THE GAUHATI HIGH COURT

(The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura,

Mizoram & Arunachal Pradesh)

SA No. 154/1998

Sri Gopal Chandra Sarkar, S/O late Manindra Chandra Sarkar,

resident of Dibrugarh Town,

District-Dibrugarh, Assam.

……Appellant.

-Versus-

1. Smt. Santosh Verma,

W/O late Pachuram Verma.

1(a). Sri Mohanlal Verma,

S/O late Pachuram Verma.

1(b). Sri Arjunlal Verma,

S/O late Pachuram Verma.

1(c). Sri Raj Kumar Verma,

S/O late Pachuram Verma.

All are residents of Thana Chariali,

Dibrugarh Town, PO & Dist.-Dibrugarh.

1(d). Smt. Malti Devi, D/O late Pachuram Verma,

W/O Nand Kishore Verma,

Panitola, District-Tinsukia.

1(e). Smt. Dropadi Devi,

D/O late Pachuram Verma, W/O Mulchand Saini,

Vill. & PO-Thai Sikar, Dist.-Sikar, Rajasthan.

2. M/S Pachuram Mohanlal, a firm at Thana Chariali, near Gandhi Park,

Dibrugarh Town, Assam.

3. Sri Rameswar Nai.

4. Sri Mathuram Nai.

Name of father in respect of Sl. Nos.3 and 4

are not known to appellant. Both are residents of Thana Chariali, Dibrugarh Town,

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Dist.-Dibrugarh, Assam.

5. Smt. Priti Das, W/O late Haradhan Das,

Sitaram Pukhuri Par, Dibrugarh Town, PO & PS-Dibrugarh, Dist.-Dibrugarh, Assam.

5(a). Sri Jai Das, S/O late Haradhan Das,

Sitaram Pukhuri Par, Dibrugarh Town, PO & PS-Dibrugarh,

Dist.-Dibrugarh, Assam.

5(b). Sri Vijaya Das,

S/O late Haradhan Das,

Sitaram Pukhuri Par, Dibrugarh Town, PO & PS-Dibrugarh,

Dist.-Dibrugarh, Assam.

6. Sri Kaushar Alam,

S/O late Abdul Aziz.

7. Sri Malikul Alam,

S/O late Abdul Aziz.

8. Smt. Muslima Khatun,

Widow of late Abdul Aziz.

Sl. Nos.6 to 8 are residents of Cole Road,

Dibrugarh Town, Dist.-Dibrugarh, Assam.

……Respondents.

Advocate(s) for the Appellants : Mr. N. Choudhury,

Mrs. B. Goyal.

Advocate(s) for the Respondents : Mr. O.P. Bhati,

Mr. S. Khan, Mr. A. Khanal.

BEFORE

THE HON’BLE MR. JUSTICE B.P. KATAKEY

Date of Hearing : 11.05.2010 & 24.05.2010

Date of Judgment & Order : 31.05.2010

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JUDGMENT AND ORDER

This appeal by the plaintiff is directed against the judgment

and decree dated 14.09.1998 passed by the learned Civil Judge (Senior

Division), Dibrugarh, in Title Appeal No.16/1996, setting aside the

judgment and decree dated 31.05.1996 passed by the learned Munsiff

No.1, Dibrugarh, in Title Suit No.2/1979, whereby and whereunder the

suit of the plaintiff/appellant was decreed.

2. The appellant as plaintiff instituted the Title Suit No.2/1979

in the Court of the learned Munsiff No.1, Dibrugarh, against the

predecessor-in-interest of the present respondent Nos.1, 1(a) to 1(e);

respondent Nos.2, 3, 4; the predecessor-in-interest of the respondent

Nos.5, 5(a), 5(b) and respondent Nos.6 to 8, praying for a decree for

recovery of khas possession by evicting the respondent/defendant Nos.1

to 5 from the land measuring 1 katha 18 lechas, described in the

schedule to the plaint, covered by Dag No.3988(old)/142(new) of

periodic patta No.267(old)/91(new), situated at Khalihamari Ward of

Dibrugarh Town and included the Municipal Holding No.902 of

Khalihamari Ward of Dibrugarh Municipality; for arrear rent and

compensation and also for cost, contending inter alia that late Abdul

Aziz, the predecessor-in-interest of the defendant/respondent Nos.6 to 8

was the lawful owner of the suit land under whom the original

defendant No.1 was a monthly tenant for 1(one) year for rent, who

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constructed a temporary house thereon and agreed to vacate the land

