Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK RSA No. 399 OF 2011 [In the matter of appeal under Section 100 of the Code of Civil Procedure, 1908. --------------- Sri Surendra Majhi ...… Appellant -Versus- Ratnakar Samantaray and another ….. Respondents Advocate(s) appeared in this case :- _________________________________________________________ For Appellant : M/s. P.K. Rath, Sr. Advocate P.K. Satapathy, R.N. Parija A.K. Rout, S.K. Pattnaik & D.P. Pattanaik, Advocates For Respondents : M/s. S.K. Nayak-2, K. Jena, S.S. K. Nayak, S.K. Ray & S.P. Swain, Advocates [for R-1] __________________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA ORDER 15th September, 2023 SASHIKANTA MISHRA, J. The concurring judgment passed by learned District Judge, Bhadrak on 01.10.2011 followed by decree in R.F.A. No.43 of 2008 is under challenge in the present appeal. The judgment passed by learned Civil Judge (Junior Division), Bhadrak on 30.04.2008 followed Page 1 of 11 by decree in T.S. No. 167 of 2002-I in partly decreeing the
Legal Reasoning
suit filed by the plaintiff was confirmed by the 1st Appellate Court. The defendants are the present appellants. 2. For convenience, the parties are referred to as per their respective status in the trial court. 3. The present appeal has been admitted on the following substantial question of law:- (i) Whether the courts below are correct in passing the decree for eviction filed by the landlord and the fact that the courts below have disbelieved the relationship between the landlord and tenant? 4. The facts of the case are that the plaintiff claims to be the owner of suit schedule “B” land. His father had ancestral residential house towards eastern side of the suit plot wherein he was residing with his family. The plaintiff’s father also had a three-roomed thatched house towards south eastern side of the suit plot, which is included within schedule “A” land. The suit house was used as an outer house of the family of the plaintiff wherein the servants were mainly residing during cultivation in one part and in Page 2 of 11 the other part, firewood and other household articles were kept. In the cyclone followed by heavy rain, the thatched house was damaged. The defendants, who had their house nearby requested the plaintiff to allow them to stay in the suit house for a period of one year on condition that they would vacate it after repairing their house. Thus, the defendants came over the suit house and continued to stay therein as due to poverty, he could not re-construct his own house. In such view of the matter, an as per an oral agreement entered into in the presence of some villagers, the defendants agreed to pay monthly rent of Rs.50/- to the plaintiff. Such rent was paid regularly till the super cyclone in 1999. The plaintiff asked the defendants to clear all arrear dues but to no avail. The defendants constructed their own house over their land in the year 2001, but still did not vacate the suit house nor paid house rent from 1st November, 1999. Since the suit house was damaged in the super cyclone, the plaintiff was in need of an outer house for his servants and other needs and therefore, served notice on the defendants through his advocate on 04.02.2002 but the defendants refused to vacate the suit Page 3 of 11 house. Hence, the plaintiff filed the suit praying for a decree of eviction against the defendants on the suit land and suit house, payment of arrear rent and permanent injunction. 5. The defendant No.1 only contested the suit. It is his case that his grandfather, namely, Swapna Majhi had constructed a house over the suit land and was residing therein since long and was in possession of Ac.0.11 decimals with permission of the ancestor of the plaintiff, namely, Sankar Dalei. He had also planted several trees, bamboo bush and fence around it. After his death, his son Baina and after him the present defendants have been residing there having their residential house, cowshed threshing floor etc. over it with the knowledge of the plaintiff without any interruption. As such, they have acquired title by way of adverse possession having been in possession continuously for the last seventy five years. There was dispute between the plaintiff and defendants on 16.02.2002 involving the middle fence for which police had enquired during which the plaintiff admitted the possession of the defendants over the disputed land, since Page 4 of 11 the time of their ancestors. The plaintiff also managed to record the total plot in his name in the major settlement ROR and taking advantage of such wrong recording, he filed the suit only to harass the defendant No.1. 6. Basing on the rival pleadings, the trial court framed ten issues. Taking issue No.4 relating to the right, title and interest of the parties over the suit land, the trial court, after considering the oral and documentary evidence found that the present plaintiff and their ancestors are the recorded owners of the suit land as per the current settlement and major settlement records. Further, the defendants not having adduced any oral or documentary evidence in support of their claim of title over the suit land, the trial court held that the plaintiff has exclusive right, title and interest over the suit land. On the issue relating to the so called tenancy and possession over the suit land, the trial court after going through the evidence held that the plaintiff could not prove the relationship of landlord and tenant between him and the defendants and further that the possession of defendant no.1 over the suit land was well established from the evidence adduced by both parties. Page 5 of 11 The trial court further held that such possession was permissive in nature. As regards the issue relating to the claim of adverse possession by defendant No.1, the trial court negated the same in view of its finding that the possession was purely permissive in nature. As regards the issue relating to the relief of eviction, permanent injunction and arrear rent, the trial court held that even though the plaintiff could not prove his claim of tenancy yet in view of the evidence of his right, title and interest over the suit land and permissive possession of defendant No.1 thereon, he is entitled to the relief of eviction and permanent injunction but not the other reliefs. The suit was thus decreed in part directing the defendants to vacate the suit land with permanent injunction from entering into the suit land after eviction. 7. The defendant No.1 carried the matter in appeal mainly contending that the trial court had rendered a finding relating to permissive possession of defendant No.1 against the weight of evidence on record. The 1st Appellate Court scanned the pleadings and oral and documentary evidence adduced by the parties to independently arrive at Page 6 of 11 the conclusion that the possession of defendant is permissive but not hostile in nature since their forefather and thereafter they themselves, had remained in possession over the suit land initially with the permission of the plaintiff’s grand-father. The 1st Appellant Court also took note of the entries in MS ROR and accepted the same as correct in the absence of any rebuttal evidence being adduced by the defendants. The 1st Appellate Court also held that there is no convincing evidence on record as regards the landlord-tenant relationship between the plaintiff and the defendants. However, by observing that the possession of the defendants was unauthorized and illegal, the 1st Appellate Court also held that the plaintiff is entitled to the relief of eviction of the defendants from the suit land and permanent injunction after such eviction. 8.
