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PETITIONER: JOY NATH GOALA & ORS.

       Vs.

RESPONDENT: BHABANI PRASAD CHOUDHARY & ORS.

DATE OF JUDGMENT:       03/03/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned.      Leave granted  . We  have heard  the  counsel  on  both sides.      This appeal  by special  leave arises from the judgment of the  Guwahati High  Court ,  made on  November 29,1990 in second Appeal No.34 of 1983.      The admitted  position is  that one  Susil  Goala,  the Predecessor in  interest of the appellants in respect of the property in  question had  purchased the same on May 8,1964. Further admitted  position is  that in  a suit  for eviction initiated in  the year 1947 a compromise decree came to made on January  26, 1948  under which  the respondents  who were tenants  in  the  property  had  undertaken  to  vacate  the premises after  expiry of  three  years  .  The  period  had expired on  January 25,1951  but  the  respondents  did  not surrender possession  of the  premises. Consequently,  after eviction notice  was given  in the  year 1977,  the suit for declaration of  title to  and ejectment  of the  respondents from the  premises was  sought and  after trial,  the  trial Court decreed  the suit  and on appeal it was confirmed. But in second  appeal, the learned Judge reversed the decree and dismissed the  suit on the finding that one Bhuban Choudhury was the co-tenant with the respondents and he was not made a party to  the suit;  as a  consequence, the suit was bad for non-joinder of  the necessary party. The High Court has also found  that   the  appellants   had  not   proved  that  the respondents had  been in  possession for  not more  than  12 years and  that, therefore,  the suit  is not  maintainable. Thus this appeal, by special leave.      We find force in the contention of shri N.R. Choudhury, learned counsel  for the  appellants, that the view taken by the High  Court is  wholly incorrect.  As regards  the first point, Bhuban  choudhury was  a tenant  at one point of time and ,  in fact , in the prior suit filed in 1947, he had not claimed  any   interest  and   had  remained  only  proforma defendant to  the suit  and  the  respondents  had  suffered consent  decree. It was also admitted position that the suit was filed  against the  respondents and  not against  Bhuban Choudhury who  disclaimed interest. In the cross-examination

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of the  appellant it has been suggested that: "I do not know where Bhuban Choudhury is. After getting written statement I did  not   made  enquiry   about  Bhuban   Choudhury."  This suggestion amounts  to  an  implied  admission  that  Bhuban Choudhury was  not residing  in the premises in question. It clearly appears  that Bhuban  Choudhury was not claiming any interest as  a licensee  under the  compromise decree, dated January 26,1948  nor  was  he  in  possession  of  the  suit premiss. As  a consequence,  the omission  to implead Bhuban Choudhury was of no Consequence and the suit was not bad for non- joinder of necessary parties.      It is  seen  that  the  respondents  have  not  pleaded adverse possession  in the  pleadings nor  has an issue been raised in  that behalf.  When the  appellants claimed  their title to the property on the basis of the sale-deed , unless the respondents  establish by  evidence alluende by pleading adverse possession and proof of disclaimer of their right in their possession  as licensees  asserting their own right to remain in possession disclaimer the title of the respondent, the question  of adverse  possession would  not arise, It is neither so  pleaded an issue raised nor has any finding that the appellants  had not proved that the respondents were not in   possession of  the property  adverse to  the appellants right. Therefore,  the question of adverse possession of the respondents does not arise.      Under these  circumstances, it  is  contended  for  the appellants by  Sri Sanyal,  the learned senior counsel, that under the  Assam Non-Agricultural  Urban Areas  Tenancy Act, 1995, the  respondents cannot  be ejected  as they  are  the tenants of  the   premises. Even  this sifting  stand has no firm  foothold   and  has  become  slippery  and  stands  no scrutinty. It  is seen  that by  application of section 2 of the act,  with a non obstante clause, if a person comes into possession as  a tenant  5 years  prior to the Act came into force and  constructed the  house  on  the  land  withe  the permission of  the landlord,  the tenant  cannot be  ejected except in accordance with the provisions of the Act, Section 5 of  the Act, therefore, has no application to the facts in this case.  It is  not the case of the respondents that they are continuing to pay the rent or that they have within five years  of  the  coming  into  force  of  the  Act,  obtained permission and  constructed the  building. On  the facts  in this case,  it is  seen that they have been possession prior to 1946.  After the term in the consent decree expired, they have remained  in unlawful  possession without  any right or interest in the property.      Once the  tenancy has  been terminated  by a compromise decree, they  cannot  claim  their  continuance  as  tenants unless there is a further agreement between the landlord and tenant, after  the decree.  That is  not  the  case  of  the respondents. Therefore,  the Act  is clearly inapplicable to the fact-situation.      The appeal  is accordingly  allowed. The  judgment  and decree of  the High  Court stand  set aside  and that of the trial court and appellate Court stand confirmed. No costs.