WP(C) 3585/2004 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA 1. This is an application under Section 115 of the Code of Civil Pr ocedure (CPC) read with Article 227 of the Constitution of India against the jud gment and decree dated 27.01.04 passed by the learned Addl. District Judge (Ad hoc), Jorhat in Title Appeal No. 14/2001 dismissing the appeal and affirming th e judgment and decree dated 15.03.2001 passed by the Civil Judge (Jr. Division) No. 1 Jorhat in Title Suit No. 60/96. The application has been filed by the def endants in the suit. 2. Shortly stated, the facts leading to the filing of the instant applicati on are that the opposite parties as the plaintiffs filed the suit being Title Su it No. 34/92 in the Court of the learned Assistant District Judge, Jorhat for ev iction of the defendants/petitioners from the house in Jorhat Town which was des cribed in Schedule-B to the plaint. The plaintiffs also claimed Rs. 13,500/- as arrear of rent. The suit was subsequently transferred to the Court of the learne d Civil Judge (Jr. Division) and the same was renumbered as Title Suit No. 60/96 . 3. As per the facts narrated in the plaint, the case of the plaintiffs is t hat the suit house originally belonged to one Abu Naser Khairul Alam. On his dea th, the plaintiffs became the owner of the same by right of succession. The defe ndant No. 1 took the house in suit on monthly rent of Rs. 450/- from said Abu N aser Khairul Alam. Said Alam died on 05.11.89 who received the rent till Septem ber, 1989. Thereafter the defendants/petitioners paid the rent to the plaintiffs /opposite parties for the month of October, 1989. The defendant No. 1 inducted h is son (defendant No. 2) to the house and left for Rajasthan allowing his son to stay in the house. Thus, the plaintiffs/opposite parties claimed the defendant No. 2 to be outsider who had occupied the house unauthorizedly. 4. The plaintiffs/opposite parties instituted the suit for eviction of the defendants/petitioners on the grounds of bonafide requirement of the house and t hat the defendants/petitioners became the defaulters by not paying the rent afte r October/1989. 5. In the written statement filed by the defendants/petitioners they resist ed the claim of the plaintiffs/opposite parties in the plaint. It was their case that the earlier landlord had entered into an agreement with the defendant No. 1 for sale of the suit premises at a consideration money of Rs. 60,000/- and rec eived an amount of Rs. 12,000/- as advance on 07.03.89 when they entered into ag reement for sale orally. According to the defendants/petitioners the agreement f or sale was executed on 07.04.89 on which date another amount of Rs. 11,000/- wa s paid to the landlord as advance. The balance amount was to be paid within one year of the written agreement and it was agreed upon that the sale deed would be executed. However, the landlord Abu Naser Khairul Alam could not execute the sa le deed because of his illness and subsequently he died. According to the defend ants/ petitioners it was also agreed upon that after execution of the agreement for sale they would not require to pay monthly rent in consideration of the agr eement for sale. 6. In paragraph -8 of the written statement, the defendant No. 1 stated as follows: 8. That the averments of para-3 are denied. In fact, after the death of the pre vious owner Abu Naser Khairul Alam, the plaintiffs demanded the monthly rents as heirs of the aforesaid deceased and the defendant showed the agreement for sale of the suit land executed by the said deceased and claimed execution of the sal e deed by the successors of the said deceased to which the plaintiffs answered p ositively and assured the defendant No. 1 that after consultation amongst the pl aintiff they would execute the sale deed on receipt of the balance consideration . 7. On the basis of the pleadings of the parties, learned Trial Court framed the following issues: 1) Whether the suit is maintainable ? 2) Whether the defendant No. 1 is a tenant and the defendant No. 2 being th e son of the defendant used to stay with the defendant No. 1? 3) Whether the defendant is a defaulter ? 4) Whether the tenanted premises are required by the plaintiff bonafidely ? 5) Whether there were any question/stipulation for sell of land measuring 1 2 lechas ? 6) To what relief/reliefs, the parties are entitled ? 8. The plaintiffs/ opposite parties examined four witnesses and exhibited t he documents indicated in the impugned judgments. The defendants/petitioners als o examined four witnesses and exhibited the documents indicated in the impugned judgments. The learned Trial Court in consideration of the materials on record w hile found that the suit premises was not required bonafide by the plaintiffs/op posite parties for setting up business of the son of the plaintiff No. 1, but fo und that the defendants/ petitioners were defaulters in payment of monthly rent. It was found that the defendants/petitioners did not pay monthly rent from Nove mber, 1989 but suddenly in the year 1991 started depositing rent in the Court fr om the month of March, 1991. Learned Trial Court did not find anything on record to show or to suggest that there was an agreement between Abu Naser Khairul Ala m and defendant No. 1 to the effect that the defendant would not pay any rent t ill execution of the sale deed. 9. The suit having been decreed in favour of the plaintiffs/opposite partie s, the defendants/petitioners preferred Title Appeal No. 14/2001 which has also been dismissed by the impugned judgment and decree dated 27.01.04. Hence this ap plication under Section 115 of the CPC read with Article 227 of the Constitution . 