Heard Mr. S. Nath, learned counsel for the appellants. Also heard Mr. T.C. Khatri, learned Senior Counsel for the respondent/plaintiff.

2. This second appeal is preferred by the defendants against the judgment and decree of reversal passed by the learned Civil Judge (Senior Division), Sonitpur, Tezpur, setting aside the judgment and decree dated 21.12.2001 passed by the learned Civil Judge (Junior Division) No. 1, Tezpur in Title Suit No. 51/1998.

3. This second appeal was admitted to be heard by an order dated 08.10.2004 on the following substantial questions of law:

“1. Whether the learned lower appellate Court committed illegality in reversing the judgment and decree of the trial Court by wrongly applying the provisions of the Assam Urban Areas Rent Control Act, 1972 instead of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955?

2. Whether the learned lower appellate Court committed illegality in reversing the judgment and decree passed by the learned trial Court without setting aside the findings recorded by the learned trial Court?”

3. Whether the learned lower appellate Court committed illegality in decreeing the suit for ejectment of tenant from land without serving notice under Section 11 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955?

4. Whether non-consideration of the documentary evidence adduced by the parties has vitiated the judgment and decree passed by the learned lower appellate Court?”

4. The facts pleaded in the plaint, in short, is that the plaintiff is the absolute owner of land measuring 12½ Lechas as fully described in the Schedule of the plaint and the defendants have been carrying on business in their shop premises taking the land on leasehold arrangement for a period of 10 years, commencing from 01.12.1983 to 30.11.1993. For the said purpose, a lease deed was executed on 28.11.1983 and the same was also registered. In terms of the tenancy, the defendants were required to pay Rs. 100/- every month in advance against annual rental of Rs. 1200/- and the defendants are required to vacate the land by demolishing their constructions and handing over khas possession to the plaintiff on expiry of the lease period on 30.11.1993, unless the parties agreed for fresh lease arrangement. With the allegation that despite requests made the defendants had neither renewed the lease nor paid any rent, the suit was filed on 26.08.1998 treating them to be trespassers on and from 01.12.1993. It was also pleaded that though there was an attempt to make constructions, on protest, somehow, construction activities could be stopped but they are apprehensive that the defendants may again start constructions. In the suit, prayer was made for recovery of khas possession by demolishing the constructions and for injunction.

5. The defendants filed a written statement taking pleas that the suit was not maintainable in view of bar under Section 5(1)(a) and Section 5(3) of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, for short, Act of 1955 as well as for non-service of notice under Section 11 of the Act of 1955 and also under Section 111(g) of the Transfer of Property Act, 1882 on the allegation of forfeiture. Other legal pleas such as non-joinder of necessary parties and there being no cause of action were also pleaded. In the written statement, they traced the origin of the tenancy, which dated back to 10.05.1938, on execution of a registered deed of lease on that date. The suit land had, subsequently, fallen in the share of the plaintiff.

6. It was pleaded that the lease was renewed from time to time by execution of agreements and details of such subsequent agreements such as 16.11.1949, 22.02.1956, 27.05.1963, 28.02.1973, etc. were given. It was pleaded that they had raised permanent constructions in the year 1940 within a period of 5 years from entering into the tenancy agreement in the year 1939. It was also stated that a registered agreement dated 28.11.1983 was executed with the plaintiff