TITLE SUIT NO.

36/2011
SRI AMARJIT BORAH
VS
SRI NIKUNJA DAS

Assam Schedule VII Form No. 132

HIGH COURT FORM NO. (J) 2
HEADING OF JUDGMENT IN ORIGINAL SUIT / CASE

DISTRICT: SONITPUR
IN THE COURT OF THE MUNSIFF NO. 2, TEZPUR, SONITPUR

Present: Uttam Chetri

Friday, the 26th day
of June, 2015

TITLE SUIT NO. 36 / 2011

Sri Amarjit Borah

Son of Late Kumud Borah,
Resident of Murhateteli, Hajarapar,
Mouza: Bhairabpad, P.O: Tezpur,
P.S: Tezpur, District: Sonitpur, Assam

……………. Plaintiff

-Versus-

Sri Nikunja Das,

Son of Late Chandra Kanta Das,
Resident of Ward No. 1, Cotton Road,
Tezpur Town, Mouza: Mahabhairab P.O: Tezpur,
P.S: Tezpur, District: Sonitpur, Assam
……………………Defendant

The suit coming on for final hearing on 12th day of June, 2015 in
the presence of:-
Sri Debabrata Bose, Advocate for the Plaintiff

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AND
Sri S. Borah, Advocate for the defendant

And having stood for consideration to this day, this court delivers
the following judgment.

JUDGMENT

1. This is a suit for eviction, recovery of possession, recovery

of arrear rent and for granting mesne profits.

PLAINTIFF‟S PLEA

2. The plaintiff pleads that he is the owner of the suit

premises which he acquired from his father late Kumud Borah by
right of inheritance along with his mother and two sisters; that
initially the defendant was the tenant of his father Late Kumud
Borah, and after the death of the later, the defendant became his
tenant; that the defendant used to pay Rs 600/- (Rupees six
hundred) only per month as monthly rent for the suit premises to
his father; that the defendant stopped payment of monthly rent
from April, 2009 onwards and in spite of repeated requests failed
to pay the same; that on 06.01.2010, the defendant gave a
written assurance to the plaintiff, promising the later that he
would make payment of all the arrears rent from the month of
April 2009 to December, 2009; that in spite of the aforesaid
assurance, the defendant has not made any payment of the
arrears rent for the suit premises till date; that by his aforesaid act
of non-payment of arrears rent, the defendant has become a
defaulter and, as such, is liable to be evicted from the suit
premises; that the plaintiff is in bona fide need of the suit
premises for starting his own business, and as such, the defendant
is required to be evicted from the same; that on 11.04.2011, the

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plaintiff issued an advocate’s notice to the defendant through his

Advocate, Sri Debabrata Bose demanding the later to vacate the
suit premises, and to pay up to date arrear rent; that in spite of
the receipt of the aforesaid notice, the defendant has neither paid
the arrears rent nor vacated the suit premises as demanded in the
notice; that the defendant is now required to pay an amount of Rs
15,000/- (Rupees fifteen thousand) only to the plaintiff as arrears
rent from the month of April, 2009 to April, 2011, apart from
vacating the suit premise for the plaintiff to start his own business;
that apart from the aforesaid arrears rent, the defendant is also
liable to pay future rent@ Rs 600 per month from the date of filing
of the suit till the date of decree subject to payment of requisite
court fees by the plaintiff; that the defendant is liable to pay
mesne profit from the date of decree till recovery of possession
subject to payment of requisite court fees by the plaintiff and
prays for the following reliefs:

a) For recovery of possession of the suit premises by

evicting the defendant with his men and materials
therefrom
b) For recovery of arrear rent due from the month of
April, 2009 to April, 2011
c) For recovery of future rent@ Rs 600/- per month from
the date of institution of the suit till the date of decree
subject to payment of additional court fees
d) For recovery of mesne profits as this Court deems
proper from the date of decree till recovery of
possession subject to payment of requisite court fees
e) For cost of the suit
f) For any other relief/s as this Court may deem fit and
proper

