Form No. (J) 2

HEADING OF JUDGMENT IN ORIGINAL SUIT

District: Kamrup (Metro)

IN THE COURT OF CIVIL JUDGE NO. 3, KAMRUP (M), GUWAHATI

Present: Shri Jaspal Singh, AJS,Civil Judge No.3,Kamrup (M), Guwahati

Tuesday, the 31st day of March, 2015

Title Suit No. 88/2010

Sri Ranjit Barthakur ..........................Plaintiffversus

Smti. Santana Bhuyan ..........................Defendant

1. Miss Kankana Bhuyan2. Miss Priyanka Bhuyan ................Proforma Defendants

This suit coming on for final hearing on 21.01.2015, 06.02.2015, 12.02.2015 and

03.03.2015 presence of:–

Mr. Thaneswar SarmaMr. Hemanta Kr. Sarma ........Advocates for the Plaintiff

Mr. Gunindra Nath Kakoti ........Advocate for the Defendants

And having stood for consideration to this day, the Court delivered the following

judgment:--

J U D G M E N T

PLAINTIFF’S CASE IN PLAINT

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1. In the year 2006, the plaintiff had purchased a plot of land measuring 1K-

5L at village Japorigog under mouza Beltola and thereafter constructed an Assam

Type House thereon. He started constructing an RCC house over the said land

but could not complete the same due to dearth of money. Sri Jai Prakash Bhuyan

(since deceased), the husband of the defendant, was a bosom friend of the

plaintiff. He had purchased a plot of land measuring 3K in the name of the

defendant and out of that land 1K of land was reportedly sold to a relative

brother of the defendant. There was an Assam Type house and an ongoing

building construction in the middle portion of the land covering an area of about

1K-6L. Mr. Bhuyan used to reside in the Assam Type house. The residual area of

14L lying towards the southern side is the suit land of this suit.

2. Mr. Bhuyan informed the plaintiff that he has already decided to sell the

suit land after discussion with his wife (defendant). The plaintiff was interested

to purchase the suit land. He decided to sell his purchased land and purchase the

suit land out of the sale proceeds. On 02.08.2008 the plaintiff visited the house

of Mr. Bhuyan and intimated his said decision to him. Mr. Bhuyan and the

defendant asked him to come to their house on 03.08.2008 for further

discussion. On 03.08.2008, the plaintiff along with one Sri Raju Sarma and two

other friends visited the house of Mr. Bhuyan who informed the plaintiff that

consideration for the land has been fixed at Rs. 5,00,000/- including the shed of

C.I. sheet roofing standing thereon. The plaintiff agreed to the consideration and

informed Mr. Bhuyan that on 06.08.2008 an advance of Rs. 2,00,000/- shall be

paid and balance amount of Rs. 3,00,000/- shall be paid on the date of execution

of sale deed. On 06.08.2008, the plaintiff paid Rs. 2,00,000/- to the defendant.

Mr. Bhuyan issued a receipt acknowledging the acceptance of the sum of Rs.

2,00,000/- as advance.

3. On the same date i.e. 06.08.2008, the possession of the land and house

was delivered to the plaintiff. After taking over the possession of the land and

the house situated thereon, the plaintiff installed railing in the veranda through a

firm named ‘Mitali Fabrication’ by incurring an expenditure of Rs. 6,480/-. The

plaintiff also undertook renovation works of the house by spending about Rs.

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1,60,000/- including labour charges. Mr. Bhuyan met sudden death in November

2008. No doubt the suit land lies in the name of the defendant, but all dealings

were done by the plaintiff with Mr. Bhuyan. However, after the death of Mr.

Bhuyan, the defendant was found quite accommodative to the plaintiff. The

plaintiff had started to occupy the suit land since 06.08.2008 but there was no

connection of running water in the house. Under compelling circumstances, the

plaintiff made a proposal before the defendant to shift the water connection

which he had availed in his earlier house situated over his purchased land (since

disposed of) to the house lying on the suit land. The defendant agreed to the

proposal and issued a no objection certificate to the Assam Urban Water Supply

and Sewerage Board. The plaintiff thus took water connection in the house

situated over the suit land in the month of May 2009. The plaintiff also undertook

new electrical wiring in the said house through a firm named ‘Laxmi Electricals’

and incurred an expenditure of Rs. 1,138/-.

4. On 03.02.2010, the plaintiff met the defendant and requested her to

obtain the sale permission of the suit land from the competent authority. The

defendant assured him that the process for obtaining the sale permission will be

started in the next week. But as the defendant did not contact with the plaintiff,

the plaintiff on 12.02.2010 met the defendant in her house. But the defendant

avoided him and indirectly informed him that the decision to sell the suit land has

been changed. Such information was like a bolt from the blue for the plaintiff.

