The central legal point established in the judgment is the interpretation and application of the provisions of the Assam Non Agricultural Urban Areas Tenancy Act, 1955, particularly Section 5, in determining the eviction of a tenant for non-payment of rent and violation of tenancy conditions.

B.P. Katakey, J.

1. This appeal by the Plaintiffs is directed against the judgment and decree dated 8.3.1999 passed by the learned Civil Judge (Sr. Division), Jorhat in Title Appeal No. 60/1989 decreeing the suit of the Plaintiffs for arrear rent and passing the decree of eviction/ejectment of the Defendant in the event the decree for rent is not paid within 30 days from the date of the said decree.

2. The Appellants, as Plaintiffs, instituted Title Suit No. 43/1977 in the Court of the learned Munsiff at Jorhat praying for a decree for eviction of the predecessor-in-interest of the present Respondent, namely Sri Atul Chandra Baruah, and for recovery of khas possession and also for recovery of rent, contending inter alia that one Babula Phukan was originally inducted as a tenant by the predecessor-in-interest of the Plaintiffs in respect of the suit land for installation of a rice mill at an annual rent of Rs. 32/-, which land along with the mill was subsequently transferred by said Babula Phukan to the Defendant Atul Chandra Baruah in the year 1943 and thus the Defendant stepped into the shoes of said Babula Phukan as the lessee in respect of the land at an annual rental of Rs. 32/- till 31.12.1948. It has further been pleaded in the plaint that a fresh lease was executed between the predecessor-in-interest of the Plaintiffs and the Defendant Atul Chandra Baruah on 9.3.1951 creating tenancy with effect from 1.1.1949 to 31.12.1958 at an annual rent of Rs. 200/- with the condition not to make any permanent structures therein. According to the Plaintiffs the Defendant defaulted in payment of rent since the year 1954 and sublet a portion of the land to one Sri Krishna Sahu and allowed him to raise permanent structures on the land without the consent or authority of the Plaintiffs and thereby violated the terms of the lease. The Plaintiffs therefore, prayed for ejectment and recovery of arrear rent.

3. On receipt of the summons, the Defendant contested the suit by filing written statement contending inter alia that the tenancy created being in respect on 3 Kathas 15 Lechas of land between the predecessor-in-interest of the Plaintiffs and the Defendant, the suit for eviction of the Defendant from the land measuring 4 Lechas of land is not maintainable there being no tenancy in respect of the remaining land of 7 Lechas. It has further been contended that the original tenant Babula Phukan in fact raised the permanent structures wherein the mill was set up and after purchasing the same in the year 1943, permanent structures were raised by the Defendant with the knowledge and acquiescence of the predecessor-in-interest of the Plaintiffs and such permanent construction having been raised firstly by the original tenant within five years from the date of commencement of the tenancy and thereafter by the Defendant within five years from the date of tenancy created with him, he is protected under Section 5 of the Assam Non Agricultural Urban Areas Tenancy Act, 1955 (in short 1955 Act). The Defendant has also denied the allegation of non payment of rent and contended that the rent due and payable to the Plaintiffs was paid.

4. The learned trial Court on the basis of the pleadings framed the following is- sues:

1. Whether notice for ejectment is sufficient and valid?

2. Whether the Plaintiffs are entitled to include land not covered by the tenancy.'

3. Whether the Plaintiff's suit is hit by the principle of res-judicata?

4. Whether the rice mill machinery and the mill house constructed on the suit land by Babula Phukan (First lessee) come under the definition of permanent structure as incorporated in 1958 amendment to 5.3(d) of Assam Non-Agricultural Urban Areas Tenancy Act, 1955?

5. Whether the Defendants are protected from eviction for having acquired a right title and interest over the permanent structure on the suit land constructed by the first lessee as envisaged in the 1988 amendment to Section 5(1)(a) of the above mentioned Act?

6. Wheth