Point of Law : If the real value of the property is higher than the rent earned then the amount of compensation for continued use and occupation of the property by the tenant can be assessed at the higher value.

JUDGEMENT :

Heard Ms. P. Chakraborty, the learned counsel for the petitioner and Mr. G.N. Sahewalla, the learned Senior Counsel assisted by Ms. S. Todi for the respondents.

2. The instant application under Article 227 of the Constitution of India is directed against the writ issued on 25/03/2019 and the notice dated 25/04/2019 on being in violation to the mandatory provisions of Order XXI Rule 35(1) and 36 of the Code of Civil Procedure, 1908 (for short “the Code”) and for a direction to adequately compensate the petitioners for illegally destroying the immovable property on 02/04/2019.

3. The brief facts of the instant case is that the petitioners herein as plaintiffs had instituted a suit being Title Suit No. 8/1999 seeking a declaration of their tenancy rights and confirmation of possession as well as for permanent injunction restraining the defendants therein from selling out the suit premises. The said suit premises consisted of 1 katha 5 lechas out of 2 katha 10 lechas of land covered by Patta No.74/469 of Dag No. 707 situated at Barpeta Road Mouza Goubardhan in the district of Kamrup(Metro), Assam. In the said suit the defendants had filed a counter claim. In the said counter claim the case of the defendants were that the petitioners were not paying rent to the landlord ever since 1960 and the therefore, the original landlord ever since 1960 and the therefore, the original landlord had executed the power of attorney in favour of the Defendant No. 18 who also failed to realize the rent from the petitioners and had subsequently purchased the entire land including the suit premises on 20/01/1999 by way of a registered sale deed and acquired right, title and interest over the suit premises by mutating the names over the same. Thereafter repeated demands were made for payment of rent by the defendants which were not paid and there was a bona fide requirement of the suit premises and thus prayed for eviction of the petitioners/plaintiffs from the suit land along with payment of arrear rent from the year 1988.

4. By the judgment and decree dated 11/10/2002, the suit filed by the plaintiffs/the petitioners was dismissed on contest and the counter claim of the defendants who are the respondents herein was decreed on contest thereby inter alia declaring that the plaintiffs were the defaulters in payment of arrear rent of the suit premises and the suit premises was bona fide required by the contesting defendants i.e. Defendants Nos. 19 to 28. It was also declared that the plaintiffs are liable to be evicted from the suit premises and the contesting Defendants were entitled to realize the arrear rent of the suit premises w.e.f. 1988.

5. An appeal was preferred by the petitioners herein before this Court which was registered and numbered as RFA No.95/2002 in view of the change in the pecuniary jurisdiction effected by the Bengal, Assam, Agra Civil Courts Act, 1887, the said Regular First Appeal was sent back to the Court of District Judge, Barpeta and thereupon was registered and renumbered as Title Appeal No. 23/2006. The said Title Appeal filed by the petitioners was dismissed on 20/08/2006 upholding the judgment and decree dated 11/01/2002.

6. Being dissatisfied with the said judgment and decree passed by the First Appellate Court, the petitioners preferred a Regular Second Appeal before this Court which was registered and numbered as RSA No. 137/2008. The said Second Appeal was filed challenging the dismissal of the suit which was confirmed in the First Appeal. As regards the upholding of the decree passed in the counter claim, a Civil Revision Petition No. 375/2008 was preferred by the petitioners before this Court. The Regular Second Appeal i.e. RSA No. 137/2008 was dismissed by a judgment and order dated 27/11/2018 passed by this Court. The Civil Revision Petition i.e. CRP No.375/2008 vide a separate judgment and order dated 27/11/2018 was also dismissed.

7. At this stage, it may be relevant herein to mention that the respondents ha