SWARNALATA DASGUPTA Vs. DEV KUMAR GUHA

JUDGEMENT

(1.) Being aggrieved by the judgment dated 8.8.85 of Sri L.C. Baruah, Assistant District Judge, Dibrugarh, in Title Appeal No.20/84 setting aside the decreeing judgment dated 13.1.84 passed by Sri J.A. Ahmed, Munsiff No. 1, Dibrugarh, in T.S. No. 181/82, the defendants have brought this second appeal.

(2.) The facts which are necessary for determination of this appeal are as follows. Late Hemnalini Guha rented out the suit land which measured 1 K 4 Ls covered try part of new Dag No. 761 of new periodic patta No. 341 at Amolapatty of Dibrugarh town mouza to Naresh Chandra Dasgupta by registered lease deed dated 4.7.58 for residential purpose at annual rent of Rs. 60/- which was payable monthly or quarterly instalment. The lessee Naresh Chandra Dasgupta, constructed a house on this land in which he resided and died in 1966. Upon his death, the defendants who were his heirs continued to occupy the land and house as before by paying the same rent. The relationship was good between the plaintiff and the defendants. Later on the defendants defaulted and the rent accumulated to Rs. 780/- on 31.12.81. Plaintiff is the son of late Hemnalini. Defendant No. 1 is the mother of defendants 2 and 3. Defendant No. 1 assured the plaintiff that she would pay all arrears and also vacate the land. But they never vacated it. The plaintiff therefore sent combined notice under Section 11 of the Assam non Agricultural Urban Areas Tenancy Act, hereinafter 'the Act' by registered post with A/D asking the defendants to quit on the expiry of 31.12.81. The notice was duly received by the defendants but they failed to comply with it. Hence the plaintiff brought the suit for evicting the defendants by removing the temporary structure.

(3.) Defendants 1, 2 and 3 filed three separate written statement but in substance their plea was that their deceased father was not a lessee under the plaintiff's predecessor and that their father resided with them on that land since 1944 i.e. before the alleged lease. Secondly, they took the plea that their father constructed a permanent structure on the land and, therefore, they were not liable to be evicted. On this plea they prayed for dismissing the suit. After issues were framed both sides examined witnesses and also exhibited some documents.