Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1991 Supreme(Gau) 94

GAUHATI HIGH COURT
B.P.Saraf, J.
On The Death of Sole Appellant Jatindra Mohan Das His Heirs Smti Renu Bala Das and Others -Appellant
Versus
Makhan Bala Das and Others -Respondent
Second Appeal No. 123 of 1983
From Judgment and decree dated 3.6.83 passed, by the Assistant District Judge No. 2, Cachar, Silchar in Title Appeal No. 47 of 1981
Decided On : 14-05-1991

Advocates Appeared:
B.Banerjee, B.K.Das, B.R.Dey, D.C.Chakraborty, N.Chakraborty, S.Dutta

A sub-tenant is not a necessary party in a suit for eviction of a tenant and that non-impleading of a sub-tenant would not be fatal to the suit. Section 5 of the 1955 Act, which gives protection to a tenant from eviction, would not be attracted in a case where the lease was for a house which also had some land appurtenant to it and on which, as agreed in terms of the lease between the parties, some construction had been raised.

Headnote:
TENANCY - NON-AGRICULTURAL URBAN AREAS TENANCY ACT, 1955 - SECTION 5 - APPLICABILITY - SUB-TENANT - NECESSARY PARTY - SECTION 3(G) - DEFINITION OF TENANT - CONSTRUCTION OF LEASE - SUBJECT-MATTER OF TENANCY - LAND OR LAND WITH HOUSE.
Fact of the Case:

Plaintiff filed a suit for eviction and recovery of khas possession of the suit land from the defendants, who claimed protection under section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (the 1955 Act). The trial court dismissed the suit, holding that the plaintiff had failed to prove his title and that the defendants were entitled to protection under section 5 of the 1955 Act. The lower appellate court affirmed the trial court's decision.
Finding of the Court:

The High Court held that a sub-tenant is not a necessary party in a suit for eviction of a tenant and that non-impleading of a sub-tenant would not be fatal to the suit. The Court also held that section 5 of the 1955 Act, which gives protection to a tenant from eviction, would not be attracted in a case where the lease was for a house which also had some land appurtenant to it and on which, as agreed in terms of the lease between the parties, some construction had been raised. The Court remanded the case to the trial court for determination of the issue whether the tenancy in question was of land or of land with house thereon and then to decide whether the defendants were entitled to protection from eviction under section 5 of the Act.
Issues: 1. Whether the suit was bad for nonjoinder of necessary parties due to the failure of the appellants/plaintiff to substitute the legal representatives of proforma defendant No. 6, a subtenant who died in course of the trial? 2. Whether the Courts below were justified in holding that the defendants were entitled to protection under section 5 of the 1955 Act without considering whether the tenancy in question was governed by the provisions of the said Act or not.
Ratio Decidendi: 1. A sub-tenant is not a necessary party in a suit for eviction of a tenant and that non-impleading of a sub-tenant would not be fatal to the suit. 2. Section 5 of the 1955 Act, which gives protection to a tenant from eviction, would not be attracted in a case where the lease was for a house which also had some land appurtenant to it and on which, as agreed in terms of the lease between the parties, some construction had been raised.
Final Decision: The High Court allowed the appeal, set aside the judgment and decree of the lower appellate court, and remanded the case to the trial court for disposal in accordance with the observations and directions made by the High Court.

This second appeal of the plaintiff is directed against the judgment and decree of the Assistant District Judge No. 2 Cachar, Silchar affirming the judgment and decree passed by the Sadar Munsiff No. 2 dismissing the plaintiff's suit.

2. The facts of the case, briefly stated are as follows : The plaintiff claimed to be the owner of the suit land. His case is that he had purchased the same from the heirs of the original owner Kali Kumar Sen. I he purchase was made by two registered deeds dated 5.10.71 and 15.12.75 (Ext. 3 and 4). The original owners by a deed dated 3.6.1944 (Ext. 1) had given the suit land on lease to Abdul Khalique and Abdul Jabbar, who in turn, later sold their leasehold right to Defendant Nos. 1 and 2. Defendant Nos. 1 and 2 thus became the tenants of the vendor of the plaintiff in respect of the suit land. The preformed defendant Nos. 3 to 7 were sub-tenants under defendant Nos. I and 2. The plaintiff served notice on the defendants to vacate the suit land and on the if failure to comply with the same, the suit was filed for eviction and recovery of khas possession.

3. Defendant No. 1 and proforma defendant Nos. 3,5 and 6 contested the suit. The contention of defendant No. 1 was that she was a tenant under the previous owner and, as such, she was entitled to protection under section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, hereinafter "the 1955 Act". The other defendants contended that as they were sub-tenants under principal defendant Nos. 1 and 2 and were paying rents regularly to them, they were not obliged to vacate the suit land.

4. The trial Court held that the plaintiff had failed to prove his title. It was also held that as the defendant Nos. 1 and 2 had constructed some permanent houses over the suit land within two years from the date of the tenancy (between the period 1944-46), they were not evitable in view of the provisions of section 5 of the 1955 Act.

5. It may be pertinent to mention that during the pendency of this suit, proforma defendant No. 6 died. On his death, his legal representatives were not substituted in his place. The trial Court on that account, held the suit to be bad for non-joinder of the parties. The suit was also dismissed in view of the aforesaid finding.

6. An appeal was preferred against the said judgment and decree. The appeal was heard by the Assistant District Judge No. 2, Cachar, Silchar. The Assistant District Judge reversed the finding of the trial Court in regard to the title of the plaintiff over the suit land. The Court observed that it was evident from exhibits 3 and 4 that the plaintiff had purchased the suit land from the heirs of the original owner. This fact was also not disputed by the defendants. In that view of the matter, the Assistant District Judge held that the plaintiff had acquired right, title and interest over the suit land by virtue of the purchase. The appellate Court, therefore, reversed the finding of the trial Court on issue No. 5 and decided the same in favour of the plaintiff. As regards the controversy whether the defendants were liable to be evicted or not, the lower appellate court affirmed the finding of the trial Court and held that they were entitled to protection u/s 5 of the 1955 Act and, as such, they were not liable to be evicted. The Assistant District Judge also affirmed the finding of the trial Court regarding the effect of non-substitution of the legal representatives of the sub-tenant proforma defendant No. 6 and held that it was fatal to the suit. In view of those findings, the judgment of the trial Court was affirmed and the appeal was dismissed. The plaintiff has come up in Second Appeal against this judgment.

7. The following two questions of law were mainly urged by the learned counsel for the appellant:

(1) Whether the finding of the Courts below that the suit was bad for nonjoinder of necessary parties due to the failure of" the appellants/plaintiff to substitute the legal representatives of pr

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