Rumi Kumari Phukan, J.@mdash1. Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Ms. K. Bora, learned counsel for the petitioner-appellant/plaintiff and also heard Mr. B.K. Jain as well as Mr. B.K. Purkayastha, learned counsel appearing on behalf of the opp. Parties/respondents-defendants.
2. Both the case are between the same parties and on the same subject matter and, as such, the same are being taken up together and are being disposed of by this common judgment.
The petitioner as plaintiff filed a suit being Title No. 134/97 which was renumbered as T.S. 68 of 2000 and again renumbered as T.S. 681 of 2006 for declaration of plaintiff''s tenancy right under the provisions of Assam Urban Areas Land Control Act, 1972 under the defendants in respect of room described in the scheduled of the plaint. Firstly, the suit was filed against the defendant Sri Uday Narayan Goswami and subsequently the opp. Party No. 2 Sri Bidhyadhar Goswami was impleaded as defendant No. 2. Both the respondents/defendants contested the suit by filing separate written statement denying the contentions raised in the plaint. The respondents/defendants also filed their counter claim through their written statement.
3. The brief facts of the petitioner is that the petitioner/appellant took lease of a room owned by Sri Uday Narayan Goswami/respondent No. 1 by executing a deed of agreement on 24-071985 at a monthly rent of Rs. 90/-. The lease was renewed from time to time and subsequently, the Assam type house was dismantled and a RCC building was constructed in the same place and the petitioner/appellant remained as a tenant under the defendant No. 1. subsequently, in September, 1990 the lease deed was extended for a period of 6 years 11 months with effect from 01-10-1990 and the monthly rent was assessed with further stipulation that the monthly rent would be enhanced by 10% on completion of every three years and in this way, monthly rent was paid and this was against the adjustment of advance money taken by the respondent No. 1. According to the petitioner as the respondent No. 1 refused to accept the rent from the month of September, 1997, so, rent has been deposited in the court as per the provisions of Assam Urban Areas Rent Control Act, 1972 and the appellant as plaintiff filed the T.S. No. 134/1997 (the said case was subsequently renumbered as mentioned above as T.S. No. 681/2006) against the respondent/defendant No. 1, Sri Uday Narayan Goswami. For declaration of the tenancy right under the provisions of Assam Urban Areas Rent Control Act, 1972, and also prayed for temporary injunction restraining the defendant/respondent No. 1 from disconnecting the electric line etc.
4. The respondent/defendant contested the suit by filing written statement stating that there is no cause of action for the suit and has prayed for ejectment of the petitioner by way of counter claim. During pendency of the aforesaid case, the appellant-petitioner came to know that own brother of the respondent/defendant No. 1, (who was impleaded as respondent No. 2 subsequently), has filed the T.S. No. 16/99 for specific performance of the contact for sale for getting khas possession of the room in occupation of the appellant-petitioner as tenant. The said T.S. No. 16/99 was decreed ex-parte on 20-04-1999 and the said respondent No. 2 illegally put the decree in execution in TEX 6/99 and try to obtain the possession of the tenanted premises of the petitioner to which the petitioner resisted by filing objection. However, his objection was not finally sustained by the trial Court and the appeal so preferred was also failed.
5. Thereafter, petitioner/appellant filed T.S. No. 63/99 which is renumbered as T.S. No. 680/200616/99 challenging the ex-parte decree so passed in T.S. 16/99 for a declaration that the said decree is void, collusive and inoperative and not binding upon the plaintiff and also prayed for permanent and temporary injunction restraining the respondent/defendant from executing the ex-parte decree passed in T.S. 16/99. Raising the same plea as has been taken in earlier case, it has been agitated by the petitioner/plaintiff that the respondent-defendant Sri Uday Narayan Goswami for making illegal gains was putting pressure to the plaintiff/petitioner to vacate the room and he even threatened to disconnect the electric connection for which the petitioner filed T.S. 134/97 in the court of Civil Judge seeking tenancy right etc. The status of said case has been mentioned above.
