Dismissed

Amrit Tiwari Since Deceased His Legal Heirs - a Dhurwa Nandan Tiwari and 6 Ors. v. Rukmini Devi Koiri and Anr.

Gauhati HC12 Jun 2018CRP/62/2017

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a revision petition challenging a judgment and decree declaring respondents as lawful owners and entitled to eviction of petitioners. Upholding lower court findings, the Court held that adverse possession was not proveable as the occupier knew the true owner, and the lease agreement was exempt from registration for one year.

What did the court decide?

Revision dismissed; interim order in IA (C) 505/2017 vacated.

Amrit Tiwari Since Deceased His Legal Heirs… — Contract and Commercial Disputes | Gauhati HC (2018)

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GAHC010193222017

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

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Case No. : CRP 62/2017

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1:AMRIT TIWARI SINCE DECEASED HIS LEGAL HEIRS - A DHURWA NANDAN TIWARI and 6 ORS.

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2: B LOLITA TIWARI DEVI

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3: C RAJKUMAR TIWARI

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4: D VIMAL KUMAR TIWARI

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5: E CHANDA KUMAR TIWARI

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6: F SONU TIWARI ALL R/O- MILAN NAGAR NEAR CHIRING GAON RAILWAY COLONY P.O.- C.R. BUILDING P.S. and DIST.- DIBRUGARH ASSAM PIN- 786001

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VERSUS

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1:RUKMINI DEVI KOIRI and ANR. W/O- SRI RAJKUMAR KOIRI

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2:JAMAWANTI DEVI KOIRI BOTH R/O- CHIRING CHAPORI OF DIBRUGARH TOWN P.O. P.S. and DIST.- DIBRUGARH

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ASSAM PIN- 786001

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Advocate for the Petitioner : MR.B ULLAH

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Advocate for the Respondent : Mr. S. Dutta, Mr. C. Sharma,

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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JUDGMENT

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Date : 12-06-2018

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Heard Mr. B. Ullah, learned counsel for the petitioners as well as Mr. S. Dutta, learned Senior Counsel, assisted by Mr. C. Sharma, learned counsel appearing for the respondents.

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This revision under Section 115 read with Section 151 CPC is directed against the judgment and decree dated 19.11.2016 passed by the learned Civil Judge, Dibrugarh in T.A. No. 20/2012, thereby dismissing the said appeal and confirming the judgment and decree dated 22.03.2012 passed by the learned Munsiff No. 1, Dibrugarh in T.S. No. 85/2006.

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By the said trial court judgment, the respondents were declared to be the lawful owner of the suit premises and that they were held to be entitled to recovery of arrear rent of Rs.5,400/- and the respondents were held to be entitled for khas possession of the suit premises by evicting the predecessor of the petitioners, their dependents, representatives.

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The brief facts as projected by the parties are that the respondents are the plaintiffs in T.S. No. 85/2006. They were represented through their father as well as their lawful attorney, who was the son of Ramjanam Koiri, the original landlord/pattadar of the suit premises. The predecessor-in-interest of the petitioners, namely, Amrit Tiwari @ Amir Tiwari (since deceased) was the sole defendant in the suit. It was stated that by virtue of lease agreement dated 20.06.1985, the predecessor of the petitioners was inducted as a tenant in

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respect of plot of land measuring 10 lechas covered by Dag No. 250 of P.P. No. 279 of extended Chiring Gaon Ward II, Dibrugarh Town Mouza together with a thatched roof house described in schedule of the plaint. The said lease was for a period of one year. The initial rent was Rs.35/- per English calendar months, which was last increased to Rs.150/- per month since January, 2000. However, the said enhanced rent of Rs.150/- was not paid by the predecessor of the petitioners since January, 2000 despite demand. It was alleged that the predecessor of the petitioners had accumulated building materials with a view to make addition/alteration of the suit premises and therefore, by issuing a notice dated 07.03.2006, the respondent demanded arrear rent and asked the predecessors of the petitioners to vacate the suit premises. In the advocate’s reply given by the predecessor of the petitioners on 07.04.2006, the tenancy was denied and therefore, the suit was filed for declaration that the respondents were the lawful owners of the suit premises, for khas possession of the suit premises by evicting the predecessor of the petitioners and for recovery of arrear rent, cost, etc.