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DEFENDANT‟S PLEA

3. Denying the contentions of the plaintiff, the defendant

pleads that in the year, 2000 the defendant entered into a verbal
agreement with the father of the plaintiff, according to which the
defendant was to construct a RCC building in the suit premises by
investing his own money and start his business on the same as
tenant, and the same was to be adjusted from the rent due to the
defendant; that accordingly, the defendant constructed a RCC
building in the suit premises by investing Rs 89,260/- (Rupees
eighty nine thousand two hundred and sixty) as per the mutual
verbal agreement, and after taking due permission from the father
of the plaintiff Late Kumud Borah; that as per the said agreement,
the rent for the suit premises was fixed at Rs 600/- per month out
of which Rs 300/- was to be adjusted as cost of construction for
the aforesaid RCC building; that the defendant has been regularly
paying the rent for the suit premises even after the death of Late
Kumud Borah although no rent receipt has been issued by the
Late Kumud Borah or his legal heirs for the same; that on
06.01.2010, the plaintiff visited the defendant’s house with some
criminals and forced him to sign a blank paper and, accordingly,
he signed the same to save his life; that the defendant is a petty
businessman having no other source of income apart from his
business in the suit premises; that the plaintiff has a flourishing
business establishment in Murhateli Tezpur; that the defendant
has not received any pleaders notice from the plaintiff and prays
for dismissing the suit with cost.

4. Upon the pleadings of both sides my learned predecessor

in office framed the following issues in this suit:-

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

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(2) Whether the defendant has become defaulter from

the month of April, 2009 and liable to be evicted?
(3) Whether the suit premise is bona fide required by
the plaintiff?
(4) Whether the plaintiff is also entitled to recover the
arrear rent from the month of April, 2009?
(5) Whether the plaintiff is entitled to decree as prayed
for in the plaint?
(6) To what other reliefs the parties are entitled to?

5. The plaintiff has adduced the evidence of two witnesses in

support of his case whereas the defendant has adduced the
evidence of three witnesses. The materials on record and
submissions made on behalf of both sides have received due
consideration of this court.

DISCUSSION OF EVIDENCE, DECISION AND REASONS

THEREOF

6. Issue no. 1: Whether there is any cause of action for the

suit?

7. The defendant pleads that the plaintiff does not have the
cause of action for institution of this suit. The cause of action is
nothing but a bundle of material fact which the plaintiff must
allege and prove in order to succeed in his case. In the instant suit
the plaintiff prays for recovery of possession of the suit premises
by evicting the defendant with his men and materials therefrom,
and for recovery of arrear rent due from the month of April, 2009
to April, 2011 together with future rents and mesne profits. Thus

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from the perusal of the above pleaded facts it is seen that there is
cause of action for institution of this suit.

8. Issue no. 3: Whether the suit premise is bona fide

required by the plaintiff?

9. The plaintiff in his pleading and evidence-in-affidavit states

that the defendant is required to be evicted from the suit premises
because it is bona fide required by the former to start his own
business. The plaintiff, however, in his cross examination admits
that he has a food and lodging hotel in Murhateteli consisting of
13 (thirteen) rooms. The plaintiff also admits that he has 2 (two)
shops below the aforesaid hotel. In MM Quasim vs Manoharlal
(1981 SC 1113), it was observed by the Hon’ble Supreme Court
that when space is available for business, the landlord must prove
that the available accommodation is not sufficient. Unfettered right
of the landlord to chose is not maintainable. In Damodar Vs
Nandram AIR 1960 MP 345, it was observed that the need of
the landlord to evict the tenant for future expansion of his
business is not present and bonafide. In the present suit the
plaintiff simply states that he requires the suit premises to start his
own business. He has not given the details of the business he is
intending to start in the suit premises, or why he is intending to do
business in the suit premises in spite of having a flourishing
business in Murhateteli or why the space available in his business
establishment in Murhateteli is not sufficient for his future
business. Although existence of one business is no ground to deny
the claim of the landlord of his bona fide requirement of the suit
premises to start a new business, but the land lord is required to
prove with cogent evidence what business he is intending to start
in the suit premises or why the space that he is using in the
present business is not sufficient for him to start the new business.

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Only a pleading that the suit premises is required for starting a

new business without substantiating the claim with any cogent
evidence particularly when the plaintiff already has a flourishing
business is, according to my considered view, not enough to prove
bona fide requirement. This issue is, therefore, decided in negative
in favour of the defendant.

