The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 152 of 2006 [In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908.] --------------- Samim Khan ...… Appellant -Versus- Shanti Devi ….. Respondent Advocate(s) appeared in this case :- ________________________________________________________ For Appellant : M/s. S.R. Pattnaik, P. Pattnaik, P.K. Swain, N.K. Senapati & R.P. Pattnaik, Advocates For Respondent : Mr. R.K. Mohanty, Sr. Adv. with M/s. D.K. Mohanty, A.P. Bose, J.S.N. Biswal, S.K. Mohanty, S. Mohanty & M.R. Dash, Advocates __________________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA JUDGMENT 28th March, 2025 SASHIKANTA MISHRA, J. The defendant before the trial Court has filed this appeal against a reversing judgment. The judgment passed by learned First Additional District Judge, Cuttack Page 1 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 on 10.03.2006 followed by decree in RFA No. 105 of 2005 is under challenge, whereby the judgment passed by learned Second Additional Civil Judge (Sr. Division), Cuttack on 30.04.2005 followed by decree in T.S. No. 211 of 1998 was reversed in part. The trial Court dismissed the suit of the plaintiff but granted liberty to plaintiff’s husband or other legal heirs of the original owner to file suit for eviction of the defendant from the suit shop room. The First Appellate Court set aside the decree relating to
Legal Reasoning
the grant of relief of eviction and directed the defendant to deliver vacant possession of the tenanted shop room. 2. For the sake of convenience, the parties are referred to as per their respective status in the trial Court. 3. The suit was originally filed by one Sarbati Devi for eviction of the defendant from the suit shop room and recovery of arrear house rent of Rs.46,000/-, damages of Rs.8,600/- and arrear electricity dues of Rs.9,779.99 with pendent lite and future interest. 4. The case of the plaintiff is that the suit shop room belonged to late Dwaraka Das Agarwalla, who had Page 2 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 inducted the father of the defendant as a monthly tenant since long for carrying on tailoring business therein. In the year 1990, the defendant’s father having shifted his business to another place, the defendant occupied the suit shop room and carried on tailoring business therein with consent of the landlord. After death of Dwaraka Das Agarwalla, the property devolved upon his widow, Sarbati Devi and with her consent, the defendant continued to occupy the shop room as a monthly tenant. The monthly rent was enhanced from time to time and was fixed at Rs.2,000/- from April, 1996. Sarbati Devi received the monthly rent and issued receipts but from July 1996 onwards the defendant wilfully defaulted in payment of rent. The defendant was also required to pay monthly electricity charges as per the agreement but did not pay the same, resulting in accumulation of arrears to the tune of Rs.9,779.99 till 31.12.1997. On 08.05.1998, Sarbati Devi served notice under Section 106 of Transfer of Property Act to the defendant terminating his tenancy and asking him to deliver vacant possession on payment of arrear dues by Page 3 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 31.05.1998. The defendant refused to receive the notice, which was returned to the sender. Since then, the defendant continued to occupy the suit shop room unauthorisedly as a trespasser from 01.06.1998 being thus liable to pay damages @ Rs.200/- per day. Sarbati Devi again issued Advocate’s notice by registered post on 15.06.1998 expressing her intention to take criminal action under Section 441 of IPC unless he delivered vacant possession and cleared the arrears. Said notice did not evoke any response despite being received by the defendant. Hence, the suit. 5. During pendency of the suit, Sarbati Devi died. The present plaintiff was substituted in her place and was granted leave to continue the suit on the strength of a compromise decree passed on 16.03.2002 by the First Additional Civil Judge (Sr. Division), Cuttack in T.S. No. 374 of 1999. 6. The defendant contested the suit by filing written statement. While admitting the tenancy, the defendant took the plea that he had regularly paid rent till June, 1998 but Page 4 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 no receipt was granted by the plaintiff on the pretext that the same would be granted after change of ownership of the property in her name. The original plaintiff proposed to enhance the monthly rent in June, 1996, which he did not agree. He tendered the usual monthly rent from July, 1998 onwards but the plaintiff did not receive the same. Therefore, the defendant cannot be treated as a wilful defaulter. The defendant further denied having paid monthly rent @ Rs.2,000/- from May, 1996 nor that the same was enhanced. He also denied to have defaulted in paying electricity dues. 7. Consequent upon substitution of the present plaintiff, defendant filed additional written statement questioning her locus standi to continue the suit on the ground of absence of landlord-tenant relationship between her and the