Remanded

On the Death of Ananta Pathak His Legal Heirs Mahendra Mohan Pathak and 7 Ors. v. Gopal Das

Gauhati HC16 Nov 2021CRP/415/2012

Case brief

AI extract

What is this about?

This revision petition challenges an appellate judgment declaring a title suit non-maintainable due to non-impleadment of a deceased tenant's legal heirs. The High Court examined evidence regarding tenancy continuation versus new tenancy, concluding a new tenancy could not be conclusively proven but a fresh adjudication was required to determine if legal heirs were necessary parties given the plai

What did the court decide?

The judgment of the Court of District Judge in T.A. No. 06/2008 and the judgment in Title Suit 43/2005 were remanded to the Court of Munsiff No. 1, Nalbari for fresh adjudication with an opportunity t

On the Death of Ananta Pathak His Legal Heirs Mahendra… — Property and Title | Gauhati HC (2021)

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GAHC010122252012

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

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Case No. : CRP/415/2012

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ON THE DEATH OF ANANTA PATHAK HIS LEGAL HEIRS MAHENDRA MOHAN PATHAK and 7 ORS. SON

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2: BHABESH PATHAK SON

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3: RAJESH PATHAK SON

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4: RENUKA HALOI DAUGHTER

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5: CHITRA PATHAK DAUGHTER

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6: LATIKA PATHAK DAUGHTER

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7: DALIMI PATHAK DAUGHTER

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8: JUPITARA PATHAK DAUGHTER ALL ARE R/O VILL/PO. BAIRAGI PS. PATACHARKUCHI DIST. BARPETA ASSA

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VERSUS

GOPAL DAS

S/O LT. DASO RAM DAS, VILL. NAKHARA, PO. TIHU, PS. TIHU, MOUZATIHU, DIST. NALBARI, PIN-781371

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Advocate for the Petitioner : MR. D MAZUMDAR

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Advocate for the Respondent : N BHARALI

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BEFORE HON’BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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JUDGMENT & ORDER (ORAL)

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Date : 16-11-2021

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Heard Mr. D Mazumdar, learned senior counsel for the petitioners. Also heard Mr. S Ali, learned counsel for the opposite parties.

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The predecessor-in-interest of the petitioners had instituted Title Suit 43/2005 in the Court of Civil Judge Senior Division, Nalbari for a decree for an amount of Rs.25,800/(Rupees Twenty Five Thousand and Eight Hundred) as arrear rent and compensation with interest at the rate of Rs. 12% per annum till realization and to declare that the defendant is an illegal trespasser and there is no tenant-landlord relation between the defendant and the plaintiff and to pass an order for eviction of the defendant from the room occupied by him as illegal trespasser.

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In paragraph 3 of the plaint, it has been stated that the southern side of the suit land measuring 14 and ½ Lechas covered by KP Patta No. 101 of Dag No. 182 of Tihu Town under Tihu Mouza of Nalbari district, was let out to the defendant at a monthly rent of Rs.350/(Rupees Three Hundred and Fifty) wherein the defendant had started a shoe store in the name and style of Pradip She Store and the monthly rent was regularly paid till December, 1999.

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Page No.# 3/7

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The defendant opposite party Gopal Das in his written statement had taken the stand that in respect of the suit land, earlier there was an old godown and the predecessor-ininterest of the defendant Gopal Das namely Daso Ram Das had operated a timber shop in the said premises. In course of the time, the godown became dilapidated and unfit for use and had to be dismantled. In the other part of the godown Late Phatik Chandra Takuria had operated a shoe store. As the plaintiff was unable to rebuild the premises, an oral agreement was entered between the plaintiff Ananta Pathak and Daso Ram Das and Phatik Chandra Thakuria that they would rebuild the house on the suit land and occupy the same forever and thereby created a permanent tenancy in their favour. The further stand of the defendant Gopal Das was that he and the other legal heirs of Daso Ram Das inherited the tenancy from their predecessor-in-interest Daso Ram Das and accordingly, the defendant Gopal Das had been operating a cloth store in the tenanted premises.

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The learned Civil Judge, Nalbari while deciding the Title Suit 43/2005 proceeded on the premises that one room of the suit premises on the southern side was let out by the plaintiff to the defendant Gopal Das at a monthly rent of Rs.350/- and the defendant Gopal Das was engaged in the cloth business and had paid the monthly rent upto December, 1999.

