Civil Suit No. 319 of 2008 · The High Court · 2023
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.435 OF 2023 & RSA NO.436 OF 2023 In the matter of Appeals under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 29th August 2023 and 11th September 2023 passed in RFA No.01 of 2022 by the Court of learned District Judge, Jajpur confirming the judgment and decree dated 18.12.2021 and 23.12.2021 passed by the learned Civil Judge (Senior Division), Jajpur in Civil Suit No.319 of 2008. ---- Rashmirekha Rout @ Susama Sahani …. Appellant -versus- Amiyabala Samal & Another …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): =============================================== For Appellant - Mr. Ramakanta Mohanty, Senior Advocate. For Respondents - Mr. Susanta Ku. Dash, Advocate. CORAM: MR. JUSTICE D. DASH Date of Hearing: 30.11.2023 :: Date of Judgment:20.12.2023 D.Dash,J. Since both these above noted Appeals arise out of the judgment and decree dated 29th August 2023 and 11th September 2023 respectively passed by the learned District Judge, Jajpur in RFA No.01 of 2022, which has been filed challenging the judgment and decree RSA Nos.435 & 436 of 2023 Page 1 of 16 {{ 2 }} passed by the learned Civil Judge (Senior Division), Jajpur in Civil Suit No.319 of 2008; those had been heard together for their disposal by this common judgment followed by the decree. The Respondent No.1 as the Plaintiff had filed the Civil suit No.319 of 2008 in the Court of learned Civil Judge (Senior Division),
Facts
Jajpur for eviction of Appellant (Defendant No.2) and Respondent No.2 (Defendant No.1) from the suit premises, claiming arrear rent and the dues remaining outstanding towards the consumption of electricity. The suit having been decreed in part in respect of the recovery of possessions, the present Appellant who was the Defendant No.2 before the Trial Court had carried Appeal under Section-96 of the code. The Respondent No.1 being the Plaintiff then had filed the cross- objection in respect of the denial of the relief of arrear house rent and electricity bills. The First Appeal filed by the present Appellant (Defendant No.2) has been dismissed and the cross-objection filed by the Respondent No.1 (Plaintiff) has been allowed in part in setting aside the finding of the Trial Court that there is no relationship of landlord and tenant between the Respondent No.1 (Plaintiff) on one hand and the Appellant (Defendant No.2). RSA Nos.435 & 436 of 2023 Page 2 of 16 {{ 3 }} 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:- Subash Samal son of Dayanidhi Samal is the husband of the Plaintiff. The suit land described in Schedule ‘B’ of the plaint is the self-acquired property of the deceased Dayanidhi. He had constructed a residential house and six numbers of shop rooms over the suit land. The suit shop rooms had been let out to different persons at different times on rent when Dayanidhi with his family were staying in the residential house. After the death of Dayanidhi, his son Subash came to possess the suit land and houses sanding thereon as its owner and successor. On the death of Subash, his widow, the Plaintiff and their children have been possessing the suit land as its owners and they have let out shop rooms to different persons. It is stated that there was cordial relationship between the Subash and the Defendants. Therefore, accepting request of the Defendant No.2, Subash had let out one shop room to the Defendant No.1 for running a Xerox machine and earning thereof. Subash had let out the asbestos room with the attached kitchen for residential purpose and another room which is part of the residential house of the Plaintiff RSA Nos.435 & 436 of 2023 Page 3 of 16 {{ 4 }} to the Defendant No.2. They were inducted as tenants of an agreed monthly rent of Rs.1100/- for the shop rooms and Rs.700/- for the
Legal Reasoning
this Court in a Second Appeal. 9. The Appeal has been admitted to answer the following substantial questions of law: - Whether the First Appellate Court have made an erroneous approach to the evidence in setting aside the finding of the Trial Court that the Plaintiff has failed to Page 9 of 16 RSA Nos.435 & 436 of 2023 {{ 10 }} prove the relationship with the Defendant No.2 as landlady and tenant and has gone wrong in decreeing the suit for eviction of the Defendants? 10. Mr. R.K. Mohanty, learned Senior Counsel for the Appellant submitted that when the Trial Court upon just and proper analysis of evidence let in by the parties mainly the Plaintiff had rightly held, the Plaintiff to have failed to establish that the Defendant No.2 had at no point of time was her tenant; the First Appellate court without any good reason and justification to differ with the Trial Court in that regard in a slipshod manner has answered that issue in favour of the Plaintiff. He further submitted that the suit being essentially based on the relationship of landlord and tenant between the Plaintiff and Defendant No.2 and its termination, ultimately seeking the ejection of the tenant, there being failure on the part of the Plaintiff to establish the relationship that the Defendant No.2 at any time was a tenant under her or her husband through whom she claims the property and says to have stepped into his shoes, there is no scope to pass a decree for recovery of possession on the ground that she has established her title over the suit land and the Defendant No.2 has failed to establish his claim of possession of the suit land referable to any lawful right. 