6. The allegations so raised by the petitioner-appellant that both the respondents/defendants are brothers and lived in the same homestead and the defendant Sri Bidyadhar Goswami is well aware that the petitioner is a tenant under his brother Sri Uday Narayan Goswami since 1985 wherein he has been running the business under the name and style M/s. Ashirbad. But all of a sudden on 11-06-1999, the staff of the court tried to evict him from the said premises on the strength of writ, so issued, in connection with TEX 6/99, while he was not even made a party to the said suit. On being enquired, he came to know that the respondent No. 2 in collusion with defendant No. 1 executed the bainama on 15-06-1998 whereby the defendant No. 1 promised to sell the suit room at the cost of Rs. 50,000/- and he agreed to execute the sale deed and khas possession thereof to the defendant No. 2 within three months from the date of execution of alleged bainama. It is contended by the petitioner that the aforesaid bainama is illegal, collusive, inoperative and not binding upon the plaintiff and the same has been created illegally for dispossessing the plaintiff/petitioner from the suit room by collusive decree.
7. The aforesaid decree has been assailed on many counts. It is contended that the aforesaid T.S. No. 16/99 was filed by the defendant No. 2 against defendant No. 1 on 10-03-99, the same was decreed ex-parte on 20-04-1999. The defendant No. 1 duly received the summons and intentionally did not appear and allowed the suit to be decreed ex-parte. The decree of the suit was put for execution on 15-05-99 and the defendant No. 1 was asked to submit his objection against the draft-kabala but it was not filed and the kabala was approved and registered in the office of sub-registrar. Thus, the entire process of execution of bainama, service of process, ex-parte decree up to preparation of kabala are stated to be completed within a period of 13 months, which according to the petitioner is nothing but collusion between the two brothers with a view to illegally procure the suit premises. It is also stated that the defendant No. 2 cannot get khas possession of the suit premises but he can at best claim symbolic possession.
8. The contention of the petitioner is that he is entitled to retain his possession of the suit premises as his tenancy is continuing and he has regularly deposited rent for the premises up to the month of March, 2000 and defendants cannot take possession of the suit room on the strength of ex-parte decree, which has been obtained by practicing fraud on the Court.
9. Both the defendants contested the suit by filing written statement denying all the allegations made by the petitioner in the plaint. It has been submitted that respondent/defendant No. 1 being the sole and exclusive owner of the land and house proposed to sell the same to the respondent/defendant No. 2 (who had a preferential right to purchase the share of his brothers) to meet the requisite expenditure to the seriously aligning son of the defendant No. 1, and in pursuance of acceptance of the offer, the sale price was fixed at Rs. 50,000/- and on receipt of advance, bainama was executed with a view to execute the sale deed within a period of 3 months.
10. It is also stated in the written statement of defendant No. 2 that as the sale was not executed in terms of bainama by defendant No. 1, so, respondent No. 2 had to file T.S. No. 16/99 and as it was not contested by the defendant No. 1, it was decreed ex-parte and resultantly, the decree was put into execution. There is no sort of collusion on the part of the defendants. The defendant No. 1 also averred in the tune of defendant No. 2 that due to the situation as mentioned by his brother, he had to take money from the defendant No. 1 in connection with the treatment of the son of defendant No. 2, which was required for immediate treatment and his son died on sickness so, he could not contest the case due to financial constraint. It is also stated that he approached to the petitioner/plaintiff for financial help in the form of advance for the purpose of treatment of his son but the petitioner denied. So, in the compelling circumstance, he entered into a deed of agreement for sale with his brother. The above transaction was known to the petitioner. It is further stated that the relationship of landlord and tenant between the petitioner and defendant No. 1 is already severed long back and he is no more owner of the said premises. On the other hand, now the respondent/defendant No. 2 is the absolute owner of the suit premises.
11. It is also averred that because of acute financial hardship, the defendant No. 1 had to withdraw the rent deposited in the court in his name along with the alleged electrical charges after deposit by the petitioner/plaintiff, although the alleged electrical charge was not due and payable and he had to withdraw the total sum as the rent along with alleged electrical charges were deposited together. However, he is ready to make refund of such amount of electrical charges to the plaintiff.
