Gauhati High Court
Page No.# 1/16 vs On The Death Of Munindra Sen Deka His … on 17 June, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/16
GAHC010218822019
2025:GAU-AS:8139
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/3/2020
MD. RAFIUDDIN AHMED
S/O- MOHIN AHMED, R/O- SARU MOTORIA, DISPUR, GUWAHATI- 781006,
KAMRUP(M), ASSAM.
VERSUS
ON THE DEATH OF MUNINDRA SEN DEKA HIS LEGAL HEIRS
REPRESENTED BY-
1.1:SMTI ANIMA SEN DEKA
W/O LATE MUNINDRA SEN DEKA R/O MANDALOR CHOWK
BELSOR
NALBARI
DISTRICT NALBARI
ASSAM
PIN 781304
1.2:SMTI PAPARI SEN DEKA
D/O LATE MUNINDRA SEN DEKA R/O MANDALOR CHOWK
BELSOR
NALBARI
DISTRICT NALBARI
ASSAM
PIN 781304
1.3:SRI NIRBAN SEN DEKA
S/O LATE MUNINDRA SEN DEKA R/OK.R.B. ROAD
NEAR RAILWAY GATE NO. 8
NEAR SAPNA TRAVELS (TURA COUNTER) PREMISES
BHARALUMUKH
GUWAHATI -09
DISTRICT KAMRUP (M)
Page No.# 2/16
ASSA
Linked Case : RSA/2/2020
MD. RAFIUDDIN AHMED
S/O- MOHIN AHMED
R/O- SARU MOTORIA
DISPUR
GUWAHATI- 781006
KAMRUP(M)
ASSAM.
VERSUS
ON THE DEATH OF MUNINDRA SEN DEKA HIS LEGAL HEIRS
REPRESENTED BY-
1.1:SMTI ANIMA SEN DEKA
W/O LATE MUNINDRA SEN DEKA
R/O MANDALOR CHOWK
BELSOR
NALBARI
DISTRICT NALBARI
ASSAM
PIN 781304
1.2:SMTI PAPARI SEN DEKA
D/O LATE MUNINDRA SEN DEKA
R/O MANDALOR CHOWK
BELSOR
NALBARI
DISTRICT NALBARI
ASSAM
PIN 781304
1.3:SRI NIRBAN SEN DEKA
S/O LATE MUNINDRA SEN DEKA
R/OK.R.B. ROAD
NEAR RAILWAY GATE NO. 8
NEAR SAPNA TRAVELS (TURA COUNTER) PREMISES
BHARALUMUKH
GUWAHATI -09
DISTRICT KAMRUP (M)
ASSAM
Page No.# 3/16
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
Advocate for the appellant(s) : Mr. A Ikbal
Advocate for the respondent(s) : Mr. B Kaushik
Date of hearing : 17.06.2025
& Judgment
JUDGMENT & ORDER (ORAL)
Heard Mr. A Ikbal, the learned counsel appearing on behalf of the appellants
in both the appeals. Mr. B Kaushik, the learned counsel appears on behalf of the
respondents in both the appeals.
2. Both the appeals arise out of separate judgment and decree both dated
22.08.2019 passed in Title Appeal No.64/2017 and Title appeal No.65/2017 by
the Court of the learned Civil Judge No.2, Kamrup(M) at Guwahati (hereinafter
to be referred to as the learned Appellate Court) whereby the appeals filed by
the appellant herein was dismissed thereby affirming the judgment and decree
dated 31.10.2017 passed by the learned Munsiff No.1, Kamrup(M) at Guwahati
(hereinafter to be referred to as the learned Trial Court) in Title Suit
No.85/2011.
3. It is relevant to take note of that the learned Coordinate Bench of this
Court by separate orders passed in both the appeals dated 03.02.2020
Page No.# 4/16
formulated same substantial questions of law. The said substantial question of
law so formulated reads as under:
(a). In a circumstance, where apart from the plea of non-payment of
arrear rent, there are also pleading that the tenancy agreement dated
29.12.2007, which had been relied upon by the plaintiff to establish their
right is to be declared as null and void, whether the counter claim would be
considered to be a claim under the Assam Non Agricultural Urban Areas
Tenancy Act 1955, and if yes, whether the bar of Section 11 of the Act
would be applicable in respect of counter claim.?