10. Mr. B.K. Goswami, learned Sr. counsel assisted by Mrs. T. Goswami, learn ed counsel appearing for the petitioners submitted that the appellate judgment i s not a judgment in the eye of law. He submitted that the Appellate Court while disposing the appeal did not do so according to the provision of Section 96 of t he CPC. He submitted that the defendant No. 1 was in permissive possession after agreement for sale and thus, the defendant was a licensee under Abu Naser Khair ul Alam. According to him there could not have been any occasion for default in payment of monthly rent as the landlord had already obtained an advance payment of Rs. 35,000/- from the defendant No. 1. Mr. Goswami has placed reliance on the following decisions of the Apex Court. 1) (2001) 3 SCC 179 (Santosh Hazari vs. Purushottam Tiwai) 2) (2001) 9 SCC 385 (Bhura Mogiya and others vs. Satish Pagariya and others ) 3) (1994) 2 SCC 289 (Kranti Swaroop Machine Tools Pvt. Ltd. And another vs. Kanta Bai Asawa and others) 4) Judgment dated 23.06.04 passed by this Court in CRP No. 204/2000 11. Countering the above argument, Mr. C.K. Sarma Baruah, learned Sr. counse l assisted by Mr. N. Rajkhowa, submitted that there being admitted default on th e part of the defendant No. 1 to pay the monthly rent, the Courts below rightly passed the impugned judgment and decree. Referring to the orders passed by this Court in connected miscellaneous proceeding directing payment of monthly rent by the defendants/opposite parties, he submitted that the default on the part of t he defendants/ petitioners in payment of monthly rent being an admitted position , this Court exercising its power of revisional jurisdiction will not interfere with the impugned judgment. In this connection he has referred to the decision o f this Court reported in 1997 (2) GLT 590 (Abdul Matin Choudhury and ors. Vs. Ni lyananda Dutta Banik) and 2006 (1) GLT 479 (Sobha Biswas and ors. Vs. Ranjit Lod h) 12. Before dealing with the impugned judgment and orders, it will be appropr iate to deal with the arguments advanced by Mr. C.K. Sarma Baruah, learned couns el for the plaintiffs/ opposite parties in reference to Abdul Motin Choudhury’s case. There is no dispute that after initiation of the proceeding also the defen dants/ petitioners defaulted in payment of monthly rent. As has been held by thi s Court in Abdul Motin Choudhury case, a tenant is deemed to be under all liabil ities for payments of rent in accordance with law all along if he wants to avail the protection granted by Rent Control Legislation. The protection granted to a tenant cannot be a one way traffic. If he wants to enjoy certain privileges or benefits, the corresponding duties/ obligations thrust upon him by the Legislato rs, must also be performed. It was pointed out by this Court that this liability shall subsist all through out the proceeding even when the matter may be pendin g in the highest Court. If at any point of time, the landlord in prudent manner can bring to the notice of the Court that even during the pendency of the procee ding the tenant has failed to discharge his liability, a right will spring upon in favour of the landlord to get the decree for ejectment executed on any of t he grounds as incorporated in the Assam Urban Areas Rent Control Act, 1972. 13. In the instant case, there is no dispute that the defendants/ petitioner s defaulted in payment of rent when the present proceeding was pending before th is Court. The plaintiffs/ opposite parties brought the miscellaneous proceeding by way of Misc. case No. 3585/2004 praying for a direction to the defendants/ pe titioners to deposit the arrear monthly rent from May, 1992 to November, 2004. T his Court by order dated 17.06.05 accepting the prayer so made issued direction for payment of outstanding rent from May, 1992. 14. There was further default in payment of rent and accordingly the plainti ffs/opposite parties instituted another miscellaneous proceeding by way of Misc. Case No. 2095/96 in which it was claimed that the defendants/petitioners again defaulted in payment of rent from July, 1995 to May, 2006. 15. Mr. Goswami, learned counsel for the petitioners while accepting the pro position of law laid down in Abdul Motin Choudhury (supra), submitted that since there was a reference of the matter to the Division Bench, till the reference was answered by the Division Bench in Sobha Biswas (supra), the defendants/ pet itioners were not under any obligation to pay the monthly rend. In Sobha Biswas the proposition of law laid down in Abdul Motin Choudhury has been upheld. As pe r the said decision the requirement to pay monthly rent by a tenant to the landl ord during the pendency of ejectment suit and/or proceeding all along subsists e ven though the default relates to the period after filing of the eviction suit. It has been held that if a tenant failed to discharge his liability, the landlor d shall have the right to get the decree for ejectment. 16. Above being the possession of law in respect of default in payment of mo nthly rent even to the period subsequent to the institution of the suit and duri ng the pendency of the proceeding, there is no manner of doubt that the defendan ts/ petitioners being defaulter in payment of rent are liable to be evicted from the suit premises. The argument advanced by Mr. Goswami that the defendants/ pe titioners were not under obligation to pay monthly rent during the subsistence o f the present proceeding till such time the reference was answered by the Divisi on Bench in Sobha Biswas (supra) is simply not acceptable. The proposition of la w laid down in Abdul Motin Choudhury continued to operate irrespective of the re ference made. When a point is ostensibly a point of law is required to be substa ntiated by facts, same will have to be understood in the given fact situation of the case. The law enjoins a duty on the tenant to pay monthly rent regularly wh ich the defendants/petitioners admittedly defaulted. Consequently the defendants /petitioners became liable for eviction on that count alone. 