on expiry of lease period. The said period of lease of the suit land,

however, was extended twice at the interval of 6(six) months by

enhancing the rate of the rent to Rs.300/- half-yearly, which came to an

end on 10.10.1946. According to the plaintiff, the original defendant

No.1 started the sweet meat shop in the temporary house in the name

and style of the defendant No.2. It has further been pleaded that a fresh

lease was thereafter created by Abdul Aziz in favour of the defendant

No.1 at the rent of Rs.600/- per year and with the stipulation that the

defendant No.1 would not make any permanent structure on the land

by changing the structure of the existing house, that he would not

sublet the said land or the house to anybody and he shall vacate the

land by removing the house therefrom whenever the landlord ask him to

do so. The further pleaded case in the plaint is that taking advantage of

the illness of Abdul Aziz, the defendant No.1 made some further

improvement of the house without taking any permission and sublet the

part of the house to some other tenants including the plaintiff Gopal

Chandra Sarkar and thereafter the defendant No.1 left for Duliajan. It

has further been pleaded that after the death of Abdul Aziz, the

defendant Nos.6 to 8, the successors-in-interest, sold the suit land to

the plaintiff by a registered deed of sale dated 03.08.1977 (Ext.-25) for

valuable consideration and was delivered the symbolic possession of the

land and though the defendant Nos.1 to 5 were asked to attorn the

plaintiff as the landlord, they refused to accept the notice of such

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attornment sent by registered post. According to the plaintiff, the

defendant No.1, however, by operation of law, became the tenant under

him. It has further been pleaded that since the plaintiff required the

suit land for his own purpose, notice dated 15.12.1977 [Ext.-9(2)] was

issued under registered post with A/D asking the defendant Nos.1 and

2 to quit and vacate the suit land and deliver the possession thereof by

breaking and removing the houses standing thereon on expiry of

30.01.1978, copies of which were also sent to the defendant Nos.3 to 5

and while the defendant No.1 received the said notice, the other

defendants refused to accept the same. A fresh notice dated 04.09.1978

[Ext.-18(2)] was issued by the plaintiff to the defendant Nos.1 and 2

through his lawyer under registered post with A/D asking them to quit

and vacate the possession of the suit land on expiry of 19.10.1978 and

thus terminating the tenancy, which notice however was refused to be

accepted by the defendant No.1. According to the plaintiff since they

have not vacated the suit land despite such notice, they became the

trespasser and hence instituted the suit for their eviction as well as for

recovery of arrear rent for the period from 03.08.1977 to 19.10.1978 as

well as for compensation.

3. The defendant Nos.1 and 5 contested the suit filed by the

plaintiff by filing two separate written statements. The defendant No.1

in his written statement has contended that the suit is bad for non-

joinder of Behari Mali alias Bheri as well as all the heirs of Abdul Aziz

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and also the other tenants; the suit is bad for want of notice of

ejectment as required under Section 11 of the Assam Non-Agricultural

Urban Areas Tenancy Act, 1955 (in short the 1955 Act) and that the

defendant No.1 is protected under Section 5 of the said Act. It has

further been pleaded that he took the suit land on rent from the original

owner Abdul Aziz and immediately constructed three houses thereon,

the main shop house with wooden structure and CI sheet roof having

pucca floor and the other houses of semi permanent structures, which

houses were subsequently improved in the year 1950-51 with the

knowledge and permission of the original landlord as well as of the

Municipal Board and as such protected under Section 5 of the 1955

Act.

4. In the written statement filed by the defendant No.5, it has

been pleaded that he is in possession of the part of the suit premises,

which was previously under occupation of the plaintiff as a tenant

under the defendant No.1. According to this defendant, the plaintiff on

12.10.1973 on receipt of a sum of Rs.500/- transferred his occupancy

right of the house together with all furnitures and materials in his

favour by executing a kacha deed on 12.09.1974 and delivered the

possession and since then he is possessing the same by paying rent to

the defendant No.1 and in which house he is carrying on the business

of sweet meat shop.

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5. The learned Trial Court on the basis of the pleadings of the

parties, framed the following issues for consideration and decisions:-

1) Whether the suit is maintainable?

2) Whether there is cause of action for the suit?

3) Whether the suit is bad for want of a valid notice?

