FA 56/1997 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER Challenge in this first appeal is made against the judgment and decree d ated 31.03.1997 passed in Title Suit No. 22 of 1991 (titled as Nibaran Chandra N ath Vs. Kumud Chandra Nath & Ors.) by the learned District Judge, Nalbari, where by and whereunder the learned District Judge, dismissed the suit holding that th e suit is not maintainable for want of notice under Section 106 of the Transfer of Property Act, 1882 (Act 1882 for short) and notice under Section 11 of the As sam Non-Agricultural Urban Areas Tenancy Act, 1955 (Act 1955 for short). 2. The appeal originally came up for hearing before a Single Bench who afte r hearing both the parties allowed the appeal vide judgment dated 07.10.1999. On being aggrieved, the respondent herein preferred an LPA being No.16/1999 before a Division Bench of this Court. The Division Bench disposed of the LPA by setting aside the judgment passed by the learned Single Bench and rem anded the case for fresh decision on merits of the entire appeal. Accordingly it has been listed before this Court for final disposal. 3. Heard Mr. N Choudhury, learned counsel appearing for the appellant. Also heard Mr. P.C Deka, learned Senior counsel assisted by Mr. N Deka, learned coun sel appearing for the respondents. 4. In order to determine the case of the contesting parties as to whether t he notice under Section 106 of the Act 1882 and notice under Section 11 of the A ct, 1955 as held by the learned District Judge, Nalbari, are required in order to maintain the suit, facts of the case in a nutshell is summarized hereinbelo w: The appellant herein as plaintiff has brought a suit being Title Suit No . 22 of 91 on the file of the learned District Judge, seeking the following reli efs: - a. A decree for a declaration of right, title, interest over the suit land and the suit house described in Schedule B of the plaint; b. a preliminary decree for partition in favour of the plaintiff for issuin g a separate patta in respect of the suit land; c. a decree for khas possession of the suit land and the suit houses be pas sed in favour of the plaintiff by evicting the defendant Nos. 1, 2 and 3; d. a commissioner be appointed for effecting partition in terms of the p reliminary decree; e. a final decree for partition be passed as per the report of the Commi ssioner, f. a precept be issued to the revenue authority for mutation of the plainti ff in the revenue records in respect of the suit land; g. a precept be issued to the Tihu Municipal Board for recording the name o f the plaintiff in the Municipal records as owner and occupier of the suit land and the suit houses and for deletion of the name of the defendant No. 2 and o ther from the municipal records; h. a decree for all costs of the suit be passed against the defendant Nos. 1, 2 and 3 and any other contesting defendants; i. any other relief or reliefs to which the plaintiff is entitled. 5. The plaintiff sought a decree of his right, title and interest in resp ect of ’B’ Schedule land which is reproduced hereinbelow for better appreciatio n of the case: - Schedule B An area of land measuring 1 (one) Katha, covered by KP Patta No. 4, D ag No. 361 of Tihu Town in Tihu Mouza under Barama P.S. in the district of Nalba ri with houses standing thereon which is bounded on the: North by: Haralal Biswas South by: Bipin Das & Ors. East by: Kumud Ch. Nath (Defendant No. 1) West by: Tihu Feeder Road. 6. The plaintiff brought the suit against the defendants contending inter a lia that the suit houses covered by patta No. 4 dag No. 361 of Tihu town apperta ining to 31 Bighas 4 Kathas 12 Lechas of the same patta described in Schedule A of the plaint and the suit land and houses described in Schedule B of the plaint belonged to the mother of the plaintiff who has been arrayed as proforma defend ant No. 29 Smti Sabitri Prova Nath. The said proforma defendant No. 29 by execut ing a registered deed of gift No.376/88 dated 26.02.88 transferred the B Schedul e land and houses to the plaintiff and the plaintiff took delivery of possession of the same accordingly. The said suit house was let out to defendant No. 3 on condition of payment of monthly rent under supervision of the defendant No. 2, w ho was the elder brother of the father of the plaintiff. The defendant No. 2 col lected rent from the defendant No. 3 and paid the same to the plaintiff’s mother (pro-forma defendant No. 29). But the defendant No. 2 in collusion with the def endant No. 3 with ulterior motive, fraudulently and collusively got his name mut ated in respect of the suit property and recorded in the municipal records as ow ner and occupier of the suit houses though the pro forma defendant No. 29 tried to mutate her name but the defendant No. 3 supported the defendant No. 2 thereby denying the claim of tenancy under the plaintiff and hence the suit seeking the reliefs as indicated above. 