1. This second appeal is directed against the judgment and decree passed by the Assistant District Judge No.2, Cachar at Silchar in Title Appeal No. 38 of 1976 affirming the judgment and decree passed by the Sadar Munsiff No. l Silchar.
2. The case of the plaintiff was that the suit land originally belonged to Krishna Kishore Rai, who died in the year 197.1 leaving behind him his son, Romesh Chandra Roy and wife, Surusi Bala Roy. Romesh Chandra Roy died leaving behind two sons, who are plaintiffs No. 1 and 2 (Pijush Kaoti Roy and Asit Baran Roy and the widow plaintiff No. 3 (Surusibala Roy). The three plaintiffs thus inherited the properties involved in the suit on the death of Romesh Chandra Roy. The mother of the defendant, Bidya Sundari Roy, was a maid servant working in the plaintiffs'' family. The suit land was given to her by a lease deed by the plaintiff Surusi Bala Roy, executed on 8.1.54. Bidya Sundari Roy did not construct any permanent structure within five years on the suit land. The suit land was part and parcel of the homestead of the plaintiffs. The plaintiffs bonafide required the suit land for expansion of residence. A notice, therefore, was served on the defendant to vacate the suit land. On failure of the defendant to do so, the suit was filed.
3. The defendant contested the suit on the ground that the defendant constructed structure on the suit land within a year of the settlement and he was not an ejectable tenant and that the plaintiffs did not require the suit land for expansion of their own residence. It was also denied that the suit land was homestead of the plaintiffs and that it was part and parcel of their residence. Other grounds taken were that the suit was bad for lack of cause of action, maintainability etc. including the ground of defect in the notice.
4. The trial Court framed five issues, considered the evidence adduced by the parties and decided all the issues in favour of the plaintiffs and decreed the suit. An appeal was filed against the judgment and decree passed by the trial Court before the appellate Court. The findings of the trial Court were challenged on the following two counts t
1) Whether any permanent construction was made by the defendant in the suit land within 5 years of the settlement ? and
2) Whether the suit land was a part and parcel of the plaintiffs'' land ?
The appellate Court affirmed the findings of the trial Court on both these counts and dismissed the appeal. Against the judgment of the appellate Court, the present second appeal has been filed. At the time of admission of the second appeal, the following substantial question of law was formulated by this Court.
"Whether the lease deed (Exhibit 7) has conferred right of permanent tenancy over the suit land as a result of which the tenant became a nonevictable tenant f
5. I have heard Mr. S. K. Senapati, learned counsel for the appellant. The first submission of Mr, Senapati is that a house was constructed by the defendantappellant over the suit land within one year from the date of the lease and, as such, he was entitled to protection under section 5 of the Assam NonAgricultural Urban Areas Tenancy Act, 1955 (hereinafter the Act''). It is admitted by Mr. Senapati that the lease was in favour of the mother of the defendant who was the tenant. He, however, submits that in view of the definition of ''tenant1 given in section 3(g) of the Act, the defendant has to be treated as tenant because he derived his title from his mother. The lease was in favour of his mother. It is admitted position that the mother died in the year 1973. There is no evidence to show that the mother transferred her right or title or interest in favour of her son. In the absence of any such transfer, it is difficult to understand as to how the son can derive title from the mother during her life time. He could claim title as successor by inheritance on her death which occurred in the year 1973 much after the relevant period of 5 years. In view of these facts, it cannot be said that the defendant was a tenant within the meaning of clause (g) of section 3 of the Act. That being the position, construction, if any, made by him, cannot be termed as construction made by a tenant to bring the case within the four corners of section 5. In the instant case, however, there is also a finding of fact recorded by the trial Court that no construction was made on the suit land. In that view also there is no scope for the submission that the defendant was entitled to protection under section 5 of the Act. This submission, therefore, has no force.