10. The suit premise is not bona fide required by the plaintiff.

11. Issue No. (2): Whether the defendant has become

defaulter from the month of April, 2009 and liable to be evicted?

12. The learned advocate for the plaintiff during the course of
argument submits that as the suit premise does not fall within the
urban area, the provisions of the Transfer of Property Act, 1882
will be applicable in the present suit. The learned counsel also
submits that the tenant has not paid the rent due to him from the
month of April 2009 to December, 2009 and from December, 2009
till date. The learned counsel further submits that on 06.01.2010,
the defendant gave a written assurance to the plaintiff, promising
the later that he would make payment of all the arrears rent from
the month of April 2009 to December, 2009 but in spite of the
aforesaid assurance, the defendant has not made any payment of
the arrears rent for the suit premises till date and, as such, the
defendant has become a defaulter.

Per contra, the learned counsel for the defendant submits

that the defendant has been regularly paying the rent for the suit
premises as per the verbal agreement entered into between the
defendant and the father of the plaintiff in the year 2000,
according to which the defendant was to construct a RCC building
in the suit premises by investing his own money and start his

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business on the same as tenant, and the same was to be adjusted

from the rent due to the defendant. The learned counsel for the
defendant also submits that as per the said agreement, the rent
for the suit premises was fixed at Rs 600/- per month out of which
Rs 300/- was to be adjusted as cost of construction for the
aforesaid RCC building, and as the defendant has been regularly
paying the rent for the suit premises even after the death of Late
Kumud Borah, he has not become a defaulter, and as such, not
liable to be evicted from the suit premises.
According to the legal maxim affirmati non neganti
incumbit probatio, the burden of proving the existence of a fact
lies on the person who claims or asserts its existence and not on
the person who denies the same. In the present suit plaintiff has
denied the payment of rent by the defendant. On the contrary,
the defendant has asserted that he has paid rent to the plaintiff.
As such, it is the defendant who is affirming the fact of payment
of rent. Hence, the defendant is under an obligation to prove that
he has paid rent till date. Furthur, the defendant has submitted
that as per the verbal agreement entered into between him and
the father of the plaintiff, there was no provision of giving and
taking rent receipts between the landlord and the tenant in
respect of the rent for the suit premises. Thus in the absence of
such rent receipts, it is incumbent upon the defendant to prove
the payment of rent through oral or other evidence. In
Rangammal v Kuppuswami 2011 (102) AIC13SC it was held
that “Section 101 of the Indian Evidence Act, 1872 defines burden
of proof which clearly lays down that whosoever desires any court
to give judgment as to any legal right or law dependant on the
existence of facts which he asserts, must prove that those facts
exist. When any person is bound to prove the existence of
any fact it is said that the burden of proof lies on that
person. Thus, the Evidence Act has clearly laid down that
the burden of proving fact always lies upon the person

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who asserts. Until such burden is discharged, the other

party is not required to be called upon to prove his case.
The Court has to examine as to whether the person upon
whom burden lies has been able to discharge his burden.
Until he arrives at such conclusion, he cannot proceed on
the weakness of the other party. Thus after going through the
maxim affirmati non neganti incumbit probation, Section
101 of the Indian Evidence Act, 1872 and the case law cited
above, it can be clearly discerned that in a landlord-tenant suit if
the tenant asserts that he has paid the rent due to him within
time to the landlord and is not a defaulter, it is incumbent upon
him to prove the fact of payment of such rent either thorough
documentary or oral evidence. The defendant has admittedly not
submitted any documentary proof to support his claim of having
paid the monthly rent regularly. DW2, Bharat Chandra Boro who is
the only supporting witness for the defendant states in his
evidence in affidavit that „he has seen the plaintiff‟s mother
receiving the rent for the suit premises amounting to Rs
300 from the defendant, and he went along with the
defendant, when the later went to deposit the rent for the
months of January, 2013 to April, 2013 to the plaintiffs
mother and he has himself seen the plaintiffs mother‟s
receiving the same‟. However, in his cross examination he
states that he does not know the plaintiff or his mother
thus contradicting his aforesaid statement. Thus, the
defendant having not being able to prove the payment of rent for
the suit premise either with the help of documentary or oral
evidence, it is highly probable that the defendant has not paid the
rent as claimed by him.
Be it mentioned herein that, the plaintiff in order to prove
that the defendant is a defaulter has submitted a written
document supposedly written by the defendant on 06.01.2010
(Exhibit 2) wherein the defendant has admitted that he is liable to