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The predecessor of the petitioners contested the suit, denying the right, title and interest of the respondents over the suit land. It was claimed that the power of attorney bearing registration No. 84/1985 was not sustainable in law. By denying the tenancy, it is submitted that the predecessor of the petitioners came on 15.04.1969 to occupy 1K-5L land, forming part of Dag No. 250 of P.P. No. 279 of extended Chiring Gaon Ward II, Dibrugarh Town Mouza which includes the suit land measuring 10 lechas described in schedule of the plaint. It was projected that the predecessor of the petitioners had constructed two Assam Type Katcha house with C.I. sheet roof and bamboo posts, which consisted of four rooms and a cowshed. It was stated that the respondents had narrated a false and fictitious story alleging that the predecessor of the petitioners was a tenant. Denying the right, title and interest of the respondents, the predecessor of the petitioners had filed their counter claim for declaration that he has been in exclusive, hostile, uninterrupted, open and continuous possession of the suit land since 15.04.1969 and had acquired right, title and interest over the suit land he had also prayed for permanent injunction against the respondents from disturbing peaceful possession, cost and other reliefs. On the basis of the pleadings, the

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learned trial court had framed nine issues for trial:

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i) Whether the suit is maintainable in law and in fact?

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ii) Whether the suit is bad due to non-joinder of necessary parties?

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iii) Whether there is any cause of action in this suit?

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iv) Whether the plaintiffs have any right, title and interest over the suit land?

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v) Whether the defendant was and/or is a tenant under the plaintiffs?

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vi) Whether the defendant is a defaulter and liable to be evicted?

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vii) Whether the defendant is in possession of the plot of land mentioned in the counter claim which includes the said land also?

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viii) Whether the defendant has any right, title and interest over the land mentioned in the counter claim which includes the suit land also?

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ix) Whether the parties are entitled to any other relief/s as prayed for respectively?

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In support of their respective cases, the petitioner herein had examined himself as DW-1 and had exhibited jamabandi of the suit land (Ext.1) while the respondentplaintiff had examined four witnesses and had exhibited seven documents, viz., General Power of Attorney (Ext.1), Jamabandi (Ext.2), Revenue Receipt (Ext.3), Agreement for lease of house [Ext.4 (1)], Witness of the agreement [Ext.4(7)], Legal Notice (Ext.5), Postal Receipt (Ext.6) and Reply of the legal notice (Ext.7).

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The learned trial court by the judgment dated 22.03.2012, decreed the suit. The relevant issues are issues No. 4 to 8 and, as such, the irrelevant issues No. 1 to 3, being whether the suit is maintainable, whether suit is bad for non-joinder of necessary parties and whether there is cause of action for the suit are not discussed herein. On the basis of the evidence on record, the learned trial court in respect of issues No. 4, 7 and 8 held that the predecessor of the petitioners had failed to show any satisfactory evidence in respect of adverse possession because nowhere in the written statement, any pleading was made to show that against whom they had claimed adverse possession and had also failed to prove that his possession over the suit law was open and hostile with knowledge to the real owner.

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It was further held that in his evidence-in-affidavit, the DW-1 had stated that, he did not know that the respondents, being the granddaughters of Ramjanan Koiri had acquired the suit land and it was held that the defendant had not known or recognized the respondents as the owner, as such, he could not claim adverse title without recognizing the respondents as the owner. Therefore, it was held that there was nothing in the evidence to uphold the claim of the predecessor of the petitioners in respect of right and title on adverse possession over the suit land. The issue was decided in favour of the respondents. In respect of issues No. 5 and 6, based on the Agreement of Lease dated 24.06.1985 (Ext.4), it was held that the tenancy was proved and that since January, 2000 the predecessors of the petitioners had not paid any rent to the respondents even after demand made by notice dated 07.03.2006. Hence, it was held that the predecessor of the petitioners had failed to disprove the tenancy and therefore, the issues were decided in favour of the respondents. Accordingly, in respect of issue No. 9, it was held that the predecessor of the petitioners was a defaulter and the respondents were entitled to relief. Accordingly, the suit was decreed by declaring that the respondents are the landlord-owner of the suit premises and that they were entitled to recovery of arrear rent of Rs.5,400/- as well as for eviction of the predecessor of the petitioners and recovery of khas possession of the suit premises, and counter-claim of the predecessor of the petitioners was dismissed.

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The said trial court judgment and decree was assailed in appeal. The first appellate Court by independently assessing the evidence on record, concurred with the finding of the learned trial court on issues No. 4 to 6. In respect of issue No. 4, considering that the suit was for eviction under the provisions of Assam Urban Areas Rent Control Act, 1972, it was held that the suit was not governed under the Transfer of Property Act and, as such, it was held that the issue of title of the landlord was not to be decided in an eviction suit. It was held that the decision on the point of title in issue no. 4 was erroneously framed and decided and therefore, to that extent, the finding by the learned trial court in respect of issue no. 4 was set aside. In respect of issues No. 7 and 8, it was held that there was no evidence that the predecessor of the petitioners had occupied the suit land prior to 1985. Hence, the plea adverse possession was held to be not maintainable and the decision of the

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learned trial court on issues No. 7 and 8 was affirmed. Accordingly, the decision of the learned trial court on issue No. 9 was also upheld, thereby upholding the decree passed by the learned trial court.

