H.N. Sarma, J.
1. Way back on 21.09.1977 the plaintiff-petitioner filed the Title Suit No. 78/1977 in the Court of the learned Munsiff, Tinsukia, inter alia, praying for recovery of khas possession of the suit premises evicting the defendant from the two rooms measuring 10' x 10' ft with 6 feet verandah standing over Dag No. 1246(old)/3243 (new) Periodic Patta No. 437 (old)/925 (new) and Dag No. 1485(old)/3212 (new) Periodic Patta No. 437(Old)/ 932(new) of Tinsukia Town with the boundary as mentioned in the schedule of the plaint as suit premises.
2. Admittedly, the area falls within the urban area as defined in Assam Urban Area Rent Control Act, 1972 and the suit was filed for ejectment of the defendant for bona fide requirement of the suit premises by the plaintiff and also on the ground of default in payment of monthly rent to the plaintiff-petitioner, in respect of the suit property which are statutory grounds of ejectment mentioned in the Act. In short, the case of the plaintiff was that she purchased a plot of land measuring 1 Katha 7 Lechas with a barrack type house standing thereon from Shri Sugrib Mahatoo and Shri Ram Charan Mahatoo on 09.05.1973 for valuable considering being part of Dag No. 1246(old)/ 3243 (new) Periodic Patta No. 437 (old)/925 (new) and Dag No. 1485(old)/3212 (new) Periodic Patta No. 437(01d)/932(new) situated at Khargeswar Road, Tinsukia from the defendant has been in occupation of the said two rooms as monthly tenant of Shri Sugrib Mahatoo and Ramcharan Mahatoo at the monthly rent of Rs. 20 per month payable according to English Calendar and after purchase of the property, the original vendors duly informed about the sale of the land and house in favour of the plaintiff by registered letter dated 30.05.1973 through his Advocate asking the defendant/tenant to pay arrear rent from March 1973 to May 1973 and also the future rents to the plaintiff. But the defendant failed to comply with the same. Thereafter, the plaintiff, through his Advocate, issued notice on 10.08.1977 demanding possession of the rooms in question and on receipt of the same the defendant replied through is lawyer vide letter dated 26.08.1977 (Ext. 12). In the said reply the purchase of the suit property has not been denied by the defendant, however, it was stated that the defendant does not know when the plaintiff became owner of the premises. It is admitted in the said reply that the defendant was in occupation of the rooms in question under his landlord late Sital Mahatoo as tenant and was paying rent for the premises to him regularly. It may be stated here that Sital Mahatoo was the original owner of the suit property. The further case of the plaintiff is that the suit premises are necessary for her own bona fide use and occupation. In spite of service of the ejectment notice, the defendant did not vacate the deliver possession of the suit premises. Situated thus, the plaintiff instituted the Title Suit No. 78 of 1977 in the Court of the learned Munsiff, Tinsukia praying for a decree for ejectment of the defendant from the suit premises.
3. The defendant contested the suit by filing written statement denying the contention of the plaintiff. The defendant also submitted that the plaintiff did not acquire valid title by way of purchase from Sugrib Mahatoo and Ram Swarup Mahatoo, both sons of late Sital Mahatoo, as both of them have no right to transfer the suit premises and during the life time of there father, that the plaintiff is not owner of the suit premises she has no right to file the suit. In paragraph 5 of the written statement it is stated that the defendant occupied the suit premises as tenant under late Sital Mahatoo and was not a tenant under Sugrib and Ramswarup. It is also stated that he never admitted the plaintiff as his land lord and, as such, he is not liable to pay rent to the plaintiff in respect of the suit premises and the plaintiff not having right, title and interest, the question of bona fide requirement does not arise. Other usual pleas of defence were also taken in the said written statement.
4. Upon the pleadings of the parties, the learned Munsiff, Tinsukia framed as many as 6 issues as follows -
(i) Whether the defendant is a monthly tenant under the plaintiff as alleged ?
(ii) Whether the defendant is a defaulter ?
(iii) Whether the suit premises are bona tide requirement of the plaintiff ?
(iv) Whether valid notice of ejectment was properly served on the defendant ?
(v) Whether the plaintiff has acquired title to and interest in the suit premises ?
(vi) To what relief, if any, the parties are entitled ?
5. During the course of hearing the plaintiff examined two witnesses whereas the defendant examined one. The plaintiff exhibited as many as 13 documents and the defendant exhibited no document. After hearing the parties and on consideration of the materials and evidence on record including documentary evidence, the learned Munsiff by judgment and decree dated 11.01.1980 and 17.01.1980 respectively decided the Issue Nos. (2), (3) and 5 in favour of the plaintiff and thereby decreed the suit in favour of the plaintiff. As against this, the defendant filed Title Appeal No. 47/86 in the Court of the learned Civil Judge (Senior Division), Tinsukia and the learned appellate Court by the judgment and decree dated 07.12.1987 and 09.12.1987 respectively allowed the appeal by setting aside the judgment and decree passed by the trial Court. As against the said judgment and decree dated 07.12.1987 of the appellate Court below, the plaintiff-petitioner preferred a revision petition being Civil Revision Petition No. 149/88 before this Court. This Court by judgment and order dated 26.02.1993 set aside the judgment dated 07.12.1987 and decree dated 09.12.1987 passed by the appellate Court, i.e., the learned Assistant District Judge, Tinsukia in Title Appeal No. 47/86 and remanded the matter back to the appellate Court below with a direction to decide the Issue Nos. 2, 3 and 5 in accordance with law. While remanding the matter, this Court also observed that it is a fit case for allowing the plaintiff-petitioner to adduce additional evidence under Order 41 Rules 27 and 28 CPC.