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pay Rs 7800/- (Rupees seven thousand eight hundred) only to

Kumud Bora (father of the plaintiff) as rent for the month of April,
2009 to December, 2009 for using his room situated in the suit
premises. Contradicting the aforesaid claim, the defendant in his
evidence states that on 06.01.2010, the plaintiff visited the
defendant’s house with some criminals and forced him to sign a
blank paper and, accordingly, he signed the same to save his life
and which was later on used by the plaintiff to make Exhibit 2.
However, in his cross examination the defendant states that the
contents on Exhibit 2 was written by him and Exhibit 2(1) is his
signature thus contradicting his statement that he has only signed
in Exhibit 2. Moreover, although the defendant was supposedly
forced to sign on a blank paper by the plaintiff with the help of
some ‘gundas’ on 06.01.2010, yet he did not inform or report the
police about the aforesaid incident, thus leading this court to
presume that such incident had not happened at all on
06.01.2010, because a normal prudent person would have
obviously informed the police in such circumstances. The
defendant having not done so, it is highly probable that Exhibit 2
was written and signed by the defendant admitting his liability
without any force and on his free will.

13. The learned counsel for the plaintiff submits that on

11.04.2011, the plaintiff issued an advocate’s notice to the
defendant through his Advocate, Sri Debabrata Bose demanding
the later to vacate the suit premises, and to pay up to date arrear
rent but in spite of the receipt of the notice, the defendant has
neither paid the arrears rent nor vacated the suit premises as
demanded in the notice. Exhibit 3 is the notice and Exhibit 5(1)
and 5(2) is the AD Card which has been returned after being duly
served. The learned counsel for the plaintiff, therefore, submits
that as the defendant has become a defaulter, and the suit
premises is not used for agricultural or manufacturing purposes,
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the plaintiff has duly terminated the lease for the suit premise by
giving fifteen days’ notice as provided in Section 106 of the
Transfer of Property Act, 1882. Although the defendant denies
the receipt of such notice in his examination in chief, he however
in his cross examination states that Exhibit 5(2) is the AD Card
and Exhibit 5 (A) is his signature which was signed by him after
the receipt of the aforesaid notice. The defendant also admits in
his cross examination that Exhibit 3 is the advocates notice and
he has received the same.

Section 108 of the Transfer of Property Act, 1882 deals

with the rights and liabilities of the lessor and lessee in the
absence of a contract or local usage to the contrary. Section 108
(l) provides that the lessee is bound to pay or tender, at the
proper time and place, the premium or rent to the lessor or his
agent in this behalf. Furthur Section 108 (q) provides that on the
determination of the lease, the lessee is bound to put the lessor
into possession of the property. Moreover, Section 106 (1)
provides that in the absence of a contract or local law or usage
to the contrary a lease of immovable property for agricultural or
manufacturing purposes shall be deemed to be a lease from year
to year, terminable, on the part of either lessor or lessee, by six
months notice; and a lease of immovable property for any other
purpose shall be deemed to be a lease from month to month,
terminable, on the part of either lessor or lessee by fifteen days’
notice. A combined reading of Sections 106 and 111 of the
Transfer of Property Act, 1882 provides that in the absence of
any contract or law, lease of immovable property other than for
agricultural or manufacturing purposes shall be a lease from
month to month which is terminable on 15 days notice from the
date of receipt of the notice i.e. service of notice. In view of the
above, the Act itself provides for a statutory period of 15 days
from the date of receipt of notice from which the tenancy would
stand determined. The aforesaid Section 106 of the Act in Sub-
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clause 3 and 4, apart from other things, further provides that a

notice determining lease shall be in writing and signed by or on
behalf of the person giving it and that it shall not be invalidated
merely because the period mentioned in the notice is short of the
period specified under Sub-clause 1 of Section 106 of the Act
provided the suit is filed after the expiry of the period mentioned
in Section 106 of the Act.