12. Both the cases filed by the petitioner/appellant vide TS Case No. 681/06 & TS Case No. 680/06 was tried by the Court below by framing the issues as below:
"Issues in TS Case No. 680/06:--
1) Is there any cause of action for the suit?
2) Whether the suit is maintainable in its present form?
3) Whether the suit is bad for defect of parties?
4) Whether the suit is barred by res-judicata, estoppel, whoever and acquiescence?
5) Whether the plaintiff has right to challenge the transfer of ownership, right of suit premises and its land by the landlord to the defendant No. 1?
6) Whether the plaintiff admitted the defendant No. 1 as landlord?
7) Whether the ex-parte decree in TS No. 16/99 of this Court is collusive inoperative, fraudulent and not binding upon the plaintiff and as such it is void?
8) Whether the plaintiff is entitled to get the decree as prayed for?
9) Whether there was any privity of contact between the plaintiff and the defendant No. 1?
10) Whether there is any electric connection in the name of the defendant and provided to the suit premises by them?
11) Whether the claim of restoration of electricity has been agitated in a separate case and can be re-agitated before this Court?
12) Whether the plaintiff is entitle for restoration of electricity/electric line as prayed for?
13) Whether the plaintiff ever installed any electric connection as per the agreement?
14) Whether the electric installed due in pendency of this suit is liable to be continued?"
13. On the other hand in another case No. TS 681/06 so filed by the petitioner/appellant praying for declaration of tenancy right with conformation of possession etc., on the basis of the pleadings between the parties following issues were framed by the Trial Court:
"(1) Whether there is any cause of action for the suit?
(2) Whether the suit is maintainable in its present form and manner?
(3) Whether the plaintiff is entitle for declaration of his tenancy right with respect of suit premises?
(4) Whether the plaintiff is entitle to get restoration of electric connection in terms of suit premises?
(5) Whether the plaintiff is a defaulter of payment of monthly rent to the landlord?
(6) Whether the counter claim is maintainable and as such plaintiff is liable to be evicted from the suit premises by the defendant No. 2?
(7) To what relief/reliefs parties are entitled?
Additional issues:--
(8) Whether the plaintiff ever installed any electric connection as per terms of agreement?
(9) Whether the electric connection installed during the pendency of the suit is liable to be continued?
(10) Whether there is any privity of contact between the plaintiff and the defendant No. 2 Vidhyadhar Goswami in respect of the suit premises?
(11) Whether there is any electric connection in the name of defendant and provided to the suit room by them?
(12) Whether the claim of restoration of electricity has been agitated in a separate case and can be re-agitated in this suit?
(13) Whether the plaintiff is entitle to decree for restoration of electricity/electric line as prayed for?"
14. In T.S. No. 680/06, on the basis of oral and documentary evidence so adduced by both the parties that the trial Court was pleased to dismiss the case by discussing all the issues. The appeal so preferred against the said order and decree was also failed vide Title Appeal No. 27 & 28/07. The learned Appellate Court gave a concurrent finding upon the decision of the trial court. Challenging the said findings of the appellate Court present revision petition has been preferred on the ground that trial court has not appreciated the evidence on record.
15. In T.S. No. 681/06 also the learned Trial Court has appreciation of the entire matter, on all the issues and allowed the counter claim by defendant No. 2. It was held that petitioner is liable to be evicted from the suit premises with his man and material and defendant No. 2 is entitle to khas possession of the suit premises and allowing the counter claim made by Defendant No. 2 held that petitioner is a defaulter and liable to be evicted. On appeal so preferred, his case was dismissed vide T.A. No. 30/07.
16. Having regard to the rival submission of both the parties, I have gone through the findings of both the Court''s below and as the matters in both abovementioned cases are interrelated so both are taken together for decision.
17. FINDINGS AS REGARD THE SECOND APPEAL RSA 149/09.
The Court formulated following substantial question of law in RSA No. 149/09:--
"(i) whether derivative title or transfer of title of landlord on a ground of fraud can be challenged and whether court''s below erred in law by holding that the tenant cannot challenge the transfer of ownership right of his landlord?
