MRIDUL MAZUMDAR Vs. AJAY KUMAR GUPTA

JUDGEMENT

(1.) Heard Mr. S. K. Ghosh, learned counsel for the petitioner and Mr. S. Biswas, learned counsel for the respondent No. 1 and Mr. S. P. Choudhury, learned counsel for the respondent No. 2.

(2.) Respondent No. 1 as the plaintiff filed Title Suit No. 239/1995 in the court of Munsiff No. 1 at Dhubri for ejecment of the present defendant petitioner on the ground of default in payment of monthly rent. The defendant petitioner entered into a tenancy agreement in the year 1995 in respect of the suit premises described in the said tenancy agreement. Even after possessing the tenanted premises for three months from the date of execution of the tenancy agreement with plaintiff respondent No. 1, the said defendant petitioner failed to pay monthly rent to the landlord plaintiff respondent No.1. The defendant petitioner filed his written statement and raised the defence that the plaintiff respondent No. 1 is not the owner of the suit property and as such he is not covered by the definition "landlord" under Assam Urban Areas Rent Control Act, 1972. It is further contended that the suit was bad for non joinder of necessary parties i.e the heirs of Kanailal Prasad(Gupta), the original owner of the suit property and in addition to that, the tenancy with respect to the suit premises with the plaintiff respondent No.1 was denied. The defendant petitioner took the stand that Smt Kunti Devi, wife of late Kanailal Prasad after his death became one of the co-owners with respect to the suit premises, as such, the defendant petitioner attorned her as the landlord and entered into a tenancy agreement with respect to the suit premises and paying the rent regularly. The suit was initially decreed whereafter an appeal was preferred. The first appellate court held the suit to be defective on the ground of non joinder of necessary party. On the said ground the suit was remanded back to the trial court after setting aside the judgment of the trial court. After remand the respondent No.2 filed application impleading herself as one of the defendants in the suit. The trial court rejected the said petition whereafter a revision petition was filed and the said revision petition was disposed of by this Court directing the trial court to consider the said application for impleading her as the defendant afresh. On being impleaded the defendant respondent No.2 filed written statement in the suit. In the said written statement the defendant respondent No.2 pleaded that the plaintiff respondent No.1 without having any right, title and interest over the suit premises playing fraud on the defendant petitioner induced him to enter into the tenancy agreement and subsequently executed the agreement dated 27.4.1995. Prior to the execution of said agreement with the plaintiff respondent No.1, the defendant petitioner entered into a tenancy agreement with Smti Kunti Devi on 1.6.1994 with respect to the suit premises and subsequent thereto the said agreement dated 27.4.1995 was entered into by the plaintiff respondent No.1.

(3.) It would not be out of place to mention that Smti Kunti Devi is the mother of the defendant respondent No.2 and the daughter of Kanailal Prasad(Gupta). On the death of Kanailal Prasad(Gupta), Kunti Devi alongwith the defendant respondent No.2 inherited the property and as such Kunti Devi is the rightful owner alongwith defendant respondent No.2 with respect to the suit premises. The plaintiff respondent No.1 is not the owner of the suit premises and as such the tenancy alleged by the plaintiff respondent No.1 is fraud one and on the other hand, the defendant petitioner is paying the rent regularly to the defendant respondent No.2 without any default. On the basis of the said pleadings the trial court framed the following issues: