Point of Law : Proviso to the Section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such question was not formulated at the time of admission either by mistake or by inadvertence.

JUDGMENT :

The instant appeal was admitted on 25.06.2016 on the following substantial questions of law :

1. Whether plaintiff being an assignee of a part of the tenanted premises could split the unity and integrity of a tenancy by issuing a notice under Section 11 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 in respect of his alleged part on the leasehold?

2. Whether a tenant is entitled to protection under Section 5(3) although he may not have succeeded in proving protection under Section 5(1) of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955?

2. For the purpose of deciding the two substantial questions of law as above framed it is required that the facts of the case are taken into consideration. For the purpose of convenience the parties herein are referred to in the same status as they stand before the Trial Court.

3. One Hafijuddin Ahmed (since deceased) the father of the plaintiff was the owner and in possession of a plot of land measuring 1 Bigha 2 Kathas 5 Lechas comprised in K.P. Patta No.309 (old) of Sahar Ulubari, Mouza-Ulubari in the District-Kamrup (M) along with other lands in the said patta. Late Hafijuddin out of love and affection vide a registered Deed of Gift bearing Deed No.6758/72 dated 08.08.1972 gifted the said plot of land measuring 1 Bigha 2 Kathas 5 Lechas comprised in K.P. Patta No.309 (old) to the plaintiff and his brothers who duly accepted the gift. It may be relevant herein to mention that K.P. Patta No.309 (old) contains inter alia the following 4 (four) dags with the respective area which is the gifted land :

4. At this stage it is further relevant to take note of that during the town re-settlement operation ending in 1987, the Revenue Authority had on the basis of the plaintiff’s title and possession issued a separate patta in the name of the plaintiff being K.P. Patta No.630 (new)/309 (old) comprising of Dag No.270 (new), 271 (new) of Sahar Ulubari, Mouza- Ulubari. Dag No.270 contains an area of land measuring 4.26 Are (1 Katha 12 Lechas) and Dag No.271 contains land measuring 5.05 Are (1 Katha 18 Lechas).

5. During the lifetime of the father of the plaintiff, one Gobinda Brahmin was a tenant under a lease in respect of 1 Katha 10 Lechas of the land comprised in K.P. Patta No. 309 (old)/630 (new) of Sahar Ulubari, Mouza-Ulubari since around the year 1933 at different annual rents at different times. Presently the said land is covered under Dag No.270 of K.P. Patta No. 630 (new) and the said land has been specifically described in Schedule-A to the plaint. Late Gobinda Brahmin paid rent for leasehold land at different times and different rates and he continued payment of rent up to the year 1961 @ Rs.30 p.a. to the father of the plaintiff. It is the case of the plaintiff that since 1961, Late Gobinda Brahmin did not pay any rent till his death in the year 1962 and thereupon his successors-in-interest, the defendants did not pay any rent. Under such circumstances the plaintiff instituted a suit being Title Suit No.116/1998 in the Court of the Civil Judge, Junior Division No.1 at Guwahati against the defendants i.e. the successors-inPage interest of Late Gobinda Brahmin under the Assam Urban Area Rent Control Act, 1972 for ejectment. The said suit was dismissed vide a judgment and decree dated 31.07.2007 holding inter alia that the claim of the plaintiff is not tenable in law as the suit is based under the Assam Urban Area Rent Control Act, 1972 whereas the suit ought to have been under the Assam Non Agricultural Urban Areas Tenancy Act, 1955 (for short ‘the Act of 1955’). It is also the further case of the plaintiff as pleaded in the plai