4) Whether the suit is bad for non-joinder and misjoinder

as alleged in the written statement?

5) Whether the defendants are protected from eviction from

the suit land under the provisions of Assam Non-

Agricultural Urban Areas Tenancy Act, 1955 as alleged?

6) Whether the defendant No.1 is a defaulter for non-

payment of rent as stated in the plaint?

7) Whether the defendant Nos.2 to 5 are sub-tenants?

8) Whether the plaintiff is entitled to decree or prayed for

in the plaint?

9) To what relief, the parties are entitled?

6. The learned Trial Court vide judgment and decree dated

31.05.1996 decreed the suit of the plaintiff by deciding all the issues in

his favour. The learned Trial Court has held that the valid notice under

Section 11 of the 1955 Act was issued; that the defendant No.1 is a

defaulter for non-payment of rent; that the defendants are not protected

from eviction from the suit land under Section 5 of the 1955 Act; that

the original landlord did not permit the defendant No.1 to raise any

permanent structure; that the structure raised being of bamboo and

wood it doesn‟t come within the definition of the „permanent structure‟

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within the meaning of Section 3(d) of the 1955 Act and that the

defendant Nos.2 to 5 are the sub-tenant under the defendant No.1.

7. Being aggrieved, the successors-in-interest of defendant

No.1 Pachuram Verma, instituted the Title Appeal No.16/1996 in the

learned First Appellate Court, challenging the judgment and decree

passed by the learned Trial Court. The learned First Appellate Court

upon hearing the learned counsel for the parties vide judgment and

decree dated 14.09.1998 allowed the appeal by setting aside the

judgment and decree passed by the learned Trial Court decreeing the

suit of the plaintiff, by holding that the plaintiff could not derive right,

title and interest by virtue of purchase from the defendant Nos.6 to 8,

there being other legal heirs of Abdul Aziz and in the absence of any

transfer by such heirs or proof of partition amongst the heirs of the

original owner Abdul Aziz; that the original defendant No.1 being

admittedly a tenant under Abdul Aziz, the original landlord, and having

raised the permanent structure within 5(five) years from the date of

commencement of the tenancy, is protected under Section 5 of the 1955

Act from eviction. It has further been held that there was no valid notice

issued, before institution of the suit, as required under Section 11 of

the 1955 Act and the defendant Nos.2 to 5 are not sub-tenant of the

defendant No.1. Hence the present appeal.

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8. The appeal has been admitted for hearing vide order dated

23.12.1998 on the following substantial questions of law:-

1. Whether the defendants are estoppel from denying the

right, title and interest of the plaintiff to institute the suit

as landlord when the plaintiff derived the right, title and

interest from the heirs of Abdul Aziz, who admitted the

defendants were the tenant of Abdul Aziz?

2. Whether the defendants had raised permanent structure

within the meaning of the Act of the original tenancy

and are entitled to protection under Section 5 of the

1955 Act?

3. Whether the defendants having sublet the suit land by

inducting sub-tenants the defendant Nos.1 and 2 and

the sub-tenants are entitled to claim protection under

the Act?

4. Whether the defendants not having paid rent to the

plaintiff are entitled to claim protection under the Assam

Non-Agricultural Urban Areas Tenancy Act, 1955?

9. The plaintiff/appellant in the memorandum of appeal filed

before this Court initially impleaded the deceased defendant No.1 and

the defendant No.5, namely, Pachuram Verma and Haradhan Das,

apart from other defendants, as respondents. The appellant, thereafter,

filed an application on 30.03.1999, which was registered and numbered

as Misc. Case No.63/1999, praying for correction of the names of the

respondents in the appeal, by impleading Smt. Santosh Verma, Sri

Mohanlal Verma, Sri Arjunlal Verma, Sri Rajkumar Verma, Smt. Malti

Devi and Smt. Dropadi Devi in place of the deceased defendant No.1/

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respondent No.1, Pachuram Verma and Smt. Priti Das, Sri Jai Das and

Sri Vijaya Das, in place of deceased defendant No.5/respondent No.5,

Haradhan Das. By order dated 08.04.1999 passed by this Court, the

prayer made in the said Misc. application was allowed and accordingly

they were made party respondents in the present appeal as respondent

Nos.1, 1(a) to 1(e) and 5, 5(a), 5(b), in place of respondent Nos.1 and 5,

respectively. The appellant/plaintiff, however, did not implead all the

legal heirs of the defendant No.1, Pachuram Verma, though all of them

preferred Title Appeal No.16/1996 before the learned First Appellate

Court and left out one son, namely, Sri Chiranjilal Verma and another

daughter, namely, Smt. Laxmi Devi, from the array of the respondents,

though they had filed the aforesaid Title Appeal before the learned First

Appellate Court.