4. A perusal of the said substantial questions of law so formulated by the
learned Coordinate Bench of this Court would show that the substantial
questions of law so formulated pertains to as to whether the respondents
herein, who are the legal representatives of the original defendant could have
maintained the counter claim for eviction of the plaintiff without a notice under
Section 11 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (for
short, ‘the Act of 1955’).
5. For adjudicating as to whether the above substantial question of law is
involved in both the appeals, this Court finds it relevant to take note of the facts
which led to the filing of the present appeals.
6. For the sake of convenience, the parties herein are referred to in the same
status as they were before the learned Trial Court.
Page No.# 5/16
7. The appellant herein as plaintiff had instituted a suit before the Court of the
learned Munsiff No.1 Kamrup, {now Kamrup(M)} at Guwahati, which was
registered and numbered as Title Suit No.85/2011.
8. It is the case of the plaintiff that the plaintiff was a businessman by
occupation. He was a tenant/lessee under the defendant in respect to a plot of
land ad measuring 4687 sq.ft. covered by Dag No.395,(O) of patta
No.547(N)/967(O) of village Bharalumukh under Mouza Guwahati. It is
categorically mentioned in paragraph 3 of the plaint that the plaintiff is a
monthly tenant under the defendant in respect to the suit premises. The plaintiff
had entered into an agreement in respect to the suit premises since 2003 on a
monthly rental basis and had been running his business of transportation and
parking under the name and style of M/S Achik Sapna Travels which is a
proprietary business concern of the plaintiff. It was stated that the land in
respect to which the tenancy agreement was entered into was a low-lying land
and the plaintiff spent huge amount of money for filling earth by way of gravel.
The business of the plaintiff having flourished, he constructed a semi RCC
building containing restrooms and toilets by investing huge amounts of money,
which he did within 5(five) years from the date of entering into the tenancy.
9. It was further mentioned that in the month of December 2007 and more
particularly, on 29.12.2007, the plaintiff entered into a tenancy agreement with
the defendant for a period of four years i.e. from 01.01.2008 to 31.12.2011 and
the tenancy was on monthly basis and the rent was re-fixed at Rs.1950/- which
was payable within the first week of every month.
Page No.# 6/16
10. It was further stated that the rent for the rented premises which was fixed
at Rs.1950/- per month was subsequently enhanced to Rs.2000/- per month. It
is the case of the plaintiff that in the month of February, 2011 and, more
specifically, on 12.02.2011, the defendant all of a sudden with ulterior motive
approached the plaintiff and demanded him to hand over the possession of the
suit premises along with the houses and structures thereon. It is under such
circumstances, the plaintiff filed a suit seeking a decree that the plaintiff had
right to run his business from the suit premises as described in the Schedule
appended thereto in the plaint being a tenant and a tenancy still subsisting in
between the plaintiff and the defendant; a decree for permanent injunction etc.
11. The defendant filed a written statement wherein he had admitted giving the
suit land on lease on the basis of an unregistered lease deed dated 15.02.2003,
which was subsequently renewed vide an agreement dated 15.02.2005. It was
denied that the suit land was a low-lying vacant land.
12. It was categorically stated that there was a dwelling house and other
structures of the defendant upon the suit land which were standing on the
premises and only on a portion of a vacant land in the close vicinity of the
defendant was leased out to the plaintiff vide the agreement dated 15.07.2003
which was subsequently renewed on 15.12.2005. It was categorically denied
that the plaintiff had constructed any house or shed as claimed by the plaintiff
and whatever structures are standing on the suit premises were constructed by
the defendant without even taking any financial assistance from the plaintiff.
Page No.# 7/16
13. In respect to the lease deed entered in the year 2007, it was averred that
the plaintiff influenced the defendant to execute the lease agreement for a
period of 3(three) years, but surreptitiously got the instrument prepared for a
period of 4(four) years. It was further mentioned that in the lease deed, the
rent was mentioned as yearly rent of Rs.1950/- in the year 2007 which was
given on lease to the same party at a monthly rent of Rs.12,000/- in the year
2003. The defendant further denied all the allegations made in the plaint. In
addition to that, the defendant filed a counter claim whereby sought for a
decree declaring the deed of lease dated 29.12.2007 as null and void,
inoperative and not binding upon the defendant; a decree for recovery of the
possession of the suit land by evicting the plaintiff from the suit land; a decree
of permanent injunction restraining the plaintiff, his men, agents and servants
from entering into the suit land and also restraining them from disturbing the
peaceful possession of the counter claimant upon the suit land.