7. The defendant Nos. 1 and 2 on receipt of the summons contested the suit by filing the written statement taking all the grounds available under Order 8 o f the Code of Civil Procedure (Code for short) contending inter alia that the pl aintiff acquired no title through deed of gift derived from his mother as she di d not acquire title to the property. Their main thrust is that one Amiruddin Kha lifa possessed the suit land as a tenant under the owner Hari Nath Das by constr ucting a house thereon and the said Amiruddin Khalifa sold his house to defendan t No. 2 at Rs.1500/- by executing a registered deed on 29.03.1950 and the said house was purchased by defendant No.2 out of his own earning. Thereafter the def endant No. 2 had also obtained lease in respect of the land on which his purchas ed house from Hari Nath Das was standing since 1950 and since then he is in occu pation by renovating the house and converting the same to a permanent structure. Subsequently he also purchased 10 Lechas of land in the suit dag from heir of A ti Ram Das by registered deed thereby he became the absolute owner in respect of 10 Lechas of land and consequently he acquired lease hold right in respect of 1 Katha over which the suit house stands. The contesting defendants denied the ti tle of Sabitri Prova Nath and her son, the plaintiff. During the trial the defen dant No. 2 died and the defendant No. 1 remained in the fray being the heir of t he defendant No. 3. 8. The trial court upon the pleadings of the parties has framed the followi ng issues: - 1. Is there any cause of action for the suit? 2. Is the suit is barred by limitation? 3. Is the suit maintainable? 4. Has the plaintiff to get right and title over the land described in the Schedule ’B’ of the plaint by virtue of gift deed No. 376/88 dated 26.02 .88 and obtained possession thereof? 5. Is the allegation of possession and dispossession of the plainti ff from the suit land as alleged true? 6. Has the defendant No. 2 managed to get his name recorded in the Municipal records as owner and occupier of the suit houses fraudulently and coll usively as alleged? 7. Is the prayer for partition of the suit land tenable? 8. Is the plaintiff entitled to decree for khas possession? 9. What relief or reliefs the parties are entitled to? 9. During the trial the plaintiff has examined as many as 8 (eight) witness es and exhibited documents which are marked as Exhibits 1 to 20 whereas the def endants have examined three witnesses and exhibited documents which are marked as Exhibits ’Ka’ to Exhibits ’Da’. 10. The learned District Judge, Nalbari took up the issue No. 4 since the en tire subject matter of the disputed land rests on the decision of issue No. 4. A fter elaborate discussion of the evidence on record including the pleadings of the parties along with the sale deeds, lease deed and other documents vide Ext 17,18, Ext Kha, Ga, Da, Dha and Ta(1) to Ta(20) came to a finding that pro for ma defendant No. 29 in the suit has acquired ownership right over 1 Katha of lan d in the suit dag and the gift vide Ext 14 in favour of the plaintiff at best transferred the right of ownership over 1 Katha of land without creating any t itle against the interest on lease of the defendant No. 2 but, however, has he ld that the defendant No. 1 was all along in possession of the entire suit land by constructing a permanent structure over a portion of the same by taking holdi ng in the year 1952-53 and also by letting out the house to the defendant No. 3. On the death of defendant No.2, defendant No.1 became the sole contesting defen dant and heir of defendant No.2 and thus he has acquired the lease right over a portion of the