The plaintiff came to know that on 12.03.2010 two unknown persons had come

from Nagaon after learning about the proposal of the defendant for sale of the

suit land. As per law, the defendant is bound to execute the sale deed in favour

of the plaintiff being the wife of deceased Mr. Bhuyan who had received an

advance of Rs. 2,00,000/- from the plaintiff. The suit land, on the other hand, is

lying in the name of the defendant and the performance of the contract directly

devolves upon the defendant. The plaintiff is ready to pay the balance amount of

Rs. 3,00,000/- but the defendant by her conduct has shown her unwillingness to

execute the sale deed. On the other hand, the defendant has not been found to

come forward for return of the advance of Rs. 2,00,000/-. The defendant has

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been planning to sell the suit land at a comparatively higher consideration.

Hence, the plaintiff has filed the instant suit for specific performance of contract

and permanent injunction.

WRITTEN STATEMENT OF DEFENDANTS

5. Besides specifically denying the averments made in the plaint, the

defendant and the proforma defendants have stated in their written statement

inter alia that the land measuring 3K referred to in the plaint was never

purchased by Mr. Jai Prakash Bhuyan, the deceased husband of the defendant.

Mr. Bhuyan never thought of selling any land and also never gave any proposal

of any kind as alleged by the plaintiff. Mr. Bhuyan never agreed to sell the suit

land measuring 14L to the plaintiff. Neither the defendant nor her husband

received any sum of money from the plaintiff on 06.08.2008 or any date. The

alleged money receipt was never executed by Mr. Bhuyan and the signature

therein is not his signature. During the period of the first half of August 2008, Mr.

Bhuyan was fully busy with his family matters. On 04.08.2008, Sri Jayanta

Bhuyan, the youngest brother of Mr. Bhuyan, was admitted in the Dispur Hospital

for gall bladder surgery and the operation was performed on 05.08.2008 and he

was released from the hospital on 12.08.2008. On the other hand, on 06.08.2008

itself, the annual Shraddha ceremony of Mr. Bhuyan’s father was held at

Dighaliati, Raha which is an unavoidable ritual of the Hindu Religion. As such,

being the eldest amongst the brothers, Mr. Bhuyan with his wife (the defendant)

was busy in Dighaliati on 06.08.2008. Hence, there does not arise any question

of receiving money from the plaintiff on that day at Guwahati and executing the

alleged money receipt by Mr. Bhuyan on the said date.

COUNTER-CLAIM OF DEFENDANTS

6. The defendant and the proforma defendants have stated in their counter-

claim as follows. The defendant had purchased the aforesaid land vide registered

sale deed no. 3498(A)/82 dated 13.04.1982 with the money gifted to her by her

father at the time of her marriage in the year 1981. The building on the aforesaid

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land was started in the year 2007 and the defendant has never sold any part of

her purchased land to any person. Mr. Bhuyan, who was a resident of Dighaliati,

Raha, retired from his service in the year 2007 and started residing with his

family in Guwahati since then. The defendant constructed an A.T. house on her

purchased plot of land in the year 1988. The defendant obtained electricity

connection for the said house. In the year 1998 she took a domestic water

supply connection from the Assam Urban Water Supply and Sewerage Board. In

the year 2001-2002, the defendant constructed another A.T. house towards the

eastern side of the aforesaid A.T. house and this 2nd A.T. house is the subject-

matter of the counter-claim and hereinafter described as ‘the counter-claim

premises’. The defendant let out the counter-claim premises to one Md. Safikhan

and thereafter to one Sunil Saikia and thereafter to one Bhaskar Borah. In the

year 2007 the defendant started constructing a 2-storied building over the land

and also dug a pucca well in the same year. After vacation of the counter-claim

premises by Bhaskar Borah on 12.04.2009, the defendant repaired the same and

installed grills in the veranda through Kalita Steel Fabrication, Nayanpur Road,

Guwahati. On 02.05.2009, the plaintiff approached the defendant and proposed

to take the counter-claim premises on rent for 4/5 months as the same was

vacant at that time. The defendant accepted the proposal and accordingly

monthly rent was fixed at Rs. 3000/- and on the same date the plaintiff entered

in the said house as tenant under the defendant and the monthly rent was to be

paid regularly within 10th day of every succeeding month. The electricity charge

was to be paid by the tenant (plaintiff). A separate electric sub-meter was there

in the counter-claim premises. At the time of discussion of all these, one Mr.

Bhumidhar Kalita, the proprietor of Kalita Steel Fabrication, was also present in

defendant’s house and he had come there for collecting his outstanding bills for

installation of grills. Accordingly on 09.05.2009 the plaintiff paid Rs. 3,000/- to

the defendant as advance which was to be adjusted to the rent of the

terminating month of the tenancy. For the months of May, June, July, August,

September and October, 2009 the plaintiff paid the house rent with electric bills

regularly. In the month of November 2009, the defendant requested the plaintiff

to vacate the said premises as she is desirous of constructing a new house there

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by demolishing the said old house given on rent to the plaintiff and the plaintiff

undertook to vacate the said premises within the month of December 2009. But

in spite of repeated requests and demands of the defendant, the plaintiff neither

