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IN THE GAUHATI HIGH COURT, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ARUN DEV CHOUDHURY, J.
Enayatur Rahman, S/o. Late Zahoor Hassan – Petitioner
Versus
Chhatramal Pincha, Karta Of The Hindu Undivided Family Chhatramal Pincha and Sons HUF, Assam – Respondent
RSA No. 57 Of 2009, CO. No.3 Of 2009
Decided On : 29-08-2023
Code of Civil Procedure, 1908 - Order 41, Rule 31, Section 100 - Assam Non Agricultural Urban Areas Tenancy Act, 1955 - Section 11, 5 - Assam Urban Areas Rent Control Act, 1972 - Section 5(4) - Decree of eviction - Possession of land - Appeal is directed against judgment and decree passed whereby suit of plaintiff for a decree of eviction was decreed whereby judgment and decree passed by learned Munsiff No.2 was upheld with certain modifications – Defendant/tenant was not entitled to raise such construction of structure on land, however, same has been constructed with knowledge and accrescence of landlord. Para 18.
Finding of the Court: In absence of any pleading involving fact that tenancy was in respect of land with permission to raise permanent construction and such construction has been raised within 5 years from date of commencement of tenancy and/or that though there was no permission to raise such construction, defendant had infact raised such permanent construction within knowledge and accrescence of plaintiff landlord, findings of learned Appellate court is that suit under provisions of Act of 1955 is nothing but a perverse finding - Plaintiff himself deposited rent in terms of Section 5(4) of Assam Urban Areas Rent Control Act - Defendant in his written statement has not raised any defence that lease/tenancy was for land and he constructed house within period stipulated under Assam Non Agricultural Urban Areas Tenancy Act, 1955 - Court hold that suit was covered under Assam Urban Areas Rent Control Act, 1972 and plaintiff has been established to prove bonafide requirement.
Result: Second appeal dismissed.
ORDER :
1. Heard Mr. G. N. Sahewala, learned Senior Counsel assisted by Ms. S.Todi, learned counsel for the appellant. Also heard Mr. O.P. Bhati, learned Counsel for the respondent/Cross Objector.
2. The present appeal is directed against the judgment and decree dated 27.8.2008 passed by learned Munsiff No.2, Jorhat in Title Suit No.14/2007 whereby the suit of the plaintiff for a decree of eviction was decreed and appellate judgment and decree passed by the learned Civil Judge, Jorhat in Title Appeal No. 30/2008 dated 12.2.2009 whereby the judgment and decree dated 27.8.2008 passed by the learned Munsiff No.2, Jorhat was upheld with certain modifications. This appeal was admitted by this court under its order dated 1.4.2009 with the following substantial questions of law:
(ii) Whether the appellate Court committed illegality in relying on a decision relating to Urban Areas Rent Control Act while deciding issue of bonafide requirement in the instant case.
(iii) Whether the judgment of the appellate court is perverse in not considering the alternative plots and other accommodation available to plaintiff while deciding Issue No.4 inasmuch as plaintiff himself admitted in cross examination regarding the other availability of accommodation and plots?
3. Thereafter the plaintiff respondent appeared in this case and filed cross objection assailing the part of the judgment of the learned appellate Court whereby it was held that the suit was under the Assam Non Agricultural Urban Areas Tenancy Act, 1955 (the Act, 1955). Such cross objection was admitted by this court and one additional substantial questions of law was formulated to the following effect:
4. Before determining the existence of aforesaid substantial questions of law, let this court a in nutshell summarize the facts of the case of the parties in a nutshell.
Plaintiff’s case:
SupremeToday
It is well settled that power of High Court to interfere in second appeal under section 100 is very limited and court is to decide only substantial question of law, if at all arises.
Initial burden to establish basic allegations made in plaint constituting foundational facts, undoubtedly lies upon plaintiff whether such assertion is couched in affirmative or negative.
Point of law: “Any aggrieved party” the expression employed in Section 20(1), means a person feeling aggrieved by the ultimate decision, that is, the operative part of the order. A party to the proce....
The court affirmed that a landlord's bonafide requirement for premises is valid, and the tenant's irregular rent payments constitute default.
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 injus....
The Court affirmed that a tenant can be evicted if any ground under Section 5 of the Assam Rent Control Act is satisfied, emphasizing the limited jurisdiction of the revision court.
Section 5 (1) (e) of the Act of 1972 stipulates that a decree for eviction can be passed where the tenant had not paid the rent lawfully due from him in respect to the houses within a fortnight of it....
The requirement of notice under Section 11 of the Assam Non Agricultural Urban Areas Tenancy Act is unnecessary for eviction if the tenant cannot be evicted without a court decree.
It is also made clear that this Court while exercising the revisional jurisdiction is not and cannot be equated with the power of re-consideration of all question of facts as the Court of First Appea....
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