BISWANATH AGARWALLA Vs. SMT. SABITRI BERA & ORS.

JUDGEMENT

(1.) This second appeal arises out of an order passed by the lower appellate Court wherein the order of dismissal of the suit by the of first instance was reversed. Although no point was formulated at the time of admission of the appeal by the Division Bench of this Court but the law requires that the points can be fomulated in the instant case for the purpose of disposal of the Second Appeal. It appears to this Court that the issue Nos. 6 and 7 before the Court of first instance are points raised by the defendant/appellant before the Court for the purpose of due consideration. Such points in the form of questions are as follows:-

(2.) The second point has been taken into consideration at first. From the judgment order of the Court of first instance, it appears to this Court that in respect of service of notice such Court held affirmatively in favour of the plaintiffs/respondents by holding a view that the notice to quit under Sec. 106 of the Transfer of Property Act was properly addressed, prepared and sent by registered post with A/D which was accepted. Therefore, the notice was properly served. Even on alternative point, the Court held that the defendant-tenant when taken the point of title of the landlord and or relationship, such tenant cannot be entitled to take point of non-service of the notice to quit. Such observation has been affirmed by the lower appellate Court. Therefore, when the affirmative concurrent findings in respect of the notice is available, I find it does not require any interference by this Court.

(3.) So far as the point of relationship in between the landlord and tenant is concerned, extensive argument was advanced by the learned Counsel appearing on behalf of the appellant. Therefore, it requires a brief discussion of the fact as to whether this point at all can be taken into account by this Court or not. The appellant's case is that he made an agreement for sale with one Sk. Abdul Wahid Mollah on 18th March, 1970 on payment of part consideration. The Plaintiffs/respondents' case is that they have obtained a plot of land by way of a Deed of Gift executed by one Safiqur Rahaman, who obtained the property from the said Sk. Abdul Wahid Mollah. Admittedly, there is no nexus in respect of the schedule of land, which has been obtained by the respondents and the subject-matter of agreement for sale on which the appellant is relied upon. In other words, the present suit is related to C.S. Plot No. 5627 and a part of C.S. Plot No. 5628 corresponding to R.S. Plot No. 4482, while the schedule of the alleged unregistered agreement for sale is about plot Nos. 5626 and 5630. The Court of first instance, although considered all these points partly, but, in drawing an inference held that the plaintiffs in order to prove the relationship of landlord and tenant between themselves relied upon only the evidence of P.W.5. According to the evidence of P.W.5, he was not present when the suit premises was let-out by Safiqur Rahaman in favour of the defendant/appellant. If, I give an explanation on that score, I say that the defendant/appellant's case is that he is in possession from the period of Safiqur Rahaman and not after so-called transfer of property in favour of the respondents/plaintiffs as because such witnesses were not aware of the fact of creation of tenancy. The evidence cannot be relied upon. Hence., the solitary evidence of relationship of landlord and tenant in between the parties is not good enough. The lower appellate Court considered the other part of the cross-examination and held that such witness on oath contended that the appellant/defendant paid rent for the first time to the plaintiffs/respondents on 1st Sept., 1990 and the vendor of the respondents/plaintiffs introduced him with the defendant/appellant on 21st July, 1980. It was further held by the lower appellate Court that it was true that the Court of first instance disbelieved the relationship in between the defendant/appellant and the respondents/plaintiffs by virtue of Exhibit 4 series but on the same breath, the same Court held that the claim of the respondents/plaintiffs regarding the relationship of landlord and tenant was not proved. But the main ground is that the P.W.5 clearly stated in his evidence that at the time of cross-examination, he was not present when the suit premises was let out by Safiqur Rahaman in favour of the appellant/defendant and no witness on behalf of the respondents-plaintiffs on that score was produced and no rent receipt was filed by the respondents/plaintiffs by which the said Court decided that the appellant/defendant was inducted as tenant under the vendor of the respondents/plaintiffs subsequently by the present respondents/plaintiffs. On the other hand, the claim of the defendant-appellant in respect of the suit premises by virtue of an agreement for sale dated 1st March, 1970 being Exhibit-A in the suit is the considered opinion. This Exhibit cannot be accepted as a valid document either for title or for possession by the defendant/appellant in respect of the suit premises, as the same, in fact, was written on a white sheet of paper though the said agreement for sale dated 18th March, 1970 subsequently, was impounded by the Court below and the requisite fine and fees were duly paid by the appellant/defendant. But in spite of the same, no witness as regards the said Exhibit-A has been examined by the defendant/appellant though in the said agreement there are witnesses excluding the vendor Sk. Abdul Wahid Mollah and whose signature in the Exhibit-A as vendor of the deed had not been proved and marked by the appellant/defendant in the Court below. According to the lower appellate Court, although P.W.5 is not able to satisfy the Court below in respect of relationship between the parties but according to him, such contradiction in the evidence of P.W.5, as pointed out, is not very vital or material to disbelieve the respondents/plaintiffs' title and ownership over the suit premises and particularly the defence case of the defendant/appellant on the basis of an agreement for sale being Exhibit-A is not believable at all. Exhibit-A relates to other plots besides the plot mentioned in the plaint schedule premises and that is why the defendant/appellant did not file any suit for specific performance of contract till this date on the basis of such Exhibits and no attempt was made for getting such registered deed within the reasonable time. Therefore, the respondents/plaintiffs had proved their title and ownership over the suit premises by virtue of Exhibit 4 series. On the other hand, the defendant/appellant as per the written statement failed and neglected to discharge his onus of proving his right permanently in the suit premises as a tenant or otherwise. The respondents/plaintiffs' suit must have been succeeded and in that may the judgment and order passed by the Court of first instance was reversed by passing an appropriate decree to the extent of vacating the premises and handing over the peaceful possession to the respondents/plaintiffs.