SMT. SURUJI UPADHYA Vs. GOSTHA BEHARI DAS
LAWS(GAU)-1973-2-12
HIGH COURT OF GAUHATI
Decided on February 02,1973

Smt. Suruji Upadhya Appellant
VERSUS
Gostha Behari Das Respondents

JUDGEMENT

R.S. Bindra, J. - (1.) IN this second appeal the plaintiff Suruji Upadhya challenges the correctness and validity of the concurrent decrees of dismissal of her suit for khas possession of the land described in the schedule appended to the plaint passed by the Munsiff at Karimganj and the Assistant District Judge, Silchar.
(2.) ACCORDING to the allegations made by the plaintiff her husband Tribhuban Upadhaya had purchased the land in dispute from the defendant Gostha Behari Das by a registered deed dated 7 -12 -58 and had let out the land to the vendor in his capacity as non -occupancy tenant on the same date against the payment of 20 maunds of paddy per annum. The defendant having made a default in the payment of the rent. Tribhuban Upadhaya filed the Rent Suit No. 15 of 1962 against the defendant and that suit ended in a decree based on compromise. On the death of Tribhuban Upadhaya. his estate, the plaintiff pleaded. was exclusively inherited by her, as she required the demised land for her own use after the death of her husband and since the period of lease mentioned in the Kabuliyat Ext. 1 had expired, she filed the suit culminating in this appeal on 6 -6 -67 for khas possession of the land on eviction of the defendant on whom she had previously served a notice calling upon him to vacate the land by 13 -4 -67. The suit was resisted by the defendant on diverse grounds, such as. it is not maintainable in the form laid, it is barred by time, waiver, estoppel and acquiescence, the plaintiff had not served any valid notice of ejectment on him, it is bad for non -joinder of parties and it is also shut out by the provisions of the Sylhet Tenancy Act, On merits, though the defendant admitted having sold the land to the plaintiff's husband but pleaded that it had been sold subject to the condition of re -purchase. He admitted further that he had entered into possession of the land as a tenant with effect from 7 -12 -58 on the term that he shall pay 20 maunds of paddy per annum by way of rent. He also conceded that the plaintiff's husband had sued him for recovery of Rs. 600/ - as arrears of rent and that that suit resulted in a decree for Rs. 200/ - on the basis of settlement reached between the parties. Another term of the compromise then reached, according to the defendant, was that the plaintiff's husband had agreed that he (the defendant) would continue in possession of the land "as tenant with jote right on condition of paying Chukti money at the rate of Rs. 100/ - per annum instead of giving 20 maunds of paddy per year". This concession, the defendant urged, he had been able to extract from Tribhuban Upadhaya as a consideration for his giving up the claim of re -purchase of the land for the price at which he had earlier sold it to him. The defendant pleaded that in view of the agreement reached between the parties on 18 -2 -1963 and on the basis of which the suit for recovery of rent was decided, the plaintiff has no right to claim his eviction from the land.
(3.) THE trial Court settled the following issues between the parties: - - 1. Is there any cause of action? 2. Is the suit maintainable in its present form? 3. Is the suit time barred? 4. Is the suit bad for estoppel, waiver and acquiescence?;


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