WAZUL HUSSAIN Vs. SIRAJUDDIN AHMED

JUDGEMENT

(1.) Heard Mr. P.J. Saikia, learned counsel for the petitioner as well as Mr. G.N. Sahewalla, learned Senior Counsel assisted by Mr. H.K. Sharma appearing for the respondents.

(2.) The brief facts of the instant case is that the respondents herein filed a suit for ejectment of the defendant; for perpetual injunction, etc. The case of the plaintiff in the suit that he is the absolute owner of the plot land measuring 0 Bigha, 1 Katha, 10 Lechas covered by Dag No. 491 under P.P. Patta No. 62 situated at Kalibari, Dibrugarh town Mouza, Marwari Patty, PO and Dist- Dibrugarh. Upon the said land, their stand a house covered by Holding No. 193 of Ward No. 9 and other properties. The plaintiff further case is that on 1/1/1995, the defendant came into occupation and possession of the house premises described in the schedule to the plaint on a monthly rent at the rate of Rs.2,000.00 per month, on the condition that the defendant would pay the house rent to the plaintiff within the 1st week of each succeeding English Calendar month; that the defendant would vacate and deliver the house premises to the plaintiff as an when asked; that the defendant would not sub-let or hand over the possession of the same to any other persons and that the defendant would not cause any nuisance and disturbance to the plaintiff as his other family members under any circumstances. Thereafter, since January, 2005, the defendant had not paid the rent for which the plaintiff has send a Legal Notice dtd. 11/9/2006 asking the defendant to vacate and deliver peaceful vacant possession of the house. However, the defendant did not pay any heed to the said notice. Apart from the said the plaintiff also claims that he bonafidely requires the suit premises for his own use. It is on the basis of the said averments, the plaintiff filed the suit seeking the reliefs as above mentioned. The said suit was filed on 14/11/2006 and was registered and numbered as Title Suit No. 150/2006.

(3.) The defendant who is the petitioner herein filed his written statement on 28/2/2007 denying to the statements and allegations made in the plaint and also challenged the maintainability of the said suit. In the written statement filed by the defendant, it was his specific case that he came to occupy a vacant portion of land measuring 35x10 ft for storing Tyres materials on annual lease rent of Rs.2,400.00 in the year 1980 and thereafter, the defendant constructed two C.I. Sheets Roof house with Pucca Wall and Pucca Floor by spending a sum of Rs.35,000.00 and the same has been reduced to ashes on account of fire in the year 1991. It is the further case of the defendant that on 13/6/1985, 21/3/1989 and 29/3/1989, the plaintiff by executing mortgage deeds had taken from the defendant an amount of Rs.10,000.00, 36,600/- and 36,600/- respectively. It is also mentioned that on 23/12/1991 after devastating fire in the year 1991 another amount of Rs.36,600.00 was taken by the plaintiff from the defendant. In total the plaintiff took a sum of Rs.1,19,800.00 but the plaintiff failed to execute and neglected to execute the Deed of Sale in favour of the defendant after the expiry of 8 (eight) years as per the conditions/ stipulation contained in the mortgaged deeds. It was the further case of the defendant that the plaintiff had only mortgaged the vacant land and the defendant by spending a huge amount constructed four C.I. Sheets Roof house for the Tyre godown purpose and also install Tyre Retreading machine thereon and have been enjoying peaceful possession thereof. It may be relevant to take note that from a perusal of the written statement there was no mention whatsoever that there was any construction carried out by the defendant pursuant to the fire as alleged to be happened in the year 1991. Further to that the defendant also pleaded that the defendant had acquired a good right, title and interest over the said plot of land by the law of prescription, adverse and other provision of law.