11. Mr. S.K.Dash, learned Counsel for the Respondent No.1 submitted all in favour of the finding of the First Appellate Court that RSA Nos.435 & 436 of 2023 Page 10 of 16 {{ 11 }} with the available evidence, the Plaintiff has established by preponderance of probability that Defendant No.2 was her tenant which she has duly terminated prior to the filing of the suit. He further submitted that in the present suit, the Plaintiff besides pleading her relationship with the Defendant No.2 as landlady and tenant and stating that the Defendant no.2 had been inducted from the time of her husband in respect of suit premises as a monthly tenant; has also very much pleaded her right, title and interest over the suit property and as such the right to possess the same. He submitted that when such was the pleading of the Plaintiff, the Defendant No.2 has not only denied the right, title and interest of the Plaintiff as she has claimed over the suit premises as also her right to possess but also has stacked her independent right, title and interest and the right to possess the suit premises as such and accordingly, has stated that his possession is not unlawful. He, therefore, submitted that when there was clear pleading as to the competing claim of right, title and interest and right to possess the suit land from the side of the Plaintiff as well as the Defendant No.2, the Courts below have rightly gone to decide those issues as the parties have led the evidence at great length on those scores. He submitted that the finding being in favour of the Plaintiff, there is no bar in the law to pass a decree for eviction, notwithstanding the failure RSA Nos.435 & 436 of 2023 Page 11 of 16 {{ 12 }} of the Plaintiff to establish the relationship of landlady and tenant with the Defendant No.2 vis-(cid:224)-vis the suit premises. 12. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement filed by the parties as well as the evidence, both oral and documentary, let in by them. 13. There is no dispute on the point that the property in question had been purchased by Dayanidhi Samal who happens to be the father-in- law of the Plaintiff. The property was acquired by registered sale-deed. The Defendant No.2 says that the property in question had just been purchased in the name of Dayanidhi by his master, Brajamohan Praharaj Mohapatra under whom Dayanidhi was working as Gumasta (Manager). The Defendant No.2 pleads that the real owner of the property was Brajamohan Praharaj Mohapatra and Dayanidhi was the ostensible owner being just a name-lender and had nothing to do with the property nor any part of the benefit out of said property was meant to flow to his hands. It is further stated that after the death of Brajamohan, one out of her three widows had filed the suit challenging the said sale deed in seeking partition of the said land as well as other lands of Brajamohan. The suit being dismissed, she had carried First Appeal and in that Appeal, it is said that there was a compromise by RSA Nos.435 & 436 of 2023 Page 12 of 16 {{ 13 }} which that Dayanidhi was to give the suit land in exchange of 24 gunthas of land which the widows of Brajamohan were to part with in favour of Dananidhi. This Defendant No.2 claims to have entered into an agreement to purchase the 1/3rd interest of Subarna over the suit property and that he claims that the premises in his occupation is the subject matter of the said agreement which has been executed by Subarna, one widow of Brajamohan Praharaj Mohapatrqa in stating that her said interest would be sold for a consideration of Rs.1,50,000/- making payment of advance consideration of Rs.50,000/-. The agreement is said to have come into being sometime in the year 1998. So, the Defendant No.2 claims her occupation/ possession of the suit premises pursuant to that agreement for sale and having the status of proposed vendee but not as a tenant. The above noted pleadings give rise to a conclusion that Dayanidhi was having the right, title and interest over the suit land and was in possession as such. When finally compromise has been made in F.A. No.06 of 1974 arising out of Title Suit No.67 of 1971, it was with the agreement that there would be an exchange of the suit land with other land in resolving the dispute. Thus the exchange as indicated in the compromise having not taken place by registered deed, the title of the suit land resting with Dayanidhi stands wholly accepted and none RSA Nos.435 & 436 of 2023 Page 13 of 16 {{ 14 }} of the parties to that suit or even any one claiming right over the property through those parties such as the Defendant No.2 who is claiming from Subarana are estopped from questioning right, title and interest of Dayanidhi over the suit land and his right to possess as such. In that view of the matter, in the absence of any legal and valid documents as to the exchange of the suit property with the other land measuring 24 gunthas; that compromise even if is accepted for a moment to have been arrived at, the same has remained without being acted upon by the parties. Therefore, the very case of the Defendant No.2 that she is in possession of the suit premises pursuant to an agreement being made by Subarna one of the widows of Brajamohan Praharaj Mohapatra, is absolutely without any base to stand upon and accordingly, is not at all cognizable. 