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Issue no. 4 framed by the learned Trial Court was as to whether there was a tenant and landlord relationship between the defendant and the plaintiff and whether the plaintiff was entitled to the reliefs claimed for. While deciding the issue no. 4 along with the issue no. 5, the learned Court had taken note that the plaintiff had claimed that as Daso Ram Das, the father of the defendant Gopal Das was his tenant for the room bearing holding no. 149 of ward no. 2 of Tihu Town at a monthly rent of Rs.350/-. By discussing the evidences on record, the learned Trial Court arrived at its conclusion that the defendant Gopal Das was a defaulter and was liable for eviction.

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We have examined the discussion and the conclusion arrived at by the learned Trial Court in respect of the issue no. 4 and have noticed that except for the initial provision thereon that the plaintiff claimed that Daso Ram Das, the father of the defendant Gopal Das was his tenant, no further conclusion had been arrived at as to between whom the tenancy agreement existed and whether it was with the deceased Daso Ram Das and was continued by the defendant Gopal Das as his legal heir or it was a tenancy with the defendant Gopal

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Page No.# 4/7

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Das.

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On an appeal being carried by the defendant Gopal Das being T.A. No. 06/2008 in the Court of District Judge, Nalbari, the judgment dated 16.06.2012 was rendered. While deciding the issue no. 4 as regards the existence of the tenancy the learned Appellate Court had taken note that according to the plaintiff the defendant was a monthly tenant but the pleadings were silent about the due date. While deciding the issue no. 3 as to whether the suit was bad for non-joinder of necessary parties, the learned Appellate Court had taken note that the suit premises was rented out to Daso Ram Das where he operated a cloth store and on his death, the legal heirs of Daso Ram Das had stepped into his shoes and had been running the shop on the premises.

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The plaintiff as a respondent in the said appeal had raised the contention that after the death of Daso Ram Das, his son being the defendant Gopal Das became the sole proprietor of the cloth store and his name was also recorded in the records of the Town Committee and therefore, he is the only person with whom the plaintiff had the relationship of landlord and tenant.

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On the submission of the defendant as the appellant in the appeal, the learned Appellate Court also took note of the definition of tenant as the defined under Section 2(f) of the Assam Urban Areas Rent Control Act, 1972 which defines it to mean any person by whom or on whose behalf rent is payable for any house and includes every person who from time to time derived the title under a tenant. The learned Appellate Court concluded that as the definition of the tenant includes every person who also has a derivative title over the rented premises, therefore, on the death of Daso Ram Das, the original tenant, all his legal heirs stepped into his shoes and are also to be understood to be the tenants. As all the legal heirs of the deceased Daso Ram Das are to be construed to be the tenants therefore in the facts and circumstances of the case and also under the law, the learned Appellate Court construed the legal heirs of Dasa Ram Das to be the necessary parties in the suit. As the other legal heirs were not arrayed as defendants, the learned Appellate Court had arrived at its conclusion that Title Suit no. 43/2005 is not maintainable in absence of the other legal heirs of the original tenant. Upon such conclusion being arrived at by the learned Appellate Court that the other legal heirs are also the necessary parties and all such legal heirs have not been

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arrayed as defendants, it was held by the judgment dated 16.06.2012 in T.A. No. 06/2008 that the suit is not maintainable. Being aggrieved, the present revision is instituted under Section 115 read with Section 151 of the Code of Civil Procedure along with the Article 227 of the Constitution of India.

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Mr. D Mazumdar, learned senior counsel for the petitioner plaintiff has referred to the evidence of PW2 Ananta Talukdar, who had deposed that the deceased Daso Ram Das at one point of time felt that he was unable to operate the cloth shop business and therefore, had approached the plaintiff landlord for relinquishing the tenancy. The witness further deposed that at that stage the defendant Gopal Das came and offered that he would continue with the tenancy. Accordingly, the plaintiff landlord allowed the tenancy to continue. Mr. D Mazumdar, learned senior counsel also refers to Exhibit 4 which is a document providing for the holding number issued by the Tihu Town Committee which is in the name of the defendant Gopal Das. The trade license issued by the Tihu Town Committee is also referred which again shows the name of the defendant Gopal Das.

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By relying on the said two documents which were exhibited, read with the evidence of the PW2, it is the contention of the learned senior counsel that a separate tenancy was created at that stage with the defendant Gopal Das and therefore, the conclusion arrived at by the learned Appellate Court that the other legal heirs of the deceased Daso Ram Das are necessary parties, would be incorrect.

