High Court
Case Details
HIGH COURT OF ORISSA : CUTTACK RSA NO.92 OF 2022 In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree dated 27.12.2021 and 06.01.2022 passed by the learned District Judge, Jajpur in R.F.A.No.16 of 2009 in confirming the judgment and decree 12.02.2019 and 18.02.2019 passed by the learned Senior Civil Judge, Jajpur in C.S. No.284 of 2014. ……… Kabita Nath :::: Appellant. -:: VERSUS ::- Ashok Kumar Barik :::: Respondent. Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ---------------------------------------------------------------------------------- For Appellant … M/s.S.K. Nayak, R.C. Ray For Respondent … K. Jena, S.K. Nayak, K. Behera & S. Suman (Advocates) M/s.K.K. Jena, S. Mohanty & S.P. Swain (Advocates) ------ CORAM : MR. JUSTICE D.DASH ---------------------------------------------------------------------------------- Date of Hearing: 16.01.2023 :: Date of Judgment: 27.01.2023 ---------------------------------------------------------------------------------- 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
Legal Reasoning
Judge, Jajpur in R.F.A. No.16 of 2019 confirming the judgment {{ 2 }} and decree passed by the learned Civil Judge (Senior Division), Jajpur in Civil Suit No.284 of 2014. The Appellant as the Plaintiff had filed the suit for eviction of the Respondent (Defendant) from the suit land and house situated over there and recovery of a sum of Rs.44,000/- towards rent as also for future damage from the Respondent (Defendant). 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. Plaintiff’s case is that she is the owner of the land described in the plaint. It is stated that the said land originally belonged to Raja of Madhupur and the father-in-law of the Plaintiff, namely, Prahallad Ch. Nath having migrated from East Pakistan in the year 1947 after separation had settled at Mauza- Kumari under Madhupur Estate. The then Raja of Madhupur had leased out the suit land in his favour on acceptance of salami and rent on 05.12.1949 and the possession of the land being settled, he was in possession of the same. It is stated that the Ex-proprietor also accepted rent of the suit land from Prahallad Ch. Nath for the subsequent year. The tenancy right of Prahallad had been recognized by the State and Prahallad having died in the year 1983 leaving behind his two sons, they during the consolidation operation had filed an application for recording of the suit land in their names in view of the lease and acceptance of rent by the State. The Consolidation Officer, however, rejected the prayer. So, they having filed the suit obtained the decree in their favour and that being challenged by the State has been upheld. It is stated that after the death of Prahallad and after dismissal of the Appeal when the Page 2 of 8 {{ 3 }} legal heirs of Jogneswar Nath and the Plaintiff who is the widow of Chandramani Nath were possessing the suit land, the Plaintiff constructed a building consisting of three rooms over the suit schedule land. In the year 2008, the Defendant requested the Plaintiff to let out the said building on rent for occupying the same for residential purpose and the Plaintiff let out the said building to the Defendant on a monthly rent of Rs.2,000/- with effect from 01.09.2009. The Plaintiff then intended to sale the suit land and then the Defendant entered into a contract to purchase the suit land with building and had paid a part consideration of Rs.20,000/-to the Plaintiff. Although it was agreed between the Plaintiff and the Defendant that the Plaintiff would pay the balance consideration of Rs.20,000/- within three months or else the advance consideration would stand forfeited, the Defendant did not do so. The said agreement is stated to have been registered on 31.07.2009 and the Defendant thereunder had agreed to pay the balance consideration by 31.10.2009. Despite several approach made by the Plaintiff, the Defendant did not pay the consideration and continued to enjoy the suit land and house and on being approached, the Defendant stated that they would go on paying the house rent till registration of the sale deed but that also they did not do. The Plaintiff states that the Defendant cleared up the house rent up-to June 2012 and thereafter expressing his financial difficulties, willfully and deliberately defaulted to pay the rent and he also did not vacate the suit premises despite repeated demand. The Plaintiff, therefore, serving notice under section 106 of the Transfer of Property Act, 1882 terminating the tenancy of the Defendant as the Defendant did not vacate the suit land and house has filed the suit. Page 3 of 8 {{ 4 }} 4. The Defendant in his written statement has stated that the Plaintiff through his attorney Asim Baran Debnath wanted to sale Ac.0.20 dec. out of Plot No.542 measuring an area of Ac.0.60 dec. from its northern side since the Plaintiff was in need of money to pay to her creditors and the consideration of the same was fixed at Rs.1,50,000/- It is stated that since the father of the Defendant was not in a position to arrange the entire amount, he paid a sum of Rs.1,20,000/-, receipt of which has been acknowledged by the attorney of the Plaintiff and he had executed an agreement for sale on 31.07.2009 which was registered. It is next stated that pursuant to the said agreement for sale, the possession of the land was delivered to the Defendant strictly in accordance with the description given in the agreement in consonance wiht the map annexed thereto. It is also stated that the factum of delivery of possession of the suit land was mischievously not indicated in the said agreement at the instance of the attorney of the Plaintiff which then had missed the sight of the Defendant. The Defendant states that having entered into the possession of the suit land, his father constructed a house over a portion covering an area of 800 sq. ft. in the year 2011 and taking electricity connection resided therein with the family. The attorney asked the father