Ajanta Kalita Vs on the Death of Padmadhar Choudhury His Legal Heirs and Ors.

Heard Mr. G. N. Sahewalla, the learned senior counsel assisted by Ms. S. Todi, learned counsel for the appellant. Also heard Mr. D. Choudhury, the learned counsel appearing for the respondent nos. 1 and 2.

¶26

This appeal under Section 100 of the CPC is directed against the judgment and decree dated 20.12.2010, passed by the learned District Judge, Tinsukia, in T.A. No. 06/2009, thereby partly allowing the appeal by modifying the judgment and decree dated 02.09.2009, passed by the learned Civil Judge, Tinsukia in T.S. No. 53/2006, where the suit was decreed.

¶27

The respondent nos. 1 and 2 were the plaintiffs in T.S. No. 53/2006. The case of the respondents is that the appellant as defendant no.1 was inducted in

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Page No.# 3/8

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the suit premises as a permissive occupier purportedly on a verbal tenancy agreement that no addition, alteration, modification, demolition, repairing works, etc. should be carried out in the suit premises and the appellants would vacate the suit premises as and when the same was required. On the allegation that contrary to the agreement, some building materials were collected by the appellants and attempt was made for continuing to make pucca construction over the suit land by surreptitiously obtaining permission from Doom Dooma Town Committee, the respondents filed the suit for a declaration that the appellants did not have any right to make any addition or alteration or modification or demolition, etc. or any other repairing works in the suit premises; for permanent injunction to the said effect, including prayer for interim injunction as prayed for. It would be pertinent to mention that the suit premises is covered by Holding No.103 of Ward No. 5 of Doom Dooma Town, measuring about 2000 sq. ft. the land is covered by Periodic Patta No.56 under Dag No.1322, which is notionally described in the Schedule to the plaint.

¶30

The learned Civil Judge, Tinsukia, by judgment order and decree dated 02.09.2009, passed in T.S. No. 53/2006, decreed the suit by declaring that the appellant has no right to make any addition, alteration, modification, demolition, etc. or carry out any repair works in the suit premises. Accordingly, permanent injunction to that effect was granted.

¶31

It may be mentioned that in order to decide the suit, the following four issues were framed by the learned trial court :

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I. Is there cause of action for the suit?

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II. Is the suit maintainable?

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III. Whether the suit is bad for want of notice under Section

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Page No.# 4/8

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80 of C.P.C and Section 326 of Assam Municipal Act?

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IV. To what relief or reliefs the plaintiff is entitled to?

¶38

In, support of the pleadings, the respondents/ plaintiffs examined two PWs and exhibited five documents as Exhibit 1 to 5 and the appellant's side examined two witnesses and exhibited documents as Exhibit-A to N.

¶39

As indicated above, aggrieved by the said judgment, order and decree dated 02.09.2009, the appellant has filed Title Appeal No. 6/2009. By the appellate judgment, order and decree dated 20.12.2010, affirmed the decree against the appellant declaring that the appellant had no right to addition, alteration, modification, demolition, etc. of the suit house. However, while granting the decree for allowing the repair of the suit house to be done, it was made conditional that the repairing of the suit house was allowed without changing the basic nature, character and structure of the same with a rider that the same be done in the presence of the respondents or their representatives, agents etc.

¶40

As stated in the first appellate order, the learned senior counsel for the appellants has submitted that admittedly, as the suit was under Section 5 of the Non-Agricultural Urban Areas Tenancy Act, 1955, therefore, no eviction from the suit premises was ordered. The fact that the petitioner was to remain in the suit house had attained finality. Accordingly, it is stated that as the house was not constructed by the respondents, as there was no prayer for recovery of the house, hence, the presumption would be that the house was constructed by the appellant and therefore, to maintain it in a liveable condition, repairs of the suit house without changing the basic nature, character, and structure was required and accordingly, they submitted that the presence of the appellants or the

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representatives etc. was a condition which is unwarranted in the first appellate decree.

¶43

The learned counsel for the respondents have vehemently objected to the submission made by the learned senior counsel for the appellants and it is submitted that it would be very necessary for the respondents to be present when the repairs were carried out, so that they would know that the repairing of the suit house was being done without changing the basic nature or character or structure, and make objection if any contrary construction are made.

¶44

It is submitted that as the right of the respondent as the owner of the suit land exists, they have every right to verify as to what nature of constructions are to be carried out in suit premises.

¶45

Therefore, the issue raised in this second appeal appears to be restricted only to the condition contained in paragraph 14 (2) of the appellate order, as to whether, the presence of the respondents/plaintiffs or their representatives or agents, etc. are required while the appellants undertake repairing of the house to make it liveable is necessary.

¶46

The substantial question of law on which this appeal was admitted for hearing, order dated 17.02.2012, is reproduced below:

¶47

“Whether the learned first appellant court, having held that the tenancy was in respect of the land and not in respect of house by disbelieving the plaintiffs’ story, is justified in holding that the defendant has no right to repair the house in view of the provision contained in Sub Section 1 of section 5 of the Assam Non Agricultural Urban Areas Rent Control Act, 1995”.

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Page No.# 6/8

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On a perusal the materials i.e. pleadings and evidence available on record, there is no claim that the tenancy was in respect of the house. Therefore, by the judgment, order and decree passed in the suit and in the first appellate proceedings, the tenancy in respect of the land only was maintained. Accordingly, the Court is of the considered opinion that the respondent has failed to adduce evidence to demonstrate that the tenancy was not only for land but was also in respect of the house. There is nothing on record in the evidence of the witnesses examined by the parties that the house was not built by the appellants. Moreover, in view of the fact that no right over the house has been claimed by the respondents/plaintiffs, no issue arises as to who other than the appellant is the owner of the house.

¶50

Nonetheless, as the tenancy is in respect of the land which is governed by the provisions of Assam Non-Agricultural Urban Areas Tenancy Act, 1955. The Court is of the considered opinion that the respondents/plaintiffs would be within their right to see that the name of repair of the house, the basic structure of the house is not changed or dismantled and substituted by a new construction. Therefore, they have a right to examine only that.

¶51

However, if there is a decree allowing the repairs to be done only in the presence of the respondents/plaintiffs or their representatives or the tenants etc. it could interfere with the right of the appellants or their right to keep the house in a repaired manner for making it in a liveable condition. Therefore, the directions contained in paragraph 14 (2) of the learned First Appellate Court’s order, allowing the repairs to be carried out, but in the presence of the respondents/plaintiffs or their representatives, agents, etc. is not warranted.

¶52

As the right of the respondents/plaintiffs is duly protected by the

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judgment and decree passed by the learned trial court and also affirmed by the learned First Appellate Court in paragraph 14(1) of the Appellate judgment, order and decree, holding that the defendant has no right to make addition, alteration, modification or demolition, etc., of the suit house, doing the repair to the suit house, including painting, etc. must be held to be within the meaning of “repair” and could not be included in the first part of the appellate decree relating to direction that the defendant has no right to make addition, alteration, modification, demolition, etc. of the suit house.

¶55

Therefore, that part of the appellate judgment, order and decree, as contained in sub-paragraph 2 of paragraph 14 of the First Appellate judgment, order and decree dated 20.12.2010, passed by the learned District Judge, Tinsukia entitled Appeal No. 6/2009, is hereby interfered with and the same is modified as follows:-

¶56

“14(2) The defendant is allowed to do only the repairing of the suit house, without changing the basic nature or character, size and structure, as indicated in paragraph 14(1) of the appellate judgment, order and decree. However, it would not be necessary for the repairs to be carried out only in the presence of the plaintiffs or t heir representatives, agents, etc. It is further clarified that in the guise of repairs, the appellant/defendant no. 1 would not have any right to act contrary to the decree as ordered in sub-paragraph 1 of paragraph 14.”

¶57

To the aforesaid extent, the respondents/plaintiffs are protected and any violation thereof would entitle the respondents-plaintiffs to take such steps as they may be so advised.

¶58

Accordingly, though the tenancy was in respect of the land and not in respect of the house, it is not disputed that the tenancy is governed under the provisions of Assam Non-Agriculture Urban Areas Tenancy Act, 1955. Therefore, though the appellants have a right over the house, the defendants/plaintiffs

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have a right to examine that in the name of repairs, the structure of the house is directed in sub-paragraph 1 of paragraph 14 of the First Appellate judgment, order and decree is not frustrated. Thus, the substantial question of law is answered by holding that in view of Section 5 (1) of the Assam Non-Agriculture Urban Areas Tenancy Act, 1955, the appellants/defendants have a right to repair the house but without violating the direction as contained in paragraph 14 (1) of the First Appellate judgment, order and decree dated 20.12.2010, passed by the learned District Judge, Tinsukia in Title Appeal No. 6/2009.

¶61

The appeal stands partly allowed to the extent as indicated above.

¶62

The Registry shall draw up a formal decree and make it a part of record.

¶63

The Registry shall return back the TCR’s of T.A. No. 6/2009 and T.S. No. 53/2006.

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JUDGE

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Comparing Assistant

Ajanta Kalita v. on the Death of Padmadhar Choudhury His Legal Heirs and Ors.

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Ajanta Kalita v. on the Death of Padmadhar Choudhury His Legal Heirs and Ors.

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