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Judgment
Heard Mr. Rupen Sarma, the learned Advocate for the pe(cid:34)(cid:34)oner. Also heard Mr. Pijush Chandra Dey, the learned Advocate for the
respondent.
By this revision, the pe(cid:34)(cid:34)oner has challenged the first appellate judgment and decree dated 30.08.2017, passed by the learned Addl. District
Judge No.2, Kamrup (Metropolitan), Guwaha(cid:34) in Title Appeal No. 86/2013, thereby dismissing the appeal and affirming the judgment and
decree dated 26.03.2013, passed by the learned Munsiff No.2, Kamrup (Metropolitan), Guwaha(cid:34) in the counter-claim in connec(cid:34)on with Title
Suit No.283/2008, for recovery of the vacant possession of the suit premises evicting the petitioner, her men and materials.
The pe(cid:34)(cid:34)oner is the plain(cid:34)ff in TS 283/2008. As a tenant, in the year 1968, she had entered into a tenancy agreement with the father of the
respondent- defendant in respect of the suit premises. It was alleged that the respondent refused to receive monthly rent for the month of
September, 1989 for which the pe(cid:34)(cid:34)oner was compelled to deposit rent in court. In the year 1991, the disconnected the electricity connec(cid:34)on
to the suit premises. Hence, the pe(cid:34)(cid:34)oner approached the Court of Ass(cid:60). District Judge No.1, Guwaha(cid:34) under sec(cid:34)on 7 of the Assam Urban
Areas Rent Control Act, 1972 (hereina(cid:61)er referred to as “AUARC Actâ€). The said learned Court by order dated 04.12.1992, had ordered
restora(cid:34)on of electricity connec(cid:34)on. Aggrieved by the said order, the respondent approached this Court by filing a CRP 7/1993, wherein this
Court had upheld the order of restoration of electricity passed by the learned court below.
On 17.07.2008, the respondent asked the pe(cid:34)(cid:34)oner to vacate the suit premises, which was followed by an Advocate’s no(cid:34)ce dated
04.08.2008, giving 14 days (cid:34)me to vacate the suit premises. Therea(cid:61)er, as the respondent avoided the pe(cid:34)(cid:34)oner and the wife of the
respondent had threatened the petitioner and her son, the suit was filed.
The respondent contested the suit by filing his wri(cid:60)en statement cum counter-claim. Apart from usual plea, it was denied that there was
any oral tenancy agreement with his father, and it was claimed that the pe(cid:34)(cid:34)oner had entered into tenancy agreements from (cid:34)me to (cid:34)me and
by last agreement, she had agreed to vacate the suit premises by 31.05.1986, but she had not vacated the suit premises. It was stated that
when the suit premises was let out he was a bachelor but later on he got married and he required the suit premises for the business of his
elder son. It was also claimed that there was no passage to go to his residence and he was using different passage through someone else’s
land. He claimed that he had a building in the backside of the suit premises and it was envisaged to connect the said building with the road
through a part of the suit premises and because of lack of passage, the backside building could not be used for commercial purpose.
In the wri(cid:60)en statement to the counter-claim, the pe(cid:34)(cid:34)oner denied bona fide requirement of the suit premises and claimed that one Pinku
Das, a tenant in the first floor of the suit premises had vacated his tenanted premises in September, 1998 but the pe(cid:34)(cid:34)oner without
accommoda(cid:34)ng his son had kept the said premises vacant. The pe(cid:34)(cid:34)oner also denied that the respondent was using someone else’s land
for passage and also denied that without creating passage, the further work of the backside building could not be done.
Upon pleadings, the following issues were framed for trial:-
Whether there is any cause of action for the suit?
Whether the counter-claim is maintainable in facts and law?
Whether the relationship of landlord tenant still subsists between the parties?
Whether the suit premises is required by the defendant for his personal requirement?
To what relief/ reliefs the parties are entitled?
The pe(cid:34)(cid:34)oner examined herself as PW-1 and had exhibited the following exhibits, viz., Trade licence (Ext.1), Order dated 04.12.1992 passed
by A.D.J. No. 1, Guwaha(cid:34) (Ext.2), Order by this Court in CRP No. 7/1993 (Ext.3), Tenancy Agreement between Pinku Das and respondent’s
wife (Ext.4). The respondent examined two witnesses and exhibited a Tenancy Agreement dated
21.06.1984 (Ext.A).
