SA 154/1998 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY 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, whe reby and whereunder the suit of the plaintiff/appellant was decreed. 2. The appellant as plaintiff instituted the Title Suit No.2/1979 in the Co urt 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 prede cessor-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 responden t/defendant Nos.1 to 5 from the land measuring 1 katha 18 lechas, described in t he schedule to the plaint, covered by Dag No.3988(old)/142(new) of periodic patt a No.267(old)/91(new), situated at Khalihamari Ward of Dibrugarh Town and includ ed the Municipal Holding No.902 of Khalihamari Ward of Dibrugarh Municipality; f or arrear rent and compensation and also for cost, contending inter alia that la te 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 w as a monthly tenant for 1(one) year for rent, who 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 t o 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 cr eated 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 permane nt structure on the land by changing the structure of the existing house, that h e 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. Th e 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 withou t taking any permission and sublet the part of the house to some other tenants i ncluding the plaintiff Gopal Chandra Sarkar and thereafter the defendant No.1 le ft 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 t he defendant Nos.1 to 5 were asked to attorn the plaintiff as the landlord, they refused to accept the notice of such attornment sent by registered post. Accord ing to the plaintiff, the defendant No.1, however, by operation of law, became t he tenant under him. It has further been pleaded that since the plaintiff requir ed the suit land for his own purpose, notice dated 15.12.1977 [Ext.-9(2)] was is sued 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 removin g 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 0 4.09.1978 [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 th e 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 s uch notice, they became the trespasser and hence instituted the suit for their e viction 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 f iling two separate written statements. The defendant No.1 in his written stateme nt has contended that the suit is bad for non-joinder of Behari Mali alias Bheri as well as all the heirs of Abdul Aziz and also the other tenants; the suit is bad for want of notice of ejectment as required under Section 11 of the Assam No n-Agricultural Urban Areas Tenancy Act, 1955 (in short the 1955 Act) and that th e defendant No.1 is protected under Section 5 of the said Act. It has further be en 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 wood en structure and CI sheet roof having pucca floor and the other houses of semi p ermanent 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 Mu nicipal 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 pleade d that he is in possession of the part of the suit premises, which was previousl y under occupation of the plaintiff as a tenant under the defendant No.1. Accord ing 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 t he possession and since then he is possessing the same by paying rent to the def endant No.1 and in which house he is carrying on the business of sweet meat shop . 5. The learned Trial Court on the basis of the pleadings of the parties, fr amed 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 un der the provisions of Assam Non-Agricultural Urban Areas Tenancy Act, 1955 as al leged? 6) Whether the defendant No.1 is a defaulter for non-payment of rent as sta ted 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 decree d the suit of the plaintiff by deciding all the issues in his favour. The learne d Trial Court has held that the valid notice under Section 11 of the 1955 Act wa s issued; that the defendant No.1 is a defaulter for non-payment of rent; that t he 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 t o raise any permanent structure; that the structure raised being of bamboo and w ood it doesn’t come within the definition of the ’permanent structure’ within th e 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 V erma, instituted the Title Appeal No.16/1996 in the learned First Appellate Cour t, challenging the judgment and decree passed by the learned Trial Court. The le arned First Appellate Court upon hearing the learned counsel for the parties vid e judgment and decree dated 14.09.1998 allowed the appeal by setting aside the j udgment and decree passed by the learned Trial Court decreeing the suit of the p laintiff, by holding that the plaintiff could not derive right, title and intere st 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 landlor d, 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 fro m eviction. It has further been held that there was no valid notice issued, befo re 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 presen t appeal. 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 in terest of the plaintiff to institute the suit as landlord when the plaintiff der ived the right, title and interest from the heirs of Abdul Aziz, who admitted th e 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-tena nts the defendant Nos.1 and 2 and the sub-tenants are entitled to claim protecti on under the Act? 4. Whether the defendants not having paid rent to the plaintiff are entitle d 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 Co urt initially impleaded the deceased defendant No.1 and the defendant No.5, name ly, Pachuram Verma and Haradhan Das, apart from other defendants, as respondents . The appellant, thereafter, filed an application on 30.03.1999, which was regis tered 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 Mohanla l Verma, Sri Arjunlal Verma, Sri Rajkumar Verma, Smt. Malti Devi and Smt. Dropad i Devi in place of the deceased defendant No.1/ respondent No.1, Pachuram Verma and Smt. Priti Das, Sri Jai Das and Sri Vijaya Das, in place of deceased defenda nt 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. T he appellant/plaintiff, however, did not implead all the legal heirs of the defe ndant 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 Chir anjilal Verma and another daughter, namely, Smt. Laxmi Devi, from the array of t he respondents, though they had filed the aforesaid Title Appeal before the lear ned 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 th e deceased defendant No.1, in the present appeal, gives rise to the question rel ating to the maintainability of the present appeal in the absence of said Sri Ch iranjilal Verma and Smt. Laxmi Devi, who were also the appellants before the lea rned First Appellate Court. 