Petitioner herein as plaintiff instituted Title Suit No. 102 of 2007 in the court of learned Munsiff No. 1 at Dibrugarh stating that defendant is a tenant with respect to two shop rooms described in the schedule to the plaint at monthly rental of Rs.200/- payable within the first week of every succeeding month as per English Calendar. The defendant was subsequently given another suit room and thus the rent was enhanced to Rs.800/- under the same condition. But defendant stopped paying rent after August 2004 and became a defaulter. The Plaintiff, therefore, prayed for eviction of the defendant on the ground of default along with a decree for realization of arrear rent to the tune of Rs.27,200/-. The suit house was described in the scheduled to the plaint as two rooms butted and bounded as follows:

North : Shop room of the landlord

South : House/room of the landlord

East : Passage

West : Pucca drain (one foot on the land of the Landlord)

2. On being summoned, the defendant appeared and not only filed written statement by denying the case of the plaintiff but also filed a counter claim praying for specific performance of contract alleging that plaintiff had received a sum of Rs.80,000/- from her for executing a registered sale deed in respect to the suit land described in Schedule-A to the written statement. The defendant also denied the title of the plaintiff over the suit land described in the plaint.

3. On the basis of the respective pleadings of the parties, the learned trial court framed four issues in the suit and five issues in the counter claim and they were numbered serially. The issues are quoted below:

(i) Whether the suit is maintainable in law and on facts?

(ii) Whether the defendant is a tenant of plaintiff with respect to the suit premises?

(iii) Whether defendant has defaulted in paying rent to the plaintiff?

(iv) Whether plaintiff is entitled to get decree as prayed?

Issues on counter claim:

(i) Whether the counter claim is maintainable in law and facts?

(ii) Whether defendant has any right, title and interest over the landed property described in schedule A of the counter claim?

(iii) Whether plaintiff received payment of Rs.80000/- from defendant by misrepresenting the facts and entering into agreement to sale the landed property described in Schedule B of the counter claim?

(iv) Whether the defendant is entitled to get decree as prayed?

(v) To what reliefs parties are entitled to?

4. In course of trial, plaintiff adduced evidence of five witnesses and exhibited as many as 104 documents. The defendants adduced two witnesses and exhibited 7 documents.

5. After considering the evidence led by the parties, the learned trial court while deciding Issue no. 2 arrived at the finding that defendant is a tenant with respect to the suit premises at a monthly rental of Rs.800/- as per English Calendar payable within the first of week of each succeeding month. Admittedly, defendant did not make payment of the rent and so she became a defaulter. Coming to the counter claim, learned trial court held that defendant did not have any right, title and interest with respect to the suit land and defendant did not make payment of Rs.80,000/- to the plaintiff towards consideration against alleged agreement for sale. Accordingly, the counter claim was dismissed by the judgment and decree dated 24.5.2010.

6. The tenant being aggrieved thereby preferred Title Appeal No. 19 of 2010 in the court of learned Civil Judge at Dibrugarh. In the said judgment, the learned trial court framed three points for determination and while deciding ground No. No.2, the learned appellate court held that the plaintiff did not produce any document to show that the appellant was a tenant and so the defendant was not a tenant under the plaintiff and so there was no question of default in payment of rent. Accordingly, the suit of the plaintiff was dismissed by holding that defendant is not tenant under the plaintiff. The learned trial court held that the point regarding