ORDER
H.N. Sarma, J.
1. This revision petition is directed against the judgment and decree dated 12-10-2001 passed in title Appeal No. 5/96 passed by the learned Civil Judge (Senior Division) No. 2, Guwahati, reversing the judgment and decree dated 6-11-1995 passed by the Munsiff, Rangia, in Title Suit No. 22/88 dismissing the suit of the plaintiffs/respondents.
2. I have heard Mr. A.R. Benarjee, learned senior counsel for defendant /petitioners assisted by Ms. B. Choudhury, learned Counsel and Mr. P.K. Kalita, learned Counsel for the plaintiffs.
3. In order to properly appreciate the contentions raised by the learned Counsel for the parties, a brief discussion of relevant facts is necessary.
The plaintiffs/respondents filed a Title Suit No. 130/76 in the Court of Sadar Munsiff, Guwahati against the predecessor in interest. After the death of the original defendants Sri Radheshyam Paul, the names of the present petitioners were substituted by the Trial Court vide order dated 18-5-1985. The plaint so filed by the plaintiffs was amended and as per the amended plaint, it is alleged that the plaintiffs are the sole owners of the suit property mentioned in Schedule-A to the plaint and the defendants have been occupying the same since 1-3-1972, agreeing to pay rent at the rate of Rs. 13.00 per month. It is alleged that since the commencement of the tenancy the defendant defaulted in payment of the house rent in spite of demand notice dated 9-9-1976 issued by registered post demanding payment of the arrear rent and for vacating the suit premises but without any effect. Consequently, the plaintiffs filed the suit for recovery of arrear rent for three year amounting to Rs. 468.00 and ejectment of the defendant from the suit premises. It has also been alleged in the plaint that the defendant in collusion with the staff of the concerned Municipal Board obtained registration of the suit house shown in the original plaint in their names as Holding No. 106 converted by the Rangia Municipal Board vide order dated 6-6-1986. It is asserted that the house originally belonged to the plaintiffs and earlier the house was registered in the name of the original plaintiffs Keshab Lahkar and the defendant are entitled to get registration of the holding in their names. It is pertinent to note herein that the original plaintiffs Keshab Lahkar having been expired during the pendency of the suit, the names of the present respondents were substituted as legal heirs vide order dated 12-11-1980. The plaintiffs also asserted that during the pendency of the suit (before the amendment of the plaint), in the month of March, 1998 the defendant raised asbestos chali. On the aforesaid premises the plaintiffs prayed for reliefs
1. For a decree for khas possession of the premises described in Schedule (A) by remaining the defendants from the land and house thereon.
2. For a decree for arrears of rent to the extent of Rs. 444/- may be passed against the defendants with cost of the suit.
3. For a decree that if the defendants do not admit the relationship of landlord and tenant the amount may be recovered as damages for wrongful use and occupation of the suit land and the houses thereon.
3(A) For a decree declaring the registration of the houses on the land in schedule in the name of the defendant is illegal, void and inoperative.
4. For any other reliefs.
3A. In the amended Schedule-A the land measuring 1 Katha covered by KP Patta No. 47, Dag No. 52, old holding No. 105, (new holding No. 62, Ward No. 1) with thatched houses, two being dwelling houses and one being coking shed and a tinchali belonging to the plaintiffs situated at Rangiya town in the district of Kamrup, bounded by
North- P. W. D. Road.
South- Plaintiffs land.
East- Modan Lahkar and Ors.
West- Plaintiffs own land and house.