14. It is very pertinent at this stage to take note of that the plaintiff filed an
additional written statement against the counter claim of the defendant. In the
said additional written statement filed by the plaintiff, there is not a single
whisper about the non-compliance to Section 11 of the Act of 1955. Be that as it
may, the plaintiff denied the averments contained in the counter claim and
reiterated the statements made in the plaint. It is seen that the learned Trial
Court on the basis of the pleadings framed 7(seven) issues. The said issues are
mentioned hereinunder:
“1. Whether the suit of the plaintiff and whether the counter claim is
maintainable?
Page No.# 8/16
2. Whether the tenanted premises measures 4687 sq. ft. as stated in the
schedule of the plaint or it measures 2645 sq.ft?
3. Whether the plaintiff has made permanent construction over the suit
land within 5 years of commencement of tenancy?
4. Whether the plaintiff has defaulted in the payment of rent?
5. Whether the plaintiff is entitled to the reliefs as prayed for?
6. Whether the defendant is entitled to the reliefs as prayed for?
7. To what other relief/reliefs, if any the parties are entitled to?”
15. On behalf of the plaintiff, two witnesses were examined and five documents
were exhibited. On behalf of the defendant also three witnesses were examined
and various documents from exhibit-A to exhibit-L were exhibited.
16. It is relevant to take note of that not only in the additional written
statement filed by the plaintiff to the counter claim, there is no plea pertaining
to Section 11 of the Act of 1955, even there was no issues, therefore, framed.
17. Be that as it may, while deciding the issue No.1 arguments were advanced
on the aspect pertaining to non-compliance to Section 11 of the Act of 1955 as
would be seen from the discussions that was made by the learned Trial Court in
respect to Issue No.1. The learned Trial Court while dealing with the said
provision observed that the main purpose of service of notice as mandated
under Section 11 is that a tenant under bona fide occupation of the land under
the tenancy is not taken by surprise on a suit filed by the landlord for his
Page No.# 9/16
eviction. It was observed that the suit was filed by the plaintiff alleging that the
defendant had demanded the vacation of the suit land from the plaintiff and had
also threatened him to evict from the suit land on 12.02.2011. However, the
counter claim was filed on 16.05.2011 and apparently the plaintiff had sufficient
notice as contemplated by Section 11 of the Act of 1955 and, as such, the
argument of the learned counsel appearing on behalf of the plaintiff was held to
be not tenable.
18. It is relevant to take note of that in respect to the Issue No.2, the learned
Trial Court came to a categorical finding that the tenanted premises ad
measured 4687 sq.ft. In respect to the Issue No.3, the learned Trial Court came
to a categorical finding on the basis of the evidence on record that the plaintiff
had failed to establish through evidence that he made construction over the suit
land within 5(five) years of the date of tenancy, which commenced from the
year 2003. In respect to the Issue No.4, the learned Trial Court arrived at the
finding that the plaintiff was a defaulter in payment of rent since February 2011.
In respect to the Issue Nos. 5, 6 and 7, the learned Trial Court held that the
plaintiff was not entitled to the benefit under Section 5(1)(a) of the Act of 1955.
However, the plaintiff having made certain construction would be entitled to
compensation in terms of Section 5(1)(b) of the Act of 1955 and accordingly,
observed that the plaintiff would be entitled to recover an amount of
Rs.1,75,000/- as compensation for the defendant.
19. It is also relevant to take note of that in respect to the issue No.5, the
learned Trial Court held that the lease deed between the plaintiff and the
defendant expired on 31.12.2011 and the same was not renewed after that.
Page No.# 10/16
Under such circumstances, the learned Trial Court observed that the tenancy
between the plaintiff and the defendant ceased to exist and the same was no
longer subsisting.
20. Being aggrieved, the Appellant herein preferred two appeals before the
learned First Appellate Court, which was registered and numbered as Title
Appeal No.64/2017 and Title Appeal No.65/2017.
21. Title Appeal No.64/2017 was directed against the dismissal of the suit,
whereas Title Appeal No.65/2017 was against the part decreeing of the counter
claim to the extent allowed by the learned Trial Court. The learned First
Appellate Court vide the judgment and decree dated 22.08.2019 dismissed the
appeal being Title Appeal No.64/2017 thereby affirming the finding of facts
which has been arrived at by the learned Trial Court. The learned First Appellate
Court upon hearing the parties, came to a categorical opinion on the findings of
facts that as there was no construction which was proved to have been made
within 5(five) years from entering into the tenancy in the year 2003, such
construction so made in the year 2009/10 after a renewed contract on
29.12.2007 would not grant the benefit under Section 5(1)(a) to the plaintiff.