vacated the said house nor turned up to pay the monthly house rent with electric

bill for the period from November 2009 to April 2010. Having no alternative, the

defendant though her advocate sent one notice to the plaintiff on 30.04.2010

demanding payment of the arrear rent with electricity bills and to deliver vacant

possession of the house to the defendant within 31.05.2010. In reply to the said

notice, the plaintiff sent his reply through advocate wherefrom the defendant

came to know about this present suit. By the said reply, the plaintiff stated that

the husband of the defendant entered into an agreement to sell 14L of land and

house in question, that the deceased received a sum of Rs. 2,00,000/- as

advance out of the settled consideration and money receipt was issued

acknowledging the receipt of the sum, that the plaintiff has been occupying the

land and house as owner etc. etc. All those statements made in the said reply

are not true and all concocted stories made out by the plaintiff. The defendants

have sought ejectment of the plaintiff from the counter-claim premises and

claimed arrear rent and further rent plus electricity charges.

WRITTEN STATEMENT ON COUNTER-CLAIM

7. The plaintiff has filed written statement denying the claims and

contentions of the defendants and reiterating the averments made in the plaint.

ISSUES

8. The following issues were framed in this suit by my then predecessor-in-

office:

(1) Whether there is cause of action for this suit?

(2) Whether the suit of the plaintiff as well as counter-claim of the defendant no.

1 is maintainable?

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(3) Whether the plaintiff is a tenant in respect of the suit premises under the

defendant no. 1 and if so, whether he is a defaulter?

(4) Whether the deceased husband of the defendant no. 1 entered into an

agreement to sell the suit premises to the plaintiff and if so whether said

agreement is binding upon the defendant no. 1?

(5) Whether the plaintiff is entitled to a decree for specific performance of

contract for sale?

(6) Whether the defendant no. 1 is entitled to a decree for ejectment and arrear

rent as prayed for in her counter-claim?

(7) To what other relief/reliefs the parties are entitled?

DISCUSSION, DECISION AND REASONS THEREFOR

9. The plaintiff examined three witness and the defendants examined four

witnesses. I have gone through the pleadings of the parties and the evidence

tendered on record. I have heard the arguments of the learned advocates for

both the sides.

Issue No. 1

10. ‘Cause of action’ implies a right to sue. It has been judicially interpreted

to mean that every fact which would be necessary for the plaintiff to prove, if

traversed, in order to support his right to the judgment of the Court. Coming to

the instant suit, the bundle of facts averred by the plaintiff in the plaint (summed

up in paragraphs 1 to 4 of this judgment) prima facie discloses cause of action

for the suit. The plaintiff is to prove all the relevant facts in this suit so as to

entitle him to the relief of specific performance of the alleged agreement for sale

or, in the alternative, refund of the advance amount with interest and

compensation. Therefore, I conclude that there is cause of action for the suit.

The issue is decided in the affirmative and in favour of the plaintiff.

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Issue no. 2

11. So far the suit of the plaintiff is concerned, there is no elucidation in the

written statement as to why the same is not maintainable in law though there is

an averment in paragraph no. 2 that the suit of the plaintiff is not maintainable

both in law and in facts.

12. So far the counter-claim of the defendants is concerned, the plaintiff has

stated in his written statement on the counter-claim that the counter-claim is not

maintainable as because the plaintiff’s claim relates to a plot of land measuring

14L with an Assam type house with different Schedule/boundary whereas the

defendant’s claim relates to an Assam type house situated on a plot of land

measuring 3K with different Schedule/boundary. In other words, there is a wide

difference and inconsistency between the subject-matter of the suit and that of

the counter-claim.

13. But, the submission of the plaintiff is not sustainable as because counter-

claim may be in respect of “any right or claim” as provided under Order 8 Rule

6A(1) and it has the same effect as a cross-suit as provided under Order 8 Rule

6A(2). It, thus, follows that a counter-claim need not be with respect to the

subject-matter of the suit; it may be in respect of any right or claim. Coming to

the instant case, the counter-claim is not with respect to 3K of land but with

regard to the Assam type house. As it appears, the Schedule of the counter-claim

is mentioned as “Schedule of the suit premises” and the boundaries shown are of

3K of land on which the house stands.

14. In the result, I hold that both the suit and the counter-claim are

maintainable. The issue is decided accordingly.

Issue No. 4 and 5

15. Both these issues are interrelated and hence taken up together for

discussion.

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16. The plaintiff has examined three witnesses in the suit, including himself

(PW1). His other two witnesses are Smti. Papori Borthakur (PW2) and Shri Rajib

Thakur (PW3).

17. In his evidence-on-affidavit, the plaintiff as PW1 has deposed inter alia as

follows. Mr. Jai Prakash Bhuyan (since deceased), the husband of the defendant,

was his bosom friend and like his elder brother. He had purchased 3K of land in

the name of the defendant. He had decided to sell the suit land measuring 14L

(out of the said 3K of land) after discussion with his wife (defendant). He

intimated the decision to the plaintiff who made up his mind to purchase the suit

land even by selling his own plot of land. The consideration for the suit land

including the shed of C.I. sheet roofing standing thereon was fixed at Rs.