(ii) whether the transaction alleged to be made between the defendants was fraud and sham transaction and if the same was made only for the purpose to evict the appellant from the suit property?"
18. As we found the prime challenge by the appellant is that the both the respondents being brother''s acted in concert with a view to evict the appellant from the suit premises in collusive manner, as defendant No. 1, the original landlord Udoy Narayan Goswami failed to evict him inspite of threatening him to vacate the suit premises. The act of the defendant No. 1 while executing binama in favour of his own brother for selling of suit premises to his own brother for a minimum consideration of Rs. 50,000/- and thereafter allowing the respondent No. 2 to get the sale deed executed by allowing the case TS 16/99 to proceed ex-parte inspite of remaining in same house, has been termed as a collusion between the parties. Further, as the case was decreed ex-parte in a short period of time is stated to be a fraud on the part of the defendants on the Court.
19. All above aspects has been discussed by the Court below and other issue Nos. 5 & 7 by giving due regard to the pleadings as well as evidence on record by holding that as per provision of Section 5 of the Urban Areas Rent Control Acts, Transfer of Ownership is permissible and such transfer will not effect the tenancy as tenant will continue till eviction of tenant by the procedure of law. A tenant does not acquire any interest in the property and as such Tenant cannot challenge right, title of his landlord. The Tenant remains as under the transferee landlord. It has also been discussed that as per the tenancy agreement, the tenancy of the between the parties has already elapsed and petitioner is no more a tenant under the defendant No. 1. The plaintiff, though, has knowledge about such transfer of land to the defendant No. 2 but has denied him to be his landlord nor he has offered rent to him. In such backdrop, his deposit in the court will not absolve him from being defaulter. The learned counsel for the respondent has relied upon the decision 1995 Supp. (3) SCC 44 Rameshwar Lal Choudhury v. Ram Niranjan Mour, 2000 (2) GLT 75 Rupchand Daftary v. Ashim Ranjan Modak, wherein, it has been held that the tenant cannot deposit the rent into court without first tendering it to the landlord as it is not in compliance with Section 5 (4) of Assam Urban Areas Rent Control Acts. In another case law reported in (1996) 2 GLR 262 Chittranjan Gosh v. Abdul Rahman, it has been held that compliance of statutory provision under Section 5 (4) of the Assam Urban Areas Rent Control Act is mandatory, failing which the tenant becomes defaulter.
20. Further in 2014 (1) GLT 252 Swapan Kumar Shah v. Biswanath Sureka, it has been held that deposit in the name of three persons is not proper and tenant is liable to be evicted on the ground of defaulter.
21. In the given case, the defendant No. 2 Vidhyadhar Goswami (since deceased) became the owner of the suit premises by operation of law on the strength of sale deed and the tenant/petitioner cannot challenge the status of the defendant No. 2. In 1983 (1) GLR (Notes) 58 A Dr. Md. Mazid Mir v. Smti. Kalpana Saikia and others, it has been held that the statutory tenancy under the Urban Areas Rent Control Act gives no room to the concept of attornment. Obligation to pay rent lawfully due to the transferee cannot be avoided by involving the provision of section 109 of TPA Act, 1882.There is no obligation under Sub-section 2 of Section 5 on either the transferor or the transferee to give notice of such transfer to the tenant and the tenant is not relieved of his duty to pay rent for want of notice. The tenant is not entitle to claim benefit of section 5 (1) if he does not pay rent lawfully due to the transferee simply by invoking the provision of Section 109 of TPA Act, 1882.
22. In view of the legal proposition and in view of the evidence of the petitioner himself that he does not offer rent to the defendant No. 2 he turn to be defaulter even if he deposited rent in the court.
