JUDGMENT AND ORDER

Heard Mr. B.M. Choudhury, the learned Counsel appearing for the petitioner who is the son of the sole defendant Late Abdul Hamid Ansari. The petitioner along with other legal heirs were substituted after the defendant died. Initially the Title Suit No.73/1989 was filed before the Munsiff at Tinsukia, but after bifurcation of the District, the case was re-numbered as the Title Suit No.21/1994.

2. The suit was filed for recovery of possession, arrear rent and compensation and after pleadings were exchanged, 9 issues were framed in the case.

3. The learned Munsiff No.1, Tinsukia on 5.3.2007 decreed the suit by ordering for recovery of possession of the suit land by evicting the defendants. The defendants were also made liable for arrear rent and future rent till their eviction.

4. In the resultant Title Appeal 3/2007 filed by one of the substituted defendant, the learned Civil Judge, Tinsukia through the impugned judgment dated 29.9.2007 uphold the eviction decree but modified the quantum payable as arrear and future rent, by the judgment-debtor.

5. Assailing the legality of the concurrent findings, Mr. B.M. Choudhury, the learned Counsel submits that the tenancy was under the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (hereinafter referred to as “the 1955 Act”) where the defendant constructed his own house on the tenanted land of the plaintiffs. But the impugned decisions was rendered by considering the case to be covered under the Assam Areas Rent Control Act, 1972 (hereinafter referred to as “the 1972 Act”) and therefore the erroneous judgments are liable to be quashed.

6. Representing the decree-holder, Mr. S. Banik, the learned Counsel however submits that no such plea was taken by the defendants in their W.S. and therefore the submission made by the petitioner that the tenancy is governed by the 1955 Act can’t be the basis for re-examination of the ejectment decrees.

7. In a civil suit, Issues are framed on the basis of pleadings of the parties and in this case, the defendants in their W.S. never claimed that they are protected from eviction under the 1955 Act. Therefore the parties were not at issue on this point and naturally the Court had no occasion to frame any such issue or adjudicate on this aspect.

8. Moreover, neither before the Trial Court nor before the Appellate Court, the defendants sought to amend their pleadings. In such circumstances, to allow the judgment-debtor to challenge the legality of the concurrent decrees by relying on the 1955 Act in my view is not justified as this will deprive the decree-holder from enjoying the fruits of their long litigation started in the year 1989.

8. The Courts below have acted within their jurisdiction on the basis of the pleadings of the parties and therefore I see no scope to allow this Revision petition. Consequently the case is dismissed and interim order vacated by leaving the parties to bear their own cost.

9. The Registry is directed to return the L.C.R. with a copy of this order to the concerned court.

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