5,00,000/-. The plaintiff agreed to the consideration and gave a word to Mr.

Bhuyan of giving Rs. 2,00,000/- as advance. Accordingly, on 06.08.2008 the

plaintiff, Shri Raju Sarma and his two friends came to the house of Mr. Bhuyan to

pay the advance of Rs. 2,00,000/-. Mr. Bhuyan had in the meantime kept a

receipt of Rs. 2,00,000/- ready after typing in Assamese. After receiving the

advance of Rs. 2,00,000/-, Mr. Bhuyan put his signature on the receipt. In

presence of both the parties, two witnesses namely Shri Rajiv Thakur and Shri

Pradyut Saikia put their signatures in the receipt. Mr. Bhuyan thereafter handed

over the receipt to the plaintiff. The entire transaction took place during the

presence of the defendant. The plaintiff as PW1 has exhibited the receipt as Ext.

1. After receiving the advance of Rs. 2,00,000/-, Mr. Bhuyan handed over

possession of the suit land and house to the plaintiff. The plaintiff installed iron

railing in the veranda of the house by spending Rs. 6,480/-. Ext. 2 is the receipt

issued in this connection by the firm named ‘Mitali Fabrication’. After properly

intimating to Mr. Bhuyan, the plaintiff undertook renovation works of the house

(like plastering, replacement of torja ceiling with asbestos roofing, painting of

doors and windows, etc.) by incurring an expenditure of Rs. 1,60,000/-. In May

2009 there was acute water scarcity in entire Japorigog area. The plaintiff

requested the defendant of having an independent water connection to the

house and she replied that she had no objection. Accordingly, the plaintiff

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obtained water connection in the house in the month of May 2009. The plaintiff

also undertook electrical wiring work in the house through a firm ‘Laxmi

Electricals’ and incurred an expenditure of Rs. 1,138/.

18. In the plaint, the plaintiff has stated that he had taken the advance of Rs.

15,00,000/- from his intending purchaser (of his plot of land) namely Bijay

Prasad Sahu. His assertion is that out of this amount he had given a sum of Rs.

2,00,000/- as advance to the husband of the defendant. In his cross-

examination, he has stated that he had sold out his purchased land and house to

Bijay Sahu at Rs. 22,00,000/-. However, he has again stated that he had sold his

land and house at Rs. 15,00,000/-. It will not be out of place to mention here

that his wife i.e. PW2 has deposed in her cross-examination that her husband

had sold the earlier land for Rs. 15,00,000/- and the said amount was deposited

in the post office as fees for their daughter and the said amount was not

withdrawn. Furthermore, from the plaint it comes out that the plaintiff first had

talk/negotiation with the husband of the defendant in the month of August 2008

and it was only after Mr. Bhuyan had intimated his decision to sell the suit land

that the plaintiff made up his mind to purchase the suit land by selling out his

own land. But, PW2 has deposed in her cross-examination that her husband had

sold the earlier land in the year 2006-07. PW2 has also deposed that after the

sale of their land they had talk/discussion with Jai Prakash Bhuyan for purchasing

the suit land. A cumulative effect of the above discrepancies and divergences is

that the case of the plaintiff concerning the sale of his plot of land (for

purchasing the suit land), the amount of money received therefrom, the payment

of advance of Rs. 2,00,000/- out of the sale proceeds to the husband of the

defendant, etc. becomes unconvincing and less believable. It is pertinent to

mention here that the plaintiff has not examined the aforesaid Shri Bijay Prasad

Sahu in this suit and has not also produced any documentary evidence in support

of the sale of his plot of land. Further, PW1 has deposed that in his income tax

file he had shown the land sale-purchase transaction, but he has not produced

any paper in that connection in this suit.

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19. Another thing which I would like to point out is with regard to the

ownership of the aforesaid 3K of land including the suit land i.e. as to whether

the land belonged to the defendant or to her husband. In the plaint as well as in

his evidence-on-affidavit the plaintiff has stated that the husband of the

defendant had purchased 3K of land in the name of the defendant. But in his

cross-examination he has categorically stated that the defendant had purchased

3K of land covered by Dag No. 39 and Patta No. 42. He has admitted that prior

to purchasing the land he knew the factum of purchase of 3K of land by the

defendant. He has further admitted that prior to the land-purchase agreement

with Jai Prakash Bhuyan he knew that this land is not owned by Jai Prakash

Bhuyan but by the defendant; but in spite of knowing this he entered into

agreement with Jai Prakash Bhuyan and paid the advance to him. He has further

admitted that Jai Prakash Bhuyan did not show any paper to him that the

defendant had given the authority to him to enter into agreement for sale of the

land on her behalf or to receive advance money. The above revelations by the

plaintiff in his cross-examination have virtually demolished the whole case of the

plaintiff. The plaintiff has filed this suit for specific performance of the alleged

contract which he claims he had entered into with the husband of the defendant.