4. The defendant contested the suit by filing written statements and denied the contents of the plaint. The defendant claimed that both Shri Dayal Hari Paul and Shri Mantu Chandra Paul, sons of late Radheshyam Paul, purchased land measuring 1 Katha and thereafter 10 Lachas from Sambhu Mahato jointly by KP Patta No. 47, Dag No. 52 in the year 1972 and obtained khas possession over the said land. It is claimed by the defendant that they constructed four thatched houses for dwelling and constructed another house for starting a tea stall on the land of Maulavi Taharat Ali. The said houses were also inserted in holding No. 106. The defendant have no claim in holding No. 105 and denied to have occupied the thatched house on monthly rent of Rs. 13.00 as claimed by the plaintiffs. The defendant, in fact, denied the title of the landlord over the suit premises and prayed for dismissal of the suit with cost of Rs. 500.00 under Section 35, CPC.
5. Upon perusal of the plaint and written statements, the learned trial Court framed the following issues:
(1) Is there any cause of action in the suit?
(2) Whether the suit is bad for non-joinder of parties?
(3) Whether Sambhu Mahato was an occupancy tenant under Durgeswar Buzar Baruah in respect of the suit land and got patta in his name?
(4) Whether the suit land was purchased from Sambhu Mahato by the father of the defendants?
(5) Whether the suit houses belonged to the defendants?
(6) Whether the defendants were tenants under the plaintiffs and whether the defendants have become defaulters for non payment of rent and therefore they are liable to be ejected from the suit land and houses?
(7) To what relief(s), the plaintiffs is entitled?
6. During the course of the hearing the plaintiff examined four witnesses including themselves whereas the defendants examined two witnesses. After hearing both the parties and upon consideration of the case records, the learned trial Court dismissed the suits vide Judgment and Decree dated 6-11-1995. It may be mentioned herein that the original Title Suit No. 130/76 was later on converted to Title Suit No. 20/82 and subsequently converted as Title Suit No. 22/ 88. Aggrieved by the Judgment and Decree passed by the learned trial Court the plaintiffs/respondents filed Title Appeal No. 5/96 in the Court of the Civil Judge (Sr. Division), Guwahati. The learned appellate Court after hearing the parties and on perusal of the materials available on records allowed the appeal by reversing the Judgment and Decree passed by the learned trial Court, vide Judgment and Decree dated 12-10-2001 and decreed the suit of the plaintiff for recovery of khas possession by ejecting the defendants from the suit premises for realization of arrear rent. Challenging the aforesaid Judgment and Decree passed by the learned appellate Court, the present revision petition has been filed by the defendants/petitioners under Section 115, CPC.
7. I have considered the rival submissions made by the learned Counsel for the parties and also perused the materials available on record.
In the-instant case, the defendants having been denied the title of the plaintiffs over the suit land and premises an additional issue being Issue No. 8 was framed by the learned trial Court. The said issue was decided along with Issue Nos. 5 and 6. In deciding the same, the learned trial Court took note of the fact that one of the plaintiffs in his cross-examination admitted that the defendants have vacated the suit premises in the year 1969 and they have been staying in their own house. It is further held by the learned trial Court after appreciating the evidence adduced by the PWs that Radheshyam Paul was the owner of the suit premises. But the learned trial Court failed to take note of the Ext. 3 which is the final judgment passed in Title Suit No. 27/72. The said judgment disclosed that TS No. 27/ 72 filed by Sambhu Mahato claiming declaration of right, title and interest over the land including the suit land was dismissed. However, the learned trial Court put heavy reliance on the Ext. “Cha” which is the judgment and order passed by the learned Revenue Board which shows that Sambhu Mahato has right over of a plot of land measuring 1 Bigha covered by Patta No. 47, Dag No. 52 by the Ext. “Cha”, and the matter to the Deputy Commissioner for re-decision in the matter on the prayer for mutation made by the present revision petitioner. The learned trial Court also observed that the plaintiffs have not challenged the validity of the sale deed executed by late Sambhu Mahato in favour of the defendants by filing title suit before instituting the present suit. On such consideration, particularly, the plaintiffs having vacated the suit land and houses in the year 1969/1970 and stayed in their own house, the learned trial Court found that it was not proved that defendants were the tenants and Issue Nos. 5 and 6 were decided in negative.
