ON THE DEATH OF ABDUL MATLIB MAJARBHUIYA HIS LEGAL HEIRS MD. MOHI UDDIN MAJARBHUIYA & ORS. Vs. ON THE DEATH OF ACHAB ALI

JUDGEMENT

(1.) Heard Ms. R. Choudhury, learned counsel appearing on behalf of the appellants and Mr. S. Banik, learned counsel appearing on behalf of the respondents.

(2.) The appellants are the plaintiffs and the respondents are the defendant in Title Suit No. 86/1999, which was filed in the Court of the then the Civil Judge, (Junior Division) No. 1, Silchar. The case of the plaintiffs/appellants is that they become the owners of the suit land after the death of their predecessor Abdul Matlib Majarbhuiya. One Achab Ali, the predecessor of defendant/respondents was a tenant over the suit land, which is a bhit land along with 3 Kathas of other land under the predecessor of the plaintiff/appellants on the condition of paying an annual rent of Rs. 20.00 according to Bengali calendar year. Achab Ali, accordingly occupied the land by constructing houses. Later on, an area of 3 Kathas of land from the western boundary was acquired by the Government. The defendant/respondents were irregular in payment of the rent and as such the predecessor of plaintiff/appellant filed an eviction suit being Title Suit No. 107/1972 against the predecessor of the defendant/respondents for eviction on the ground of defaulter and bona fide requirements. The said suit was decreed in the Trial Court and the same was affirmed by the First Appellate Court in Title Appeal No. 12/75. The Second Appeal No. 165/1984 was preferred by the predecessor of the defendant/respondents before this Court against the Judgement and the decree dated 27/08/1984 passed in Title Appeal No. 12/75. This Court dismissed the appeal on the technical ground of non-service of legal notice as required under section 106 of the T.P. Act, 1882 upon the respondents/predecessor-in-interest. The plaintiff/appellants thereafter issued afresh and served ejectment notice upon the predecessor of defendant/respondents on 08/06/1998 by way of registered post asking him to vacate the suit land and deliver khas possession of the same to the plaintiff/appellants within a fixed time. But the predecessor of the defendant/respondents failed to vacate and deliver the suit land in spite of receipt of notice by Achab Ali and hence the plaintiff/appellant's filed this Title Suit No. 86/1999 for eviction of the defendant/respondents' predecessor-in-interest who died subsequent to the issuance and receipt of the notice by him, (Achab Ali) and on his death against his legal heirs, the defendant/respondents.

(3.) The defendant/respondents being the heirs of Achab Ali contested the suit and submitted written statement. The defendant/respondents took the defence that the suit was bad for want of notice as required under the T.P. Act. The same was barred under the provisions of Assam Non-Agricultural Urban Areas Tenancy Act, 1955. It is the case of the defendant/respondents that their predecessor, Achab Ali had been possessing the 2 Bigha 2 Katha 11 Lecha of land in holding described in the Schedule of the written statement which comprises land of different patta including the suit land and paying annual rent of Rs. 20/-. They never paid any separate rent for the suit land as the suit land does not make a separate holding. Achab Ali, the predecessor in interest of the defendant/respondents constructed permanent structures, acquired permanent, heritable, transferable and non-evictable tenancy right over the land as stipulated under the Assam Non-Agriculture Urban Tenancy Act, 1955. It was also pleaded that the suit was not maintainable as the same was filed only for a part of a holding leaving aside the total land holding under the tenancy. As such the suit was liable to be dismissed.