10. Non-impleadment of all the appellants in Title Appeal

No.16/1996, namely, Sri Chiranjilal Verma and Smt. Laxmi Devi, one of

the sons and daughters of the deceased defendant No.1, in the present

appeal, gives rise to the question relating to the maintainability of the

present appeal in the absence of said Sri Chiranjilal Verma and Smt.

Laxmi Devi, who were also the appellants before the learned First

Appellate Court.

11. I have heard Mrs. B. Goyal, the learned counsel appearing

on behalf of the appellant, and also Mr. O.P. Bhati, the learned counsel

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appearing on behalf of the respondent Nos.1, 1(a) to 1(e), on the

substantial questions of law formulated as well as on the

maintainability of the present appeal, in view of non-impleadment of all

the legal heirs of the deceased defendant No.1 Pachuram Verma, who

were the appellants before the learned First Appellate Court. None

appears for the other respondents.

12. Mrs. Goyal, the learned counsel for the appellants, relating

to the maintainability of the appeal in the absence of one of the sons

and daughters of the defendant No.1, Pachuram Verma, has submitted

that since the estate of the defendant No.1 has been adequately

represented by other legal heirs, the appeal preferred by the plaintiff

cannot be dismissed on the ground of not making all the legal heirs of

the said defendant as party respondents. According to the learned

counsel, the decree that has been passed by the learned Trial court, in

the event of allowing the present appeal by setting aside the judgment

and decree passed by the learned First Appellate Court, still can be

executed in the absence of the aforesaid two heirs of the defendant

No.1.

13. Relating to the first substantial question of law formulated

vide order dated 23.12.1998, Mrs. Goyal, the learned counsel for the

appellant has submitted that it is being an admitted position of fact that

the plaintiff purchased the suit land from the legal heirs of its original

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owner Abdul Aziz, namely, the defendant Nos.6 to 8, has stepped into

the shoes of landlord and the defendant No.1 became the tenant under

him, who cannot dispute the title of the landlord, which in fact has not

been done by them, and as such the finding of the learned First

Appellate Court that by virtue of the purchase from the defendant Nos.6

to 8, the plaintiff could not derive any right, title and interest in the

absence of any partition and transfer by other legal heirs of Abdul Aziz,

is not sustainable in law.

14. It has further been submitted by Mrs. Goyal that the

structures, even if found to have been raised by the defendant No.1 over

the suit land within 5(five) years from the date of commencement of the

initial tenancy under the original landlord Abdul Aziz, from the nature

of the structures made i.e. having bamboo post, it is evident that those

are not „permanent structures‟ as defined in Section 3(d) of the 1955 Act

and as such the defendant No.1 is not protected under Section 5 of the

said Act. Accordingly to the learned counsel, the learned Court below

ought not to have held that the structures raised by the defendant No.1

over the suit land are „permanent structures‟ within the meaning of the

Act and as such he is entitled to protection under Section 5 thereof.

15. The learned counsel referring to the judgment passed by the

learned Trial Court has submitted that when the learned Trial Court

has recorded the finding of fact relating to the induction of the

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defendant Nos.2 to 5 as sub-tenant under the defendant No.1, on the

basis of the admission of the defendant No.1, the learned First Appellate

Court ought not to have held that there was no sub-tenancy created by

the defendant No.1, that too without discussing any evidences on record

as well as without examining the pleadings of the parties, more

particularly the pleadings of the defendant No.1 in the written

statement. According to the learned counsel since one of the conditions

of the tenancy created in favour of the defendant No.1 was that he

would not induct any sub-tenant, he has violated the condition of the

tenancy by inducting sub-tenant and as such is evictable from the suit

land on the ground of violation of the terms of tenancy. The learned

counsel further submits that in view of the proof of issuance of the valid

notices dated 15.12.1977 [Ext.-9(2)], 04.09.1978 [Ext.-18(2)] and service

of the same on the defendant No.1, the learned First Appellate court

ought not to have disturbed the finding of the learned Trial Court

relating to service of valid notice as required under Section 11 of the

1955 Act, that too by a single sentence that the notice of ejectment is

bad in law, without discussing any evidence at all to that effect.

