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Bhura Brothers and anr. Vs. Dinendra Narayan Ray and ors. - Court Judgment

LegalCrystal Citation
Subject;Tenancy
CourtGuwahati High Court
Decided On
Case NumberS.A. No. 18 of 1978
Judge
ActsTransfer of Property Act, 1882 - Sections 106 and 111; Assam Urban Areas Rent Control Act, 1972 - Sections 2, 5 and 5(1)
AppellantBhura Brothers and anr.
RespondentDinendra Narayan Ray and ors.
Appellant AdvocateB.C. Barua, B.K. Das and P.K. Mushahary, Advs.
Respondent AdvocateJ.P. Bhattacharjee, S.K. Homchoudhury and A. Bhattacharjee, Advs.
DispositionPetition dismissed
Excerpt:
.....it is however well settled that any nomenclature is not decisive in this regard, and what counts is the intention of the parties which aspect has been adequately borne in mind by the learned district judge. thus, despite the best efforts of sri das, the petition has to be dismissed which i hereby..........it was remanded to be dismissed again by the trial court which order was upheld in appeal by the learned district judge and on further appeal to this court, the case was remanded for the second time. the suit has been decreed now by the learned district judge, cachar on his being satisfied about: (1) the maintainability of the suit; (2) validity of the notice and (3) bona fide requirement of the plaintiff which are the three points urged before him. 3. before the submissions of sri das relating to these points are noted, it is worthwhile pointing out that when the matter had been examined by this court once before in second appeal no. 148/73 the issue relating to bona fide requirement alone was gone into, may be because it were the plaintiff who had then approached this court against.....
Judgment:

B.L. Hansaria, J.

1. This appeal which is being treated now aa revision in view of the decision of this Court in LPA/11/76 relates to a suit for eviction filed in 1969. Counted

court-wise the matter has come up for the eighth time before a judicial forum which includes a Special Leave Petition to the Supreme Court and so it is high time that the forensic fight sees its finality.

2. The suit for eviction was on the ground that the premises described in the Schs. I and II of the plaint were needed bona fide by the plaintiffs for expansion of their business as well as for their residential purpose. The suit went through various vicissitudes as it was dismissed first and on appeal it was remanded to be dismissed again by the trial Court which order was upheld in appeal by the learned District Judge and on further appeal to this Court, the case was remanded for the second time. The suit has been decreed now by the learned District Judge, Cachar on his being satisfied about: (1) the maintainability of the suit; (2) validity of the notice and (3) bona fide requirement of the plaintiff which are the three points urged before him.

3. Before the submissions of Sri Das relating to these points are noted, it is worthwhile pointing out that when the matter had been examined by this Court once before in Second Appeal No. 148/73 the issue relating to bona fide requirement alone was gone into, may be because it were the plaintiff who had then approached this Court against whom it had been decided that the premise were not needed bona fide. It was against this decision that the defendants had approached the Supreme Court, as stated by Sri Bhattacharjee when the Supreme Court had refused to interfere.

4. The suit was not maintainable according to the defendant because proper court fee had not been paid. The averment relating the court-fee owes its origin to the case of the defendants that though they were lessees with respect to Schedule I property described in the plaint, they were licensees as regards the Schedule II properties. It was therefore stated that though the suit for eviction from Schedule I property could be filed by paying court-fee on 12 months rent, for Schedule II premises court-fee must have been paid on the valuation of the property. Relying however the position that a suit cannot fail merely because of insufficient court-fee, which would seem to follow from Section 12 of the Court-fees Act, 1870, also, Sri Das urged that the suit having combined the two properties, is hit by multifariousness of causes of action and was therefore not maintainable. In reply, Sri Bhattacharjee has rightly drawn my attention to S. 99 of the Civil P. C. wherein it is stated that no decree can be reversed in appeal on account of misjoinder of causes of action unless the same has affected the merits of the case or the jurisdiction of the Court. In this case, the trial Court being the Assistant District Judge, whose pecuniary jurisdiction is unlimited, apparently his jurisdiction would not have been affected even if the case of the defendants that they were licensees as regards second Schedule be accepted. I do not also find any dent to the merits of the case because of the two statuses of the defendants. In this view of the matter, it is not necessary to say whether the case of the defendants that they were merely licensees for the Second Schedule is correct or not specially when the matter is being examined by this Court in its revisional jurisdiction. Even so, it may be stated that the learned District Judge has examined this aspect in detail and he has arrived at his conclusion after noting that Schedule II land was necessary for enjoyment of Schedule I premises; that the defendants could not have been evicted only from Schedule II, and that water tap, bathroom and urinal are located in Schedule II land. So finding in this regard is really such which could not be interfered with by this Court even if the matter were to be treated as second appeal, the learned District Judge has tried to find out the intention of the party which alone is the determining factor in this regard. Sri Das has submitted that Ext. 3 itself has described the defendants as licensees as regards the courtyard which is situated in Schedule II of the plaint. It is however well settled that any nomenclature is not decisive in this regard, and what counts is the intention of the parties which aspect has been adequately borne in mind by the learned District Judge.

5. The next point urged is related to the validity of notice. But it has been held in Dhanpal, AIR 1979 SC 1745 that notice of termination is not necessary in such cases. Sri Das has contended that ratio of Dhanpal may not apply to cases under the Assam Urban Areas Rent Control Act, as this Act was not one of those which had been considered by the Supreme Court in the above case. I would however think that what has been stated in Dhanpal has to be applied to all itatutes which have created an embargo on the eviction of tenants despite issue of notice of termination contemplated by Section 111(h) of Transfer of Property Act, in which cases determination of tenancy becomes a mere surplusage as a landlord cannot evict a tenant even after such a notice. This is the position under the Assam Act also. So it cannot be held that Dhanpal's decision would not apply to the cases under the Assam Act

6. The last submission is about the finding on the bona fide requirement of the premises by the plaintiff. This aspect too has been dealt at great length by the learned District Judge, may be because of remand of the case earlier by this Court on this point. The learned District Judge has first set out the evidence relating to the circumstances under which the premises had been let out. He has then scrutinised the evidence led by both the sides as to whether the premises were needed bona fide by the plaintiffs for expansion of their business and for accommodation of their family members. The scrutiny of the evidence is such and the conclusion founded thereon is of such a nature which could not have been disturbed by a second appellate Court not to speak of a revisional Court. The point urged by Sri Das In this connection is that a business purpose would not come within the fold of the expression 'own occupation' used in Section 5(1)(c) of the Assam Act. A reference to Section 2 (b) of the Act which has defined 'house' would negative this contention, as it has been stated therein that 'house' means any building etc. let out for residential or non-residential pur poses.

7. In the aforesaid view of the matter the three contentions raised by Sri Das cannot be accepted to merit interference with the impugned judgment. Thus, despite the best efforts of Sri Das, the petition has to be dismissed which I hereby do. Sri Das prays that as the 'appellants are running a business in the premises which is situated in the centre of the town, some reasonable time may be allowed to them to find out a suitable alternative. The appellant would get four months' time from today for this purpose. It is hoped that fruits of the fight would not be denied to the plaintiffs any longer.


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