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The learned counsel for the petitioners has submitted that the relevant issues No. 4 to 9 was incorrectly decided by the courts below because the predecessor of the petitioners had occupied the suit land on 15.04.1969 by constructing two Assam type house on his own right. It is further submitted that as the respondents had not signed and verified the plaint, the suit was not maintainable as the power of attorney holder was not the landlord and he could have instituted the suit. It is further submitted that the lease contained a term for extension, as such, the lease was compulsory registrationable under Section 7(1)(d) of the Registration Act. It is submitted that on expiry of the lease between the landlord and tenant, no relationship existed between the predecessor of the petitioners as well as the respondents and therefore, the plea of adverse possession was maintainable and he had acquired a nonevictable right. In this connection, learned counsel for the petitioners has relied on the case of Murlidhar Jalan (since deceased) through LRs Vs. State of Meghalaya & Ors., AIR 1997 SC 2690: 1997 (3) GLT (SC) 30. It is submitted that no issue was framed as regards the date on which the rent became due and without a finding of fact on the due date, the decree for eviction and for recovery of arrear rent was not maintainable. In this connection, the learned counsel for the petitioners has relied on the case of Tushar Kanti Dey Vs. Sulata Choudhury & Ors., 2012 (1) GLT 51. It is also submitted that the suit premises was within a municipal area but the respondents have not proved the municipal holding number and therefore, it was disputed that the house which existed in the suit premises was build by the respondents. Therefore, it was submitted that the said issues were wrongly decided by the learned courts below.

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Per-contra, the learned Senior Counsel for the respondents has submitted that there was a concurrent finding in respect of issues No. 5 to 9. It is submitted that the petitioners had not tendered any proof to show their possession of the suit premises prior to

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the execution of the lease agreement (Ext.4). By referring to the written statement, it is submitted that there is no pleading that against whom adverse possession was claimed. It is further submitted that as the predecessor of the petitioners never recognized the respondents as a landlord, had not tendered any rent since January, 2006 and therefore, it was not required for the learned Courts below to frame an issue about the due date when rent became due because there was no statement in the written statement about the manner in which the rent was paid by the predecessors of the petitioners. By referring to the case of P.T. Munichikkanna Reddy Vs. Revamma, (2007) 6 SCC 59, it is submitted that a person claiming adverse possession should show, (i) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession had continued and (e) his possession was opened and undisturbed. By referring to the case of Mudigonda Chandra Mouli Sastry Vs. Bhimanepalli Bikshalu & Ors., (1999) 7 SCC 66, it is submitted that where there was concurrent finding of facts and where no legal infirmity could be pointed out as regards the concurrent finding of facts, the revisional power under Section 115 CPC ought not to be invoked for interfering with the concurrent finding of facts.

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Perused the records and considered the submissions made by the learned counsel for both sides. It is seen that in paragraph 5 of the written statement, the petitioner herein had denied the tile of the respondent. Therefore, having not known the title of the suit land, the plea of adverse possession cannot be maintainable because to sustain a plea of adverse possession, the enjoyment of possession of the occupier of the suit land is required to be proved as open, hostile and with the knowledge of the real owner. There must be an intention to dispossess the true owner from the property. In the evidence-on-affidavit, the DW-1 i.e. the petitioner herein had admitted that the original pattadar was Ramjanam Koiri. He also admitted that the respondents are the grand-daughter of the said original pattadar Ramjanam Koiri. But, it was stated that the respondents were not given any plot of land by their grandfather either by sale or by making gift deed during his life time. In paragraph 23 of the written statement cum counter-claim, the petitioner has taken a plea that his name was recorded in the chitha by the concerned Lat Mandal showing the long possession of the suit

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lane by him since 1969. However, along with his evidence on affidavit, the DW-1 had only exhibited the certified copy of jamanbandi (Ext.1). However, no specific entry was proved showing the name of the petitioner as one of the co-pattadars in respect of the suit land. The chitha, referred to in paragraph 23 of the written statement cum counter-claim has not been exhibited. Nothing could be shown before this Court to establish that the petitioner had carried out any construction over the suit land. Shri Ganga Prasad Koiri, the constituted attorney of the respondent had proved his Power of Attorney No. 84 dated 11.02.1981 (Ext.1) given by the respondents and he had also proved the Agreement for Lease of House dated 24.06.1985 between the respondents and the petitioner (Ext.4). Thus, this Court does not find any merit in the submission made by the learned counsel for the petitioners that suit filed by the respondents through their attorney was not maintainable because the attorney had signed the rent agreement (Ext.4.), as attorney for the respondents. The description of the suit property as given in the plaint matches with the description of the land in house described in the schedule of the agreement for lease of house (Ext.4), save and except east and west boundaries, which may change due to change in the name of owners of the said plot of land. The suit was described as fetched roof house consisting of two rooms with bamboo post, bamboo wall measuring 22 ft. X 10 ft. along with one tube well and kutcha latrine. Therefore, while the respondents have been able to prove that the suit premises was let out to the petitioner, the petitioner has not been able to prove that he had carried out any construction over the suit land described in the schedule of the plaint. The said agreement for lease of house (Ext.4) was for a term of one year continuing a clause for renewal, but the as no proof of renewal has been tendered by either of the parties, the tenure of the said agreement for lease of house (Ext.4) was only for the term of one year. Hence, the said agreement is exempted from being registered under Section 17(1)(d) of the Registration Act, 1908. Therefore, this Court does not find any infirmity with the concurrent finding of fact recorded by both the learned Courts below.