6, There is another angle from which the case was looked into by the first appellate Court. Section 2(i) (d) of the Act takes away certain lands from the purview of the Act. Section 2(i) (d) reads as follows:
"2. Application Notwithstanding anything contained in any contract or in any law for the time being in force, the provisions of this Act, shall apply to all nonagricultural tenancies whether created before or after the date on which this Act comes into force:
i) Provided that the provisions of this Act shall not apply to:
d) land used for residence of the landlord or reserved for being used for such purpose in its vicinity and let out topersons or let out in lieu of service merely in consideration or relationship or affection."
This clause was interpreted by a Division Bench of this Court in Second Appeal No. 32 of 1960 (Musst. Amina Khatun vs. Sahabuddin Ahmed and others) decided on 12th August, 1960. In that case, the Court examined the expressions "land used for residence of the landlord and "reserved for being used for such purpose� under clause (g) of Section 2, and held that clause (d) "would only mean that the; land let out must be in contiguity or near the landlord''s residence and that even though it is not actually covered by the residence, it must be in such vicinity that the intention of the landlord may be gathered as to the land being used in future for the purpose of residence''. "The word ''reserved'' does not necessarily mean that it should be so reserved in writing, but the intention has to be gathered as to whether the landlord meant to use the land in future for his (or her ) own residence". In the instant case applying the law laid down in the aforesaid case I find that in the instant case, there is a definite finding that the suit land is a part and parcel of the plaintiffs'' homestead and is reserved for being used in future. The aforesaid finding is based on evidence on record and also the map prepared by the Amin Commissioner appointed for the purpose. I do not find any material or reason to interfere with the said finding of fact. In that view of the matter also the provisions of the Act are not applicable to the suit land and as such, the appellant is not entitled to protection of section 5 of the Act and the findings of both the Courts below are correct on that point.
7. Mr. Senapati, learned counsel for the appellant further submitted that the notice for eviction was not a proper notice inasmuch as the description of the suit land given therein was not correct and that on that ground itself the suit should have been dismissed. I find that this point was not urged at the first appellate stage nor it is urged in the memorandum of appeal before this Court. Mr. Senapati submits that this Court at this stage also can go into it. I have looked into the records. It appears that in the written statement the stand taken by the defendant on this point was that no notice was served. It was not the case of the defendant that the notice was defective. It also appears that the learned trial Court dealt with this aspect and observed as follows :"Firstly, the defendant did not state in the written statement that he did not understand the suit land and that there was any misdescription of land. On the other hand, the defendant admitted the suit lands under his occupation. Misquoting of dags does not in any way, affect the correct position when the boundary and area are admitted. Secondly, when the tenant very well understood the implication and the suit land from where he is going to ousted, these misquoting of dag got no effect legally. D. W. 2. i. e., defendant specifically stated in his deposition that the area is 4 kathas and he knows the suit lands and he is in occupation of that land. These issues are decided in favour of the plaintiff. The said finding was not challenged before the first appellate nor before this Court. In that view of the matter, this submission is concluded by finding of fact arrived at by the trial Court that the defendant understood the case properly and misquoting of dag numbers did not in way prejudice his defence.
8. It is well settled that the object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial, it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings, however, should receive a liberal construction. No pedantic approach should be adopted to defeat the ends of just be on the ground of technicalities. When pleadings are expressed in words, which may not expressly make out a case in accordance with strict interpretation of law, it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised, the Court should not pay undue attention of the form of pleadings but should find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, the parties knew the case and they proceeded to trial on those issues by producing evidence, it would not be open to a party to raise the question of absence of pleadings in appeal. (Ram Samp Gupta vs. Bishnu Narain Inter College, .AIR 1987 SC 1242),
9. In view of the above discussion, I do not find any merit in this appeal. This appeal is concluded by concurrent finding of facts of both the Courts below. There is no question of law involved. This appeal is accordingly dismissed. No order as to costs.
10, Mr. Senapati, learned counsel for the appellant submits that the appellant may be given six months'' time to vacate the suit premises. Dr. M. K. Sarma, learned counsel for the respondents states that six months time is too long a time and that only one month''s time should be given which was also the time given by the first appellate Court. The appellant is given three months time to vacate the suit premises.