defendant. Moreover, cause of action of the original suit was different from the cause of action arising from the date of passing of the compromise decree. The defendant further specifically took the plea that as per the compromise decree, the suit property fallen to the share of Page 5 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 Sarbati Devi was to be owned and possessed by Shanti Devi (present plaintiff), Bijay Agarwalla and Rukmini Agarwalla, after death of Sarbati. Therefore, in the absence of partition and in absence of Bijaya and Rukmini, the present plaintiff alone was not competent to continue the suit. 8. Basing up the rival pleadings, the trial Court framed the following issues for determination. (i) Is the suit maintainable as laid ? (ii) Is there any cause of action for the suit ? (iii) Is the defendant a wilful defaulter in payment of house rent to the plaintiff? the (iv) Has the defendant been determined in term of Sec.106 T.P. Act by the plaintiff? tenancy of (v) Is the defendant liable to pay the arrear house rent, damages and electric dues to the plaintiff as claimed in the suit? (vi) Has the present plaintiff any locus-standi to prosecute the present suit against the defendant by virtue of Order 22, Rule -10 C.P.C.? (vii) Is the present plaintiff (sic) entitled to a decree for eviction of the defendant from the suit shop room? (vii) Is the present plaintiff entitled to get arrear house rent, electric dues and damages as claimed in the suit from the defendant? (ix) To what relief, if any, is the plaintiff entitled?” 9. Taking on issue Nos.(iii) and (iv) for consideration at the outset, the trial Court analysed the Page 6 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 oral and documentary evidence on record besides the provisions of T.P. Act, Indian Evidence Act and General Clauses Act and held that the defendant is not a wilful defaulter in payment of house rent to the original plaintiff and the original plaintiff had determined the tenancy in terms of Section 106 read with Section 111(a) of the T.P. Act. The trial Court then took up issue Nos. (v), (vi) and (vii) together for consideration. After scanning the oral and documentary evidence and on consideration of the rival contention put forth, it was held that the compromise decree (Ext.7) was not required to be registered but it was held that the same is a collusive one, intended as a device to avoid payment of stamp duty and to frustrate the law relating to registration. It was held that the compromise decree did not create any interest in the property in favour of the present plaintiff. The trial Court further held that the present plaintiff cannot be a co-owner with Shankarlal for the purpose of evicting the defendant from the suit shop room during lifetime of her husband, Shankarlal. Since she claims to be the owner of the property from the date of Page 7 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 compromise decree, i.e., 16.03.2002 she will not be entitled to any rent before that date. So even if she acquired right to the property by virtue of Ext.-7, she could prosecute the suit for the relief of eviction but not for recovery of alleged arrear house rent. It was thus, concluded that the defendant is not liable to pay the arrear house rent, electricity dues and damages to the present plaintiff, who has no locus standi to prosecute the suit. Moreover, she is not entitled to a decree of eviction. In view of the findings on the above issues, the remaining issues were answered accordingly against the plaintiff and the suit was dismissed but with the rider that the defendant having initially been inducted as monthly tenant but his status being transformed to that of a trespasser, cannot maintain his unauthorised occupation against the true owner. Shankarlal Agarwalla and other heirs of late Dwarika Das Agarwalla are deemed to have become owners of the suit shop room upon death of Sarbati Devi and are therefore, legally competent to evict the defendant in due process of law. So in the event of suit being filed for eviction by Page 8 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 Shankarlal Agarwalla or any other heirs of late Dwarikadas Agarwalla the decree would not stand as an embargo of res judicata. 10. The plaintiff carried the matter in appeal. The First Appellate Court found the judgment of the trial Court self-contradictory. On the main issue raised in the appeal i.e., maintainability of the suit and its prosecution at the instance of the present appellant as an assignee, the First Appellate Court agreed with the finding of the trial Court and in view of Section109 of T.P. Act that an attornment by the tenant to the transferee is not necessary for creating subsisting tenancy. The purchaser of the rights of the lessor has all the rights of the lessor in the suit, unless there is some express stipulation to the contrary. The First Appellate Court took note of the settled position of law in this regard to consider whether Ext.7 could be treated as transfer within the meaning of section 5 of the T.P. Act. In this regard it was held that final decree passed in the suit brought by the present plaintiff for declaration of her title over the suit property would amount to transfer and as Page 9 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 such an assignment so as to bring into application the provision of Section 109 of the T.P. Act. It was next considered whether Ext-7 is a valid assignment created in favour of the present plaintiff. It was held that Ext.