Mustt Phul Begum Vs on the Demise of Abdur Rahman, Smti Saifur Nahar Begum and Ors.

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GAHC010204902017

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THE GAUHATI HIGH COURT AT GUWAHATI

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(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Principal Seat at Guwahati

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RSA No. 376/2017.

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Mustt. Phul Begum, W/o Late Nuruddin Ahmed, R/o Red Cross Road, near DHSK Law College, P.O. – Dibrugarh, P.S. – Dibrugarh, Dist. – Dibrugarh, PIN – 786001.

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…… Appellant.

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Versus -

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On the demise of Abdur Rahman:-

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1. Sri Aszadur Rahman, S/o - Late Abdur Rahman, R/o Naliapool, P.O. – Dibrugarh, P.S. – Dibrugarh, Dist. – Dibrugarh, PIN – 786001.

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2. Smti. Nurshid Begum, D/o Late Abdur Rahman, R/o Naliapool, P.O. – Dibrugarh, P.S. – Dibrugarh, Dist. – Dibrugarh,

PIN – 786001.

…… Respondents.

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BEFORE HON’BLE MR. JUSTICE ROBIN PHUKAN

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Advocate for the appellant	:-	Ms. S. Sarma.
Advocate for the respondents	:-	Mr. R.P. Sarma, Sr. Adv., Mr. N.N. Upadhyay.
Dates of Hearing	:-	05.08.2025 and 16.10.2025.
Date of Judgment & Order	:-	06.11.2025.

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JUDGEMENT & ORDER (CAV)

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Heard Ms. S. Sarma, learned counsel for the appellant and Mr. R.P. Sarma, learned Senior Counsel, assisted by Mr. N.N. Upadhyay, learned counsel for the respondents.

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2. In this appeal, under Section 100 of the CPC, the appellant, namely, Mustt. Phul Begum, has put to challenge the judgment and decree dated 03.05.2017, passed by the learned Civil Judge, Dibrugarh (>first appellate court?, for short), in Title Appeal No. 39/2006.

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3. It is to be noted here that vide impugned judgment and decree dated 03.05.2017, the learned first appellate court had affirmed the judgment and decree dated 30.06.2006, passed by the learned Munsiff No. 1, Dibrugarh (>trial court?, for short), in Title Suit No.

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27/2000, where by the suit of the plaintiff was decreed directing the defendant, her men and agents to be evicted from the suit premises and further directing the khas possession of the same be delivered to the plaintiffs and arrear of rent @ Rs. 250/- per month, with effect from April, 1996 to be recovered from the defendant till she is evicted from the suit premises.

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Background Facts:-

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4. The background facts, leading to filing of the RSA No. 376/2017, are adumbrated herein below:-

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<The plaintiff is the owner and title holder of the suit properties mentioned in the schedule of the plaint. It is the contention of the plaintiff that the defendant Musstt. Phul Begum came to occupy the house, mentioned in the schedule from the month of April, 1989 as a monthly tenant, according to the English Calendar month, agreeing to pay the rent @ Rs. 130/- per month. It was also agreed that the defendant would vacate the same as and when required by the plaintiff. It is the contention of the plaintiff that the rate of rent was enhanced from time to time and it was enhanced to Rs. 250/per month from the month of January, 1996. Further contention of the plaintiff is that the defendant had failed to pay the monthly rent from the month of November, 1996 and therefore, she became a heavy defaulter. Apart from the above, it is also contended that the suit premises is required

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bona-fide for his own use and occupation and in this regard, on 28.11.1998 the plaintiff sent a notice through his Advocate to the defendant asking her to clear the arrear rents and to vacate the suit premises within 31st December, 1998. On receipt of the notice, the defendant met the plaintiff and requested him to allow some time up to 31.01.1999, to vacate the suit premises, which was allowed by him. But even after elapse of such period, the defendant failed to clear the arrear rent nor she had vacated the suit premises and as such, the plaintiff filed the suit for recovery of the suit premises by evicting the defendant/tenant along with recovery of arrear rents and ancillary relief.

