HARI SHANKAR SAHU Vs. GIRIDHARILAL SARMAH

JUDGEMENT

(1.) This plaintiff's appeal is directed against the judgment and decree dated 22. 12. 77 passed by the learned District Judge, Jorhat. whereby the suit was partly decreed for declaration of title to the second house but the suit for ejectment of the defendant was dismissed. The defendant respondent has filed cross-objection, against the declaration of plaintiff's title to the second house.

(2.) The plaintiff appellant, hereafter the plaintiff had filed suit for declaration of title to the second house, for recovery of possession of both the first and second house, arrears of rent and compensation. The plaintiff's case was that he was the owner of the house building as described in the Schedule with the plaint. The respondent, hereafter the 'defendant' had agreed to take the said building on rent of Rs. 350.00 per month and had paid an advance of Rs. 4200.00 on 3.1.56. The said building then was in unfinished state and the stipulation was that the tenancy would commence from the date the defendant occupied it. The building was completed and the defendant occupied it on 1.2.56 when the tenancy commenced. This is referred as the first house. The plaintiff constructed another two storey building referred as the second house on land adjacent and on the back side of the first house and rented it to the defendant. Since the plaintiff was short of money a loan of Rs. 17,700.00 was taken from the defendant, by execution of several promissory notes, in the defendants or in the name of his brother one Ratan Prakash Sharma. The second house was completed in Aug., 1960. The defendant occupied the same on 1.9.60 and agreed to pay Rs. 200.00 per month as rent. The advance of Rs. 17,700.00 for the second house was adjusted from the rent of the two houses. The plaintiff required the premises for his own business. The defendant stopped payment of rent of the first house from 1st. April 1965 and also stopped payment of rent for the second house from 16th Feb., 1965. The rent for the first house was due from 1st April, 1965 and the rent for the second house was due from 16th Feb. 1965. The plaintiff made demands The defendant failed to pay rent. The plaintiff served registered notice dated 25th June, 1966 and terminated the tenancy from the midnight of 31st July, 1966. The defendant did not vacate and also did not pay Rs. 9100.00arrears of rent till 31st July 1966. The defendant, in reply dated 9th Aug. 1966 to notice admitted that the rent of the first house was due from 1st April, 1965, but denied the plaintiff's title in respect of the second house and asserted that the defendant himself had constructed the said second house, that the defendant had deposited Rs. 5,600/ which was in arrear in respect of the first house till 31st July, 1966, in Court and contended that he had offered the rent but the plaintiff had not accepted the same. The plaintiff alleged that in view of the defendant's denial of title to the second house, the plaintiff had to file the suit for declaration of his title and for the aforesaid reliefs.

(3.) The defendant contested the suit on the grounds that the claim for ejectment from the second house was barred under section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1905 (Assam Act XII of 1955), hereinafter the 'Act of 1955', that the tenancy of the front house commenced from 1st Aug., 1956, when the defendant occupied the same, after its completion as per contract' of lease dated 3.1.56; that the second house had been constructed by the defendant. It was denied that the defendant was tenant in the second house. It was also denied that the plaintiff took loan of Rs. 17,700.00from the defendant by executing promissory notes and that the defendant took the hand notes in his or in the name of his brother Ratan Prakash Sharma. It was denied that the plaintiff required the first house for his own use. It was further contended that there was no fixed time and place for payment of rent and the plaintiff used to take it whenever needed. The defendant expected the plaintiff to come and take rent but the plaintiff served notice in June, 1966. The defendant had asked the plaintiff to accept rent for the period between 1. 4. 65 to 28. 7. 66 but as he refused to accept, the defendant duly deposited it in Court. There was no default on the part of the defendant to pay rent and no question of eviction of the defendant from the first house, therefore, could arise.