6. After the matter was remanded back to the appellate Court, the plaintiff-petitioner examined two more witnesses and exhibited as many as 11 documents, i.e., from Ext. 13 to Ext. 23. The defendant also examined one witness viz. Smti Kanan Bora. From the materials on record it is found that the plaintiff purchased the suit property by a registered sale deed dated 09.05.1973 from Sugrib Mahatoo and Ramswarup Mahatoo, both sons of late Sital Mahatoo, for valuable consideration. Later on, it came to the notice of the plaintiff that there was inadvertent error in mentioning the Dag number and Patta number in the sale deed and on such discovery two deeds of rectification were executed one with Sugrib Mahatoo and other Smti Lakhpati Devi Mahatoo daughter of late Ramswarup Mahatoo (since deceased) exhibited as Ext. 3. Smti Sunia Devi, another daughter of late Ramswarup Mahatoo, executed another deed of rectification. All these deeds were duly registered and executed in favour of the plaintiff rectifying the schedule of the suit property purchased by Ext. 1. The plaintiff also exhibited a certificate issued in her favour by the Additional Deputy Commissioner, Dibrugarh (Ext. 15) certifying that the land in question stands in the name of the plaintiff. By Exts. 16 and 21 the plaintiff exhibited the certified copies of draft Jamabandi and Chita containing names of her vendors and thereafter incorporating her name in those revenue records. All these documents were exhibited without any objection. After remand, the plaintiff examined Shri Sugrib Mahatoo, son of late Sital Mahatoo, one of the vendors of the plaintiff, who admitted sale of the land in favour of the plaintiff. The said witness also stated about the notice served upon the defendant respondent to pay house rents to the plaintiff after the sale of the suit property to the plaintiff. The other witness of the plaintiff Shri Durgesh Chandra Deb, husband of the plaintiff, was examined as PW-2. This witness duly supported the case of the plaintiff and exhibited connected documents. The defendant on the other hand, examined D.W.-1 Smti Kananbala Bora, who is the sister of the defendant. In her examination-in-chief she has stated that she does not know when the suit property was purchased by the plaintiff and further stated that the suit house is under possession of the defendant. It is also stated by her that the Sugrib and Ramswarup have not been paid any rent nor they served any notice. The learned appellate Court after hearing the parties set aside the judgment and decree passed by the learned Munsiff vide judgment and order dated 03.02.1999 and the suit of the plaintiff namely T.S. No. 78/77 was dismissed. Against the said judgment the present revision has been filed.
7. I have heard Mr. Atia, learned counsel for the petitioner. In spite of service of notice, the defendant preferred not to appear before this Court. During the course of hearing Mr. Atia has submitted that the learned appellate Court acted illegally and with material irregularity in reversing the judgment and decree passed by the learned Munsiff in entering into the title of the landlord in a suit between the landlord and tenant regulated and guided under the Assam Urban Area Rent Control Act.
8. I have perused the record including the evidence adduced by the parties including those adduced after remand and the connected documents. It is pertinent to mention here that while remanding the matter back to the appellate Court, allowing the Civil Revision Petition No. 149/88 vide judgment and order dated 26.02.1993 this Court directed the appellate Court to decide the Issue Nos. 2, 3 and 5 in accordance with law. This Court also observed that it is a fit case where the learned lower Court below may allow the plaintiff to adduce additional evidence in exercise of its power under Order 41 Rules 27 and 28 CPC, on the basis of documents filed in the revision petition so that justice may not fall. Accordingly, the parties were allowed to adduce additional evidence and the petitioner, as stated above, has examined two more witnesses and exhibited several documents including deed of rectification and revenue records in support of her case.
9. In an ejectment suit, regulated by the Assam Urban Areas Rent Control Act, the title to property is not material. What is material is whether there exists any relationship of landlord and tenant. In the instant case, it is the admitted case of the defendant that the defendant took the suit premises on rent from Sital Mahatoo, father of the vendors of the plaintiff, as monthly tenant. What the defendant denies and questions is the sale of the suit property in favour of the plaintiff by the sons of Sital Mahatoo to justify their failure to discharge legal obligation to pay monthly rent to the petitioner in respect of the suit premises. The plaintiff having derived title from the heirs of the original owner and the original owner being the landlord of the defendant, the defendant is not permitted to turn around to question the title of the plaintiff to justify his non-performance of the obligation under the Assam Urban Areas Rent Control Act. The Apex Court in Ram Pasricha v. Jagannath, AIR 1973 SC 2335, in para 15 has, inter alia, held that the tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. But in the instant case, the petitioner has by cogent evidence, both oral and documentary; including registered sale deed and deed of rectification has prima facie proved her title in respect of the suit property. Accordingly, denial of the defendant to discharge the obligation to pay rent to the landlord under the Assam Urban Area Rent Control Act is not justified. Section 2(c) of the Assam Urban Area Rent Control Act defines -
'Any person who is, for the time being receiving, or entitled to receive rent in respect of any house whether on his own account, or on account, or on behalf, or for the benefit of any other person, or as a trustee, guardian or receiver for any other person; and includes in respect of his sub-tenant, a tenant who has sublet any house and includes every person not being a tenant who from time to time derives title under the landlord.'