In respect of issue No.1, it was held that there was cause of ac(cid:34)on for the suit. In respect of issue No.2, it was held that the counter-claim
was maintainable. In respect of issue No.3, it was held that rela(cid:34)onship between the par(cid:34)es subsisted as tenant and landlord. In respect of
issue No.4, the learned trial court had discussed the evidence of witnesses as follows - DW-1 had stated that they were using passage through
land of his brother. The DW-2, who was the wife of DW-1 had deposed that the passage that they were using was over a drain and was narrow.
The PW-1 had admi(cid:60)ed that a four-wheeler cannot pass through the passage. DW-2 had stated that their son was keeping idle for last 5-6
years. As per DW-2, the suit premises le(cid:61) by Pinku Das was not fit for doing business as it was on backside of first floor and was used as
godown, which was already let out to other tenant. The learned trial court by not accep(cid:34)ng the argument advanced on behalf of the pe(cid:34)(cid:34)oner
that the respondent had taken contradictory stand, arrived at a finding that the suit premises was a considerably big room measuring 33X13
feet, as such, even a(cid:61)er crea(cid:34)ng a passage, considerable space would be le(cid:61) out for business of the son of the respondent. It was held that
there was no renewal of tenancy and the pe(cid:34)(cid:34)oner was occupying the suit premises at a paltry rent of Rs.990/- per month since the year 1989.
It was held that mere lack of men(cid:34)on about the type of business which would be carried out from the suit premises does not make the
requirement of suit premises mala fide. Upon discussing various cases cited by the learned Advocates for the par(cid:34)es, it was held that the suit
premises was bona fide required by the respondent, as such, the issue No.4 was decided in the affirma(cid:34)ve. In respect of issue No.5, it was
held that the pe(cid:34)(cid:34)oner was not en(cid:34)tled to any relief and her suit was dismissed, and it was held that in the counter-claim the respondent was
en(cid:34)tled for recovery of the vacant possession of the suit premises evic(cid:34)ng the pe(cid:34)(cid:34)oner, her men and materials and, as such, the counter-
claim was decreed.
The said judgment and decree was unsuccessfully challenged in appeal. The learned first appellate Court had framed the following point of
determina(cid:34)on â€" “Whether under the facts and circumstances of the case the learned lower court was jus(cid:34)fied to dismiss the suit of the
plaintiff and decree the counter-claim?â€
The learned first appellate court, upon independently discussing the evidence on record, the plea of inconsistent plea by the respondent
was discarded and the bona fide requirement of the suit premises was found to be genuine as the elder son of the respondent was si(cid:80)ng idle
since 4-5 years. Hence, the decree of eviction in the counter-claim was affirmed.
The learned Advocate for the pe(cid:34)(cid:34)oner has produced the copy of the deposi(cid:34)on of the witnesses. It is submi(cid:60)ed that the plea of
requirement of the suit premises for passage was inconsistent with the plea of bona fide requirement of the suit premises for business of the
son. By referring to the evidence of DW-1 and DW-2, it was submitted that the DW-2 had denied the existence of building behind the shop. It is
submi(cid:60)ed that if the trial court records are called, it could be seen that the DW-1 had admi(cid:60)ed in his cross examina(cid:34)on that in the
Advocate’s no(cid:34)ce issued by the respondent, the suit premises was stated to be required for residen(cid:34)al use. It is submi(cid:60)ed that the
pe(cid:34)(cid:34)oner, now a senior ci(cid:34)zen, is doing her business in the suit premises since the year 1968 and that the disconnec(cid:34)on of electricity
connec(cid:34)on to the suit premises proved that all throughout, the inten(cid:34)on of the respondent was to evict the pe(cid:34)(cid:34)oner, for which the
respondent had refused to accept rent tendered for the month of September, 1989. Hence, it is submi(cid:60)ed that the revision be allowed by
se(cid:80)ng aside the judgment and decree passed by both the learned courts below. In support of his submissions, the learned counsel for the
pe(cid:34)(cid:34)oner has placed reliance on the case of (i) Baldev Singh Vs. Manohar Singh, AIR 2006 SC 283, (ii) Pratap Rai Tanwani Vs. U(cid:60)am Chand, AIR
2005 SC 1274, (iii) Smt. Parmeshwari Devi Vs. Thakur Natthu Singh, (1998) 1 MPJR 462 (print-out from Docid#IndLawLib/498214).
