defendant sublet a part of the suit room to another person?

6. In support of their respective case, the plaintiff examined three witnes

ses including himself and on the other hand, two of the defendants testified as defence witnesses (D.Ws.).

7.1 The learned Civil Judge (Sr. Division), Darrang on 23.12.2005 (Annexure-3) held the suit to be maintainable and not barred by limitation or by the princ iple of waiver, estoppel and acquiescence. On Issue No.5 on Landlord Tenant rela tionship, the Trial Judge observed that the defendant doesn't claim to be the ow ner of the shop-rooms and nor they say that they were put in possession by some other person. Therefore it was inferred that the defendants are in possession of

the shop rooms as tenant under the plaintiff. As collection of Rs.500/- P.M. by

the plaintiff from the defendants was admitted, the Court held this to be renta l payment and rejected the contrary plea of the defendants. The Kharupetia Town Committee's cancellation order dated 5.11.2002 (Exhbt. Gha ) was taken into ac count by the Court to conclude that the allottee (plaintiff) instead of doing bu siness by himself had let out the shop rooms to the tenants. The definition of l andlord given in Section 2(c) of the Assam Urban Areas Rent Control Act, 1972 (h ereinafter referred to as 'the Rent Act'), which does not require a landlord to be a owner was considered and the Trial Judge held that the plaintiff is the lan dlord and the defendants are tenants under him.

7.2. Following his finding on the existence of landlord-tenant relationship, the Court noted that the defendant paid Rs.500/- P.M. but from the month of Nove mber, 2002 to April, 2003, no amount was paid by the defendants to plaintiff and therefore the defendants were declared to be defaulters and the Issue No.6 was answered in plaintiff's favour.

7.3 On the additional Issue (A), pertaining to the T.S. No.13/2003, the Cour t after considering the evidence noted that the defendant Bhaba Ranjan Roy had s ublet a part of the shop room w.e.f. 1.11.2002 to one Sukhlal Saha, who is doing fruit business without permission of the plaintiff and accordingly this additio

nal issue in the T.S. No.13/2003 was also decided in plaintiff's favour. 7.4 The Court further found that appropriate Court Fee for recovery of one y ear's arrear rent was deposited and on this basis, all the three suits were decr eed for ejectment and recovery of khas possession and also for recovery of arrea r rent + interest, from the defendants.

8. The aggrieved defendants then filed the T.A. No.2/2006, 3/2006 & 4/2006 and all the three Appeals were disposed off on 6.12.2006 (Annexure-4) by the lea rned District Judge, Darrang. The Appellate Court considered whether the defenda nts are tenant under the plaintiff (Issue No.5) and held that the plaintiff fail ed to establish that he is the landlord of the suit premises. The Court noted th e WP(C) No.7073/2002 (Exhbt. Gha ), where the writ petitioner in paragraph-7 av erred that he is doing business in the concerned shop rooms through the responde nt Nos.4, 5 & 6 (defendants). Since the 3 defendants were projected in the Writ Petition as business partners of the plaintiff, the Appellate Court concluded th at the plaintiff failed to establish his status as landlord for the suit premise s and consequently it was held that the defendants are not tenants under plainti ff, for the suit premises. To reach this conclusion, the Appellate Court took in to account the oral testimony of the plaintiff (PW.1), who stated that he was ca rrying on partnership business with the defendants. As the finding on Landlord T enant relationship (Issue No.5) was reversed and given against the plaintiff, th e defaulter issue became redundant and accordingly the Appellate Court allowed t he Appeals filed by the defendants and dismissed the ejectment suits.

9.1 Mr. P. Sen, the learned counsel for the petitioner submits that the paym ent of Rs.500/- P.M. by the defendants to the plaintiff was acknowledged in the W.S. itself and since under Section 2(c) of the Rent Act, the landlord need not be a title holder, the relationship of landlord and tenant is established throug h mere acknowledgement of payment. The counsel argues that facts admitted need n ot be proved under Section 58 of the Indian Evidence Act, 1872 and on that basis it is contended that when payment is admitted, the plaintiff need not prove the

existence of a landlord-tenant relationship. 9.2 The petitioner submits that the Appellate Court gave its finding on the basis of the WP(C) No.7073/2002 (Exhbt. Gha ), where the plaintiff challenged t he cancellation of allotment ordered on 5.11.2002 by the Kharupetia Town Committ

ee and although partnership business with the defendants was mentioned in the Wr it petition, that can't non-suit the plaintiff as the defendants could not say a s to how, they came to possess the suit rooms.