On reading of the said definition, it is quite clear that the present plaintiff is entitled to receive rent in respect of the suit house as landlord and for non-payment of the same the defendant would be a defaulter within the meaning of the Act.
10. The view of the learned appellate Court that the mistake committed by Sugrib and Ramswarup ought to have been rectified by themselves alone cannot be said to be proper in view of facts and circumstances of the present case; inasmuch as, Sugrib himself is a party to the deed of rectification, whereas Ramswarup having expired, his two daughters executed the deed of rectification (Exts. 13 and 14). Abi-partite deed can be rectified by both the parties, if they so agree, in respect of any clerical or typographical error. The Sale Deed (Ext. 1) clearly discloses the intention of the vendors to sell the suit property is favour of the plaintiff petitioner for which the vender duly received the full consideration money. The deposition of Sugrib, after the remand, also clearly disclose such intention, which can also be found from the deed of rectification exhibited vide Exts. 13 and 14. Section 26 of the Specific Relief Act also provides circumstances under which a suit for rectification can be filed. The said provision is applicable when one party to the deed demands for rectification and it is denied by the other. But in the instant case, both the parties to the deed have agreed that the deed should be rectified, inasmuch as, there was an inadvertent error in mentioning the Dag numbers in the Schedule. In my opinion, this is a valid and correct procedure of law and the same cannot be held to be not valid in law and in the instant case Exts. 13 and 14 the original deed Ext. 1 stands rectified.
11. The learned appellate Court misdirected himself in deciding the Issue No. 5 going meticulously to the title of the suit property in a suit for ejectment under the Rent Control Act and also arrived at an incorrect finding not supported by law and materials on record. The learned appellate Court acted illegally in determining the issue involved by misreading the jurisdictional facts. Accordingly, in arriving at the findings on Issue No. 5 the learned appellate Court acted illegally and with material irregularity justifying exercise of revisional powers by this Court.
12. So far as findings on Issue Nos. 1 and 2, i.e., whether the defendant is a monthly tenant under the plaintiff and whether the defendant is a defaulter, the appellate Court reversed the finding on the ground that since the plaintiff failed to establish their right, title and interest on the strength of purchase from the proper owner of the suit property and since the plaintiff is not an authorised agend of the landlord of the defendant, it was held that there was no relationship of landlord and tenant and as such the defendant is not required to pay the monthly rent to the plaintiff. What is lost site of the learned appellate Court is that the plaintiff bear prima facie title of the suit property by virtue of the documents referred to above (Exts. 1, 13 and 14). The name of the plaintiff has also been entered in the revenue record of right including Jamabandi as owner of the suit property. The Additional Deputy Commissioner also issued necessary certificate to that effect, which was exhibited as Ext. 15. The whole basis of the learned appellate Court that the defendant is not a default, is absence of title on the suit property as decided in Issue No. 5. Findings on this issue having been reversed, the findings on Issue Nos. 1 and 2 also cannot be sustained. It is the admitted case of the defendant that he was one of the tenants of the original landlord. When the plaintiff derived her title from the legal heirs of the original landlord, who inherited the property, the plaintiff is entitled to get monthly rent from the defendant. Further definition of 'landlord' under the Act makes the position clear and the defendants are under legal obligation to pay the monthly rent to the petitioner. That having not been done, the defendant is a defaulter in the eye of law. Similarly, the decision of the learned appellate Court that since the plaintiff is not the owner of the suit property, there is no question of bona fide requirement of the suit property for her own use and occupation is also not sustainable and arrived at acting illegally and with material irregularity.
13. In the premises, on the findings in the aforesaid Issue Nos. 1, 3 and 5, the plaintiff is entitled to recover the suit property from the defendant for her bona fide use and occupation and the plaintiff has been able to prove the need for the suit property by placing necessary evidence and materials before the Court. In view of the aforesaid discussions, the impugned judgment and decreed dated 03.02.1999 passed by the learned Civil Judge (Sr. Division), Tinsukia in T.A. No. 47/86 reversing the judgment dated 11.01.1980 and decree dated 17.01.1980 passed by the learned Munsiff, Tinsukia in T.S. No. 78/77 is not sustainable and the same is set aside. The judgment and decree passed by the learned Munsiff, Tinsukia in T.S. No. 78/77 is restored and the plaintiff's suit is decreed accordingly.