16. The learned counsel further submits that the Issue No.6, i.e.

as to whether the defendant is a defaulter for non-payment of rent, has

also been decided by the learned Trial Court in favour of the plaintiff

after discussing the entire evidences on record, but the said finding has

been disturbed by the learned First Appellate Court without discussing

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any evidence on record. According to the learned counsel the learned

First Appellate Court being the final court on facts is required to

discuss all the evidences on record, more so while reversing the

judgment and decree passed by the learned Trial Court and in the

instant case the same having not been done, the case may be remanded

to the learned First Appellate Court for recording fresh findings after

discussing all the evidences on record, as required under Order XLI

Rule 31 of the Code of Civil Procedure, after setting aside the impugned

judgment and decree passed.

17. Mr. Bhati, the learned counsel appearing for the respondent

Nos.1, 1(a) to 1(e) has submitted that the present appeal filed by the

appellant deserves to be dismissed on the ground that all the legal heirs

of Pachuram Verma, who filed the appeal before the learned First

Appellate Court, have not been arrayed as party respondents, as the

appellant has left out one son and one daughter of said Pachuram

Verma from being impleaded in the present appeal. According to the

learned counsel the decree passed by the learned First Appellate Court

has attained its finality in so far as those two are concerned, namely,

Sri Chiranjilal Verma and Smt. Laxmi Devi, who had filed the Title

Appeal along with the other heirs of defendant No1 Pachuram Verma,

[present respondent Nos.1, 1(a) to 1(e)], before the learned First

Appellate Court. According to the learned counsel, if the present appeal

is entertained in their absence and the decree passed by the learned

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First Appellate Court is interfered with, that would lead to passing of

two conflicting decrees. It has further been submitted that the appellant

even if gets a decree from this Court in the present appeal for eviction of

the respondent Nos.1, 1(a) to 1(e), the said decree cannot be executed

against other two heirs of Pachuram Verma, as the suit of the plaintiff

in so far as Sri Chiranjilal Verma and Smt. Laxmi Devi, stands

dismissed and the decree passed by the learned First Appellate Court

attains its finality in so far as they are concerned.

18. Mr. Bhati has further submitted that since there are

evidences on record to the effect that Pachuram Verma had other legal

heirs apart from the defendant Nos.6 to 8, the learned First Appellate

Court has rightly recorded the finding that the plaintiff cannot acquire

the title over the suit land by virtue of the purchase from the defendant

Nos.6 to 8, when there is neither any sale effected by other heirs nor

any partition of the land belonged to Pachuram Verma.

19. It has further been submitted that the learned First

Appellate Court has rightly held that the defendant No.1 having raised

the „permanent structure‟ within the meaning of 1955 Act, within 5(five)

years from the date of commencement of the initial lease, is protected

under Section 5 of the said Act, when the defendants could prove that

such structures were raised with wooden post, pucca floor with C.I.

sheet roof.

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20. Relating to the allegation of sub-tenancy it has been

submitted by the learned counsel that the learned First Appellate Court

has rightly held that the defendant Nos.2 to 5 were not inducted as sub-

tenant by the defendant No.1, when it is in the evidence that the

defendant No.2 is a firm belonging to the defendant No.1, the defendant

No.5 was inducted by the plaintiff himself after vacating his house

under his occupation as tenant and the defendant Nos.3 and 4 were

also not the sub-tenant under the defendant No.1. The learned counsel

further submits that the plaintiff also could not prove that there was a

condition in the tenancy for not inducting any sub-tenant in respect of

the suit land or any structure thereof by the defendant No.1, though it

is the case of the plaintiff that such a condition exist in the document of

tenancy created by the original landlord Abdul Aziz. According to the

learned counsel in any case the plaintiff could not prove the condition of

such tenancy as well as its violation by the defendant No.1.

21. Mr. Bhati, the learned counsel further submits that since

the defendant No.1 is protected from eviction in view of the provisions

contained in Section 5 of the 1955 Act, no decree for ejectment on the

ground of non-payment of rent, even if passed, can be executed, within

a period of 30 days from the date of the decree, if the tenant prays into

the court the amount payable under the said decree. In the instant

case, there being no existing decree for ejectment passed on the ground

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of non-payment of rent, even if any rent is found to be due and payable,

the same would definitely be paid by the defendant No.1 in the Court as

required under sub-section (3) of Section 5 of the 1955 Act.