23. On the next, it has also been discussed by the learned Trial Court that the said suit TS 16/99 was filed for specific performance of the contract and there was no occasion to implead the petitioner as a party to the said case nor for the expeditious proceeding of the case cannot be termed as a fraud upon the Court and there is nothing to prove any other situation to infer fraud and collusion. Merely because defendants were brothers and case proceeded ex-parte cannot be a ground of collusion while the defendants has pleaded in their written statement that only because of acute financial crisis on the part of the defendant No. 1 who was unable to carry treatment of his son, he proposed to sell the land to the defendant No. 2 by taking such consideration and as subsequently his son died out of ailment, he did not contest the suit. This plausible explanation given by the defendants is not refuted by the plaintiff/appellant. In the given factual ground, the sale of suit premises so made by the defendant No. 1 and Defendant No. 2 is not found collusive by the trial court which is upheld by the appellate court.
24. The contention of the appellant is that he has challenged the derivative of the title of the defendant No. 2 and not the title of the original landlord holds no good as the subsequent owner will derive the title of the original order and will step into the ownership. Here the right and title of the original owner is not under challenge, then the challenge as regards the derivative title is of no consequence in the given background. So far the right to challenge the derivative title of the land is concerned, the learned counsel for the petitioner relies upon the for the decisions of the Apex Court in Subash Chandra v. Md. Shariff , (1990) 1 SCC 252 and in AVGP Chettiar &Sons v. T. Palanisamy Gounder , (2002) 5 SCC 337. The matter in hand is quite different than the facts before this Court, none of the decisions relied upon assist the appellant.
As regards the fraud, the learned counsel for the appellant has relied upon the decisions of the Apex Court in United India Insurance Co. v. Rajendra Singh and others , (2000) 3 SCC 581, Venture Global Engineering v. Shyam Computer Services Lt. , (2010) 8 SCC 660 and in Ram Chandra Singh v. Savitri Devi , (2003) 8 SCC 319. The decisions referred to is quite different from the case at hand.
A recent decision of this Hon''ble Court in the case of Pratima Rani Dey and others v. Diwan Abdul Munim Choudhury and others, reported in , (2015) 3 GLR 565 has been referred to by the learned counsel for the appellant wherein it has been held that in a suit for ejectment under Section 5(1)(e) of the Assam Urban Areas Rent Control Act, 1972, though the landlord-tenant relationship between the plaintiff and tenant, no order for ejectment can be passed on the ground of defaulter. On the basis of the aforesaid decision, it has been urged that in this case also as the petitioner has no landlord-tenant relationship with the defendant No. 2, so the order of evection from the suit premises is bad in law. In the present case in hand, the petitioner-plaintiff has denied his tenancy under the Defendant No. 2, but is wholly aware of the fact that the defendant No. 2 became the owner of the suit premises by virtue of sale of the premises to him by the original landlord. As such, the petitioner-plaintiff became a tenant under the defendant No. 2 by virtue of law as envisaged in Section 5(2) of the Assam Urban Areas Rent Control Act, 1972 and, as has been discussed above, no attornment is also required to create such landlord-tenant relationship. The factual matrix in the present case is totally different from the cases referred to above.
25. On the other hand, it is also discernable from the matters on record that the petitioner/appellant entered into the suit premises by executing agreement and the last agreement reveals that his tenancy has been expired as on 31.08.97 and in such backdrop even if he was asked to vacate the suit premises on the part of the defendant No. 1, it cannot be termed as threatening as has been alleged by the appellant. He has no more status as a tenant by virtue of expiry of tenancy agreement. All other issues are also decided against the petitioner and the appellate court has given a concurrent findings on the same.
26. The scope and ambit of second appeal is well settled. The basic law pertaining to the second appeal is that if no substantial question of law would have emerged, the findings of the first appellate court or concurrent findings of the court below on the question of facts cannot be interfered with in second appeal. The concurrent findings of facts, however, erroneous cannot be disturbed by the High Court in exercise of powers under this Section. The Substantial question of law has to be distinguished from a simple question of law as has been held Hon''ble Apex Court in , AIR 2006 SC 2172 Sugane - vs- Rameshwar Das. The High Court cannot substitute its own opinion for that of the first appellate court unless it finds that the conclusion drawn by the lower court where erroneous being, (i) contrary to the mandatory provisions of applicable law, (ii) contrary to the law as pronounced by the supreme Court, (iii) based upon inadmissible evidence or no evidence.
