PRAMILA RANI NAG Vs. MOHAMMAD MIR HUSSAIN

JUDGEMENT

(1.) The appellant who challenges the judgment and order of the Gauhati High court dated 7/3/1974 passed in Second Appeal No. 119 of 1971, obtained a lease of some vacant land from the respondent way back in the year 1947 at the rate of Rs. 150. 00 per annum as rent. The duration of the lease was five years. Under the terms of the lease, the tenant was permitted to construct houses on the land and to remove the structure on the expiry of the period of lease. The appellant raised certain residential structures which the courts below have termed as 'permanent'. Prima facie, though the description of those structures cannot in the normal sense be termed as 'permanent', but they are understood as permanent in the strict legal sense under precedent for the purposes of the Assam Non- Agricultural Urban Areas Tenancy Act, 1955 so as to extend some protection to the tenants. Instantly, on the expiry of the lease after five years, there was renewal for 2 1/2 years. The tenant undertook to remove the material of the structure on the expiry of the lease. It is during the subsistence of the renewal period that the aforesaid Act came to regulate the rights and obligations of the landlord and tenant. It is on the provisions thereof that the appellant built her case when asked to vacate the land by removal of the structure.

(2.) Section 5 of the aforesaid Act provides for protection from eviction. In order to build a case of protection, the tenant has to prove: (1 that he is a tenant under the landlord; (2 that he has raised permanent structures on the land of tenancy for residential or business purposes: (3 that he has raised those permanent structures or where the tenant was not so entitled, has nevertheless actually built the structures in question with the knowledge and acquiescence of the landlord. It is only when all the conditions are fulfilled does the tenant become entitled to protection under the Act.

(3.) When the respondent-landlord sued the appellant for eviction in the court of the first instance, the tenant succeeded in defending the action. The First Appellate court affirmed that view. The High court in second appeal, however, thought that the terms of the lease had not been taken into consideration by the courts below and that a positive finding had to be recorded as to whether the permanent structure built by the tenant was permitted under the terms of lease and if not, had it been constructed with the knowledge and acquiescence of the landlord. The matter was thus remitted back in remand to the First Appellate court. The First Appellate court recorded a finding that the terms of the lease do not permit construction of permanent structures as it envisaged return of the lands after a period of five years by removal of the structure. It also focussed its attention to another term in the lease deed forbidding even a hole being dug in the surface of the earth lest it damage or diminish its value or condition. As a consequence it was observed that there could not be any occasion for the landlord to have acquired the knowledge so as to acquiesce in the raising of a permanent structure. The High court in second appeal at the instance of the tenant affirmed that view. Hence this appeal.