N.S.Singh, J. - (1.) The judgment and decree, dated 4th December, 1993 and 16th December, 1993 respectively passed by the learned Assistant District Judge No. 1, Kamrup, Guwahati in Title Appeal No. 10 of 1991 affirming the judgment and decree dated 2nd March. 1991 and 21st March, 1991 respectively passed by the learned Sadar Munsiff No. 1, Guwahati in Title Suit No. 122 of 1976 is the subject-matter under challenge in the Second Appeal
(2.) The plaintiff's case in a short compass is that they are the owners of the land measuring 4 lecha situated at MS. Road. Guwahati under new Dag No. 1932. K.P Patta No. 243 of old Dag No 1259 and K.P. Patta No. 375 which is hereinafter referred to as suit land; the suit land originally belonged to one late Nur Mahammad and after his death his two sons, namely Khalilur Rahman and Golam Rabbi and the daughter late Saira Khatun inherited the said lands; the said Khalilur Rahman also died in the year 1945 without leaving any heir and likewise. Golam Rabbi also died in the year 1950 leaving behind his wife and the plaintiffs; Saira Khatun also died in the year 1953 leaving 4 daughters as her heirs and that the widow of Golam Rabbi and 4 daughters of late Saira Khatun sold and transferred their respective shares of the said lands to the plaintiff No.l by registered sale deeds and delivered the possession of the same and that the plaintiffs became the absolute owner of the suit land. Initially, the suit land was let out to one Ganesh Thakur, the predecessor- in-interest of defendant Nos 1 and 2, the present appellants herein from 1 1 1938 at an annual rent of Rs 15 and late Ganesh Thakur constructed temporary house over the suit land and used to pay annual rent and in the year 1945 the annual rent was raised to Rs. 35. In the year 1953 the plaintiffs along with heirs of late Saira Khatun and Golam Rabbi instituted a Title Suit No 226 of 19: for ejectment of late Gobardhan Sharma, father of the defendant No.1 but the said suit was dismissed on contest and, thereafter, late Gobardhan Sharma continued his tenancy with the old annual rent which was later on raised to Rs. 35, and after the death of Gobardhan Sharma his son Gauri Shankar Sharma. defendant No 1 and Sanchi Ram Sharma, the defendant No. 2, son of late Ganesh Thakur attorned the plaintiffs of the said suit No 226 of 1953 as their landlord and continued to pay rent. However, the plaintiffs issued fresh ejectment notice on 26th June, 1976 through their advocate terminating the tenancy of the defendant Nos 1 and 2 over the suit land by the end of 31st July, 1976 thus, demanding delivery of possession of the suit land The notices were duly received by the defendants but they did not leave the possession and, accordingly. The plaintiffs instituted suit for ejectment and recovery of khash and vacant possession of the suit land as against the defendant Nos. 1 and 2 and for arrears of rent
(3.) The suit of the plaintiffs is contested by the defendants No 1 and 2 by contending inter alia, that the suit is not maintainable and there is no cause of action and that, there is no proper and valid notice terminating the tenancy; that there is no relationship of landlord and tenant within the plaintiffs and defendant Nos 1 and 2; that the suit is hit by Sections 108 and 109 of the Transfer of Property Act; that the defendants are protected under Section 5 of the Assam Urban Areas Rent Control Act read with Section 108 of the Transfer of Property Act. It is also the case of the defendants that late Ganesh Thakur took 10 lechas of land covered by old Dag No. 1259 as a permanent lessee at the annual rent of Rs 15 and he constructed house thereof and carried out his business there and after that late Ganesh Thakur and his heirs used to pay rent; that in the year 1953 the plaintiffs and proforrna defendants filed Title Suit No 266 of 1953 but the same was dismissed on contest and thereafter on 25th December, 1953 the plaintiffs entered into a new agreement with the defendants and rent was increased to Rs. 35 per year, that as per new agreement defendants gave up 5 lechas of land to the plaintiffs and they remained in possession of the remaining 5 lechas (now 4 lachas) of land and they constructed Assam type permanent house in the year 1954-55 and continued their business thereat;