DHANAI BHAGWAT Vs. SHAKIL AKHTAR

JUDGEMENT

(1.) By this revision petition the petitioner tenant has challenged the judgment and order dated 03.01.03 passed by the learned Adhoc Additional District Judge-1, Tinsukia in Title Appeal No. 2/99 dismissing the appeal filed by the petitioner and upholding the judgment and decree dated 25.11.98 and 18.12.98 respectively passed by the learned Civil Judge (Jr. Divn) No. 1, Tinsukia in Title Suit No. 19/94 by which the suit of the plaintiff respondent was decree for ejectment of the defendant petitioner from the suit premises and also a decree for arrear of rent amounting to Rs. 15,000/- was granted against him.

(2.) The Title Suit No. 19/94 was instituted by the landlord respondent for ejectment and recovery of khas possession and also for arrear of rent and for permanent injunction etc. the pleaded case of the plaintiff, inter alia is that the plaintiff is the owner of the suit premises alongwith some other properties situated at Rungagora Road, Tinsukia in the district of Tinsukia and the defendant came in occupation of the said premises as monthly tenant at a monthly rent initially of Rs. 180/- which is gradually enhanced upto Rs. 500/- as per English Calendar month. It is the case of the plaintiff that the defendant violated the terms of the tenancy for which earlier a title suit being TS No. 23/88 was instituted by the plaintiff against the defendant for ejectment of the defendant and for recovery of the vacant and khas possession of the suit premises and also for recovery of arrear of rent and compensation etc. The said suit was subsequently settled between the parties on certain terms and conditions. One of the terms of the said settlement of the said suit was that the rent for the premises shall be paid at the rate of 450/- per month from May, 1990 to December, 1990 and from the, month of January, 1991 the defendant will pay Rs. 500/- per month and the rent shall be paid month by month within the first seven days of each month of tenancy in advance. It is also pleaded that the tenancy was expired on 31.03.91 and in spite of demand and request made by the plaintiff the defendant petitioner did not vacate the same. On the other hand the defendant by his letter dated 22.03.91 requested the plaintiff for extension of his tenancy for another eleven months from April, 1991 to 28th day of February, 1992. The defendant paid rent upto the month of December, 1991 but defaulted from the month of January, 1992 onwards. In spite of repeated demands made by the plaintiff the defendant did not vacate the suit premises and according the defendant is a defaulter in respect of the suit premises and is continuing and occupying the same without payment of the rent. It is also pleaded that the defendant surreptitiously collected some building materials with a view to raise pucca premises over the suit premises without the consent and permission of the plaintiff landlord. On these counts the plaintiff prayed for a decree for recovery of khaspossession of the suit premises and for recovery or arrear rent amounting to Rs. 15,000/- and for other relief.

(3.) The defendant petitioner contested the suit by filing written statement denying the allegations of the plaintiff made in the plaint. In his written statement the plaintiff stated that by his letter dated 22.03.91 he requested the plaintiff to extend the period of tenancy for another eleven months but the plaintiff did not reply to it. It is also stated in the written statement that on 04.12.91 at the time of taking rent for the month of December, 1991 the plaintiff asked the defendant to vacate the suit premises with effect from 29.02.92 stating that plaintiff did not desire to extend the tenancy after 28.02.92. The defendant did not agree to it as the tenancy was to expire on 16.03.92 only. The defendant further pleaded that the plaintiff received a sum of Rs. 20,000/- between 12.06.90 and 09.12.91 either by himself or by his rent collector Shri Niranjan Prasad and thus a huge sum of money was received in advance as rent and was lying outstanding with the plaintiff and as such defendant is not a defaulter. Upon pleadings the learned trial Court framed the following issues :- Whether the suit is maintainable in law and facts? 2. Whether the plaintiff has any right to sue? 3. Whether the defendant is a defaulter and has violated the terms of tenancy? 4. Whether the defendant had violated the terms of compromise decree passed in TS 23/88 in the Court of ADJ, Tinsukia? 5. Whether the defendant prepared to make unauthorized constructions on the suit premise? 6. Whether the defendant is liable to be evicted for violation of the terms of tenancy and compromise decree? 7. Whether the plaintiff is entitled to a decree as prayed for? 8. To what relief or reliefs the plaintiff is legally entitled to? 9. Whether the plaintiff received Rs. 20,000/- as advance house rent from the defendant between 12.06.90 to 09.12.91 which is lying outstanding and as such defendant is not a defaulter?""