But the cross-examination of the plaintiff has unearthed the fact that at the time

of entering into the alleged agreement with the husband of the defendant he had

the knowledge that the suit land is owned by the defendant and not by her

husband but in spite of that knowledge he entered into the alleged agreement

with the husband of the defendant.

20. Moving further, let me now concentrate on the money receipt (Ext. 1)

and on the alleged agreement entered into between the husband of the

defendant and the plaintiff. There are certain facts/things which tend to call into

question the very existence of the alleged agreement and pose a question mark

on the genuineness of Ext. 1. Those are enumerated as follows:

(1) In Ext. 1, the purported signature of Jai Prakash Bhuyan [Ext. 1(1)] is only

over the revenue ticket. This signature has not touched any portion of the receipt

paper. This fact has been admitted by PW1 in his cross-examination.

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(2) One of the witnesses who allegedly signed in Ext. 1 is Shri Rajib Thakur

(PW3). PW3 has stated in his cross-examination that the agreement had taken

place between Barthakur and Jai Prakash Bhuyan. But he has stated later on that

he does not know if any agreement had taken place or not between Jai Prakash

Bhuyan and Ranjit Barthakur. He has again stated thereafter that no agreement

had taken place.

(3) PW1 has stated in his evidence-on-affidavit that in presence of both the

parties the two witnesses namely Shri Rajiv Thakur (PW3) and Shri Pradyut

Saikia put their signatures in Ext. 1 and the entire transaction took place during

the presence of the defendant. PW2 (wife of PW1) has not claimed that she was

also present there at that point of time (see paragraph no. 5 of her evidence-on-

affidavit). But, PW3 has stated in his cross-examination that in Ext. 1 he,

Barthakur’s wife (PW2) and Bhuyan’s wife (defendant) had signed as witnesses.

Needless to state that in Ext. 1 there is no signature of PW2 or the defendant.

(4) The signing of Ext. 1 by PW3 as a witness would necessarily imply that PW3

went through the contents of Ext. 1 and thereafter signed therein knowing very

well where he was signing. But PW3 has categorically stated in his cross-

examination that as he had not gone through the paper signed by him, he does

not know what is written therein.

(5) On bare perusal, Ext. 1 mentions in 4-5th line: “...sokolu puroni hisaab-nikaas

kori...” which is translated into English as “...after carrying out all old

computations/transactions...”. But, the plaint of the suit is totally mum as to

what were those old computations/transactions between the plaintiff and the

husband of the defendant.

(6) It is in the evidence of PW1 that the agreement in question took place

between him and the husband of the defendant and the latter put his signature

in Ext. 1 after receiving the advance amount of Rs. 2,00,000/-. PW1 has further

stated that the entire transaction took place in the presence of the defendant.

But it appears that above the alleged signature of the husband of the defendant

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it is typed in Assamese “Santana Bhuyanr hoi” which is translated into English as

“on behalf of Santana Bhuyan”. Well, if the agreement in question was entered

into with the husband of the defendant, then why it is written so above the

latter’s purported signature. Furthermore, if the defendant were really present

there at that point of time, then why it is so that her husband put his signature in

Ext. 1 on her behalf and not she herself.

21. The plaintiff has filed this suit based on the money receipt (Ext. 1)

allegedly executed by the husband of the defendant on 06.08.2008 showing

receipt of Rs. 2,00,000/- as advance for sale of the suit land and house. The

defendants by their written statement have denied taking of any money by Jai

Prakash Bhuyan and executing any money receipt agreeing to sell the suit land

and house to the plaintiff. As the defendants have denied the execution of the

said money receipt, it was incumbent upon the plaintiff to prove the execution of

the said money receipt as per provisions enshrined in Sections 67 to 73 of the

Indian Evidence Act. But the plaintiff has failed to do so. As I have observed

hereinbefore, PW3 (one of the alleged attesting witnesses) has categorically

stated that he does not know what is written in Ext. 1. It is a settled proposition

that mere marking of a document as exhibit does not dispense with proof of its

execution in the manner as provided in Sections 67 to 73 of the Indian Evidence

Act. Reference is placed in this connection on a decision of Hon’ble Gauhati High

Court reported in 1996 (3) GLT 62.

22. Let me also traverse the cross-examination of DW4 to shed light on the

question of execution of the alleged agreement between the plaintiff and the

husband of the defendant. It is the specific case of the plaintiff that the alleged

negotiation for purchase of the suit land and house had taken place in the house

of the husband of the defendant in Guwahati. In his evidence-on-affidavit, DW4,

the younger brother of the deceased husband of the defendant, has deposed

inter alia that on 06.08.2008 due to annual Shraddha ceremony of their father

his elder brother Jai Prakash Bhuyan being the eldest son had to perform the

religious rites for that purpose and thus on that day he was at their native place

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at Dighaliati, Raha. In his cross-examination, DW4 has made the following

statements inter alia:

(1) “On that day at the place of Shraddha no discussion took place regarding the

suit land.”