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Exhibit 4 document showing the holding number of the premises issued by the Tihu Town Committee in favour of the defendant Gopal Das cannot on its own be stated to have devolved a legal right on the defendant Gopal Das to be the sole tenant of the tenanted premises. It is the established position of law that a document providing for the holding number cannot be the sole basis to establish any title over the premises for which the holding number may have been issued. The other document providing for a trade license in favour of the defendant Gopal Das also cannot be a document to form the basis to establish a tenancy with a landlord. A trade license is issued only for the purpose of granting a permission to operate a trade by the Municipal Authorities and the same on its own cannot be construed to be a document indicating the title of the person concerned over the premises where the trade is being operated.

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What remains is the evidence of PW2 who had deposed that the deceased Daso Ram Das had offered before the landlord to relinquish the tenancy but at that stage the defendant Gopal Das came and offered to continue with the tenancy and also to continue with the cloth store located therein. The evidence of PW2 is neither conclusive to arrive at a conclusion that the deceased Daso Ram Das had relinquished the tenancy and after the end of the tenancy with Daso Ram Das, a new tenancy was created by the plaintiff landlord with the defendant Gopal das, nor it is conclusive to arrive at any conclusion that the defendant Gopal Das as a legal heir continued with the earlier tenancy.

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One particular word in the evidence draws our attention that the PW2 had stated is that the defendant Gopal Das had offered to continue with the tenancy meaning thereby that the earlier tenancy may have been continued.

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Be that as it may, without arriving at a definite conclusion as to whether it was a continuation of the original tenancy with the deceased Daso Ram Das or it was a new tenancy that had been created in favour of the defendant Gopal Das, what we take note is that even in the absence of any definite conclusion being arrived at, it cannot be wholly said that in the instant case the other legal heirs of the deceased Daso Ram Das would not be necessary parties in the Title Suit No. 43/2005.

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The implication of non-impleadment of necessary party in a suit depends upon the facts and circumstance of the individual suit. Under certain circumstance, non-impleadment of necessary party may be factor inviting a dismissal of the suit itself. Again in other circumstance, a non-impleadment of necessary party, may not be a case for dismissal of the suit but for remanding the matter back for a fresh adjudication by allowing the parties to make the impleadment of necessary parties.

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In the instant case, we have taken note that the plaintiff was in a bonafide belief that there was a separate tenancy agreement with the defendant Gopal Das although through evidence, the existence thereof cannot be conclusively proved and the aspect became more pronounced only after the appearance of the defendant and the conclusion that were arrived at by the learned Appellate Court. In the circumstance that as there was no attempt by the plaintiff to take any undue advantage in the suit by not impleading the necessary parties and

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it may have been because of a bonafide belief that they were not necessary parties in the proceeding, we are of the view that the interest of justice between the parties would be met upon interfering with the judgment dated 24.09.2008 in Title Suit No. 43/2005 in the Court of Civil Judge, Nalbari as well as the judgment dated 16.06.2012 in Title Appeal No. 06/2008 in the Court of District Judge, Nalbari and remand the matter to the Court of Civil Judge, Nalbari for a fresh adjudication by allowing the plaintiff to implead the necessary parties, if so advised and as per law.

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We have been told that presently the jurisdiction of the Civil Judge, Nalbari is being exercised by the Munsiff, Nalbari. Accordingly, the mater be placed before the Court of Munisff No. 1, Nalbari. Upon the matter being remanded back, the learned Munsiff shall retain the evidence that were already adduced by the respective parties and as may be required or desired, further evidence may also be allowed to be adduced by the parties for a proper adjudication of the matter. It being a title suit of the year 2005 and as we have remanded the matter back for a fresh adjudication, we request the learned Munisff No. 1, Nalbari to give a final adjudication on the dispute as expeditiously as possible without any undue delay and also not allowing to either of the parties to cause any delay in the proceeding.

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Revision stands disposed of in the above manner.

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LCR sent back forthwith.

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Both the plaintiff as well as the defendant shall mutually confirm with each other and agree upon a date on which they will appear before the Court but the said date shall not be beyond the first week of December, 2021.

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In deciding the matter afresh, all the issues framed be adjudicated de-novo.

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JUDGE

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Comparing Assistant

On the Death of Ananta Pathak His Legal Heirs Mahendra Mohan Pathak and 7 Ors. v. Gopal Das

Case brief

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On the Death of Ananta Pathak His Legal Heirs Mahendra Mohan Pathak and 7 Ors. v. Gopal Das

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