27. In the given case concurrent findings of fact reported by both the Court''s below that the appellant failed to prove the fraud played by the defendants, being pure finding of fact based on evidence on record should not be interfered in the second appeal. No substantial question of law emerges in this case so as to address and interfered by way of this second appeal.
28. FINDINGS AS REGARD THE CIVIL REVISION PETITION NO. 408/09
The pleadings between the parties are almost same in both the cases as regard facts and evidence as well. The trial Court has discussed all the matters under the issues so framed. We have already discussed as to under what count the concurrent findings of the Court below has been challenged in this Revision Petition. As has been discussed in the above mentioned para that the defendant No. 2 who became the owner of the suit premises by operation of law so he has a very legal right to raise the counter claim for eviction of the petitioner from the suit premises for being defaulter as no rent was offered to him. That apart, the defendant No. 2 has a decree in his favour to get the suit premises in his possession. There is no any contrary findings on the aspect by the appellate court. The petitioner tried to resist the claim of the defendant No. 2/transferee landlord by challenging that decree in TS No. 16/999 has been obtained by way of fraud which is not at all proved as has been discussed above. On the contrary by suppressing the fact that the tenancy agreement has expired, the petitioner continued to stay in the tenanted premises by depositing rent in the Court, without offering the rent to the landlord. The last tenancy agreement exhibit -5 clause 6 provides that at the end of the period of tenancy i.e. (on 31.09.97), the petitioner has to deliver the vacant possession of the suit premises to the landlord and he will have no any sort of claim thereafter. The rent receipt exhibit No. 6,7 & 8 also reveals that the defendant No. 1 Udoy Narayan Goswami has received the rent upto 08.09.97. It is also found very natural on the part of defendant No. 1, to ask the petitioner to vacate the premises and to refuse to receive rent(if any) in absence of tenancy agreement. It is the petitioner who without entering any further agreement for rent of the tenanted premises has occupied the same without any lawful manner. Further the defendant No. 2 being the brother of the defendant No. 1 might have preferential right upon the suit property being the same house, so, purchase of such property on his part not at all a foul play. A tenant cannot resist his landlord from disposing his property and law has protected the tenant by incorporating the provision in the Act itself that such change of the title of the property will not affect the tenant.
29. The trial Court has discussed all above aspect in its evidence having regard to the evidence on record and even though the written statement so filed by the petitioner as against the counter claim so filed by the defendant NO. 2 is not discussed in detail but the case of the defendant is found to be established and the petitioner is held to be a defaulter in view of the fact that he has deposited the rent in the Court without offering the same to the landlord. The elaborate findings on the material issue No. 3 & 5 has decided the fate of the case and both the Courts have given a concurrent findings on the issue. That apart, all other issues has been decided on the basis of materials on record against the petitioner having regard to all the oral as well as documentary evidence. No any irregularity and illegality is found while appreciating the matters on record. In , AIR 1973 SC 76 (Managing Director Hindustan Aeronautics Ltd v. Bala Nagar Hyderabad and Anr. v. Ajit Prasad Taraway), it has been held that where the order of lower appellate courts is within its jurisdiction, the high court should not interfere under Section 115 CPC even if the order is right or wrong unless it has exercised its jurisdiction illegally or with material irregularity. In another case law reported in , AIR 1984 SC 1894, it has been held that the high court is not justified in interfering with the order of the trial court, in excise of the revisional jurisdiction only on the ground that a different view on facts elicited was possible.
30. It is fairly well settled position in law that right of appeal is substantive right but there is no such substantive right in making the application under Section 115 Cr.P.C., the provision of revision is essentially a source of power for the high court to supervise the subordinate court. As has been discussed above findings of both the court below does not suffer from any sort of infirmity, illegality so as to call for interference by way of revision.
31. In view of the discussions and findings above, both second appeal and the revision lacks merit and stands dismissed.
32. Return the LCRs along with a copy of this order.