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The defendant/appellant had contested the suit by filing written statement. She had taken a stand that the suit is not maintainable in law and in facts; the plaintiff has no right to sue; the suit is barred under the principles of waiver and estoppels as well as there is no cause of action for the suit. She had also denied landlord and tenant relationship. It is the contention of the defendant that she came to occupy one of the rooms of barrack typed thatched house owned by one Abdul Rahim (since deceased) situated on a part of the land measuring 2 Bighas covered by Dag No. 51 of P.P. No. 24 under Gabharu pather ward w.e.f. 01.01.1976, agreeing to pay the monthly rent @ Rs. 20 per month. The rent was enhanced from time to time and lastly at Rs. 250/- from

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January, 1996. Her further contention is that in the month of March, 1989 the original landlord Abdul Rahim along with one Abdur Rahman (original plaintiff) met her and directed her to pay the subsequent monthly rent @ Rs. 130/- directly to said Abdur Rahman. Although, she protested the mode of payment, subsequently, at the request of Abdur Rahim she agreed to pay the rent. Accordingly, said Abdul Rahman started collecting the monthly rent from her since April, 1989.

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It is the further contention of the defendant that said Abdur Rahman started increasing rent with an undue manner and accordingly, being harassed by his arbitrary action, she met the original landlord in the month of August/September, 1996. After the complaint, Abdul Rahim removed Abdur Rahman from the responsibility of collecting rent and asked her to pay the rent at the reduced rate of Rs. 220/- from November, 1996 and since then, she had been paying the rent to the original landlord and on his death to his elder son. Her further contention is that on receipt of Advocate's notice sent by the plaintiff, she met him and according to her the plea of bona-fide requirement of the plaintiff and the allegation of being a defaulter are all false. In the premises aforesaid, the defendant prays for dismissal of the suit.=

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Upon the pleadings of the parties, the learned trial Court had framed following issues:-

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(i) Whether the suit is maintainable in law and in facts?

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(ii) Whether the plaintiff has right to sue?

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(iii) Is the suit barred under the principles of waiver, estoppels and acquisition?

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(iv) Whether the defendant is a defaulter and liable to be evicted in the eye of law?

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(v) Is there cause of action arose on any date as alleged in paragraph 11 of the plaint ?

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(vi) Is the plaintiff entitled to a decree as prayed for?

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(vii) To what relief the plaintiff is entitled under the law and equity?

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(viii) Whether the defendant was a tenant under the plaintiff?

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Thereafter, considering the evidence adduced by both sides and hearing arguments of both sides, the learned trial Court had decided all the issues in favour of the plaintiff and decreed the suit, vide judgment and decree dated 30.06.2006.

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Then being aggrieved, the defendant had preferred an appeal, being Title Appeal No. 39/2006, before the learned first appellate Court and after hearing both the parties, the learned first appellate Court, vide impugned

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judgment and decree, dated 03.05.2017, had upheld the decree, so passed by the learned trial Court.

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5. Being aggrieved, the plaintiffs approached this Court by filing the present second appeal, which was admitted, vide order dated 11.06.2018, on the following substantial question of law:-

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<Whether the finding of the learned Court
below to the effect that the sale deed, dated
29.03.1978, was more than 22 years old and
therefore, a presumption under section 90 of
the Evidence Act, 1872 could be drawn in its
favour is vitiated by perversity?=