14. In the present case, the defendant pleads that he had

entered into a verbal agreement with Late Kumud Borah (father of
the plaintiff) for construction of a house in the suit premises and
for using the same as tenant under the former@ Rs 600/- per
month out of which Rs 300/- was to be adjusted as cost of
construction for the aforesaid RCC building, and as the defendant
has been regularly paying the rent for the suit premises even after
the death of Late Kumud Borah, he has not become a defaulter,
and as such, not liable to be evicted from the suit premises. The
defendant, however, has not been able to substantiate his claim of
payment of rent either with the help of documentary or oral
evidence. On the other hand, the plaintiff has been able to prove
on preponderance of probabilities the execution of Exhibit 2 by the
defendant admitting his liability to pay the rent due to the father
of the plaintiff to the tune of Rs 7800/- (Rupees seven thousand
eight hundred) only without any force and on his free will. The
plaintiff has also been able to prove due service of notice as on
the defendant as required by Section 106 of the Transfer of
Property Act, 1882 because the defendant in his cross examination
has admitted that Exhibit 5(2) is the AD Card and Exhibit 5 (A) is
his signature which was signed by him after the receipt of the
notice i.e., Exhibit 3. Thus the plaintiff being able to prove the
non-payment of rent by the defendant and the due service of
notice on the defendant as required by Section 106 of the
Transfer of Property Act, this issue is decided in affirmative in
favour of the plaintiff.
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15. The defendant has become defaulter from the month of

April, 2009 and liable to be evicted.

16. ISSUE NO. 4: Whether the plaintiff is also entitled to

recover the arrear rent from the month of April, 2009?

17. The defendant has been declared as defaulter in issue

no.2. As such issue no. 4 is decided in affirmative in favour of the
plaintiff.

18. The plaintiff is entitled to recover the arrear rent from the
month of April, 2009

19. ISSUE NO. 5: Whether the plaintiff is entitled to decree

as prayed for in the plaint? / ISSUE NO 6: To what other reliefs
the parties are entitled to?

20. For the sake of convenience issue nos. 5 and 6 are

discussed together. The learned counsel for the defendant during
the course of argument submits that plaintiff is not the sole owner
of the suit premises as Late Kumud Borah, the father of the
plaintiff had left other legal heirs and successors after his death in
respect of the suit premises and as those legal heirs have not been
impleaded as plaintiff in the present suit, the suit is liable to
dismissed for non-joinder of necessary parties. In Sri Ram
Pasricha vs Jagannath and Ors AIR 1976 SC 2335, it was
held by the Hon’ble Supreme Court that “the relation between
the parties being that of landlord and tenant, only the
landlord could terminate the tenancy and institute the suit
for eviction. The tenant in such a suit is estopped from

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questioning the title of the landlord under Section 116 of

the Evidence Act. The tenant cannot deny that the landlord
had title to the premises at the commencement of the
tenancy. Under the general law, in a suit between landlord
and tenant the question of title to the leased property is
irrelevant. It is, therefore, inconceivable to throw out the
suit on account of non-pleading of other co-owners as
such.” The Hon’ble Supreme Court in the aforesaid case further
held that “Jurisprudentially it is not correct to say that a co-
owner of a property is not its owner. He owns every part
of the composite property along with others and it cannot
be said that he is only a part-owner or a fractional owner
of the property. The position will, change only when
partition takes place. It is, therefore, not possible to
accept the submission that the plaintiff who is admittedly
the landlord and co-owner of the premises is not the
owner of the premises within the meaning of Section
13(1)(f). It is not necessary to establish that the plaintiff
is the only owner of the property for the purpose of
Section 13 (1)(f) as long as he is a co-owner of the
property being at the same time the acknowledged
landlord of the defendants. We are of opinion that a co-
owner is as much an owner of the entire property as any
sole owner of a property is”. In Kanta Goel v. B.P. Pathak
(supra) it was held that a co-owner is as much the owner of
the entire property as any sole owner. Therefore, there
was no substance in the contention that the absence of
the other co-owners disentitled the other co-owners from
suing for eviction. In Pal Singh v. Sunder Singh (dead) by Lrs.
and Ors. [1989]1SCR67 it was held that “one of the co-owners
can alone and in his own right file a suit for ejectment of
tenant and it is no defence open to tenant to question the
maintainability of the suit on the ground that other co-

