High Court
Case Details
HIGH COURT OF ORISSA : CUTTACK RSA No.52 of 2018 In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned District Judge, Sundargarh in RFA No.23 of 2015 setting aside the judgment and decree passed by the learned Senior Civil Judge, Sundargarh in C.S. No.217 of 2011. ……… Sanjay Kumar Gupta :::: Appellant -:: VERSUS ::- Mitrabhanu Jena & Another :::: Respondents Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- For Appellant … Mr. A.K. Sahoo, Advocate For Respondents
Legal Reasoning
… Mr. A.K. Nanda, Advocate ------ CORAM HON’BLE MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing: 12.03.2024 :: Date of Judgment: 22.03.2024 --------------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) has assailed the judgment and decree passed by the learned District Judge, Sundargarh in R.F.A. No.23 of 2015. The Respondents as the Plaintiffs had filed the Civil Suit No.217 of 2011 in the Court of Civil Judge (Sr. Division), Sundargarh seeking eviction of the {{ 2 }} Appellant (Defendant) and delivery of possession of the suit house and premises as well as realization of arrear house rent. The suit having been dismissed, the Respondents being the Plaintiffs when were non-suited, they had carried the Appeal under section 96 of the Code. The First Appellate Court has set aside the judgment and decree passed by the Trial Court in dismissing the suit and the suit of the Respondents (Plaintiffs) has thus been decreed whereby the Appellant (Defendant) has been directed to give delivery of vacant possession of the suit house and premises within a period of three months and pay Rs.4,000/- towards the outstanding house rent dues up-till 15.01.2010 to the Respondents (Plaintiffs) and thereafter the rent @ Rs.1,000/- per month till vacation. The present Second Appeal has thus been filed by the Appellants (Defendants) who have suffered from the judgment and decree passed by the First Appellate Court. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the Trial Court. 3. Plaintiffs case is that they had constructed the house over the land under Hal Plot No.598/6 appertaining to 239 in village Patrapali and were staying there with their family. The Plaintiff No.1 was transferred to Kansbahal Post Office. So he kept his house under lock and key and went to Kansbahal with his family and during that period the Defendant was in search of a house to Page 2 of 8 {{ 3 }} reside by taking the same on rent. He then approached the Plaintiffs to take their house on rent. The Plaintiffs who house was under lock and key agreed to hand over the possession of the said house and premises to the Defendant for his occupation as a tenant on payment of monthly rent of Rs.500/- The Defendant agreed to take the house on rent for five years and paid a sum of Rs.20,000/- towards advance house rent from 15.01.2005. Parties entered into an agreement which was written on a stamp paper. In the said agreement, the Defendant had agreed to pay a sum of Rs.400/- per month as house rent and also to pay the electricity charges as per consumption. It was also the agreement that after completion of five years, the Defendant would vacate the suit house and the house rent @ Rs.400/- per month being adjusted from the advance of Rs.20,000/-, the Defendant would pay the balance rent to the Plaintiff. After completion of five years, the Plaintiffs required the house for their own occupation. The Defendant being requested to vacate the same refused to do so. So, serving notice upon the Defendant through their Counsel, when the Plaintiffs did not get any positive response from the side of the Defendants for eviction of the suit house, again a notice asking the Defendant to vacate the suit house and premises was served and thereafter filed the suit seeking the reliefs as afore-stated. 4. The Defendant has admitted in his written statement to have entered into the occupation of the suit house and premises Page 3 of 8 {{ 4 }} as a tenant under the Plaintiffs on payment of monthly rent of Rs.400/-. It is also admitted that they had an agreement to that effect. It is, however, stated that on 24.08.2005, the Plaintiff No.1 with his daughter, namely, Pujarani Tajan executed another agreement on a stamp paper with the Defendant in presence of witnesses with regard to the suit house by taking a sum of Rs.72,500/- towards the house rent for 14 years with effect from 24.08.2005. So, it is said that from that date of agreement, the Defendant is in possession of the suit house and is running a small food processing unit in producing Chow Mein. The Defendant also lodged a counter claim for confirmation of his possession over Ac.0.022 dec. of land out of Hal Plot No.598/6 under Khata No.239 of village Patrapali which adjoins the suit house. It is stated that the entire land under Hal Plot No.598/6 and Khata No.239 measures Ac.0.05 dec. In the year 2004, he has constructed a house over a portion measuring Ac.0.022 dec. by spending money from his pocket and neither the Plaintiffs nor anyone claiming through them had ever possessed the same. So, he sought for a declaration by way of counter claim that his possession over the said land be declared and it be held that he has the non-evictable right in so far as said land is concerned. 