(2) “On that day my elder brother had no talk with the plaintiff regarding the

transaction.”

(3) “On the day of Shraddha the plaintiff had not gone to the place of

Shraddha.”

23. From the above statements, which are replies given by DW4 to questions

put by the plaintiff, it appears that the plaintiff, unlike his aforesaid specific case

in this suit, has tried to project or suggest during the cross-examination of DW4

that on 06.08.2008 at the place of Shraddha ceremony of the father of Jai

Prakash Bhuyan at Dighaliati, Raha, Jai Prakash Bhuyan had made discussion and

transaction with the plaintiff.

24. Lastly, I would like to discuss one more aspect i.e. the one dealing with

the date of entry of the plaintiff into the suit land and house. The plaintiff has

alleged that the possession of the suit land and house was delivered to him on

06.08.2008 after the execution of Ext. 1 by the husband of the defendant on

receipt of the advance of Rs. 2,00,000/- from him. But the specific case of the

defendant is that the plaintiff entered the counter-claim premises on 02.05.2009

as a tenant. But in his cross-examination, PW1 has stated that he does not

properly remember on which date he had entered the suit house. PW1 has

categorically stated that from 12.06.2008 to 13.04.2009 there was one tenant in

that house but he does not know his name. Thus, it is evident that PW1 has

been completely belied in his cross-examination with respect to the assertion that

he had entered the suit land and house on 06.08.2008.

25. In view of the above discussion, both the issues i.e. issues no. 4 and 5

are decided in the negative and against the plaintiff.

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Issues No. 3 and 6

26. Both these issues are interrelated and hence taken up together for

discussion.

27. The defendants/counter-claimants are to prove (1) that the defendant is

the owner of the counter-claim premises; (2) that the plaintiff entered the

counter-claim premises as tenant under the defendant since 02.05.2009; and (3)

that the plaintiff has defaulted paying the monthly rent and electricity bills to the

defendant from December 2009 and is a defaulter.

28. The defendant has deposed as DW1 and reiterated the facts stated in the

counter-claim. She has exhibited the documents, namely, the registered sale

deed No. 3498(A) dated 13.04.1982 (Ext. B), NOC for construction (Ext. C), NOC

for electric connection (Ext. D), electric bill (Ext. E), Mutation Case order (Ext. F),

Jamabandi (Ext. G), permission of water supply connection (Ext. H), notice with

bills for water supply connection (Ext. I), money receipts of Assam Urban Water

Supply and Sewerage Board (Ext. J series), book of tenancy (Ext. K), NOC for

construction (Ext. L), bill given by Kalita Steel Fabrication (Ext. M), Advocate’s

notice (Ext. N), Advocate’s reply (Ext. O) and certificate issued by Lakhminagar

Suraksha Aru Sewa Samitee (Ext. P). DW1 has stated inter alia that as usual

practice she used to note down about the tenancy and payments made by the

tenant in a book maintained by her in presence of the tenant. The tenant was

required to pay her the charges for consumption of electricity and supply of

water monthly as per the reading of the sub-meter and she used to record all

such payments also in the said book for tenancy. She has exhibited the same as

Ext. K. She has deposed inter alia that since 02.05.2009 the plaintiff entered in

the counter-claim premises as tenant and on 09.05.2009 he paid her Rs. 3000/-

as advance rent which was to be adjusted to the rent of the terminating month

of the tenancy. For the months of May, June, July, August, September and

October, 2009 the plaintiff paid the house rent with electric bills regularly. In

November 2009, the defendant requested the plaintiff to vacate the said

premises. The plaintiff undertook to vacate the said premises within December

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2009. All the payments made to the defendant have been recorded in the

aforesaid book of tenancy (Ext. K). But in spite of repeated requests and

demands of the defendant, the plaintiff neither vacated the said house nor

turned up to pay the monthly house rent with electric bill.

29. DW2 Sri Sailen Sarma is a neighbour of the suit properties. He has

deposed about the facts concerning purchase of 3K of land and construction of

two Assam type houses on the said land by the defendant. He has deposed that

the defendant gave the subsequently constructed Assam type house (standing

on and covering 14L of land) to various persons since 2002. He has deposed that

the plaintiff was residing in their locality in rented houses and subsequently he

had purchased a plot of land in their locality and had started residing there by

constructing a residential house, but after a few years he sold away his land and

house and started residing in rented house again. He has deposed that in May

2009 the plaintiff took the suit house on rent from the defendant and started

residing there with his family. He was informed by the plaintiff that he entered

into an agreement for purchase of 14L of land with the suit house and price was

fixed at Rs. 14,00,000/- for the land and at Rs. 1,50,000/- for the suit house. He

has also deposed that he is a member of Lakhi Nagar Suraksha Aru Sewa

Samitee established in 1995 and he confirmed Ext. P as the certificate issued by

the said Samitee.