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owners were not joined as parties to the suit. When the

property forming subject matter of eviction proceedings is
owned by several owners, every co-owner owns every part
and every bit of the joint property along with others and it
cannot be said that he is only a part owner or a fractional
owner of the property so long as the property has not
been partitioned. He can alone maintain a suit for eviction
of tenant without joining the other co-owners if such
other co-owners do not object. In Dhannalal Vs. Kalawatibai
and Ors AIR2002SC2572 it was observed that “one co-
owner/landlord can file a suit for ejectment of tenant and
it is not necessary that all co-owner/landlords must jointly
sue for ejectment though they are not prevented from --
rather entitled to -- joining together and suing jointly if
they wish to do so”.

Thus what transpires from the above discussion is that a

landlord-tenant suit cannot be dismissed only on the sole ground
that the other co-owners of the suit property are not impleaded as
plaintiff, and the suit is filed by one of the co-owners only,
because a co-owner of a property is not its absolute owner. A co-
owner owns every part of the composite property along with
others, and it cannot be said that he is only a part-owner or a
fractional owner of the property. The position will change only
when partition takes place. A co-owner is as much the owner of
the entire property as any sole owner and the absence of the
other co-owners does not disentitle the other co-owners from
suing for eviction. Thus one of the co-owners can alone and in his
own right file a suit for ejectment of tenant, and it is no defence
open to tenant of question the maintainability of the suit on the
ground that other co-owners were not joined as parties to the
suit. When the property forming subject matter of eviction
proceedings is owned by several owners, every co-owner owns

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every part and every bit of the joint property along with others
and it cannot be said that he is only a part owner or a fractional
owner of the property so long as the property has not been
partitioned. He can alone maintain a suit for eviction of tenant
without joining the other co-owners, if such other co-owners do
not object. In the present suit there is no evidence to the effect
that any partition of the suit property has taken place among the
co-owners, or that any other co-owner has objected to the suit
being filed by the plaintiff. Thus the plaintiff being one of the co-
owner of the suit premises, he can alone and in his own right file
a suit for ejectment of tenant, and it is no defence open to tenant
of question the maintainability of the suit on the ground that other
co-owners were not joined as parties to the suit. As such, the
present suit cannot be dismissed for non-joinder of necessary
parties.

The learned counsel for the defendant during the course of

argument also argues that as the suit premises falls within the
Urban Areas, and as the tenant has constructed rooms in the suit
premises, Section 5(1) of Assam Urban Areas Non Agricultural
Tenancy Act is applicable in the present suit. The learned counsel,
therefore, submits that even if the defendant is declared as
defaulter, he cannot be ejected by the landlord from the suit
premises unless reasonable compensation for construction of
rooms is paid to him which he has constructed in the suit premises
with due permission from the father of the plaintiff. In Thuleswar
Dev Mahanta and Ors v Parmananda Saikia and Ors
reported in 1991(1) Gauhati Law Journal 404, it was
observed by the Hon’ble Gauhati High Court that „no amount of
evidence can be looked into if the facts are not pleaded by
the parties in their pleading‟. Thus a party cannot make out a
new case beyond the pleading, and no evidence can be looked
into where there is no foundation in the pleading. In the present

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suit, the defendant has for the first time raised the issue of
applicably of Section 5(1) of Assam Urban Areas Non Agricultural
Tenancy Act in his argument, although nowhere in his pleading
has he pleaded that Section 5(1) of Assam Urban Areas Non
Agricultural Tenancy Act is applicable in the present suit. As such,
the defendant at this belated stage cannot claim relief under
Section 5(1) of Assam Urban Areas Non Agricultural Tenancy Act.

Even for the sake of argument if we presume that the

defendant is entitled to relief under the aforesaid Act, then also
the defendant has not been able to prove that he has constructed
the house in the suit premises as claimed by him. The defendant
has admittedly not submitted any receipt or cash memo of Rs 1,
10, 000/- (Rupees one lakh ten thousand) only which he claims to
have invested in construction of the RCC building in the suit
premises. Furthur the defendant in his cross examination states
that he has not given the name of the persons who have
constructed the RCC building as claimed by him in his pleading or
his written statement. Moreover, although the defendant in his
cross examination states that he has given the cash memo for the
expenses incurred in the construction of the RCC building to the
father of the plaintiff, he however, has neither in his pleading nor
in his examination in chief mentioned the aforesaid fact thus
leading to the inference that he had not constructed the RCC
building at all because had he constructed the same he would
have obviously kept the documents pertaining to the expenses
incurred by him for the aforesaid construction or have at least
mentioned about it in his pleading or his examination in chief.