14. When such is the state of affairs, it is found from the documents, Exts.6 and 7 that Subash Samal, son of Dayanidhi Samal is the consumer for the electricity connection taken to the house standing over the land described in Schedule ‘B’ of the plaint. It is also seen that the Defendant No.2 had made an attempt to transfer the said consumer account in her name which however has failed. It is next seen that the Defendant No.2 having also attempted to bifurcate the holding of the residential house and shop standing over the suit land has been RSA Nos.435 & 436 of 2023 Page 14 of 16 {{ 15 }} unsuccessful as would reveal from Ext.8. In addition to the same, the rent receipt, Ext.4/A shows that the Plaintiff had paid the land revenue for the suit land to the State. The occupant of other rooms adjoining the suit rooms such as D.W.2 and D.W.3 have come forward to depose the status of the Defendant No.2 as a tenant like them under the Plaintiff. All said evidence provide corroboration to the evidence of the Plaintiff examined as P.W.1. The First Appellate Court as it appears from paragraph-25 of its judgment, with the above evidence let in by the Plaintiff has also proceeded to examine the evidence piloted from the side of the Defendant No.2 in order to ascertain as to how far the Defendant No.2 had succeeded to counter the effect of the evidence let in by the Plaintiff. To mention the quality of evidence coming from the side of Defendant No.2; D.W.3 who is the daughter of the brother of Subarna, the wife of Brajamohan Praharaj Mohapatra has come to say that Defendant No.2 was a tenant under Rashmirekha but it was prior to the sale made by Subarna. Whereas D.w.6 has stated that prior to purchase, the Defendant No.2 was occupying western portion of the suit land including the shop room as tenant under Subarna. The agreement for sale, admitted in evidence and marked Ext.A does not RSA Nos.435 & 436 of 2023 Page 15 of 16 {{ 16 }} state anything about the prior tenancy of the Defendant No.2 under Subarna, the proposed vendor therein. Thus, on cumulative assessment of the evidence on record, the First Appellate court is found to have rightly answered the issue in holding that the Defendant No.2 was a tenant in respect of the suit premises under the Plaintiff which has been duly terminated as required under section-106 of the Transfer of Property Act, 1882. The substantial question of law is answered accordingly in favour of the Plaintiff which in turn leads this Court to place the seal of confirmation upon the judgment and decree passed by the First Appellate Court. 15.
Arguments
other rooms. It is stated that by the time institution of the suit, the Defendants thus have been occupying tenanted premises for about 19 years. By 27.08.2008, the Defendants incurred liability of payment of arrear rent to the tune of Rs.8100/- and electricity dues to the tune of Rs.90,942/- to be paid to the Plaintiff. In course of time, there has arisen the need for the Plaintiff to have the residential room for her personal use and carrying out the business activities to derive some financial support. The Plaintiff, therefore, gave notice to the Defendants on 05.03.2008 to vacate the residential room. But then to her utter surprise she found the response of the Defendants who denied their occupation of the premises as tenants under the Plaintiff. The Plaintiff again on 02.08.2008 sent notice to the Defendants and when then also they refused to vacate the houses despite the termination of tenancy as indicated in the said notice, the Plaintiff filed the suit. It is stated that claims of the Defendants are all forged and fabricated documents. 4. The Defendant No.1 despite notice, did not coming forward to contest the suit and was set ex-parte. RSA Nos.435 & 436 of 2023 Page 4 of 16 {{ 5 }} Defendant No.2 in her written statement pleaded that the Schedule-‘B’ property originally belonged to one Brajamohan Praharaj Mohapatra of Markandapur, who died leaving behind his three widows namely, Laxmi, Sampada and Subarna. Dayanidhi Samal, the father-in- law of the Plaintiff was the Gomasta (Manager) of Brajamohan. Although the property had been purchased in the name of the Dayanidhi, it was actually the property of Brajamohan who was the real purchaser and thus the owner. There was dissension amongst the three widows of Brajamohan after the death of Brajamohan. So one of the widows namely; Subarna started residing over the Schedule ‘B’ land. Said Subarna challenging the sale-deed standing in respect of the suit land standing in favour of Dayanidhi had filed Title Suit No.67 of 1971 seeking the partition of their property along with the suit property. Dayanidhi was very a much party to the said suit as Defendant No.4. The suit was dismissed. Subarna being non-suited the Plaintiff then had carried the First Appeal which stood numbered as F.A. No.06 of 1974 before this Court. In the said Appeal, there was a compromise. As per the terms and conditions of the compromise, the widow of Brajamohan were to transfer 24 gunthas of land in favour of Dayanidhi in village Baibhui and Dayanidhi in turn was to give in exchange by transferring the suit land. Accordingly, an unregistered RSA Nos.435 & 436 of 2023 Page 5 of 16 {{ 6 }} deed of exchange was executed. Dayanidhi transferred the suit land in favour of the