suit land and also acquired ownership right in respect of 10 Lech as of land and thus, the plaintiff has stepped to the shoes of the lessor in re spect of 1 katha of the suit land and in order to get a relief of partition as well as recovery of possession, notice under section 106 of the Act, 1882 is a m ust and for that matter a combine notice under Section 106 of the Act 1882 and u nder Section 11 of the Act, 1955 must be complied with since the provisions of t he Act has retrospective effect, thereby disbelieved the story of the plaintiff in regard to taking possession of the suit land by virtue of deed of gift execu ted in favour of the plaintiff. 11. In view of the decisions arrived at Issue No. 4, the learned trial court decided the issue No. 1 in negative, holding that the suit is apparently miscon ceived and no cause of action can be attributed. In regard to issue No. 2 the tr ial court answered the question in negative and answered the issue No. 3 in nega tive holding that in absence of notice under Section 106 of the Act 1882 and und er Section 11 of the Act 1955, the suit is not maintainable. The trial Court whi le deciding the issue Nos. 5 and 6 has held that the municipal record and mutati on in favour of defendant Nos. 1 and 2 cannot effect the ownership of the plain tiff acquired by him through his mother solely to the extent of ownership right and consequently thereupon answered the issue Nos. 7, 8 and 9 in negative holdi ng that the suit is defective for want of mandatory notices thereby dismissed th e suit but observed that the dismissal of the suit would not preclude the plaint iff from filing a fresh suit after complying with the mandatory notices as poin ted out in the judgment and hence the instant appeal questioning the legality an d validity of the judgment and decree rendered by the learned trial court. 12. On the pleadings of the parties including the evidence on record, Mr. Ch oudhury, learned counsel appearing for the appellant would contend that admitted ly vide Ext-17, executed by the heirs of Late Hari Nath Das, viz., Shri Jiten Da s and Shri Satyen Das (PW6), Shri Bipin Das (minor), Shri Mrinal Das (minor), gu ardian of both is elder brother Sri Jiten Das, both are sons of late Hari Nath D as, sold their land measuring 10 Lechas out of the land of Dag No. 361 of KP Pat ta No. 4 in Tihu town to the mother of the plaintiff. Similarly vide Ext-18 Shri Ati Ram Das, son of Late Sadhi Ram Das, Shri Nripenda Ballav Das (PW 7), Shri Provakar Ballava Das and Shri Pradip Kumar Das sons of Late Ati Ram Das sold 10 Lechas of land to the mother of the plaintiff out of the land of dag No. 361 (excluding the land sold earlier) of KP Patta No. 4 in Tihu town and thus vide Ext 15 (Ka) and (Nya) (Jamabandi) stood mutated in the name of Smti Sabitri Pra bha Nath, mother of the plaintiff. These two sale deeds and Ext. 15 would show t hat the purchaser got the title and possession over the land and the defendants never challenged the validity of the sale deed or Ext 15(Ka) and (Nya). But, how ever, the mutation of Smti Sabitri Prabha Nath was cancelled only consequent to mutation in favour of the plaintiff on the basis of Ext. 14 (gift Deed) executed by his mother and consequent mutation in favour of the donee i.e. the plaintiff vide Ext 15 (Pha) and though the contesting defendant Nos. 1 and 2 objected t o the mutation of the plaintiff in place of his mother but they did not challen ge the mutation of Sabitri Prabha Nath which would clearly establish that the defendants do not have any objection against title and possession of Sabitri P rabha Nath and hence title and possession of Sabitri Prabha Nath is established beyond doubt. 13. Referring paragraph 8 of the written statement, Mr. Choudhury would cont end that the pleaded facts of the defendant is that one Amiruddin Khalifa was a tenant under the original owner late Hari Nath Das with respect of Schedule Kh a land i.e. 1 Katha of land purchased by Sabitri Prabha and the claim of the d efendants rests on Ext Kha , whereby Amiruddin Khalifa sold his house to Jaimal Nath, father of defendant Nos. 1 and 2 and husband of defendant No. 2 (a) but apart from lone recital no proof in support of their case has been adduced thoug h the defendants claimed to have received tenancy through Amiruddin but they fai led to prove tenancy of Amiruddin and hence cannot claim the benefit of a tenant within the meaning of Section 3(G) of the Act, 1955. 