9.3 Reading the Appellate Court's Judgment, the learned counsel for the peti tioner argues that while the evidence was elaborately discussed by the Trial Cou rt to pass the ejectment decrees, the Appellate Court failed to note the relevan t evidence and mostly relied on the materials in the Writ Proceeding.

10.1 For the respondents (defendants), Mr. C. Goswami, the learned counsel su bmits that the Appellate Court considered the relevant evidence on record and ga ve its finding on the key Issue No.5, after due consideration of the testimony o f the plaintiff (PW.1).

10.2 He further submits that although the case of the plaintiff is that he in ducted the defendants w.e.f. 1.3.1996 as tenants under him, the defendants were in possession of the shop rooms since 1995, as mentioned in paragraph-6 of the a ffidavit evidence of the plaintiff. Therefore it is argued that defendants' poss ession can't be as tenant under the plaintiff, since the plaintiff himself ackno wledges the defendants were in possession since 1995, whereas the landlord-tenan t relationship was started only from 1.3.1996 as was stated in the plaint.

10.3 The learned counsel for the respondents further contends that the WP(C) No.7073/2002 was dismissed and there was no interference on merit, by the Divisi on Bench in the W.A. No.26/2011 and the appellate Bench simply remanded the matt er on 9.10.2012 for a fresh decision by the Executive Officer of the Kharupetia Town Committee. Therefore it is argued that the possession of shop rooms by the defendants, where they are doing business with trade license(s) issued by the To wn Committee, is undisturbed till date and therefore the plaintiff being an allo ttee of the Town Committee, can't simultaneously claim to be a landlord of the d efendants.

11. I have considered the submissions made by the rival counsel and also not ed the basis on which the Appellate Court reversed the decree of ejectment passe d by the Trial Court. It is significant that the PW.1 in his evidence admitted t hat he is carrying on partnership business with the defendants in the shop rooms . He also admitted that the Ghumti was allotted to him by the Kharupetia Town Co mmittee for his own business and not to do any partnership business. When the pl aintiff himself testifies that he was carrying on partnership business with the defendants, he can't at the same time claim that the defendants are his tenants for the shop rooms. This vital evidence of the PW.1 was noted by the Appellate C ourt for the impugned decision.

12. The collection of Rs.500/- P.M. by the plaintiff from the defendants was considered but when the defendants were described as business partners of the p laintiff, the Appellate Court concluded that the occupiers are not tenants und er the plaintiff, in respect of the suit premises.

13. The failure of the plaintiff to establish that he is the landlord of the defendants was found by the Court not only by considering the materials in the writ proceedings but also on the plaintiff's own evidence and pleadings and the conclusions, in my view, was reached by the Appellate Court logically and on the basis of relevant evidence and no perversity is noticed with the impugned decis ion.

14. As regards the consideration of the materials in the Writ Proceeding, th e Writ Petition itself was exhibited as Exhbt. Gha, where the Writ Petitioner wa s challenging the cancellation of allotment of the shop rooms and their proposed re-allotment to the defendants by the Kharupetia Town Committee. The stand take n by the Writ Petitioner who was the plaintiff in the ejectment Suits has releva nt bearing in the ejectment proceeding and I find that consideration of this evi dence by the Appellate Court to give the impugned decision, doesn't result in ju risdictional error.

15. From the above discussion, I hold that the impugned judgment was rendere d on the basis of cogent materials and in the absence of any jurisdictional erro r, no cause for interference is made out by the petitioners. Consequently these Petitions are dismissed. The parties will bear their own cost.

16. The Registry should return back the LCRs alongwith a copy of this order.