5. The Plaintiffs in the written statement to the counter claim stated that on 24.08.2005 there was an agreement between the Plaintiff No.1 and his daughter on one hand and the Defendant Page 4 of 8 {{ 5 }} on the other. They admit to have received Rs.72,500/- towards advance outstanding. It is stated that the Defendant has not paid any house rent to them and also not vacating the suit house and premises. They state that the Defendant had never constructed any house over the suit land and whatever constructions are there over the suit land, those belong to the Plaintiffs. The Defendant has taken the house on rent as a tenant and, therefore, it is said that he has no right to claim declaration/confirmation of his possession over the suit land and under no circumstance a right of being nonevictable therefrom can accrue in his favour. 6. The Trial Court on the above rival pleadings, having framed 11 issues, upon examination of evidence and their evaluation answered the crucial issues together in finally concluding that the suit is not maintainable as the owner of the land in question, i.e., State of Odisha is not a party and, therefore, according to it, no executable decree can be passed. Mainly on those grounds, the Trial Court refused to pass an order of eviction of the Defendants in accepting the prayer of the Plaintiff. Next going to the counter claim, having said that the evidence is not there on record to arrive at a conclusion that the Defendant had constructed any house over the suit schedule land and he having not led any evidence to show that he was in possession of the suit land referable to any right, title and interest over the same nor by independently entering upon that land, he Page 5 of 8 {{ 6 }} has done so and possessing, since the State of Odisha, the owner is not a party, the Defendants counter claim has been dismissed. 7. The Plaintiff then carried the First Appeal. The First Appellate Court has allowed the First Appeal and decreed the suit as afore-stated. The decision in the counter claim as returned by the Trial Court thus being not challenged attained finality. 8. The Appeal has been admitted to answer the following substantial question of law:- “As to whether on the admission of the Plaintiffs that the disputed property belonging to State, the suit is maintainable in absence of State being a party to the suit? and “As to whether the suit is hit by the provision of Order 1, Rule 9 of the Code of Civil Procedure?” 9. Learned counsel for the Appellant (Defendant) submitted that when State of Odisha admittedly is the owner of the suit land over which the constructions are standing, the Plaintiffs having not made State of Odisha a party to the suit when the Trial Court had rightly dismissed the suit refusing to grant any relief in favour of the Plaintiff as against the Defendant, which they had prayed for, the First Appellate Court has committed grave error of law in reversing the same and decreeing the suit granting the Plaintiff with all such reliefs as they had prayed for. He further submitted that when the State of Odisha is the recorded owner of the suit land in the suit filed by the Plaintiffs, the Plaintiffs are not entitled to get any relief as that would be impacting the owner, i.e., the State of Odisha. He also submitted that the suit ought to Page 6 of 8 {{ 7 }} have been held to be hit under the provision of Order 1, Rule 9 of the CPC. 10. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below. 11. Admittedly, the relationship between the Plaintiffs on one hand and the Defendant on the other is not in dispute that the Defendant had been inducted as a tenant in the suit house and premises by the Plaintiffs and they had an agreement to that effect. The Defendant admits to have been in occupation of the suit house and premises as a monthly tenant on payment of the agreed monthly rent. He has not advanced any independent claim of right, title, interest and possession over the suit land at any point of time till the suit. It is the well settled position of law that a person without being the owner of the immovable property can well be the landlord and in that event a person coming to occupy the said property as a tenant under the said landlord is estopped from questioning the right or status of the landlord. The said tenant is under the legal obligation to surrender the tenanted premises to landlord before advancing any claim as to have acquired the right over the said property during his/her possession as the tenant under that landlord. Even when the tenant has acquired any independent right, title and interest over the said property, he can claim the same only after surrendering the occupation/possession Page 7 of 8 {{ 8 }} of the premises in question to the said landlord. Therefore, in a suit of this nature where the Plaintiffs claim is based on the relationship of landlord and tenant and basing upon the same, he claims the eviction of the Defendant even though the State of Odisha is the recorded owner of the suit land, that owner is not a necessary party and the suit can never fail for nonimpleading said owner as a party. The decree passed does in no way stands as an impediment for the owner to initiate action as provided in law for recovery of possession of the land from the Plaintiffs following due process of law. Therefore, there is no need for compliance of the provision of Order-1, Rule-9 of the Code. In that view of the matter, I am of the considered view that the Trial Court having committed grave error in dismissing the suit, the First Appellate Court has rightly rectified the same by decreeing the suit. Above discussion provides the answers to the second substantial question of law in the negative. 12. In the result, the Appeal stands dismissed. There shall,
Decision
however, be no order as to costs. True copy P.A. Signature Not Verified Himansu Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 22-Mar-2024 17:49:52 S/d (D. Dash), Judge. Page 8 of 8