14. Mr. Choudhury has further drawn the attention of the Court to Ext Ga whereby the defendant claimed his tenancy right but the tenancy right was purpo rted to be a lease for a definite term of 5 years which is determinable by eff lux of time under Section 111(a) of the Act 1882 and therefore would contend tha t in a case of a lease for a definite period no notice to determine the same is required under Section 106 of the Act, 1882 more so, when Ext Ga is inadmissib le being unregistered, which is compulsorily registrable under section 17 of the Indian Registration Act 1909 and the same suffers from consequence of Section 4 9 of the Registration Act and the Court must held that Ext Ga is inadmissible in evidence and once Ext. Ga goes out of record being inadmissible in evidence , than notice under Section 106 of the Act 1882 and/or under Section 11 of the A ct, 1955, is not required as held by the learned trial court. Therefore, judgmen t and decree passed by the trial Court required interference under appellate jur isdiction, submitted Mr. Choudhury. 15. In support of his submission, Mr. Choudhury has placed reliance on the f ollowing cases: (1) AIR 1972 Gau 93 (Ahmed Hussain -Vs- Mayajan Nessa Choudhury & Ors.) and (2) AIR 1964 SC 461 (Pooran Chand -Vs- Motilal and others). 16. Criticizing the argument advanced by Mr. Choudhury, learned counsel appe aring for the appellant/plaintiff, Mr. PC Deka, learned Senior Counsel assisted by Mr. N Deka, appearing for respondents/defendants would contend that the suit land originally belonged to one Hari Nath Das under whom Amiruddin Khalifa was a tenant who sold his house to defendant No. 2 by registered sale deed dated 29.0 3.1950 (Ext Kha) and out of 1 Katha 1 Lecha of land, the defendant No. 2 took le ase of 25 cubit from the original owner vide Ext. Gha by an unregistered sale deed dated 1st Aghon of Assamese year 1357 which is equivalent to November 1950 and thereafter the defendant No. 2 purchased ownership right of 10 Lechas out o f this 1 Katha 1 Lecha in the name of the defendant No. 1 vide Ext Ka and has been enjoying the balance 11 Lechas as tenant vide Ext. Ga, Gha, Gha(1) and (2) and Ext. Da series and staked claim of tenancy and hence justified the judgmen t and decree passed by the learned trial court in dismissing the suit holding that the suit is not maintainable in absence of notice under Section 106 of the Act 1882 and/or Section 11 of the Act 1955. 17. In support of his contentions Mr. Deka has referred the following decisi ons: - (1). AIR 1983 Gauhati 38 (FB) (Kamakhya Prasad Barua -Vs- Abhiram Medhi & Ors .) (2). AIR 1966 SC 1908 (Biswambhar Roy (deceased) by legal representatives -Vs - Girindra Kr. Paul (deceased) by legal representatives) 18. Considered the case of the contesting parties. Perused the pleadings alo ngwith the Exhibits and evidence on record. The plaintiff appellant brought the suit seeking the reliefs viz. right, title and interest over the suit land, part ition, khas possession and the preliminary decree on appointment of commission f or effecting partition and final decree and a precept for mutation of the name o f the plaintiff in the revenue record and municipal records. In order to substan tiate his case, plaintiff has examined 8 (eight) witnesses whereas, the defendan ts case rests on paragraph 8 of the written statement, wherein it has been state d that in the last settlement, the suit land appertains to dag No. 361 of KP Pat ta No. 4 of Tihu town and total area of dag is 1 Katha 10 Lecha of which as per Schedule ’Kha’ of the plaint, he claims 1 (one) Katha land on the western side o f the dag i.e. on the east of Tihu Feeder road. The original owner of the land w as Hari Nath Das, father of the defendant No. 5 to 8 and one Amiruddin Khalifa possessed this land as tenant who had his own house thereon who had sold out hi s houses to the defendant No.2 and delivered vacant possession on 29.03.1950 and thereafter the defendant No. 2 took the land on lease and constructed two thatc hed house and a cowshed and subsequently the defendant No. 2 out of his lease ho ld land purchased 10 Lechas of land out of 1 Katha 1 Lecha on 