-7 did not create right, title and interest of the property in favour of the plaintiff. The terms of the compromise did not provide for execution of any deed of transfer and did not involve execution of a deed of conveyance. Therefore, validity of Ext.-7 cannot be questioned on that score. As such it was held that the trial Court after giving a positive finding that the decree does not require registration, was not right in holding that the suit was not bonafide. The first appellate Court further found that the present plaintiff is suing with the leave of the Court on the basis of the assignee and therefore, her claim cannot be adversely viewed by holding that there is no foundation in the pleading. There was thus, no obligation to amend the plaint. As to the validity of the so called assignment, the First Appellate Court noted that the compromise decree, Ext.-7 was not challenged by any party. The defendant Page 10 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 being a monthly tenant under the original plaintiff can raise no objection as to the manner in which the property would be given to anybody by the original plaintiff. It was also found that the defendant was also aware of the pendency of T.S. No. 374 of 1999 but did not volunteer to be a party in case he thought it was a collusive suit. He also did not say so in his additional written statement. The trial Court therefore, should not have gone into the aspect of collusion. On such reasoning, the First Appellate Court held the assignment to be legal and valid and that the present plaintiff had stepped into the shoes of the original plaintiff and therefore, the suit at her instance was maintainable. As regards the claim for arrear rent, damages and electricity dues, the First Appellate Court taking note of the recitals of the Ext.7 held that the same did not relate to assignment of the right to recover the same. Upon going through the oral evidence, the First Appellate Court found there was no evidence regarding fixation of enhanced rate and therefore, held that the decree for realization of arrear rent, electricity dues and Page 11 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 damages cannot be passed. The appeal was thus, allowed in part by setting aside the decree only in so far as the relief of eviction is concerned. 11. Being aggrieved, the defendant has filed the second appeal, which was admitted on the following substantial question of law. the findings of learned 1st “Whether appellate Court that Ext.-7 though unregistered conveys title and right of landlord in favour of the respondent is legally correct?” the 12.
Legal Reasoning
Heard Mr. S.R. Pattnaik, learned counsel appearing for the appellant and Mr. R.K. Mohanty, learned Senior Counsel with Ms. S. Mohanty, learned counsel for the respondent. 13. Mr. S.R. Pattnaik would argue that the plaintiff was not entitled to any relief as per Order 22 Rule 10 of CPC because of non-existence of the ingredients thereof. As such, she could not have been impleaded as plaintiff in place of the original plaintiff, Sarbati Devi. Assuming that she had derived interest on the suit property on the basis of the compromise decree then also the same, unless Page 12 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 acquired pendete lite cannot confer right on Shanti Devi to prosecute the suit. As per the compromise decree, her right arose only after death of Sarbati Devi. Even if the decree is treated as a will, it shall have no effect for want of attestation. Mr. Pattnaik further argues that Shankarlal being the brother of Dwarika Das Agarwalla, husband of the original plaintiff, may succeed to the property but on such count Shanti Devi cannot derive any interest in the property during lifetime of Sarbati Devi. That apart, if it is held that a partition was effected between Shankarlal Agarwalla, his wife Shanti Devi and his son and daughter- in-law, then each of them would be treated as co-owners and Shanti Devi alone cannot be treated as co-owner or co- landlord with her husband. 14. Per contra, Mr. Ramakanta Mohanty, learned Senior Counsel would argue that the first appellate Court rightly discarded the findings of the trial Court as regards the validity of the compromise decree (Ext.7), as per which the suit property was exclusively allotted in favour of Sarbati Devi. Further, the decree provided that Shanti Devi Page 13 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 would become the owner after death of Sarbati Devi. The defendant being a tenant cannot have any say whatsoever as to the manner in which the property came to hands of Shanti Devi from her original landlord. The compromise decree was never challenged at any stage and therefore, must be held to be valid. 