30. DW3 Sri Bhumidhar Kalita is the proprietor of Kalita Steel Fabrication. He

has deposed inter alia that he had fitted/installed iron grill at the veranda of one

of the Assam type houses of the defendant on being ordered by the defendant

and Ext. M is the bill dated 28.04.2009 given by him for the cost of grill and

fitting charges. He has also deposed that on 02.05.2009 while he visited the

residence of the defendant to collect the balance money of installing the grill, he

found the plaintiff at the residence of the defendant discussing with the

defendant for taking the aforesaid Assam type house on monthly rent for 4/5

months and on such discussion the house rent was fixed at Rs. 3,000/- per

month and the plaintiff agreed to pay the costs of consumption of electricity and

17

water supply to the house. He has further deposed that thereafter he has seen

the plaintiff residing in the said Assam type house with his family.

31. DW4 Sri Jayanta Bhuyan, the younger brother of the deceased husband

of the defendant, has deposed inter alia that in the month of April 2009 while the

Assam type house was vacated by the tenant the defendant installed grills at the

veranda of the said house through one grill industry. He has further deposed that

in the month of May 2009 while he visited the residence of the defendant he

found the plaintiff residing in the said Assam type house with his family and then

he met the plaintiff at which he told him that he has taken the house from the

defendant on rent at a monthly rent of Rs. 3,000/- for 4/5 months. He has

further deposed that having heard from the defendant that the plaintiff was not

paying the rent and electricity charges and water supply charges since December

2009, he tried to meet the plaintiff but could not as the latter had started

residing in other place keeping the tenanted premises under lock and key.

32. The plaintiff cross-examined the DWs at length but could hardly impeach

their credibility and believability. In their cross-examination, the DWs have rather

reaffirmed most of their statements made in their evidence-on-affidavit. Despite

her elaborate cross-examination, DW1 stuck to her stand that she (and not her

deceased husband) is the owner of the land and that the plaintiff has been a

tenant under her. Ext. K is a relevant document which substantiates the factum

of taking of the house of the defendant on rent by the plaintiff. Significantly, Ext.

K contains entries not only concerning the plaintiff, but also the previous tenants.

It transpires from Ext. K that the plaintiff has not paid the monthly rent for the

tenanted premises since December 2009. It will not be out of place to mention

here that Ext. K is nothing but book of accounts and it is worth mentioning here

that the same is relevant as per Section 34 of the Indian Evidence Act. From the

trend of cross-examination of DW1, it appears that the plaintiff has projected

that Ext. K is a manufactured document, but the plaintiff has not specifically

averred this fact in his written statement on the counter-claim. Otherwise also,

the plaintiff has not been able to establish that Ext. K is really a manufactured

document. Coming to the cross-examination of DW2, the plaintiff tried to

18

demolish his testimony regarding the ownership of the defendant over the land

in question, but could not. DW2 maintained his stand as per his statements in his

evidence-on-affidavit. The plaintiff also tried to question the genuineness of Ext.

P, but could not really prove that it was not genuine. Then, the cross-

examination of DW3 by plaintiff could not shatter his evidence in connection with

the installation of grill at the veranda of the house. He reaffirmed that he had in

fact installed the grill in the Assam type house of the defendant. He confirmed

the bill (Ext. M) issued by him to the defendant. Be it stated here that unlike the

defendants, the plaintiff has not adduced any evidence to prove that the railing

was installed in the veranda by the plaintiff through Mitali Fabrication. Further,

from the cross-examination of DW3, I do not find any suggestion from the side

of the plaintiff denying the fact that discussion had taken place between the

defendant and the plaintiff for taking the Assam type house on monthly rent for

4/5 months and that on such discussion the house rent was fixed at Rs. 3,000/-

per month and that the plaintiff agreed to pay the costs of consumption of

electricity and water supply to the house. Lastly, the cross-examination of DW4

also could not bring anything substantially contrary to his evidence-on-affidavit.

All I can say from a minute reading of the cross-examination of all the DWs is

that they have all been rigorously tested through their cross-examination but

they have remained firm and upright and maintained their respective stands.

33. What is all the more disturbing for the case of the plaintiff is that in his

cross-examination he has made certain statements and admissions tending to

show that he was a tenant under the defendant. He has deposed that from 2002

to 2007 there was one person as a tenant in the house situated over the suit

land, but he does not know his name. It may be stated here that it is the case of

the defendants that from 10.11.2002 to 14.04.2007 one Md. Safi Khan was a

tenant in the Assam type house of the defendant. PW1 has deposed that from

18.05.07 to 18.5.08 there was one person as a tenant in that house but he does

not know his name. It may be stated here that it is the case of the defendants

that from 17.05.2007 to 18.04.2008 one Sri Sunil Saikia was the tenant in the

said house. PW1 has further deposed that from 12.06.08 to 13.04.09 there was

19

one tenant in that house but he does not know his name. It may be stated here

that it is the case of the defendants that from 12.06.2008 to 12.04.2009 one Sri

Bhaskar Bora had taken the said house on rent. It thus appears that the plaintiff

has admitted the case of the defendants that the said Assam type house was

under occupation of different tenants from time to time since the year 2002.

