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GAUHATI HIGH COURT
Indira Shah, J.
Bibekananda Sarmah – Petitioner
Vs.
Gobindram Bawri @ Gobindram Agarwalla & Others – Respondents
C.R.P. No. 159 of 2011
Decided On : 10-08-2015
Civil Procedure Code, 1908 – Section 9 – Provision of Assam Urban Areas Rent Control Act, 1972 – Sections 4, 5 and 7 – Power of Land lord – Suit property as a tenant - Learned Civil Judge vide Judgment and order and it was decreed plaintiff/ petitioner – An appeal was preferred by respondent and while allowing appeal matter was remanded back to learned Trial Judge with directions to frame additional issue as to whether defendant occupied suit property as a tenant under plaintiff or under father of plaintiff giving opportunity to amend plain by imp leading his father one of party to suit meantime father of plaintiff died and on his death all his legal heirs were imp leaded as respondent legal heirs and successors by way of amendment of plaint – Held, Court cannot direct landlord to do a particular business or imagine that he could profitably do a particular business rather than business he proposes to start – It was wrong on part of District Court to hold that appellant case that their sons want to start general merchant business is a pretence because they are dealing in eggs and it is not uncommon for a Muslim family to do business of non-vegetarian food – Case even if the contention of defendant is admitted that father of plaintiff was his landlord after death of plaintiffs father plaintiff and preformed defendants became co-owner of suit premises – Performa-defendants have not raised any objection rather they have supported status of plaintiff as owner of suit premises tenant cannot raise title of plaintiff suit file by plaintiff fails on ground that he was not landlord and his father was landlord plaintiff can bring another suit after death of his father as co-owner of suit property it will lead to unjust multiplicity of suit co-owners have acknowledged title of plaintiff as owner of suit property tenant cannot be allowed to deny plaintiffs status as owner of property – Appeal succeed.
1. This Revision is preferred against the Judgment and decree dated 23.12.2010 passed by learned Civil Judge, Golaghat, in title appeal No. 08/2009, whereby learned Civil Judge, in the appeal reversed the Judgment and decree dated 31.08.2009 passed by the Court of Munsiff No. 1, Golaghat, in Title Suit No. 12/2006.
2. The petitioner as the plaintiff instituted the suit for eviction of respondent No. 1 and prayed for compensation under the Provision of Assam Urban Areas Rent Control Act, 1972. According to the petitioner, the suit house was let out to Sri. Sawarmal Agarwalla, the elder brother of the respondent No. 1 on the strength of a Deed of Agreement dated 01.04.1985 at a monthly rate of Rs. 350/- per month. The aforesaid tenancy continued till 31.12.1992 and on that date Sri Sawarmal Agarwalla handed over the possession of the suit premises to the petitioner by executing a writing dated 31.12.1992. Thereafter, respondent No. 1 approached the petitioner to take on monthly rent of the said suit premises for running a hardware shop. The monthly rent for the suit premises was fixed at Rs. 1,200/- per month. Right from 01.04.2000, the monthly rent for the suit premises was enhanced to Rs. 1,500/- per month. The petitioner/plaintiff pleaded in his plain that his father Lt. Nityananda Sarmah used to collect the rent and the petitioner was leaving with his father under the said room having a common kitchen. The petitioner intended to start his own hotel/restaurant business from the suit premises and as such the petitioner approached the respondent No. 1 in the month of July, 2000 and requested him to vacate the suit premises but later on refused to vacate the same, the petitioner served him Advocates notice dated 03.10.2010 asking the respondent to vacate the said suit premises. It was also pleaded by the petitioner that the respondent No. 1 was also a defaulter, having not paid monthly rent for the month of October, 2000 onwards.
3. The suit was initially disposed of by learned Civil Judge (Senior Division), Golaghat, vide Judgment and order dated 30.06.2005 and it was decreed in favour of the plaintiff/ petitioner. An appeal was preferred by the respondent and while allowing the appeal the matter was remanded back to the learned Trial Judge, with directions to frame additional issue as to whether the defendant occupied the suit property as a tenant under the plaintiff or under the Nityananda Sarmah, the father of the plaintiff giving opportunity to amend the plain by impleading his father Nityananda Sarmah as one of the party to the suit. In the meantime, the father of the plaintiff died and on his death all his legal heirs were impleaded as respondent Nos. 2 to 8, legal heirs and successors of Lt. Nityananda Sarmah, by way of amendment of the plaint.
4. The defendant No. 1 contested the suit by filing written statement alleging that Lt. Nityananda Sarmah father of the plaintiff was his landlord who used to collect rent from the defendant. The Plaintiff is neither the owner nor the landlord of the suit property. It was averred by the defendant that he came to occupy the suit premises in the year 1970 as a tenant, rent of which was gradually enhanced to Rs. 1500/- only. It was Lt. Nityananda Sarmah who used to collect the rent from the defendant regularly till the month of September, 2000. When Lt. Nityananda Sarmah did not come to collect rent for the month of October, 2000, then the defendant approached him and tendered the rent to him and on his refusal to accept the tendered amount, he began to deposit the rent in the Court in the name of Lt. Nityananda Sarmah. He also denied the bona fide requirement of the Plaintiff of the suit premises. The proforma-defendant, i.e. legal heirs and successors of Lt. Nityananda Sarmah, by filing a joint written statement supported the case of the Plaintiff. According to the proforma-defendants, father of the plaintiff handed over the possession of the suit land and building to the plain
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