Per contra, the learned Advocate for the respondent had submi(cid:60)ed that the respondent is seeking the suit premises partly for use as
passage to develop the back-side building as commercial market and partly for se(cid:60)ling his elder son in business, who is now unemployed for
about 14-15 years now a(cid:61)er 10 years of li(cid:34)ga(cid:34)on. It is submi(cid:60)ed that the scope of a revisional court is limited and it is not permissible for a
fresh apprecia(cid:34)on of evidence as in an appeal. It is also submi(cid:60)ed that the bona fide requirement of the suit premises by a landlord is a
finding of fact, which cannot be interfered in revision owing to concurrent finding of fact by both the learned Courts below. It is further
submi(cid:60)ed that the concurrent finding by both the learned courts below is not vi(cid:34)ated by any jurisdic(cid:34)onal error. In support of his conten(cid:34)on,
the learned Advocate for the respondent has relied upon the following cases, viz.,
 (i) Krishna Kumar Rastogi Vs. Sumitra Devi, (2014) 9 SCC 309,
 (ii) Rishi Kumar Govil Vs. Maqsoodan & Ors.(2007) 4 SCC 465,
(iii) Siddalingamma & Anr. V. Mamtha Shenoy, (2001) 8 SCC 561,
(iv) Phiroze Bamanji Desai vs. Chandrakant M. Patel, AIR 1974 SC 1059,
(v) Ranjit Kr. Dey & Ors., Vs. Krishna Gopal Agarwala, 2004 (2) GLT 435.
Upon perusal of the materials on record, it is seen that the PW-1 had admitted in his cross examination that there is an incomplete house of
the landlord in the backside of the suit premises. He could not state the profession of the elder son of the respondent. The PW-1 had admi(cid:60)ed
that a 4 wheeler could not pass to the backside building. Therefore, with the said evidence on record, it cannot be said that the respondent did
not have any sincere or honest bona fide requirement of the suit premises. The pe(cid:34)(cid:34)oner has not been able to show that his son was not
unemployed as the pe(cid:34)(cid:34)oner could not state about the source of livelihood of the elder son of the respondent. Moreover, the pe(cid:34)(cid:34)oner has
also established that the backside building was incomplete and that there was no motorable passage to backside building.
Therefore, the only issue which is required to be seen is whether the plea of the respondent of requirement of suit premises for business
of his elder son is inconsistent with the plea of passage for ingress and egress for backside building for pu(cid:80)ng the said structure for
commercial use. In this connec(cid:34)on, the learned Advocate for the pe(cid:34)(cid:34)oner has relied on the case of Smt. Parmeshwari Devi (supra). The said
case was for evic(cid:34)on of tenant from residen(cid:34)al premises. Plea was taken that vacant possession was also required for reconstruc(cid:34)on of the
premises. It is in this context that the Hon’ble Single Judge of High Court of Madhya Pradesh had interpreted the facts to the effect that
unless there was sanc(cid:34)oned plan, demolishing of house and reconstruc(cid:34)on was not possible and in the said context, it was held that the pleas
were inconsistent. The said ra(cid:34)o is found to be inapplicable in the present case in hand because the situa(cid:34)on in Guwaha(cid:34) is different. Judicial
no(cid:34)ce can be taken of the fact that construc(cid:34)on in Guwaha(cid:34) is being carried out under the Guwaha(cid:34) Building Construc(cid:34)on (Regula(cid:34)on)
Byelaws, 2014, which prescribes for height restric(cid:34)ons based on available passage into the land. Therefore, in Guwaha(cid:34), unless there is an
exis(cid:34)ng passage, construc(cid:34)on of upper construc(cid:34)ons is not possible. In this context, it is seen that the PW-1 had admi(cid:60)ed that the said
building is s(cid:34)ll incomplete. Thus, the bona fide requirement of the suit premises cannot be doubted because the categorical finding of fact by
the learned trial court was that the suit premises was a considerably big room measuring 33X13 feet, as such, even a(cid:61)er crea(cid:34)ng a passage,
considerable space would be le(cid:61) out for business of the son of the respondent. Thus, the plea of the respondent is not found to be
contradictory and, as such, the three cases cited by the learned Advocate for the petitioner is distinguishable on facts.