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Submissions:-

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6. Ms. Sarma, learned counsel for the appellant, submits that the predecessor-in-interest of the plaintiff, namely, Abdul Rahim is the owner of the suit property and the defendant/appellant Mustt. Phul Begum came to occupy the house, w.e.f. 01.01.1976 agreeing to pay the monthly rent @ Rs. 20 per month. Thereafter, the rent was enhanced from time to time and lastly at Rs. 250/- from January, 1996. Ms. Sarma also submits that in the month of March, 1989 as per direction of the original landlord Abdul Rahim she started paying rent to one Abdur Rahman (original plaintiff) @ Rs. 130/-per month. Thereafter, Abdur Rahman started collecting the monthly rent from her since April, 1989. Ms. Sarma also submits that Abdur Rahman thereafter, started increasing rent and then she met the original landlord in the month of August/September, 1996 and lodged

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complaint and then Abdul Rahim had asked her to pay the rent at the reduced rate of Rs. 220/- from November, 1996 and since then, she had been paying the rent to the original landlord and on his death to his elder son.

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6.1. Ms. Sarma also submits that though the respondent herein has been claiming that their father/plaintiff had purchased suit premises on the strength of Sale Deed from Abdul Rahim and mutated his name yet, in view of decision of a Division Bench of this Court, in the case of Bhutkani Nath and Others vs. Mt. Kamaleswari Nath and Another , reported in AIR 1972 Assam and Nagaland 15 , due execution of the sale deed could not be proved by the defendants. Ms. Sarma has also referred to another decision of this Court, in the case of Lourembam Heramot Singh vs. Laisram Angahal Singh and Others , reported in AIR 1979 Gauhati 68 and submits that mere registration is not proof of execution, execution and contents must be proved in ordinary way and mere proof of admission of execution before Registrar is not enough. Referring to another decision of Hon?ble Supreme Court in the case of Balwant Singh and Another vs. Daulat Singh (Dead) by LRS. and Others , reported in (1997) 7 SCC 137 , Ms. Sarma submits that though the property was mutated in the name of the father of the respondents herein, yet the mutation of property in the revenue record will not extinguish title, nor it has any presumptive value on title. Under such count, Ms. Sarma submits that if registration of the property in the name of the father

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of the respondents herein was done on the basis of the sale deed, the sale deed has to be proved in accordance with Section 67 of the Evidence Act, mere registration is not enough and that the mutation of the name of the respondents? father in the revenue record and in the record of the Municipal Board, will not confer any right. Therefore, Ms. Sarma, submits that the finding, so recorded by the learned trial Court as well as first appellate Court, are perverse and on such count, the same is liable to be interfered with.

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7. Per-contra, Mr. Sarma, learned Senior Counsel, appearing for the respondents, submits that the scope of this Court to exercise the power under Section 100 of the CPC, is circumscribed and it cannot go beyond the provision and the same is stated in several cases including the case of Gurdev Kaur and Others vs. Kaki and Others , reported in (2007) 1 SCC 546 , wherein Hon?ble Supreme Court has held that the High Court is not justified in interfering with the concurrent findings of fact and in doing so, the High Court cannot go beyond the scope of Section 100 of the CPC. And in the said case, the Apex Court had the privilege of relying upon various judgments of Privy Council and its earlier decisions.

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7.1. Mr. Sarma has referred to another decision of Hon?ble Supreme Court in the case of Madhavan Nair vs. Bhaskar Pillai , reported in (2005) 10 SCC 553 , wherein it is stated that the High Court was not justified in interfering with the concurrent finding of facts and it is well settled that even if the first appellate

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court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.

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7.2. Referring to another decision of Hon?ble Supreme Court, in the case of H.P. Pyarejan vs. Dasappa , reported in (2006) 2 SCC 496 , delivered on 06.2.2006, Mr. Sarma submits that the Apex Court had found serious infirmity in the judgment of the High Court and observed that it suffers from the vice of exercise of jurisdiction which did not vest in the High Court and under Section 100 of the CPC, the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law and interference with the finding of fact by the High Court is not warranted if it invokes re-appreciation of evidence and thereafter, it has held that the impugned judgment of the High Court was vulnerable and accordingly, set aside the same.

