High Court
Case Details
RFA 9/2003 BEFORE THE HON’BLE MR JUSTICE B.P. KATAKEY JUDGMENT & ORDER (ORAL) These appeals by Karuna Vardhan, who is the defendant in Title Suit No. 11/1992 (renumbered as Title Suit No. 11/2002) and the plaintiff in Title Suit No. 32/19 93 (renumbered as Title Suit No. 12/2002) are directed against the common judgme nt and decree dated 23.9.2002 passed by the learned District Judge, Karimganj, i n the aforesaid suits decreeing Title Suit No. 11/2002 and dismissing the Title Suit No. 12/2002. 2. Sri Manik Kr. Lodh, the respondent in RSA No. 9/2003, instituted Title Suit No. 11/1992 (renumbered Title Suit No. 11/2002) in the court of the learned Assistant District Judge, Karimganj, against the present appellant Karun a Vardhan for declaration of right, title and interest and for his eviction from the suit premises, on the ground of defaulter and bonafide requirement, contend ing inter alia that he acquired right, title and interest in respect of the suit land by virtue of the sale deed dated 13.12.1988 (Ext. 2) executed by Jagatjyot i Das, the owner, in his favour and the present appellant/defendant despite the pleader’s notice dated 12.8.1989 did not pay the rent, who was in fact a default er as he did not even pay the rent to the original owner, Jagatjyoti Das, from t he month of May 1987. It has also been leaded that the suit property is required for his bonafide use and occupation. The present appellant/defendant in the suit, on receipt of the s 3. ummons, entered appearance and filed the written statement denying the knowledge of transfer of the land by Jagatjyoti Das in favour of the plaintiff vide sale deed 30.12.1988 and contending inter alia that an oral agreement was entered int o between him and Jagatjyoti Das for sale of the suit property in respect of whi ch he is the tenant, in the first week of October 1988 for consideration of Rs. 30,000/- and despite the assurance that the sale deed would be executed in the f irst week of January, 1989, no such sale deed has been executed. The defendant h as also denied the issuance and receipt of any notice relating to the change of ownership i.e. transfer of the land by Jagast Jyoti Das in favour of Manik Kr. L odh. Relating to the allegation of defaulter it has been pleaded that the rent a t the rate of Rs. 50/- per month and not Rs. 250/- as claimed by the plaintiff, for the entire Bangla year 1388 and 1389 when offered to Jagatjyoti Das, he havi ng refused to accept the same, such rent were deposited in court. The claim of b onafide requirement of the suit premises has also been denied by the defendant.
Legal Reasoning
4. The present appellant, Karuna Bardhan, filed Title Suit No. 32/1 992 (renumbered as 11/2002) in the Court of the learned Assistant District Judge , Karimganj, against the present respondent, Manik Kr. Lodh, as well as Jagatjyo ti Das as defendant No. 2 and 1 respectively, praying for a decree for specific performance of the oral contract and cancellation of the sale deed dated 30.2.19 88 executed by Jagatjyoti Das in favour of Manik Kr. Lodh (defendant No. 2) cont ending that an oral contract was entered into between him and Jagatjyoti Das (de fendant No. 1) in the first week of October 1988 for transfer of the suit land f or a consideration of Rs. 30,000/-, in presence of Ranjit Choudhury and Dipak Da s with the assurance that the sale deed would be executed in the first week of J anuary 1989, and during continuance of such oral contract since Jagatjyoti Das h as transferred the right, title and interest over the suit land in favour of Man ik Kr. Lodh (defendant No. 2) vide registered deed of sale dated 30.12.1988 the said deed is to be declared void and illegal with the further prayer for specifi c performance of the contract. 5. The said suit has been contested by the defendant Nos. 1 and 2 ( present respondents) by filing written statement contending inter alia that ther e was no oral contract between the plaintiff Karuna Vardhan and the defendant Ja gatjyoti Das on 30.12.1988, who on 30.12.1988 sold the suit property to defendan t No. 2, Manik Kr. Lodh for valuable consideration and thereafter though notice of such transfer was issued by registered post with A/D the same was refused to be accepted by the plaintiff Karuna Bardhan. 6. etermination: - In Title Suit No. 11/2002 the following issues were framed for d (cid:28)1. Is there any cause of action? 2. Whether the defendant is tenant under the plaintiff? 3. Whether the defendant is defaulter? 