8. The learned appellate Court while discussing those issues, namely Issue Nos. 5, 6 and 8 considered the Judgment and Decree passed in the earlier Title Suit No. 27/ 72. Referring to the said Judgment and Decree. Mr. Benarjee, learned Senior counsel, has drawn my attention to the fact that in its ultimate analysis the Issue Nos. 5, 6 and were decided in negative by the learned trial Court and held, inter alia, “the plaintiffs have no right, title, interest or possession over the suit land”. A prominent question arose for decision in that suit was whether late Sambhu Mahato had right, title, interest or possession over the land in question and the same was found in negative, consequently dismissing the suit. In such a situation, it is submitted by Mr. Benarjee that as per the observations in Issue Nos. 5, 6 and 8, the vendor of the defendants must had right, title and interest to transfer the suit land and the learned appellate Court illegally and mis-appreciating the evidence and materials on record reversed the decree, which is untenable in law.
9. The alleged admission of the plaintiffs on which heavy reliance was put by the learned trial Court is, in fact, a perverse finding, inasmuch as, the plaintiff No. 1 immediately after stating that the defendants vacated the suit houses in the year 1969 has further stated that in the year 1972 in the month of March, the defendants again returned back to the suit premises and this vital aspect was left out of the consideration by the learned trial Court and this statement of the plaintiffs is in consonance with the statements made in the plaint, inasmuch as, the claim of the plaintiffs is that the suit premises were taken into rent in the month of March, 1972. The other considerations of the learned Trial Court was that the order of the revenue Board set aside the mutation order. The order of mutation is only to facilitate the payment of land revenue. Revenue Court is not entitled to decide title in respect of landed property, which is the subject matter of Civil Court. The order of mutation does not confer any title, which has been categorically held by the Apex Court in the case of Smt. Sawarni v. Smt. Inder Kaur and Ors. . Balwant Singh and Anr. v. Daulat Singh (dead) by LRs and Ors. and other cases decided by this Court. Consequently, the finding of the learned Trial Court is not tenable in law on that count.
10. The learned appellate Court vividly considered the Municipal records and the statements of the witnesses and found on such factual assessment that the holding No. 81 which is numbered as 62 comes from the holding No. 105 where the defendants were the tenants. The learned appellate Court on consideration of the evidence and materials on record, particularly, going through the Ext. 3 held that the vendor of the defendants not having title the defendants cannot obtain right, title and interest by purchase from him and in that view of the matter, the defendant has no right, title and interest over the land covered by Dag No. 52, Patta No. 47.
11. The learned appellate Court also found that there was relationship of landlord and tenant between the plaintiffs and defendants although the defendants denied the same. A tenant is estopped from questioning the title of the landlord during the continuance of the tenancy under the provisions of Section 116 of the Evidence Act. Thus on the basis of defendant’s denial of the title of the plaintiffs over the suit land and premises, the learned appellate Court after thorough discussions of the proved facts in the light of the exhibited documents, evidence and materials found the difference taken by the plaintiffs is not tenable and consequently decreed the suit of the plaintiffs. The learned appellate Court has vividly considered the relevant materials and evidence on record in passing the impugned judgment and decree and has not committed any material irregularity or illegality justifying the reversal of the findings arrived at by him. The Apex Court in the case of Sri Ram Pasricha v. Jagannath and Ors. , has held that under the general law in a suit between the landlord and tenant the question of title to the leased property is irrelevant. The Apex Court further held that in such a suit, the title of the landlord is to consider only prima facie. (Ref: and (2002 3 SCC 385) (Sic).
12. The power of revisional Court under Section 115, CPC, being the power of superintendence of the High Court to keep the subordinate Court within its bounds and to correct the jurisdictional error, I do not find that the learned appellate Court has committed any such error in passing the impugned judgment.
13. On such considerations, I do not find any merit in this revision petition and accordingly stands dismissed, directing the parties to bear their own costs. Registry is directed to send down the records forthwith.