22. The submissions of the learned counsel for the parties

received my due consideration and I also perused the judgments and

decrees passed by the learned Courts below including the materials

available on record.

23. It appears from the judgment and decree passed by the

learned Trial Court as well as the evidences as discussed and also the

respective pleadings of the parties that the defendant No.1 was a tenant

in respect of the suit land, initially under the original landlord Abdul

Aziz. Some of the heirs of Abdul Aziz, namely, the defendant Nos.6 to 8,

thereafter, on 03.08.1977 vide Ext.-25 transferred the suit land in

favour of the plaintiff/appellant. It is also in evidence that there was

partition of land amongst the heirs of Abdul Aziz and the suit land fell

into the share of defendant Nos.6 to 8, who transferred the land to the

plaintiff/appellant. By virtue of such purchase, the plaintiff/appellant

stepped into the shoes of the original landlord, namely, Abdul Aziz and

became the landlord of the defendant No.1, in respect of the suit land.

The defendant No.1, having claimed the protection under Section 5 of

the 1955 Act, has accepted his position as tenant, and, hence, he

cannot deny the title of the plaintiff/ appellant. The finding of the

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learned First Appellate Court that the plaintiff/appellant did not derive

any title by right to purchase vide Ext.-25 is, therefore, erroneous and

set aside.

24. The learned Trial Court decreed the suit of the plaintiff/

appellant by holding that though there were constructions within 5(five)

years from the date of commencement of the tenancy under the original

landlord Abdul Aziz, such constructions are not „permanent structure‟

within the meaning of the 1955 Act, which finding, however, has been

reversed by the learned First Appellate Court.

25. It appears from the judgment passed by the learned First

Appellate Court as well as by the learned Trial Court that the original

tenancy was created by the original landlord Abdul Aziz vide Ext.-26(A),

dated 19.10.1944. It also appears from the judgment passed by the

learned Trial Court that the defendants could prove the assessment

register of the Municipality as Ext.-Ka, wherefrom it appears that a

house was built with bamboo and wooden posts, tin wall, CI sheet roof

and pucca floor, within 5(five) years from the date of commencement of

the tenancy. The learned First Appellate Court has reversed the finding

of the learned Trial Court by holding that such construction does not

conform to the requirement of „permanent structure‟ under Section 3(d)

of the 1955 Act.

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26. Section 3(d) of the 1955 Act defines „permanent structure‟ as

a structure made of cement-concrete, stone, brick, iron, aluminium,

asbestos or wood or any combination of these materials. The proviso to

the said Section stipulates that a building with bamboo or Ikra walls

and thatched roof shall also be regarded as a permanent structure, if its

frame is constructed of any of the materials mentioned in clause (d) of

Section 3.

27. It is evident from the Ext.-Ka, assessment register of the

Municipality as well as the evidences as discussed by the learned

Courts below that the structure was made with bamboo and wooden

posts with tin wall, CI sheet roof and cement flooring. It is also in

evidence that the defendant No.2 in whose name the house is assessed

to tax by the Municipality, is the firm of defendant No.1, who has in fact

built the house. It is also not the case of the plaintiff that the said house

was not built by the defendant No.1. The case of the plaintiff, on the

other hand, is that the house built does not conform the requirement of

„permanent structure‟ within the meaning of 1955 Act. Merely because

the bamboo was also used as posts apart from the wooden posts, the

structures made by the defendants would not loose the character of

„permanent structure‟ within the meaning of Section 3(d) of the 1955

Act. The structures made by the defendant No.1, therefore, conforms

the requirement of „permanent structure‟ within the said provision of

law and hence the learned First Appellate Court has rightly held that

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the appellants before him are protected under Section 5 of the 1955 Act,

which gives the protection to a tenant from eviction provided he built

within a period of 5(five) years from the date of tenancy, a permanent

structure on the land of the tenant for residential or business purposes.

In the tenancy agreement dated 19.10.1944 [Ext.-26(A)] it was nowhere

mentioned that the defendants cannot raise any permanent structure,

though initial tenancy was for 1(one) year, which was subsequently

extended from time to time. The extension of the tenancy and

acceptance of the rent thereof by the original landlord amounts to

approval of making such construction by the defendant No.1, even if

there was no stipulation in the original agreement creating tenancy

allowing the defendant No.1 to raise permanent structure.