22. On the aspect of Section 11, the learned First Appellate Court after taking
into account the judgment of the learned Coordinate Bench of this Court in the
case of Satish Chandra and others Vs. Jagadish Nath and Others dated
07.02.2008, reported in RSA No.130/1999 opined that as the plaintiff had
already filed a suit for protection against eviction, it was deemed that he had
Page No.# 11/16
already the notice that the landlord intended to evict him from the suit
premises. So, further notices in writing under Section 11 of the Act of 1995
before filing the counter claim was not necessary as the sole purpose of the
notice was not to take the tenant by surprise. It was observed that the notice
would be only mandatory when a suit is filed for ejectment and as in the instant
case, the ejectment suit has been filed as a counterclaim after filing of the suit
by the plaintiff. The Notice under Section 11 of the Act of 1955 was, therefore,
held to be not necessary.
23. By another judgment and decree dated 22.08.2019, the Title Appeal No.
65/2017, was also dismissed making similar observations. It is under such
circumstances the present appeals have been filed.
24. For answering the substantial question of law as to whether it is involved in
the instant case, this Court finds it relevant to take note of Section 11 of the Act
of 1955 which is reproduced hereinunder:
“11. No suit for ejectment except for arrears of rent shall be instituted until after the
expiration of one month from the date of the receipt by the tenant of a notice in writing
by the landlord requiring the tenant to surrender possession of the land in favour of the
landlord.”
25. From a reading of Section 11 of the Act of 1955, it is apparent that no suit
for ejectment except for arrear of rent shall be instituted until after expiry of
expiration of 1(one) month from the date of the receipt by the tenant of a
notice in writing by the landlord requiring the tenant to surrender possession of
the land in the favour of the landlord.
Page No.# 12/16
26. Section 12 stipulates that the notice has to be served in the manner as
prescribed in the Rules.
27. Rule 5 of the Assam Non-Agricultural Tenancy Rules, 1955 (for short, ‘the
Rules of 1955) stipulates that the notice referred to in Section 11 shall be
served personally or sent by registered post with acknowledgement due.
28. It is seen that both the Courts below while dealing with the question of
Section 11 had opined that as the defendant had filed a counter claim and not a
suit and the plaintiff had notice that the defendant wants eviction of the plaintiff
as admitted in the plaint itself, there was no requirement of any separate notice.
In the opinion of this Court, the said view so taken by both the Courts below
may not be the correct position of law, in view of a reading of Section 11 of the
Act of 1955 which stipulates that the notice has to be in writing and served in
terms with Rule 5 of the Act of 1955. But the question arises in the instant
proceedings as to whether the defendant in the suit can be non-suited or the
counter claim dismissed as not maintainable on the ground that there was no
notice.
29. It is relevant to take note of at this stage that Section 5(2) of the Act of
1955 stipulates that no tenant shall be ejected by his landlord from the land of
the tenancy except in execution of a decree for ejectment passed by a Court of
competent Civil Court. Further to that, Section 5(3) of the Act of 1955 stipulates
that no decree for ejectment passed on the ground of non-payment of rent shall
Page No.# 13/16
be executed within a period of 30 days from the date of the decree and if the
tenant pays to the Court, whose duty it is to execute the decree, the entire
amount payable under the decree within the aforesaid period, the Court shall
record the decree as satisfied. Therefore, it would be seen that other than
eviction sought on the ground of non-payment of rent, a notice under Section
11 is required. However, inspite of the notice, the tenant cannot be evicted from
the tenanted land without a decree of ejectment passed by a Court of
competent jurisdiction. Therefore, the question arises as to whether the notice
in question under Section 11 can be said to be a mandatory requirement for
entertainment of a suit or even a counter claim. The answer to the same can be
found from the judgment of the 7(seven) Judges Bench of the Supreme Court in
the case of V. Dhanapal Chettiar Vs. Yesodai Ammal reported in (1979) 4
SCC 214, wherein the Supreme Court observed that under the State Rent
Control Acts, a tenant cannot be evicted without a decree of the Court. It was
also observed that issuance of a notice does not bring to an end such
relationship on account of the protection given to the tenant under the State
Rent Control Acts. It was, therefore, held that under such circumstances, it is
not necessary for the landlord to terminate the contractual relationship to obtain
possession of the premises for evicting the tenant. It was categorically held that
the requirement of Notice in the State Rent Control Act was a mere surplusage.