The scope for revisional court to interfere against concurrent finding of fact by both the Courts below is very limited. In the case of P.D.
Chougule V. Maru(cid:34) Hari Jadav & Ors., AIR 1966 SC 153, the Cons(cid:34)tu(cid:34)on Bench of the Hon’ble Supreme Court had held that error of lower
court in ques(cid:34)on of law, which is not related to ques(cid:34)on of its jurisdic(cid:34)on, interference with the judgment passed by the learned Courts
below was not jus(cid:34)fied. Moreover, the Hon’ble Supreme Court in the case of Phiroze Bamanji Desai (supra), has held that the finding of
bona fide requirement was a finding of fact and it was held that it is not enough that the landlord should merely desire to use and occupy the
suit premises, but he should need them for his own use and occupa(cid:34)on. Applying the said test, the suit premises was bona fide required by
the respondent for his own use and occupa(cid:34)on for facilita(cid:34)ng business of his son and for crea(cid:34)ng a passage to and fro his backside building,
which was still incomplete when PW-1 was being cross examined.
Thus, the concurrent finding by the learned courts below do not warrant any interference from this Court in exercise of revisional powers,
as the said judgments and decrees are not found to be vitiated by any jurisdictional error.
Hence, this revision fails and the same is dismissed.
Resultantly, the first appellate judgment and decree dated 30.08.2017, passed by the learned Addl. District Judge No.2, Kamrup
(Metropolitan), Guwaha(cid:34) in Title Appeal No. 86/2013, thereby dismissing the appeal and affirming the judgment and decree dated 26.03.2013,
passed by the learned Munsiff No.2, Kamrup (Metropolitan), Guwaha(cid:34) in the counter-claim in connec(cid:34)on with Title Suit No.283/2008, for
recovery of the vacant possession of the suit premises evicting the petitioner, her men and materials are both affirmed.
Before par(cid:34)ng with the records, considering the long period of tenancy, this Court grants the respondent 4 (four) month’s (cid:34)me from
today to make alterna(cid:34)ve arrangements and to vacate the suit premises described in Schedule of the plaint and to deliver khas possession
thereof to the respondent, subject to the following conditions:-
i. Within 1 (one) month from today, the pe(cid:34)(cid:34)oner would give an undertaking before the learned Trial Court i.e. Court of Munsiff No.2, at
Guwaha(cid:34) to the effect that in compliance of the judgment and decree of the said Court, she would vacate the suit premises a(cid:61)er expiry of 4
(four) months from to-day within outer period of 31.10.2018, without execution.
ii. On vacating, the possession of the suit premises shall be handed over only to the respondent and to no one else.
iii. For this period of 4 (four) months upto 31.10.2018, the pe(cid:34)(cid:34)oner shall con(cid:34)nue to pay monthly rent at the rate of Rs.990/(Rupees Nine
hundred ninety only) per month to the respondent, who would issue money receipt to the pe(cid:34)(cid:34)oner, by keeping one copy of such money
receipt for his own record as a proof of having received such payment. But this payment of money shall not create any new tenancy or any right
whatsoever in favour of the petitioner, save and except to enable her to stay in the suit premises upto 31.10.2018.
iv. The petitioner shall not sub-let or part with the possession of the suit premises in favour of any third party during this period.
v. If the respondent fails to give such undertaking within 1 (one) month from today as provided in sub-para (1) above, or if she violates any of
the condi(cid:34)ons imposed hereby, or violates any of the condi(cid:34)ons of the undertaking, or fails to vacate the suit premises described in Schedule
of the plaint within the outer period of 31.10.2018, the petitioner shall be entitled to put the decree in execution.
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