Goala & Ors Vs. Bhabani Prasad Choudhary & Ors  INSC 236 (3 March
RAMASWAMY, G.T. NANAVATI
O R D
E R Delay condoned.
. We have heard the counsel on both sides.
appeal by special leave arises from the judgment of the Guwahati High Court ,
made on November
29,1990 in second
Appeal No.34 of 1983.
admitted position is that one Susil Goala, the Predecessor in interest of the
appellants in respect of the property in question had purchased the same on May 8,1964.
admitted position is that in a suit for eviction initiated in the year 1947 a
compromise decree came to made on January 26, 1948 under which the respondents who
were tenants in the property had undertaken to vacate the premises after expiry
of three years . The period had expired on January 25,1951 but the respondents did not
surrender possession of the premises. Consequently, after eviction notice was
given in the year 1977, the suit for declaration of title to and ejectment of
the respondents from the premises was sought and after trial, the trial Court
decreed the suit and on appeal it was confirmed. But in second appeal, the
learned Judge reversed the decree and dismissed the suit on the finding that
one Bhuban Choudhury was the co-tenant with the respondents and he was not made
a party to the suit; as a consequence, the suit was bad for non-joinder of the
necessary party. The High Court has also found that the appellants had not
proved that the respondents had been in possession for not more than 12 years
and that, therefore, the suit is not maintainable.
this appeal, by special leave.
find force in the contention of shri N.R. Choudhury, learned counsel for the
appellants, that the view taken by the High Court is wholly incorrect. As
regards the first point, Bhuban choudhury was a tenant at one point of time and
, in fact , in the prior suit filed in 1947, he had not claimed any interest
and had remained only proforma defendant to the suit and the respondents had
suffered consent decree. It was also admitted position that the suit was filed
against the respondents and not against Bhuban Choudhury who disclaimed
interest. In the cross-examination of the appellant it has been suggested that:
"I do not know where Bhuban Choudhury is. After getting written statement
I did not made enquiry about Bhuban Choudhury." This suggestion amounts to
an implied admission that Bhuban Choudhury was not residing in the premises in
question. It clearly appears that Bhuban Choudhury was not claiming any
interest as a licensee under the compromise decree, dated January 26,1948 nor was he in possession of the
suit premiss. As a consequence, the omission to implead Bhuban Choudhury was of
no Consequence and the suit was not bad for non- joinder of necessary parties.
seen that the respondents have not pleaded adverse possession in the pleadings
nor has an issue been raised in that behalf. When the appellants claimed their
title to the property on the basis of the sale-deed , unless the respondents establish
by evidence alluende by pleading adverse possession and proof of disclaimer of
their right in their possession as licensees asserting their own right to
remain in possession disclaimer the title of the respondent, the question of
adverse possession would not arise, It is neither so pleaded an issue raised
nor has any finding that the appellants had not proved that the respondents
were not in possession of the property adverse to the appellants right.
Therefore, the question of adverse possession of the respondents does not
these circumstances, it is contended for the appellants by Sri Sanyal, the
learned senior counsel, that under the Assam Non-Agricultural Urban Areas
Tenancy Act, 1995, the respondents cannot be ejected as they are the tenants of
the premises. Even this sifting stand has no firm foothold and has become
slippery and stands no scrutinty. It is seen that by application of section 2
of the act, with a non obstante clause, if a person comes into possession as a
tenant 5 years prior to the Act came into force and constructed the house on
the land withe the permission of the landlord, the tenant cannot be ejected
except in accordance with the provisions of the Act, Section 5 of the Act,
therefore, has no application to the facts in this case. It is not the case of
the respondents that they are continuing to pay the rent or that they have
within five years of the coming into force of the Act, obtained permission and
constructed the building. On the facts in this case, it is seen that they have
been possession prior to 1946. After the term in the consent decree expired,
they have remained in unlawful possession without any right or interest in the
the tenancy has been terminated by a compromise decree, they cannot claim their
continuance as tenants unless there is a further agreement between the landlord
and tenant, after the decree. That is not the case of the respondents.
Therefore, the Act is clearly inapplicable to the fact-situation.
appeal is accordingly allowed. The judgment and decree of the High Court stand
set aside and that of the trial court and appellate Court stand confirmed. No
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