PW1 has deposed that he was giving the electricity bill of the house sub-meter to

the defendant but he has stopped paying the same since 2/3 months. He has

further deposed that he has not paid Rs. 3,000/- as rent to the defendant but he

used to give her Rs. 2,000/- or Rs. 1,000/- in between (sometimes). He has

further deposed that since the filing of this case the defendant has not accepted

any money from him and as such he has not been able to give her any amount

as rent or electric bill. He has further deposed that on 06.11.09 while going to

give money to the defendant he had not asked her to treat his advance rent

amount as the rent for the month of November. All the above statements made

by PW1 are categorical admissions of the fact that he was a tenant under the

defendant. It clearly comes out from his aforesaid statements that since the filing

of the instant case the defendant has not been accepting any money from him

and as such he has not been able to give her any amount as rent or electric bill.

Needless to state that if for any reason he could not pay the rent as the landlord

refused to accept, it was incumbent upon him to deposit the same in the Court

as per Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. Thus, the

plaintiff is a defaulter in payment of monthly rent and electricity bills for the

counter-claim premises.

34. In view of the foregoing discussion, both the above issues i.e. issues no.

3 and 6 are decided in the affirmative and in favour of the defendants.

Issue No. 7

35. In view of the findings upon issues no. 3, 4, 5 and 6, the plaintiff is not

entitled to any relief in the suit which is liable to be dismissed. The

defendants/counter-claimants are entitled to a decree for ejectment of the

plaintiff from the counter-claim premises (as described in the Schedule of the

20

counter-claim) and for recovery of the arrear house rent @ Rs. 3,000/- per

month with effect from the month of December 2009 till ejectment. So far the

relief for recovery of electricity charges is concerned, I am not inclined to grant

this relief for want of exact figures (i.e. exact charges for electricity consumption)

every particular month during the pendency of this suit. I am not also inclined to

grant any interest as prayed for considering the overall facts and circumstances

of the case. The issue is decided accordingly.

ORDER

36. The suit of the plaintiff is dismissed on contest. The counter-claim of the

defendants/counter-claimants is decreed on contest. The defendants/counter-

claimants are entitled to a decree for ejectment of the plaintiff from the counter-

claim premises (as described in the Schedule of the counter-claim) and for

recovery of the arrear house rent @ Rs. 3,000/- per month with effect from the

month of December 2009 till ejectment. Considering the facts and circumstances

of the case, parties shall bear their own costs.

37. A decree be drawn up accordingly within the prescribed time and the case

record be consigned to the Record Room.

Given under my hand and the seal of this Court on this the 31st day of

March, 2015.

Civil Judge No. 3,

Kamrup (M), Guwahati

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APPENDIX

Witnesses examined by the Plaintiff:

1. Sri Ranjit Barthakur (PW1)

2. Smti. Papari Barthakur (PW2)

3. Sri Rajib Thakur (PW3)

Documents exhibited by the Plaintiff:

(1) Money Receipt dated 06.08.2008 (Ext. 1)

(2) Receipt issued by Mitali Fabrication (Ext. 2)

(3) Water supply Bill (Ext. 3)

(4) Notice of defendants’ Advocate (Ext. 4)

(5) Reply of plaintiff’s Advocate (Ext. 5)

Witnesses examined by the Defendants:

1. Smti. Santana Bhuyan (DW1)

2. Sri Sailen Sarma (DW2)

3. Sri Bhumidhar Kalita (DW3)

4. Sri Jayanta Bhuyan (DW4)

Documents exhibited by the Defendants:

1. Power of Attorney dated 02.07.2010 (Ext. A)

2. Registered Sale Deed No. 3498(A) dated 13.04.1982 (Ext. B)

3. Permission/NOC for construction issued by GMC (Ext. C)

4. NOC issued by Gauhati Development Authority for electric connection (Ext. D)

5. Electricity Bill (Ext. E)

6. Certified copy of Mutation Order (Ext. F)

7. Certified copy of Final Jamabandi (Ext. G)

8. Permission for water supply connection (Ext. H)

9. Notice with bills for water supply connection (Ext. I)

10. Money receipts of Assam Water Supply and Sewerage Board (Ext. J)

11. Book of tenancy (Ext. K)

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12. Permission/NOC for construction issued by GMDA (Ext. L)

13. Bill given by Kalita Steel Fabrication (Ext. M)

14. Office copy of notice issued by Advocate Sri Nirmal Kalita (Ext. N)

15. Reply by Advocate for the plaintiff (Ext. O)

16. Certificate dated 02.09.2010 issued by Lakshminagar Suraksha Aru Sewa

Samittee (Ext. P)

Civil Judge No. 3,

Kamrup (M), Guwahati