30. This Court finds it relevant to take note of paragraphs 18 and 19 of the said
judgment which is reproduced hereinunder:
“18. Lastly our attention was drawn to the decision of this Court in Firm Sardarilal
Vishwanath v. Pritam Singh. The lease in that case had come to an end by efflux of
time. A tenant continued in possession and became a so-called statutory tenant. The
Page No.# 14/16argument put forward before this Court that a fresh notice under Section 106 of the
Transfer of Property Act was necessary was rejected on the ground : (SCC p. 10, para
18)
“Having examined the matter on authority and precedent it must be frankly
confessed that no other conclusion is possible on the first principle. Lease of urban
immovable property represents a contract between the lessor and the lessee. If
the contract is to be put to an end it has to be terminated by a notice to quit as
envisaged under Section 106 of the Transfer of Property Act. But it is equally clear
as provided by Section 111 of the Transfer of Property Act that the lease of
immovable property determines by various modes therein prescribed. Now, if the
lease of immovable property determines in any one of the modes prescribed under
Section 111, the contract of lease comes to an end, and the landlord can exercise
his right of re-entry. The right of re-entry is further restricted and fettered by the
provisions of the Rent Restriction Act. Nonetheless the contract of lease had
expired and the tenant lessee continues in possession under the protective wing of
the Rent Restriction Act until the lessee loses protection. But there is no question
of terminating the contract because the contract comes to an end once the lease
determines in any one of the modes prescribed under Section 111. There is,
therefore, no question of giving a notice to quit to such a lessee who continued in
possession after the determination of the lease i.e. after the contract came to an
end under the protection of the Rent Restriction Act. If the contract once came to
an end there was no question of terminating the contract over again by a fresh
notice.”
If we were to agree with the view that determination of lease in accordance with
the Transfer of Property Act is a condition precedent to the starting of a proceeding
under the State Rent Act for eviction of the tenant, we could have said so with respect
that the view expressed in the above passage is quite correct because there was no
question of determination of the lease again once it was determined by efflux of time.
But on the first assumption we have taken a different view of the matter and have come
to the conclusion that determination of a lease in accordance with the Transfer of
Property Act is unnecessary and a mere surplusage because the landlord cannot get
eviction of the tenant even after such determination. The tenant continues to be so
even thereafter. That being so, making out a case under the Rent Act for eviction of the
tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis
of the determination of the lease by issue of notice in accordance with Section 106 of
the Transfer of Property Act.
19. For the reasons stated above we hold that the High Court was right in its view
that no notice to quit was necessary under Section 106 of the Transfer of Property Act
in order to enable the landlady-respondent to get an order of eviction against the
tenant-appellant. But we were told by learned counsel for the appellant that he had
some more points to urge before the High Court to challenge the order of eviction. We
do not find from the judgment of the High Court that the appellant was prevented from
supporting the orders of the courts below in his favour by urging any other point. No
point of substance could be indicated before us which was worth consideration after a
clear and definite finding by the appellate court that the respondent required the
Page No.# 15/16
premises bona fide for a personal necessity. We do not think it advisable to delay the
proceeding any further and send back the case to the High Court on this account. We
accordingly dismiss the appeal but in the circumstances direct the parties to bear their
own costs throughout.”
31. In the backdrop of the above law laid down by the Supreme Court, this
Court is of the opinion that as the tenant/appellant herein cannot be evicted
even after notice is issued under Section 11 of the Act of 1955 without there
being a decree of a Court of competent jurisdiction in view of Section 5(2) of
the Act of 1955, the notice under Section 11 of the Act of 1955 is a mere
surplusage. Therefore, on the ground that there was no notice under Section 11
of the Act of 1955 issued prior to filing of the counter claim, the defendant who
was the counter claimant cannot be non-suited.
32. Accordingly, the substantial question of law so formulated by the learned
Coordinate Bench of this Court by orders dated 03.02.2020 in both the Appeals,
in the opinion of this Court are not involved in the appeals. The appeals,
therefore, stand dismissed with costs quantified at Rs.11000/- each. Further, the
counter claimant/respondents herein shall be entitled to costs throughout the
proceedings.
33. The records be returned back forthwith.
34. Interim order, if any, stands vacated.
JUDGE
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Comparing Assistant