28. The learned Trial Court held the defendant Nos.2 to 5 as

sub-tenants under the defendant No.1, which finding however has not

been accepted by the learned First Appellate Court. According to the

plaintiff /appellant there is a condition in the tenancy agreement [Ext.-

26(A)] dated 19.10.1944 for not inducting any sub-tenant by the

defendant No.1. It also appears that the learned Trial Court has held

the defendant No.1 to be a defaulter for non-payment of rent, which

finding has also been disturbed by the learned First Appellate Court. It

has also been held by the learned First Appellate Court that no valid

notice under Section 11 of the 1955 Act was issued and served on the

defendants before institution of the suit.

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29. The learned First Appellate Court without discussing any

evidences on record has recorded the aforesaid findings, though the

learned Trial Court after discussing the entire evidences on record

decided the said questions of fact in favour of the plaintiff/appellant.

The learned First Appellate Court being the final court on facts is

required to discuss all the evidences on record, more so when any

finding of the Trial Court is disturbed by the First Appellate Court,

which has not been done in the instant case.

30. Having held that the learned First Appellate Court has

reversed the finding of the learned Trial Court relating to sub-tenancy,

defaulter and issuance and service of notice under Section 11 of the

1955 Act, the case is required to be remanded to the learned First

Appellate Court to decide the said issues relating to the facts. But in the

instant case since the question relating to the maintainability of the

appeal, in the absence of all the legal heirs of Pachuram Verma, who

have filed Title Appeal No.16/1996 before the learned First Appellate

Court and in whose instance the judgment and decree dated

31.05.1996 passed by the learned Trial Court in Title Suit No.2/1979

has been set aside by the learned First Appellate Court, requires

determination, before passing such order for remand, I shall now

proceed to decide the said question of maintainability of the appeal.

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31. As noticed above, the present respondent Nos.1, 1(a) to 1(e)

as well as Sri Chiranjilal Verma and Smt. Laxmi Devi, another son and

daughter of Pachuram Verma, preferred Title Appeal No.16/1996 before

the learned First Appellate Court, being the legal heirs of Pachuram

Verma, challenging the judgment and decree passed by the learned

Trial Court in Title Suit No.2/1979 against Pachuram Verma, their

predecessor-in-interest. The said appeal has been allowed vide

judgment and decree dated 14.09.1998 by setting aside the judgment

and decree passed by the learned Trial Court decreeing the suit of the

plaintiff. The plaintiff/appellant, however, initially filed this appeal

against a dead person, namely, Pachuram Verma, but subsequently on

the basis of his application being Misc. Case No.63/1999 impleaded

only the present respondent Nos.1, 1(a) to 1(e) in place of Pachuram

Verma, the original defendant No.1 in the suit, without, however,

impleading said Sri Chiranjilal Verma and Smt. Laxmi Devi as party

respondents, though they were also the appellants before the learned

First Appellate Court. The said two persons, who are also the legal heirs

of Pachuram Verma, are not party to the present appeal and no

application till date has been filed by the plaintiff/appellant to implead

them as respondents though this second appeal is pending since the

year 1998 i.e. almost for 12 years.

32. Under Order 22 Rule 4(1) of the Code of Civil Procedure,

where one of two or more defendants dies and the right to sue does not

23

survive against the surviving defendant or defendants alone, or a sole

defendant or sole surviving defendant dies and the right to sue survives,

the Court, on an application made in that behalf, shall cause the legal

representative of the deceased to be made a party and shall proceed

with the suit. Sub-rule (3) of Rule 4 provides that where within the time

limited by law no application is made under sub-rule (1), the suit shall

abate as against the deceased defendant. Rule 11 of Order 22 provides

that the provision of Order 22 shall also apply to appeals. It also

provides that the word “plaintiff” appears in Order 22 shall include an

appellant, the word “defendant” a respondent, and the word “suit” an

appeal.

33. In the case in hand, the learned Trial Court passed the

decree in favour of the plaintiff/appellant and against the original

defendant No.1, namely, Pachuram Verma, who, however, died

thereafter. All the legal heirs of said Pachuram Verma, thereafter,

preferred the Title Appeal before the learned First Appellate Court

challenging the judgment and decree passed by the learned Trial Court.

