1989 Supreme(Gau) 126

GAUHATI HIGH COURT
A.Raghuvir, J.M.Srivastava, JJ.
Hari Shankar Sahu -Appellant
Versus
Giridharilal Sarma -Respondent
First Appeal No. 51 of 1978
Decided On : 27-06-1989

Headnote:

ASSAM NON-AGRICULTURAL URBAN AREAS TENANCY ACT, 1955 - SECTION 5 - PROTECTION FROM EVICTION - CONSTRUCTION OF PERMANENT STRUCTURE ON LAND OF TENANCY - TENANT NOT ENTITLED TO PROTECTION WHERE LEASE IS FOR HOUSE WITH LAND APPURTENANT TO IT AND CONSTRUCTION IS MADE ON SUCH LAND AS PER AGREEMENT.

Fact of the Case:

Plaintiff filed a suit for declaration of title to the second house, for recovery of possession of both the first and second house, arrears of rent and compensation. The defendant had agreed to take the said building on rent of Rs. 350/-per month and had paid an advance of Rs 4200/-on J. 1. 56. The said building then was in unfinished state and the stipulation was that the tenancy would commence from the date the defendant occupied it. The building was completed and the defendant occupied it on 1.2.56 when the tenancy -Commenced. This is referred as the first house. The plaintiff constructed another two storeyed building referred as the second house on laud adjacent and on the back side of the first house and rented it to the defendant. Since the plaintiff was short of money a loan of Rs. 17,700/-was taken from the defendant, by execution of several promissory notes, in the defendants or in the name of his brother one Ratan Prakash Sharma. The second house was completed in August, 1960. The defendant occupied the same on 1.9. CO and agreed to pay Rs 200/-per month as rent.. The advance of Rs 17,700/- for the second house was adjusted from the rent of the two houses. The plaintiff required the premises for his own business. The defendant stopped payment of rent of the first house from 1st. April 1965 and also stopped payment of rent for the second house from 16th February, 1965. The rent for the first house was due from 1st April, 1965 and the rent for the second house was due from 16th February 1965. The plaintiff made demands The defendant failed to pay rent. The plaintiff served registered notice dated 25th June, 1966 and terminated the tenancy from the midnight of 31st July, 1966. The defendant did not vacate and also did not pay Rs. 9100/-arrears of rent till 31st July 1966. The defendant, in reply dt. 9th August 1966 to notice admitted that the rent of the first house was due from 1st April, 1965. but denied the plaintiff's title in respect of the second house and asserted that the defendant himself had constructed the said second house, that the defendant had deposited Rs. 5,600/-which was in arrear in respect of the first house till 31st July, 1966, in Court and contended that be had offered the rent but the plaintiff had not accepted the same. The plaintiff alleged that in view of the defendant's denial of title to the second house, the plaintiff had to file the suit for declaration of his title and for the aforesaid reliefs.

Finding of the Court:

The court held that the defendant was not entitled to protection under section 5 of the Act of 1955. It was further held that the defendant was not defaulter and was not Viable to ejectment from the premises in suit. The trial Court partly decreed the suit for declaration of title to the second house as stated earlier.

Issues: 1. Whether the plaintiff has any cause of action ? 2. Whether the suit is maintainable in the present form ? 3. Whether the suit is bad for mis-joinder of causes of action ?. 4. Whether the adjacent two storeyed house was constructed by the plaintiff and whether the plaintiff took Rs. 17/700/-from the defendant by executing promissory notes in favour of the plaintiff's brother, Ratan Prakash Sarma ? 5. Wherher the plaintiff requires the house for his own business ? 6. Whether the sum of Rs. 17,700/-advanced for the second-house was adjusted towards the rent of the two houses ? 7. Whether there is valid and sufficient notice ? 8. Whether the defendant is protected U/S 5 of the Assam Non- Agricultural Urban Areas Tenancy Act in respect of the second-house ? 9. Whether the defendant is a defaulter ? 10. Whether the defendant advanced a further sum of Rs. 6311/- for the construction of the second-house ? 11. Whether the plaintiff has right, title and interest over the second-house ? 12. To what relief or reliefs, the parties are entitled ? 13. Did the defendant make accounts of the advances made by him for the construction of the house and did be record account due from the plaintiff? 14. Is the plaintiff is entitled to arrears of rent and compensation ?

Ratio Decidendi: The court held that the defendant was not entitled to protection under section 5 of the Act of 1955 which also involves the question, whether the defendant had constructed the second house, and secondly that whether the defendant had committed default and was liable to ejectment. The court held that the provisions of section 5 of the Act of 1955 would not be attracted in a case like the present, where the lease was for a house which also had some land appurtenant to it and on which, as agreed in the terms of lease between the parties, some construction had been raised. In our opinion, section 5 of the Act of 1955 would operate only when the tenant makes construction on land of tenancy,, i.e. the tenancy created is of 'land' and not otherwise. The defence plea is not tenable for contract of tenancy of house being one, it should not be considered or treated as spitted into one for the house and the other for land appurtenant to the house. We, therefore, hold that the finding of the learned trial Court to the contrary is erroneous and can not be sustained. The defendant, even if he made the construction was not entitled to any protection of, secrion 5 of the Act of 1955.

Final Decision: The plaintiff's appeal fails and is dismissed. The defendant's cross objection is allowed, the judgment and decree of the trial Court for declaration that the plaintiff was the owner of the second house is set aside and the plaintiffs entire suit is dismissed. Parties shall bear their own costs throughout.