4. Whether the plaintiff has a bonafide requirement for the suit land? 5. To what relief or reliefs the plaintiff is entitled to get? (cid:29) 7. ial court for determination :- In Title Suit No. 12/2002 following issues were framed by the tr (cid:28)1. Is there any cause of action for this suit? 2. Is the suit maintainable in its present form? 3. Is the suit barred u/s 10 of the CPC? 4. Is there any contract for sale of the suit property? 5. Is the suit barred under Section of Specific Relief Act, 1963 6. Is the plaintiff entitled to get any relief as prayed for? (cid:29) ? 8. At a subsequent stage of the proceeding, the said suits, which w ere taken up together for hearing analogously, as the subject matter is same, we re withdrawn by the learned District Judge to his file as the learned Civil Judg e recused himself from the said cases and as such both the suits were tried by t he learned District Judge, Karimganj. 9. The present appellant, Karuna Vardhan, as well as the present re spondent, Manik Kr. Lodh, examined two witnesses each in support of their respec tive cases. While Manik Kr. Lodh proved two documents, the pleaders notice dated 12.8.1989 and the sale deed dated 30.12.1988, which were marked as Ext. 1 and 2 , respectively, no documentary evidence, however, has been adduced by Karuna Bar dhan in support of his claim in the suit filed by him as well as in the suit whi ch he defended. 10. The learned District Judge upon appreciation of the evidence on record has decreed the suit, being Title Suit No. 11/2002, filed by Manik Kr. Lo dh declaring his right, title and interest over the suit land and also for evict ion of the present appellant Karuna Vardhan from the suit premises, by holding t hat Manik Kr. Lodh has acquired the right, title and interest over the said land by virtue of the registered deed of sale dated 30.12.1988 (Ext. 2) and the pres ent appellant is a defaulter, he having not paid the rent to the land lord, desp ite issuance and service of the pleaders notice dated 12.8.1989 (Ext. 1). The le arned District Judge has also held that Karuna Bardhan has, however, failed to p rove the oral contract for sale as pleaded. The plea of bonafide requirement tak en by Manik Kr Lodh, however, has not been accepted by the trial court. Hence th ese appeals. 11.
Legal Reasoning
Heard Mr. D Choudhury, learned counsel for the appellant as well as Mr. BR Dey, learned senior counsel appearing for the respondents. Since both the appeals arise out of the aforesaid common judgmen 12. t and decree passed, involving the same subject matter, those are taken up toget her for hearing and disposal, as agreed to by the learned counsel for the partie s. 13. Mr. Choudhury, the learned counsel appearing for the appellant r eferring to the pleadings in the plaint filed in Title Suit No. 12/2002 as well as the evidence adduced by him, namely, the deposition of PW 1 (Karuna Bardhan) and PW 2 (Ranjit Choudhury) has submitted that since he could prove the oral con tract between Jagatjyoti Das and himself for transfer of the land in question in his favour, which has been supported by the PW 2 (Ranjit Choudhury), the learne d court below ought not to have decreed the Title Suit No. 11/2002 filed by Mani k Kr. Lodh and dismissed the suit filed by him being Title Suit No. 12/2002. The learned counsel further submits that since the oral contract for sale could be proved by the appellant and during the continuance of which the sale deed dated 30.12.1988 (Ext. 2) was executed in favour of Manik Kr. Lodh, the learned court below ought to have declared the said sale deed void and inoperative. The learne d counsel further submits that there being no notice of the transfer of the suit premises by Jagatjyoti Das in favour of Manik Kr. Lodh and the appellant having deposited the rent payable in the Bangla year 1398 and 1399 in court in the nam e of Jagatjyoti Das, the land lord, on being refused to accept the same when ten dered, the appellant could not have been held to be a defaulter, even if the app ellant could not prove the oral contract. The learned counsel, therefore, submit s that even if Manik Kr. Lodh has acquired the right, title and interest by virt ue of the sale deed dated 30.12.1988 (Ext. 2), he is not entitled to a decree fo r eviction of the appellant, the appellant being not a defaulter and the claim o f Manik Kr. Lodh for bonafide requirement of the suit premises having been rejec ted by the trial court. 