Point of Law : There is a landlord tenant relationship, the burden automatically falls upon the tenant to prove that he is not a defaulter in payment of rent.

JUDGMENT :

1. Heard Mr. P. K. Roy, the learned Senior counsel assisted by Ms. A. Chakraborty appearing on behalf of the Petitioner and Mr. S. Banik, the learned counsel appearing on behalf of the Respondents.

2. This is an application under Section 115 of the Code of Civil Procedure, 1908 (for short “the Code”) challenging the judgment and decree dated 22.07.2008 passed in Title Appeal No.8/2004 whereby the appeal was dismissed thereby confirming to the judgment and decree dated 14.09.2004 passed by the Civil Judge (Junior Division) No.1 Tinsukia in Title Suit No.33/1989.

3. For the sake of convenience, the parties herein are referred to in the same status as they stood before the Trial Court. The case of the plaintiffs is that on 01.04.1965, the defendant came in occupation of the suit premises as a monthly tenant under the plaintiffs agreeing to pay monthly rent of Rs.50/-according to the English Calendar year. It was mentioned that the rent for the month was payable by the end of the month without any fail. It has been further alleged that the defendant failed to pay the monthly rent from the month of May, 1985 onwards and thus became a defaulter. Further to that, it was also alleged that the defendant has breached the tenancy agreement substantially by altering the suit premises by dismantling C.I. sheets and wooden walls of the suit premises and constructing brick walls in place thereof and by converting kacha floor of the suit premises to a pucca floor. It was alleged that the defendant did all these in the month of September, 1988. Further to that, it was mentioned that the plaintiffs have requested the defendant on many occasions to vacate the suit premises and lastly on 15.03.1989 to vacate the suit premises and yield vacant and khas possession thereof to them. It has been alleged that the defendant though assured the plaintiffs but failed to vacate the suit premises and to clear the arrear rent and as such the plaintiffs were compelled to file the suit for eviction of the defendant from the suit premises and for recovery of arrear rent. The said suit was registered and numbered as Title Suit No.33/1989.

4. The defendant filed his written statement stating inter alia that there was no cause of action for the suit. It was the specific stand of the defendant that the defendant is not the monthly tenant of the plaintiffs for the suit premises as alleged. It was stated that the defendant never came into occupation of the suit premises as alleged on 01.04.1965 in Paragraph No.1 of the plaint and as such the question of paying rent to the plaintiffs did not arise. It was stated that the land in which the suit premises was standing bearing Tinsukia Municipal Board Holding No.3191(k) at present was within Ward No.13 of Tinsukia Municipal Board covered by Dag No.1720 and 2202 was taken on lease from Md. Bashir in the year 1953 by the defendant’s father Late Moinuddin Ahmed and defendant’s uncle Late Hazi Mofizuddin jointly.The agreement was entered upon in the year 1956 with Md. Bashir by the defendant’s uncle Late Hazi Mofizuddin. The residential house was constructed by the defendant’s father Late Moinuddin Ahmed and defendant’s uncle Late Hazi Mofizuddin jointly. Initially, the holding number of the said premises was 1660 from 1953 to 1963-64 comprised in Ward No.6 of Tinsukia Municipal Board and the said holding was in the name of the father of the defendant, Late Moinuddin Ahmed. But, subsequently the Holding numbered was changed and the Holding Number of the premises was recorded as 2367 from 1964 to 1975 and again in the year 1975, it was renumbered as 3191(k) within Tinsukia Municipal Board Ward No.13 and this Holding No.3191(k) continued till date. It was also mentioned that the said Holding No.3191(k) was in the name of defendant’s uncle Late Hazi Mofizuddin. It was further mentioned that after the death of Late Hazi Mofizuddin, Holding No. 3191(k) of Ward No.13 of the said premises still continues in his name. It was fu