17. When the defendants/petitioners by their own conduct made them liable to be evicted there cannot be any escape from the said liability on the grounds ur ged in the application. The Trial Court on the basis of the materials on record has decreed the suit in favour of the plaintiffs/opposite parties. Although Mr. Goswami, learned counsel for the petitioners strenuously argued that the defenda nts/petitioners never recognized the plaintiffs/opposite parties as their landlo rd, but a mere reference to the above quoted paragraph-8 of the written statemen t would go to show that the defendants/petitioners in fact and indeed recognized the plaintiffs/opposite parties as their landlord. There is also nothing to sho w that any agreement was arrived at with the earlier landlord towards exemption of payment of monthly rent since the execution of the agreement for sale. The Tr ial Court found that the defendants/petitioners did not pay rent from November, 1989 and suddenly made payment on two occasions in the year 1991 and again defau lted in payment as has been noticed by this Court in the aforesaid miscellaneous proceeding. 18. The Appellate Court duly appreciated the judgment and decree passed by t he learned Trial Court alongwith the evidence on record. It has been rightly hel d by the Appellate Court that the defendant No. 1 did not take any step for spec ific performance of the alleged contract between him and the earlier landlord. T he Appellate Court found that the particular exhibit does not contain anything r egarding the claim made by the defendant No. 1 that there was an agreement exemp ting the defendant No. 1 from payment of monthly rent till registration of the s ale deed. Unless the sale deed had been executed by the landlord, the possession of the suit premises of the tenant remained in the capacity of the tenant makin g him liable to pay the monthly rent. 19. The decision of the Apex Court in Kranti Swaroop (supra), was pressed in to service towards advancing the argument for adjustment from deposit made by th e tenant with the landlord even without a specific request by tenant in that beh alf. That was a case relating to making of advance payment in respect of rent, u nlike the present case in which it is the claim of the defendants/petitioners th at there was an agreement for sale and certain payments towards that end were ma de by them to the earlier landlord. Thus, this case is of no help to the case of the petitioners. 20. The decision in CRP No. 204/2000 has also been pressed into service in t he same context. In that decision as in the aforesaid decision in Kranti Swaroop (supra), it was held that the monthly rent was adjustable against the advance a mount available to the credit of the defendant. Unlike the present case, in the said case the advance payment of Rs. 15,000/- was made towards execution of the agreement of tenancy. In the instant case, the advance payment was only in respe ct of the agreement for sale. If the defendants/petitioners were aggrieved by no n-execution of sale deed, it was open for them to take recourse to legal proceed ing for specific performance of contract etc. and not to advance the argument th at such advance payment was adjustable towards payment of monthly rent. 21. The decision in Santosh Hazari (supra) has been relied to emphasis on t he duty of the appellate Court which according to the learned counsel for the pe titioners was not discharged by the appellate court in the instant case. As has been emphasized by the Apex Court, the judgment of the appellate Court must refl ect its conscious application of mind and record the findings supported by reaso ns on all the issues. On perusal of the appellate order, it cannot be said to be a case of non-application of mind and non-recording of findings supported by re asons. The appellate order is exhaustive and has dealt with the issues involved. Such an order cannot be interfered with lightly accepting the argument advanced by the learned counsel for the petitioners. 22. The decisions of the Bhura Mogiya (supra) has been relied upon in refere nce to the particular paragraph in the judgment in which it has been observed th at permissible possession cannot be converted into adverse possession unless it is proved that the person in possession asserted and acquired adverse title to t he property to the knowledge of the true owner for a period of 12 years or above . According the learned counsel for the petitioners the defendants came into pos session on the basis of the agreement for sale and such possession was a permis sible possession. I am afraid the argument advanced in reference to the decision is totally misplaced. Apart from the fact that the ratio of a decision must be understood in the background of the facts of that case and that a case is only a n authority for what it actually decides, and not what logically follows from it , in the instant case, the defendants/petitioners were not in possession of the suit premises because of the agreement of sale but was only a tenant under the l andlord. Further it has also been held in the said decision that permissible pos session cannot be converted into adverse possession unless the ingredients there of are established. In the instant case it is not a case of adverse possession c oupled with the fact that the defendant No. 1 was also not under permissible pos session upon execution of the agreement for sale. 23. For all the aforesaid reasons, there is no merit in this application and accordingly same is dismissed.