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On a perusal of the trial court as well as the first appellate Court records, this Court is of the opinion that no case is made out to hold that the learned courts below had either misread or misconstrued any pleadings or evidence on record in the absence of any

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evidence by the petitioner to show their open, hostile possession of the suit land against the respondents, the decision on issues No. 4, 7 and 8 by the learned trial court as well as the first appellate Court cannot be faulted with. Merely because the agreement for lease of house (Ext.4) was not renewed after one year, the said documents does not become inadmissible in evidence and, as such, as the entry of the petitioner into the suit land was in his capacity as a tenant, the plea of having hostile possession in respect of the suit land is not maintainable because in the said agreement, the respondents, being the landlord were duly represented by their father and duly constituted attorney whose appointment was made vide Ext.1 of the respondents-plaintiffs.

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In the opinion of this Court, this Court’s interference in a revision under Section 115 CPC is very limited. In the case of Navajyoti Mahanta Vs. Smt. Prabini Mazumdar, 1996 (2) GLT 459 has held that the scope of a revisional court is essentially confined to jurisdictional error and case gross miscarriage of justice resulting from material irregularity committed by the court in exercise of its jurisdiction. The Hon’ble Apex Court in the case of Chandrika Prasad Vs. Umesh Kumar Verma, (2002) 1 SCC 534 has held that though revision is a part of appellate jurisdiction, but it cannot be acquitted with a full-fledged appeal and that the re-appreciation of evidence is only limited to see if the order of eviction is “in accordance with law”. Therefore, on a limited re-appreciation of the evidence, this Court does not find any jurisdictional error committed by the learned courts below. It appears that both the learned trial court as well as the first appellate Court had independently assessed the pleadings and evidence on record and had arrived at a concluded finding to hold that the respondents were entitled to khas possession of the suit premises by evicting the petitioners, their dependents, representatives etc. and for recovery of arrear rent. In view of the fact that the tenancy agreement (Ext.4), was duly proved, the learned first appellate Court had rightly held in respect of issue No. 4 that as the suit was for eviction under the Assam Urban Areas Rent Control Act, 1972, the suit was not governed under the Transfer of Property Act, 1982 and, as such, the issue of title of the landlord is not required to be decided in an eviction suit. The learned first appellate Court had rightly set aside the finding of the leaned trial court on

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issue No. 4 by holding that the said issue was wrongly framed. Resultantly, issues No. 7 and 8 appears to have been rightly decided by holding that there was no evidence that the predecessor of the petitioners had occupied the suit land prior to 1985 and, as such, the plea of adverse possession was rightly held to be not maintainable.

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This Court is of the further opinion that the predecessor of the petitioner never accepted the respondents to be the landlord, and did not take a plea that he was paying rent to his landlord. Under the circumstances, the submission made by the learned counsel for the petitioner that in the absence of any finding that when the rent become due, the decree for eviction and recovery of arrear rent was not maintainable appears to be a misapplied argument. Having set up a plea of adverse possession, there was no occasion for the petitioner to dispute the existence of tenancy and therefore, rightly no issue was framed as to the date on which the rent becomes due. Hence, the ratio laid down in the case of Murlidhar Jalan and Tushar Kanti Dey (supra) has no application in the present case in hand. The petitioner had taken a plea of adverse possession in terms of ratio laid down in the case of Munichikkanna Reddy (supra) could not be proved.

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In the present case in hand, this Court does not find any legal infirmity in respect of the concurrent finding on issues No. 7 and 8. As the present revision is not found to be sustainable, the same is hereby dismissed.

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LCR be returned back.

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The interim order passed in connected I.A.(C) 505/2017 stands vacated.

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JUDGE

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Comparing Assistant

Amrit Tiwari Since Deceased His Legal Heirs - a Dhurwa Nandan Tiwari and 6 Ors. v. Rukmini Devi Koiri and Anr.

Case brief

What is this about?

What did the court decide?

Amrit Tiwari Since Deceased His Legal Heirs - a Dhurwa Nandan Tiwari and 6 Ors. v. Rukmini Devi Koiri and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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