From the discussion of Issue No. (2) here-in-above, it is

seen that the plaintiff has been able to prove that the defendant is
a defaulter. According to the provision of the Section 108 (l) of the
Transfer of Property Act, 1882, a lessee is bound to pay or tender,

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TITLE SUIT NO.36/2011
SRI AMARJIT BORAH
VS
SRI NIKUNJA DAS

at the proper time and place, the premium or rent to the lessor or
his agent. In the instant suit the defendant having not paid the
rent due to him, he is liable to be evicted from the suit premises
on the ground of being a defaulter. Hence the plaintiff is entitled
to get the decree for recovery of the tenanted premises as
mentioned in the Schedule of the plaint by evicting the defendant
there-from. The plaintiff is also entitled to recovery of arrears
rents from the month of April, 2009 to April, 2011, i.e., till the
filing of this suit@ Rs 600/- per month in total Rs 14,400/- from
the defendant. In view of the decision in Issue No.3, the plaintiff
is held to be entitled to recover the aforesaid arrear rent. The
plaintiff is entitled to recover future rents@ Rs 600 per month
from the month of May, 2011 till passing of the decree for eviction
subject to payment of the requisite court fee. As regards, mesne
profits from the date of decree till recovery of possession of the
suit premises is concerned, this court is not inclined to grant the
decree for mesne profit in this case in view of the attending facts
of this suit. The plaintiff is, however, entitled to get the cost of the
suit.

This issue is decided accordingly.

ORDER

21. The suit is decreed on contest with cost. The plaintiff is

entitled to get the decree for recovery of the tenanted premises
by evicting the defendant there-from. The plaintiff is also entitled
to get the cost of the suit together with arrear rents from the
month of April, 2009 to April, 2011 i.e., till the filing of this suit@
Rs 600/- per month in total Rs 14,400/- from the defendant.
Moreover, the plaintiff is also entitled to future rents@ Rs 600 per
month from the month of May, 2011 till passing of the decree for
eviction subject to payment of the requisite court fees.

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TITLE SUIT NO.36/2011
SRI AMARJIT BORAH
VS
SRI NIKUNJA DAS

Prepare the decree accordingly.

The judgment is delivered in the open court and the operative

part of the judgment is pronounced in the open court today, the
26th day of June, 2015 and it is given under my hand and seal.

(Uttam Chetri)
Munsiff No. 2,
Tezpur: Sonitpur

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TITLE SUIT NO.36/2011
SRI AMARJIT BORAH
VS
SRI NIKUNJA DAS

ANNEXURE

1. Plaintiff‟s witnesses:
PW 1: Sri Amarjit Borah (the plaintiff)
PW 2: Sri Bijay Borah

2. Plaintiff‟s exhibits:
1. Exhibit 1: Certified copy of Jamabandi of PP No. 28 of
Village: Dekargaon, Mouza: Bahairabpad, District: Sonitpur,
Assam.
2. Exhibit 2: Note written by the defendant on 06.01.2010.
3. Exhibit 2(1): Signature of the defendant.
4. Exhibit 3: Advocate notice issued by advocate D. Bose on
11.04.11.
5. Exhibit 3(1), 3(2) and 3(3): Signatures of Advocate D.
Bose.
6. Exhibit 4 (1) and 4(2): Two numbers of postal receipt
dated 11.04.2011.
7. Exhibit 5 (1) and 5 (2): Two numbers of AD Cards.
8. Exhibit 5(3) and 5(4): Signatures of defendant.

3. Defendant‟s witnesses:
DW 1: Sri Nikunja Das
DW 2: Sri Bharat Chandra Boro
DW3: Sri Bharat Kalita

4. Defendant‟s exhibits:
None

(Uttam Chetri)
Munsiff No. 2,
Tezpur:: Sonitpur

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