15. Undisputedly, the defendant’s father was a tenant under the Dwarika Das Agarwalla, husband of the original plaintiff, Sarbati Devi. In 1990, the defendant having shifted his business to another place, the defendant started occupying the suit room with consent of the landlord. After death of the landlord, Dwarika Das Agarwalla, the property devolved upon his widow, Sarbati Devi, on whose consent, the defendant continued as a monthly tenant. There being some dispute relating to enhancement of rent and non-payment thereof by the defendant, Sarbati Devi terminated the tenancy through a lawyer’s notice on 08.05.1998 (Ext.4). Said letter was refused to be received by the tenant on 13.05.1995. This was followed by another lawyer’s notice under Section 106 Page 14 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 of TP Act issued on 15.06.1998 specifically mentioning that the tenancy stood terminated w.e.f. 31.05.1998 and that the defendant tenant became a trespasser w.e.f. 01.06.1998. The trial Court has drawn adverse inference against the defendant having regard to the fact that the aforesaid notices were sent by registered post at the correct address of the defendant, one of which was refused. This Court is also of the same view and therefore, holds that the landlord-tenant relationship between Sarbati Devi and the defendant stood terminated w.e.f. 31.05.1998. The defendant therefore became a tenant-at- sufferance from 01.06.1998 onwards and liable to be evicted in accordance with law. 16. Coming to the compromise decree (Ext.7), this Court has perused the final decree of which the compromise petition forms a part. Said compromise was effected in Title Suit No. 374 of 1999, wherein the suit properties being joint family properties were allotted among the co-sharers. The properties described under Lot-3.(C) Page 15 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 fell to the share of Sarbati Devi. Paragraph-4(ii) of the petition reads as follows: “4(ii) That after the death of defendant No.2 Sarbati Devi, the properties in the allotment of 3(a), 3(b) and 3(c) shall be owned and possessed by defendant No.3 Bijay Kumar Agarwal, defendant No.4 Rukmani Agarwal and Plaintiff Shanti Devi respectively which has fallen to the share in the aforesaid allotments.” [Emphasis added] 17. As rightly argued by Mr. Mohanty, learned Senior Counsel, use of the word ‘respectively’ clearly indicates that the property under Lot-3.(C) fell to the share of Shanti Devi exclusively. The compromise was effected on 16.03.2002. Sarbati Devi died on 17.12.2002. Therefore, as per the compromise decree the property passed on to the hands of Shanti Devi on and from 17.12.2002. As already stated, by such time the tenancy had been terminated and the status of defendant was that of a trespasser having no manner of right over the suit property. Therefore, as rightly held by the first appellate Court, the defendant can have no say whatsoever as to the manner or mode by which the property belonging to his erstwhile landlord came to the Page 16 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 hands of Shanti Devi nor can he question her competence to seek his eviction from the property. 18. This Court need not dwell upon the findings of the trial Court as regards the validity of the compromise decree (Ext.7) for the reason that the first appellate Court has rightly set aside such findings by holding that the compromise decree not having been challenged by any person is to be treated as valid. Such being the case, there is no way by which the right acquired by Shanti Devi in respect of the suit property on the strength of compromise decree can be ignored much less at the instance of the defendant. 19. The other contentions advanced on behalf of the defendant regarding non-joinder of the other purported co- owners of the property are not worthy of consideration much less be accepted in view of what has been held hereinbefore. This Court conclusively holds that the defendant has no manner of right over the suit property to continue in occupation thereof nor has the locus standi to Page 17 of 18 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Apr-2025 11:09:19 question the competence of the true owner Shanti Devi to seek his eviction therefrom. 20. For the foregoing reasons therefore, this Court fully concurs with the findings of the first appellate Court and holds that Ext.7, though unregistered, conveys title in favour of the respondent. It is made clear that in view of the finding of this Court that the tenancy had already been terminated prior to acquisition of interest over the suit property by Shanti Devi, the question whether she had acquired the right of landlord becomes redundant as this Court has also held that after termination of the tenancy w.e.f. 31.05.1998, the defendant is nothing but a trespasser. The substantial question of law framed in the appeal is answered accordingly. 21. In the result, the appeal fails and is therefore,
Decision
dismissed. There shall be no order as to costs. ………….……………. Sashikanta Mishra, Judge Orissa High Court, Cuttack The 28th March, 2025/ A.K. Rana, P.A. Page 18 of 18