LAKHMINATH DUTTA Vs. GUNIN BORA

JUDGEMENT

(1.) Heard Sri GN Sahewalla, learned advocate for the appellant and Sri NK Barua, learned advocate for the respondents.

(2.) A suit was filed by the plaintiff for ejectment of the defendants from a house situated at Sibsagar Town. The suit was covered by the Urban Areas Rent Control Act, 1972. The suit was filed on the ground of non payment of rent from 1976. This suit was filed in the year 1982 and later on it was registered as Title Suit No. 2/84. The defendant/tenant took up a plea that there is no relationship of landlord and tenant between the plaintiff and the defendants inasmuch as there was a document Ext. 3 by which he purchased the land and house at Rs. 10, 000/- and out of it an amount of Rs. 9, 000/- was paid. This document Ext. 3 was sent to an expert and the expert opined that this document is a forged one meaning thereby that late Tankeswar Boro did not execute this document and the hand writing expert was examined as a witness. Having found that this document is a forged one the trial court found that the defendants are not entitled to protection under Section 53(A) of the Transfer of Property Act and accordingly, the suit was decreed both on the ground of default as well as bonafide requirement. There was an appeal being Title Appeal No. 10/93 before the learned Asstt. District Judge, Sibsagar and the learned Asstt. District Judge, Sibsagar found that the finding of the learned Munsiff that the Ext. 3 document is a forged one is not a correct finding and he did not place reliance on the opinion of hand writing expert as well as to the evidence and came to the finding that after all it is not expected that human hand is not like a printing machine and it is always possible that signature made at one time may differ with the signature made in the other time. Accordingly, it was found that Ext. 3 is a valid document but the next question which arose before him for determination was whether the defendants are protected under Section 53(A) o.f the Transfer of Property Act. The appellate court came to the findings that the defendants are not protected under Section 53(A) of the Transfer of Property Act. On this finding no doubt the learned Asstt. District Judge took into consideration certain irrelevant matters i.e., regarding question of limitation and other things and the failure of the defendants to file a suit for Specific Performance of the Contract. In order to claim protection under Section 53(A) of the T.P. Act, there is no necessity that a suit for Specific Performance of Contract has to be filed. The question of limitation also in such a situation is irrelevant inasmuch as under Section 53(A) gives right to a person to use a shield particular document at any point of time on satisfaction of certain requirement but that does not sort out the matter. We are to decide whether the defendants are protected as claimed by them under Section 53(A) of the Transfer of Property Act. The law on this point has been crystalised by number of decisions of the Apex Court as well as by this court. In Nathulal v. Phoolchand the Supreme Court pointed out conditions necessary for making out the defence of part performance to an action in ejectment by the owner as follows :

(3.) Another case' on this point is on the death of Sunil Kr. Sarkar by his Legal representatives Smt. Hena Sarkar & Ors. v. On the death of Aghor Kr. Basu his heirs Smt. Nilima Basu & Ors.. There also the tenant claimed protection under Section 53(A) of the basis of registered document and that came up for consideration before the single Judge of this court in paragraph 9 and 10 of the judgment the law has been laid down as follows : Para 9 :