Legal Reasoning
Heard Mr. Prafulla Kumar Rath, learned Senior Counsel assisted by Ms. Shradha Das, learned counsel for the appellant-defendant No.1 and Mr. S.K. Nayak, learned counsel appearing for the respondent-plaintiff. 9. Assailing the findings rendered by both the courts below, Mr. Rath would argue that once the plaintiff Page 7 of 11 fails to prove the landlord-tenant relationship between him and defendant no.1, the suit has no further legs to stand and therefore, both the courts below committed manifest error in granting the relief whatsoever of eviction. Mr. Rath further argues that since the very premise of the suit was the so called tenancy agreement, the same not having been proved, no relief whatsoever ought to have been granted to the plaintiff. 10. Per contra, Mr. S.K. Nayak would argue that notwithstanding the lack of evidence of landlord-tenant relationship, it was clearly proved that the suit land belongs to the plaintiff and that the defendant No.1 is in permissive possession thereof. Thus, the plaintiff is entitled to evict him from the suit land at his own sweet will at any point of time. According to Mr. Nayak therefore, the concurrent findings of fact rendered by both the courts below do not warrant any interference by this Court. 11. From the tenor of arguments advanced by learned Senior Counsel Mr. Rath appearing for the defendant No.1-appellant, it appears that the finding as regards the title of the plaintiff over the suit land and the Page 8 of 11 nature of his possession of the suit land, i.e. permissive possession is not seriously challenged in the present appeal. What the defendant No.1 seeks to set up as a challenge to the impugned order is that the very basis of the suit, i.e., landlord tenant agreement not having been proved, the relief of eviction could not have been granted. This Court is unable to accept the above argument for the reason that though the plaintiff had claimed landlord- tenant relationship between him and defendant No.1 yet his title over the suit land was also questioned and disputed by defendant No.1 in his written statement, which led the trial court to frame a specific issue for determination as to who possessed the right, title and interest over the suit land. In this context, both the courts below have heavily relied upon, and in the opinion of this Court rightly so, on the entries in the MS ROR, which carry a presumptive value. Since the defendant No.1 failed to prove the contrary by adducing rebuttal evidence, the trial court rightly held that the plaintiff had exclusive right, title and interest over the suit land. Secondly, the possession over the suit land by the defendant No.1 is an admitted Page 9 of 11 fact. It is also an admitted fact that such possession was permissive in nature at least in the beginning. The defendant No.1 set up the claim of adverse possession but completely failed to prove the same. Once, the plaintiff is found to possess title over the suit property then the possession of defendant No.1 would be dependent on his will. In other words, the plaintiff being the legal owner has the unquestionable right to ask for dispossession of any other person over the suit land. Therefore, given the title of the plaintiff over the suit land as found by both the courts below along with permissive possession of defendant No.1 over the suit land, the relief of eviction of defendant No.1 from the suit land cannot be faulted with. In view of the facts and circumstances of the case, it cannot be accepted as a proposition of law that the true owner of a property having failed to prove landlord tenant agreement with another person cannot ask for his eviction, for this would be an absurd proposition that despite his intention to re- possess his own property under occupation of a permissive occupant, he would be helpless in case he desires to re- possess such property. Page 10 of 11 12. In view of what has been discussed hereinbefore, this Court is unable to accept the contentions raised on behalf of the appellant defendant No.1 to question the concurrent findings of fact rendered by the courts below. As such, this Court finds no reason to interfere therewith. 13.
Decision
In the result, the appeal being devoid of merit is therefore, dismissed but in the circumstances, without any costs. Judge …………….……………. Sashikanta Mishra, Orissa High Court, Cuttack The 15th September, 2023/ B.C.Tudu, Sr.Steno Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 25-Sep-2023 11:27:00 Page 11 of 11