11. I have heard Mrs. B. Goyal, the learned counsel appearing on behalf of t he appellant, and also Mr. O.P. Bhati, the learned counsel appearing on behalf o f the respondent Nos.1, 1(a) to 1(e), on the substantial questions of law formul ated as well as on the maintainability of the present appeal, in view of non-imp leadment of all the legal heirs of the deceased defendant No.1 Pachuram Verma, w ho were the appellants before the learned First Appellate Court. None appears fo r the other respondents. 12. Mrs. Goyal, the learned counsel for the appellants, relating to the main tainability 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 defe ndant No.1 has been adequately represented by other legal heirs, the appeal pref erred by the plaintiff cannot be dismissed on the ground of not making all the l egal 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 even t 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 t he 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 submitte d that it is being an admitted position of fact that the plaintiff purchased the suit land from the legal heirs of its original owner Abdul Aziz, namely, the de fendant 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, whi ch in fact has not been done by them, and as such the finding of the learned Fir st 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 sustainabl e 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(fiv e) 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 Sect ion 3(d) of the 1955 Act and as such the defendant No.1 is not protected under S ection 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 ov er 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 Tria l Court has submitted that when the learned Trial Court has recorded the finding of fact relating to the induction of the defendant Nos.2 to 5 as sub-tenant und er 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-tenan cy created by the defendant No.1, that too without discussing any evidences on r ecord as well as without examining the pleadings of the parties, more particular ly the pleadings of the defendant No.1 in the written statement. According to th e learned counsel since one of the conditions of the tenancy created in favour o f the defendant No.1 was that he would not induct any sub-tenant, he has violate d 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 learn ed counsel further submits that in view of the proof of issuance of the valid no tices dated 15.12.1977 [Ext.-9(2)], 04.09.1978 [Ext.-18(2)] and service of the s ame on the defendant No.1, the learned First Appellate court ought not to have d isturbed the finding of the learned Trial Court relating to service of valid not ice 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 a ll to that effect. 16. The learned counsel further submits that the Issue No.6, i.e. as to whet her 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 entir e evidences on record, but the said finding has been disturbed by the learned Fi rst Appellate Court without discussing 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 t he same having not been done, the case may be remanded to the learned First Appe llate Court for recording fresh findings after discussing all the evidences on r ecord, 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 file d 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 sai d Pachuram Verma from being impleaded in the present appeal. According to the le arned counsel the decree passed by the learned First Appellate Court has attaine d its finality in so far as those two are concerned, namely, Sri Chiranjilal Ver ma and Smt. Laxmi Devi, who had filed the Title Appeal along with the other heir s of defendant No1 Pachuram Verma, [present respondent Nos.1, 1(a) to 1(e)], bef ore 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 lear ned 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 ge ts 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 Ve rma and Smt. Laxmi Devi, stands dismissed and the decree passed by the learned F irst 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 defendan t 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’ wi thin 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 de fendants could prove that such structures were raised with wooden post, pucca fl oor with C.I. sheet roof. 20. Relating to the allegation of sub-tenancy it has been submitted by the l earned 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 defend ant No.1, the defendant No.5 was inducted by the plaintiff himself after vacatin g his house under his occupation as tenant and the defendant Nos.3 and 4 were al so not the sub-tenant under the defendant No.1. The learned counsel further subm its that the plaintiff also could not prove that there was a condition in the te nancy for not inducting any sub-tenant in respect of the suit land or any struct ure thereof by the defendant No.1, though it is the case of the plaintiff that s uch a condition exist in the document of tenancy created by the original landlor d Abdul Aziz. According to the learned counsel in any case the plaintiff could n ot 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 de cree. In the instant case, there being no existing decree for ejectment passed o n the ground of non-payment of rent, even if any rent is found to be due and pay able, the same would definitely be paid by the defendant No.1 in the Court as re quired under sub-section (3) of Section 5 of the 1955 Act. 22. The submissions of the learned counsel for the parties received my due c onsideration 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 Cour t 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, initi ally under the original landlord Abdul Aziz. Some of the heirs of Abdul Aziz, na mely, the defendant Nos.6 to 8, thereafter, on 03.08.1977 vide Ext.-25 transferr ed the suit land in favour of the plaintiff/appellant. It is also in evidence th at 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 pl aintiff/appellant. By virtue of such purchase, the plaintiff/appellant stepped i nto the shoes of the original landlord, namely, Abdul Aziz and became the landlo rd of the defendant No.1, in respect of the suit land. The defendant No.1, havin g claimed the protection under Section 5 of the 1955 Act, has accepted his posit ion as tenant, and, hence, he cannot deny the title of the plaintiff/ appellant. The finding of the learned First Appellate Court that the plaintiff/appellant d id not derive any title by right to purchase vide Ext.-25 is, therefore, erroneo us 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