of the Defendant in the month of December, 2013 to pay the balance consideration of Rs.30,000/- So, believing his version, the Defendant paid a sum of Rs.30,000/- to that attorney of the Plaintiff and requested him to execute the sale deed as soon as practicable which was assured to be done by the attorney of the Plaintiff. The Defendant claims that in the month of January, 2014, he had time and again approached the attorney to execute and register the sale deed but it was deferred Page 4 of 8 {{ 5 }} on some pretext or other and when the matter stood thus, the notice was served upon the Defendant calling upon him to vacate the possession of the suit land and house and pay the arrear house rent. The Defendant claims that neither his father nor he was ever a tenant under the Plaintiff in respect of the suit house. It is asserted that the father of the Defendant had constructed the house over the land in question. 5. The Trial Court on the above rival pleadings having framed eight issues has proceeded to answer the most important issues as to the relationship of the landlord and tenant between the parties. After examining the evidence and evaluating the same from different angles, the finding has been rendered against the Plaintiff. Having said as above, the Trial Court dismissed the suit of the Plaintiff as framed holding her to be not entitled to the relies claimed. 6. The First Appellate Court being moved by the unsuccessful Plaintiff, the result has remained the same. The Plaintiff thus being non-suited by the Courts below has filed this Second Appeal. 7. The following substantial question of law is standing to be answered in this Appeal:- (a) Whether the concurrent finding of fact recorded by the Courts below that the Plaintiff has failed to establish the relationship of landlord and tenant between herself and the Defendant suffers from the vice of perversity and as such is liable to be set aside? 8. Learned counsel for the Appellant submitted that with the overwhelming evidence on record with regard to the relationship between the parties and particularly, when the Defendant admits to Page 5 of 8 {{ 6 }} be in possession of the property on the strength of the agreement for sale executed by the Plaintiff, the Courts below ought not to have answered that issue against the relationship of landlord and the tenant between the parties. He further submitted that when the Defendant admits to be in possession of the property on the strength of the agreement for sale executed by the Plaintiff in favour of his father thereby admitting the title of the Plaintiff in respect of the suit land, the Courts below on the basis of the same ought to have granted the relief of eviction. 9. Learned counsel for the Respondent submitted that the concurrent finding of fact returned by the Courts below that the Plaintiff has failed to establish the relationship of landlord and tenant in respect of the suit land and house with the Defendant; the same is not liable to be interfered with in the present Second Appeal since there surfaces no perversity therein. He submitted that there being absolutely no document in support of such relationship, the Courts below has rightly refused to give any importance to the oral evidence with regard to the induction of tenants in respect of the suit land, payment of rent etc. He further submitted that the suit being essentially one for eviction, recovery of arrear house rent and damage, the question of title in respect of the suit land is beyond its scope and now basing upon the title of the Plaintiff, it is not permissible to decree the suit as serious prejudice would be caused to the Defendant since in the event of institution of a regular title suit, the Defendant could have taken the defence of protection of possession of the suit land by virtue of the provision of section 53- A of the Transfer of Property Act by advancing all the required pleadings in support of the same and leading the evidence which he Page 6 of 8 {{ 7 }} has not been able to do in the present suit in view of its nature and scope. 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 11. In the instant case, the Plaintiff herself has not come to the witness box to depose in support of the case laid in the plaint and it is her power of attorney holder who has tendered the evidence. In the absence of any documentary evidence being let in support of the relationship, the evidence of the power of attorney holder when it is not stated by the Plaintiff that the father of the Defendant was inducted as tenant through her power of attorney. It is the settled principles of law that the power of attorney holder may depose for the principal in respect of such acts for which he has been authorized to, but he cannot depose for the principal for the acts, done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of the matter which are only within the principal can have a personal knowledge of the principal and in respect of which the principal is entitled to be cross-examined. In that view of the matter, the evidence tendered in the present case on the relationship when for the same there stands no documentary evidence as it is said to be an oral lease, has rightly been kicked out of the arena of consideration as of no avail for proving the case of the Plaintiff. The Plaintiff’s entire case is that it was an oral lease which the Courts below on an in depth analysis of evidence have found to have not at all been proved. This Court finds absolutely no such perversity in the said exercise of appreciation of evidence made by the Courts below in arriving at the conclusion in answering the Page 7 of 8 {{ 8 }} issue against the Plaintiff. The substantial question of law being accordingly answered, this Court is led to confirm the judgment and decree passed by the Courts below in non-suiting the Plaintiff. 12. In the result, the Appeal stands dismissed. There shall, however, be no order as to cost. (D. Dash), Judge. True copy Himansu Page 8 of 8