widows of Brajamohan who in turn transferred 24 gunthas of land in favour of Dayanidhi. So, it is said that Dayanidhi has no manner of right, title and interest as also possession over the suit Schedule-‘B’ land. Subarna while possessing her 1/3rd share over the Schedule-‘B’ land had let out the tiled roofed house standing over the suit land to Defendant No.2 for putting the Xerox machine and run the shop on monthly rental basis. It is further stated that in the year 1998, Subarna was in need of money. So she intended to transfer her 1/3rd share over Schedule-‘B’ land for a sum of Rs.50,000/-. The Defendant No.2 was not ready with such amount. Therefore, he requested Subarna for some days. The Subarna then asked the Defendant No.2 to pay a sum of Rs.50,000/- by the end of October 1998 as she was urgent need of money to meet the legal necessity. She also agreed to execute an agreement for sale with the condition that she would execute a registered sale-deed within ten days after receipt of the entire consideration money. Accordingly on the basis of receipt of the advance consideration of Rs.50,000/-, Subarna on 30.10.1998 executed an agreement for sale of her 1/3rd share over the suit land to the Defendant No.2 and pursuant to the same also delivered possession to the Defendant No.2. The Defendant No.2 RSA Nos.435 & 436 of 2023 Page 6 of 16 {{ 7 }} thus sis in possession of the same. They have obtained delivery of possession of the land comprising 1/3rd share of Subarna. The Defendant No.2 constructed one AC sheet roofed house over a carpet area of 228 sqft. and by demolishing the thatched of the Khanja house fixed R.C.C. roof over the carpet area of 674 sqft. The Defendant No.2 after receipt of full consideration amount obtained the registered sale deed from Subarna on 30.06.2008. It is stated that Defendant No.2 is thus is owner in possession of Ac.0.06 decimals out of Schedule-‘B’ property and the structure standing thereon. The Defendant No.2 states to have never been the tenants under the Plaintiff or her deceased husband. The recording of the suit land in the name of the father-in- law of the Plaintiff is attacked as illegal. It is also the case of the Defendant No.2 that she and before that her vendor have been possessing the said Ac.0.06 decimals and the structure standing there on openly, peacefully and as of right, continuously for upward of the prescribed period by denying the title of the Plaintiff, her husband and father-in-law. Accordingly, it is stated in the alternative that the Defendant No.2 has acquired the right, title and interest over the suit land by virtue of adverse possession. 5. On the above rival pleadings, the Trial Court in total framed eight (8) issues which read as under: - RSA Nos.435 & 436 of 2023 Page 7 of 16 {{ 8 }} i) Whether the suit maintainable in the present form? ii) Whether the Plaintiff has any cause of action to file the present suit? iii) Whether the suit is barred by law of limitation? iv) Whether there exists any relationship of landlord and tenant between the Plaintiff and the Defendants? v) Whether the Plaintiff is entitled to recover Rs.90,942/- towards arrear of electricity dues and Rs.8,100/- towards house rent with upto date interest from the defendant? vi) Whether the Plaintiff is entitled to get recovery of vacant possession of the suit houses and premises as described in schedule ‘C’ of the plaint? vii) Whether the defendant No.3 has perfected her title over the suit schedule ‘C’ land by adverse possession? viii) Whether the plaintiff is entitled to get any other relief/reliefs? 6. The Trial Court taking up issue nos.4 and 5 together for decision arrived at a conclusion that the Plaintiff has failed to establish her relationship with the Defendant No.2 as landlady and tenant and therefore, Plaintiff was held not entitled to arrear rent and electricity dues from the Defendants. The claim of the Defendant No.2 as regards his right, title and interest by way of adverse possession has been answered in the negative. Having so held, on the basis of the finding that the Plaintiff has the right, title and interest over the suit land, she RSA Nos.435 & 436 of 2023 Page 8 of 16 {{ 9 }} has been held entitled to recover the possession of the suit land from the Defendants. 7. The Defendant No.2 thus being aggrieved by the decision of the Trial Court in decreeing the suit filed by the Plaintiff in part granting him the relief of recovery of possession by way of eviction of the Defendant No.2, filed the First Appeal. 8. The First Appellate Court in deciding the First Appeal as also the cross-objection filed by the Plaintiff challenging the finding of the Trial Court against the relationship as claimed by the Plaintiff; under that issue no.4 has answered in favour of the Plaintiff by setting aside the finding of the Trial Court on that score while affirming all other findings returned by the Trial Court. However, in the absence of any evidence regarding the claim of the Plaintiff for realization of arrear house rent and electricity dues, said reliefs were refused. Now, therefore, the Defendant No.2 who is under sufferance of the judgments and decrees passed by both the Courts below is before
Decision
In the result, the Appeal stands dismissed with cost. (D. Dash), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 21-Dec-2023 15:48:33 RSA Nos.435 & 436 of 2023 Page 16 of 16