All those legal heirs, therefore, stepped into the shoes of the original

defendant No.1. The learned First Appellate Court has set aside the

judgment and decree passed by the learned Trial Court. The plaintiff/

appellant, however, in the present appeal did not implead two legal

heirs of Pachuram Verma, namely, Sri Chiranjilal Verma (son) and Smt.

Laxmi Devi (daughter). Hence the decree passed by the learned First

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Appellate Court in so far as they are concerned attains its finality, there

being no challenge to the decree passed in their favour, by the plaintiff/

appellant, though the plaintiff/appellant has challenged the said decree

passed by the learned First Appellate Court in so far as the other legal

heirs of Pachuram Verma, namely, the respondent Nos.1, 1(a) to 1(e). As

held by the Apex Court in State of Punjab Vs. Nathu Ram (AIR 1962

SC 89), in Sri Chand and others Vs. M/s. Jagdish Pershad Kishan

Chand and others (AIR 1966 SC 1427), and in Ramagya Prasad

Gupta and others Vs. Murli Prasad and others (AIR 1972 SC 1181),

to decide the question as to whether an appeal abates for non-

impleading all the legal heirs of the defendant as party respondents, the

Court is to apply three tests, namely, (a) when the success of the appeal

may lead to the court‟s coming to a decision which may be in conflict

with the decision between the appellant and the deceased respondent

and, therefore, it would lead to the court‟s passing a decree which will

be contradictory to the decree which had become final with respect to

the same subject matter between the appellant and the deceased

respondent; (b) when the appellant could not have brought the action

for the necessary relief against those respondents alone who are still

before the court and (c) when the decree against the surviving

respondents, if the appeal succeeds, be ineffective, that is to say, it

could not be successfully executed. It has further been held that these

three tests are not cumulative test and even if one is satisfied, the Court

may dismiss the appeal.

25

34. In the instant case, as noticed above, the decree passed by

the learned First Appellate Court in so far as Sri Chiranjilal Verma and

Smt. Laxmi Devi, two of the legal heirs of Pachuram Verma, who also

preferred the said Title Appeal No.16/1996 before the learned First

Appellate Court, has attained its finality, that is to say, the suit of the

plaintiff in so far as they are concerned, stands dismissed. The plaintiff/

appellant, even if, is successful in the present appeal in getting a decree

in his favour, that decree would be contradictory to the decree which

has become final in respect of the aforesaid two heirs, namely, Sri

Chiranjilal Verma and Smt. Laxmi Devi. That apart without bringing all

the legal heirs of the deceased defendant No.1 on record, the

plaintiff/appellant could not have prayed for a decree. The decree, even

if passed, against the present respondent No.1, 1(a) to 1(e), by allowing

the appeal, it would be ineffective as it cannot be successfully executed,

in view of the finality of the decree passed by the learned First Appellant

Court dismissing the suit of the plaintiff in so far as other two heirs of

Pachuram Verma, namely, Sri Chiranjilal Verma and Smt. Laxmi Devi.

The contention of the appellants that the estate of the original

defendant No.1 Pachuram Verma is adequately represented by other

heirs, namely, the respondent Nos.1, 1(a) to 1(e) and hence the appeal

cannot be held to be not maintainable in absence of two other legal

heirs, is not acceptable when those two heirs also preferred the appeal

before the learned First Appellate Court and got a decree in their favour.

26

35. In view of the above, I am of the view that the appeal

preferred by the appellant, in the absence of aforesaid two heirs of

Pachuram Verma, namely, Sri Chiranjilal Verma and Smt. Laxmi Devi,

is not maintainable, as no decree in the present appeal in their absence

can be passed by this Court.

36. The appeal filed by the appellant, therefore, stands

dismissed. However, keeping in view the facts and circumstances of the

case, the parties are directed to bear their own cost throughout.

37. The Registry is directed to send down the records.

JUDGE

Roy

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Note:-

Sale deed in favour of the plaintiff - Ext.-25, dated 03.08.1977.

Tenancy agreement dated 19.10.1944 - Ext.-26(A).

Lease extension date -19.10.1945 – Ext.-27(A).

Second lease extension date – 29.06.1946 – Ext.-28.

In all these lease agreements the only condition was not to sublet and to vacate

the suit land after expiry of the period of lease. No other condition.

Notices dated 15.12.1977 [Ext.-9(2)] and 04.09.1978 [Ext.-18(2)].