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7.3. Mr. Sarma also submits that by virtue of the Sale Deed No. 1094, dated 29.03.1978, the predecessor of the respondents, namely, Abdur Rahman, had purchased the land from one Abdul Rahim, in 1978. And the appellant herein was a tenant of Abdur Rahman. Mr. Sharma further submits that the appellant herein had failed to make payment of the rent for which the father of the respondents had instituted Title Suit No. 27/2000, for her eviction and recovery or arrear rent. Further contention of Mr. Sarma is that the learned trial Court had rightly decreed the suit in favour of the plaintiff/father of the respondents and the learned first appellate Court had also rightly upheld the same in the appeal and therefore,

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it is contended to dismiss the same. Further Mr. Sarma submits that the substantial question of law as urged and framed by this Court, is substantially not maintainable and there is no sufficient reason to interfere with the finding of facts of both the learned courts below.

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8. Before a discussion is directed to the submissions of learned counsel for both the parties, first it has to be decided whether second appeal lies against the judgment and decree so passed by the learned first appellate court.

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8.1. It is to be noted here that Section 8 of the Assam Urban Areas Rent Control Act, 1972 provides for appeal, which reads as under:-

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Appeals. 8.

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<A landlord or a tenant aggrieved by any
decision or order of the Court under the
provisions of Sections 4, 5 and 7(2) of this
Act shall have a right of appeal against the
same as if such decision or order were a decree
in a suit for ejectment of the tenant from the
house and such appellate Court9s decision shall
be final.=

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8.2. Thus, a cursory perusal of the provision indicates that an aggrieved party, be he the landlord or tenant, have the right to appeal against the decision or order of the Court under the provisions of Sections 4, 5 and 7(2) of the Assam Urban Areas Rent Control Act, 1972 if such decision or order were a decree in a suit

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for ejectment of the tenant from the house and such appellate Court?s decision shall be final.

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9. The issue, as to whether a revision would lie against the decision of the appellate Court, was raised before a Co-ordinate Bench of this Court in the case of Ranjit Kr. Dey and Ors. vs. Krishna Gopal Agarwala And Ors., reported in (2004)3 GLR 280, wherein, considering the submissions of learned counsel for both the parties and considering the facts and circumstances of the case, the Co-ordinate Bench of this Court had directed that the matter be placed before the Chief Justice for constituting a Larger Bench to decide the question so formulated as under:-

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"Whether the decision or order passed in
appeal under Section 8 of the Assam Urban
Areas Rent Control Act, 1972 is revisable by
the High Court under Section 115 of CPC ;
or Section 8 of the Act 1972 completely debars
the revisional jurisdiction of the High Court
to entertain the revision against the decision
or order passed by the Appeal Court
under Section 8 of the Act 1972".

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10. Thereafter, a Division Bench of this Court in Ranjit Kr. Dey & Others vs. Krishna Gopal Agarwala & others, reported in 2004(2)GLT 435 had answered the reference as under:-

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<16. On the basis of the discussion that has
preceded, we take the view that a Revision

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Application under Section 115 CPC against an
appellate decision under Section 8 of the Act of
1972 is maintainable and we answer the question
referred accordingly. The revision petitions will
now be listed for hearing.=

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11. In view of the legal matrix, discussed herein above, this Court is of the considered opinion that this second appeal is not at all maintainable. And accordingly, without deciding the appeal on merit, the same stands dismissed being not maintainable. However, liberty will remain with the appellant to avail appropriate remedy provided under the statute. In availing such remedy, if the question of limitation arises, then the appellant will be entitled to the benefit granted by Section 14 of the Limitation Act.

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12. Send down the record of the learned Courts below with a copy of this judgment and order.

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J U D G E

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Comparing Assistant

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Mustt Phul Begum v. on the Demise of Abdur Rahman, Smti Saifur Nahar Begum and Ors.

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Mustt Phul Begum v. on the Demise of Abdur Rahman, Smti Saifur Nahar Begum and Ors.

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