14. Per contra, the learned senior counsel appearing for Manik Kr. L odh, respondent No. 1 in RFA No. 9/2003 and respondent No. 2 in RFA No. 10/2003, referring to the deposition of the witnesses examined by Karuna Bardhan as well as by Manik Kr. Lodh has submitted that Karuna Bardhan though pleaded that ther e was an oral contract for sale of the suit premises the same, however, could no t be proved by him. It has also been submitted that even Ranjit Choudhury (PW 2) who has been examined by Karuna Bardhan in support of his case of oral contract did not support him as in his evidence he has stated that such oral contract wa s amongst Karuna Bardhan, Ranjit Choudhury and Jagatjyoti Das. The learned senio r counsel further submits that there being no dispute that Jagatjyoti Das is the owner of the property in question and Manik Kr. Lodh having proved execution of the sale deed, established his right, title and interest over the suit property by virtue of sale by Jagatjyoti Das in his favour, the trial court has rightly decreed the title suit No. 12/2002 in favour of Manik Kr. Lodh. 15. Referring to the finding recorded, relating to the question of d efaulter, it has also been submitted by the learned senior counsel that despite issuance and service of pleader’s notice dated 12.8.1989 (Ext. 1), Karuna Bardha n, the tenant, did not pay the rent to the new land lord namely Manik Kr. Lodh, who has in fact did not pay the rent to the original owner namely Jagatjyoti Das from the month May of 1987 and hence, it has been submitted that the trial cour t has rightly held Karuna Bardhan as defaulter. I have considered the submissions advanced by the learned counse 16. l for the parties and also perused the records including the judgment and decree passed by the trial court as well as the oral and documentary evidence adduced by the parties. 17. he learned counsel for the parties, the points emerge for determination are: - Based on the respective pleadings and the argument advanced by t (i) Whether Manik Kr. Lodh could prove his title over the suit l and? (ii) Whether Karuna Bardhan could prove the oral contract for sa le, if so, whether the sale deed dated 30.12.1988 is void and inoperative and he is entitled to a decree for specific performance of contract? (iii) Whether Karuna Bardhan has been served with the pleader’s notice dated 12.8.1989 and whether he is a defaulter and as such liable to be ev icted? 18. As noticed above, the pleaded case of the appellant Karuna Bardh an in the suit filed by him, being Title Suit No. 12/2002, is that there was an oral contract between Jagatjyoti Das and him entered in the first week of Octobe r, 1988 in presence of Ranjit Choudhury (PW 2) and during the continuance of suc h oral contract the sale deed dated 30.12.1988 (Ext. 2) having been executed by Jagatjyoti Das in favour of Manik Kr. Lodh the same is to be declared as void an d inoperative and decree for specific performance of the contract is to be passe d. 19. The plea taken by Manik Kr Lodh in Title suit No. 11/2002 filed by him for declaration of right, title and interest by virtue of the sale deed d ated 30.12.1988 (Ext. 2) has accordingly been denied by the present appellant. T he present appellant has also contended that he is not a defaulter in payment of rent as he deposited the rent, in the name of the land lord Jagatjyoti Das for the Bangla year 1398 and 1399, in court on, he having refused to accept the same when tendered. The relationship of land lord and tenant between Jagatjyoti Das and Karuna Bardhan has not been disputed and rather it is an admitted fact, as a ccording to the appellant’s own admission he was a tenant in respect of the suit premises under Jagatjyoti Das, who is the land lord. 20. Karuna Bardhan in support of the plea of oral contract has exami ned himself as PW 1 and another witness Ranjit Choudhury as PW 2. Though Karuna Bardhan in his evidence has stated about the oral contract entered into between him and Jagatjyoti Das in the first week of October with the assurance that the sale deed would be executed by Jagatjyoti Das in his favour in the first week of January 1989, the said version, however, has not been supported by Ranjit Choud hury (PW 2) who according to Karuna Bardhan was present at the time of oral cont ract. Ranjit Choudhury in his deposition has stated that such oral contract was amongst Karuna Bardhan, himself and Jagatjyoti Das. The existence of the oral co ntract has also been denied by Manik Kr. Lodh in his evidence whose testimony co uld not be shaken during cross examination. The contention of Karuna Bardhan rel ating to the oral contract is also not believable, as though according to him, t he sale deed was supposed to be executed by Jagatjyoti Das in his favour in the first week of January 1989, there is no evidence adduced by him to demonstrate t hat he either asked Jagatjyoti Das to execute the sale deed or he has issued any notice to Jagatjyoti Das. Such plea has been taken by Karuna Bardhan only in th e written statement filed in Title Suit No. 11/2002 filed by Manik Kr. Lodh and in the subsequent Title Suit No. 12/2003 (earlier numbered Title Suit No. 32/200 3) filed by him claiming specific performance of the contract. 