27.07.1981. The de fendants have further averred in paragraph 12 that the father of the plaintiff o ught not to have purchased the land in the name of his wife Sabitri Prabha Nath knowing fully well that the suit land including the entire land of the Dag was i n possession of the defendant No. 2 since 1950, meaning thereby the defendants h ave claimed tenancy right over the suit land. 19. In order to prove the case, the plaintiff has brought his mother (profor ma defendant No. 29) Smti Sabitri Prova Nath as PW 8 who has proved two sale dee ds vide Ext 17 and 18 whereby she has purchased 10 Lechas of land each in the ye ar 1968 and on 08.09.1972 and she has categorically deposed that at the time of purchase, she gave a notice in the newspaper inviting objection and subsequently she, by a deed of gift, vide Ext 14 had transferred the land to the plaintiff d onee. The purchase of land measuring 10 Lechas each have been proved by PW 6 and PW7. Therefore, the title on the land is established. 20. The facts pleaded by the defendant No. 1 is that the land previously bel onged to Hari Nath Das, Atiram and Aliram and they gave that land to Amiruddin K halifa on lease. Constructing a house thereon, Amiruddin ran a business. Amirudd in sold the house alongwith the land to his father. He sold his occupancy right on 1 Katha 10 Lechas land alongwith the house vide Ext Kha. DW 1 has further dep osed that after purchasing the house and land from Amiruddin, father of DW1 ma de lease agreement with owner of the land Hari Nath vide Ext. Ga (Under objectio n) and subsequently purchased 10 Lechas of land out of 1 Katha 10 Lechas. The DW 2 has deposed that the land was on lease and DW 3 has proved the sale deed Ext Ka, whereby Nripen Das sold 10 Lechas of land to Kumud Nath (DW1). 21. From the depositions of the DW’s it is clear that the DW 2 was a lessee under Hari Nath and Amiruddin was also a lessee under Hari Nath. Amiruddin const ructed a house standing thereon though the defendants have withhold examining Am iruddin to prove the construction of the house on the leasehold land. Therefore the Court is required to examine as to whether the lessee can claim right over the leasehold land as occupancy tenant. The lease was admittedly for five years and lease of immovable property under section 111(a) of the Act, 1882 by efflux of time limited thereby and no notice under Section 106 of the Act, 1882 is requ ired in order to determine the lease. For better appreciation of the case it wou ld be appropriate to have a look at section 111(a) read with section 108 of the Act 1882. When such automatic statutory determination of lease takes place, sect ion 108(G) of the Act, 1882 gets simultaneously attracted against the erstwhile lessee. Section 108 deals with the rights and liabilities of the lessors and les sees. Section 108(G) provides that on determination of lease, the lessee is boun d to put the lessor into possession of the property which was not done by the le ssee on determination of lease and on sale of the land to the mother of the plai ntiff, the defendant being lessee ought to have put the purchaser in possession of the property to the landlord and therefore the plaintiff is entitled to base his cause of action and hence notice under Section 106 of the Act 1882 is not re quired and hence the finding of the learned trial court is perverse requiring in terference under appellate jurisdiction. 22. Now the question to be answered as to whether the notice under section 1 1 of the Act, 1955 is required as held by the learned trial court. Admittedly, t he defendants claimed tenancy right (vide Ext Ga) over the land, which, however, was not registered under the Registration Act. The lease deed even if accepted as a lease deed, in absence of registration it would reveal that only 25(twenty five) cubits of land was leased out which was alleged to have been executed by L ate Hari Nath. The said Ext ’Ga’ was not confronted by PW 6 and 7 at the time of cross-examination. These two witnesses PW 6 and 7 are sons of Hari Nath Das and Ati Ram Das respectively and their depositions would clearly show that after th e execution of the deed of sale he delivered the possession of the land and late r they could know from Jaimal Nath (father of defendant No. 1) that the house th ereon belong