21. That being the position the trial court has rightly recorded the finding that there was no oral contract between Jagatjyoti Das and Karuna Bardh an for sale of the suit premises. 22. aintiff has acquired the right, title and interest over the suit premises. The next question which requires determination is whether the pl 23. As noticed above, it is the case of Karuna Bardhan himself that the suit property belonged to Jagatjyoti Das. As discussed above, it is an admit ted fact that Jagatjyoti Das is the owner of the suit land. Manik Lodh has prove d the sale deed dated 30.12.1988 (Ext. 2) by which the right, title and interest over the suit premises has been transferred by Jagat Jyoti Das in his favour. K aruna Bardhan also did not challenge the said sale, except on the ground that th ere was oral contract between Jagatjyoti Das and him prior to execution of the s aid sale deed. That being the position, Manik Kr. Lodh could prove his right, t 24. itle and interest over the suit premises by virtue of the aforesaid sale deed da ted 30.12.1988 executed by Jagat Jyoti Das transferring his right, title and int erest for valuable consideration. 25. esent appellant is a defaulter in payment of rent. The next question which requires determination is whether the pr 26. As discussed above, Manik Kr Lodh has pleaded in the plaint file d in Title Suit No. 11/2002 that Karuna Bardhan has not paid rent to the origina l owner from the month of May 1987 and thereafter to him even after issuance of the pleader’s notice dated 12.8.1989 (Ext. 1). Karuna Bardhan, who claimed to ha ve no knowledge about the transfer, has set up the plea that the rent has all al ong been deposited in the name of Jagatjyoti Das and hence he is not a defaulter . 27. In support of the plea that the pleader’s notice was issued and served on Karuna Bardhan, the plaintiff in Title Suit No. 11/2002, Manik Kr. Lod h, has proved the pleader’s notice dated 12.8.1989 which has been marked as Ext. 1. He has also proved the issuance of the said notice by registered post by pro ving the postal receipt, which has been marked as Ext. 1(2,) apart from the enve lop marked as Ext. 1(3), and also the report of the postal peon on the reverse o f the said envelope marked as Ext. 1(4). It appears from the said envelop that t he said notice dated 12.8.1989 (Ext. 1) when tendered to Karuna Bardhan he has r efused to accept the same and hence the service of the said notice on Karuna Bar dhan is complete. Despite the service of said pleader’s notice Karuna Bardhan di d not pay the rent or offered the rent to Manik Kr. Lodh, who stepped into the s hoes of the original owner Jagatjyoti Das, by virtue of the purchase of the suit premise vide sale deed dated 30.12.1988. 28. It also appears from the deposition of Karuna Bardhan that thoug h he has claimed that he has deposited the rent payable to Jagatjyoti Das during the bangla year 1398 to 1399, he, however, could not produce any document namel y, treasury challan or rent deposit proceeding in support of his plea. 29. Sub Section 4 of Section 5 of the Assam Urban Areas Rent Control Act, 1972, provisions of which are applicable in the present case, provides for protection to the tenant from eviction subject to the fulfillment of the condit ions stipulated therein. Such protection is available only when the tenant pays the lawful rent due to the landlord on time and in the event of refusal to accep t the rent, on being tendered, deposition of such rent in court within a fortnig ht of its becoming due together with the process fee. The burden of proof is on the tenant that he is not a defaulter. It is an admitted position of fact that t he tenancy is a monthly tenancy and the rent was payable monthly at the rate of Rs. 250/-. Though Karuna Bardhan has stated that he deposited the rent for the w hole Bangla year 1388 and 1389 together, he, however, failed to produce any docu ment in support of such plea. The rent being payable monthly, deposit of rent fo r the whole year, in any case, cannot be termed as a valid deposit, in view of t he sub section 4 of Section 5 of the aforesaid Act. Hence the trial court has ri ghtly recorded the finding that Karuna Bardhan is a defaulter. 30. In view of the aforesaid discussion, I am of the view that the j udgments and decrees passed by the trial court do not require any interference i n appeal. 31. The appeals are accordingly dismissed. 32. ties are, however, directed to bear their cost throughout. 33. The Registry is directed to send down the records forthwith. Having regard to the facts and circumstances of the case the par