The High Court dismissed an appeal challenging a decree for eviction. The lower courts held the petitioners were trespassers residing with permission. The HC found no perversity in the findings of fact and dismissed the appeal for lack of substantial question of law.
The appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF ORISSA: CUTTACK
RSA No.06 of 2009
From the judgment and decree dated 26.08.2008 and 12.09.2008 respectively passed by Sri A.K. Panda, Additional District Judge (FTC-II), Bhadrak in R.F.A. No. 83/32 of 2005 confirming the judgment and decree dated 22.09.2005 and 07.10.2005 passed by Sri A.K. Dash, Civil Judge (Junior Division), Bhadrak in T.S. No.116 of 1995-I.
Dillip Kumar Pal …. Appellant
Versus Smt. Hemalata Panda & others …. Respondents
For Appellant … Mr. S.K. Nayak-2, Advocate
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 01.12.2016 : Date of judgment: 01.12.2016
DR.A.K.RATH, J. Respondents as plaintiffs instituted the suit for eviction of the defendants from the suit house and realisation of compensation @ Rs.100/- per month from 01.04.1995.
02. The case of the plaintiffs is that the suit schedule house consisting of two rooms situated over plot no.84 of M.S. Khata No.224 corresponding to C.S. Plot No. 77, area of Ac.0.09 dec. of MouzaJagannathpur originally belonged to Krutibash Panda and Bhagaban Panda. Both have equal shares. In an amicable family partition about 60 years back, Krutibash Panda got Ac.0.04-1/2 dec. of land on the eastern side of the plot. In the major settlement, the plot was increased to Ac.0.10
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dec. as a result of which, the area of both Krutibash Panda and Bhagaban Panda was increased to Ac.0.05 dec. Bhagaban Panda died. After him, his widow, Sabitri Dibya succeeded to his property. She constructed some houses and let out to different persons including one Dhruba Charan Pal, the husband of defendant no.1. Previously there was a suit bearing no.126 of 1975-I in the court of Munsif, Bhadrak in which, Dhruba Charan Pal was defendant no.7. He had filed the written statement admitting Sabitri Dibya as his landlord. The suit was decreed. The matter was carried to apex Court. On 28.09.1976, Sabitri Dibya gifted an area of Ac.03-9/10 dec. of land in favour of plaintiff no.2 by means of a registered gift deed. Thereafter, plaintiff no.2 became the owner in possession of the said land. Prior to that, on 25.08.1975, she had transferred 600 square links out of Ac.0.04-1/2 dec. of land along with some other lands in favour of plaintiff no.1 by means of a registered sale deed. Plaintiff no.1 became the owner in possession of that land. At the time of transfer of land by Sabitri Dibya in favour of the plaintiffs, Dhruba Charan Pal, the husband of defendant no.1 was a tenant of the land. In view of the alienation, he was paying rent to them. In the M.S.R.O.R., the said land has been recorded in the name of the plaintiffs. They are paying rent, holding tax and also repairing the house. It is further stated that when the plaintiff acquired the land along with the house situated over the same, Dhruba Charan Pal had no house. He purchased a land, constructed the house and shifted there. After death of Dhruba Charan Pal, defendant no.1 was in possession of that house. To take care of her, she kept defendant nos.2 & 3, her grand-sons with her. In the year, 1993, due to heavy rain, the house of defendant no.1 was
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inundated in water and unfit for human habitation. Thereafter, defendant no.1 approached the plaintiffs to remain in the house till repairing. Realizing the difficulty of the defendant no.1, the plaintiffs allowed her to remain in their house with the condition that she will vacate the house in January, 1994. She did not vacate the suit house. The persuasion made by the plaintiffs ended in a fiasco. With this factual scenario, the suit has been filed.
03. Pursuant to issuance of summons, the defendants entered appearance and filed a written statement denying the averments made in the plaint. The case of the defendants is that the husband of defendant no.1 was a class-IV employee in Bhadrak College. He died in the year 1979 leaving behind defendant no.1 and their five daughters. In the year, 1958, he along with his family members remained in the suit house as tenants under Sabitri Dibya. During his tenancy, Sabitri Dibya alienated the suit house to one Hemanta Bhatacharya. Hemanta Bhatacharya was accepting rent of the house as a landlord. Thereafter, Hemanta Bhatacharya alienated the suit land in favour of Krutibash Panda. Krutibash Panda became the landlord of the house. After death of the husband of defendant no.1, she along with her family members is staying in the suit house. She was paying rent to Krutibash Panda and after his death to his wife and sons. The plaintiffs are not in possession over the suit house. Neither Dhruba Charan Pal, nor defendants were tenants under the plaintiffs at any point of time. The plaintiffs have filed a suit against Krutibash Panda in the court of Munsif, Bhadrak bearing No. 126 of 1975-I, which is now
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sub judice before the apex Court. Since defendant no.1 was not a tenant of the plaintiffs, she cannot be evicted.
04. On the inter se pleadings of the parties, the learned trial court struck six issues. To substantiate the case, the plaintiffs examined two witnesses and on his behalf, seventeen documents had been exhibited. Defendants examined three witnesses and on his behalf, six documents had been exhibited. On an analysis of the evidence of record, both oral and documentary and pleadings, the learned trial court came to hold that the plaintiffs are the owners of the suit house. The defendants are residing in the house with permission of the plaintiffs. They are trespassers. Held so, the learned trial court decreed the suit. The defendants unsuccessfully challenged the judgment and decree passed by the learned trial court before the learned Additional District Judge (FTC-II), Bhadrak in R.F.A. No. 83/32 of 2005, which was eventually dismissed.
05. Heard Mr. S.K. Nayak-2, learned counsel for the appellant.
06. Mr. Nayak-2, learned counsel for the appellant, argues with vehemence that the defendants were not tenants under the plaintiffs at any point of time. The house originally belonged to one Sabitri Dibya. The husband of the defendant no.1 was a tenant under Sabitri Dibya. Sabitri Dibya sold the suit house to one Hemanta Bhatacharya. Thereafter, Hemanta Bhatacharya was accepting rent of the house from the plaintiffs. While the matter stood thus, Hemanta Bhatacharya transferred the land to Krutibash Panda. Krutibash Panda became the landlord of the house. After death of the husband of defendant no.1, she along with her family members is staying in the suit schedule house. She was paying rent to
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Krutibash Panda and after his death to his widow. He further submits that the findings of the courts below are perverse.
07. The submission of Mr. Nayak-2, learned counsel for the appellant is difficult to fathom. Both the courts below have concurrently held that the plaintiffs are the owners of the suit schedule house. The defendants are residing in the house with permission of the plaintiffs. They are trespassers. Further the defendants have denied the title of the landlord and as such they are liable to be evicted. These are essentially findings of fact. There is no perversity in the impugned judgment.
08. The appeal does not involve any substantial question of law. Accordingly, the same is dismissed.
…..…………………….. DR. A.K.RATH, J.
Orissa High Court, Cuttack. The 1st December, 2016/ Puspanjali
1 issue framed by the court
Whether the findings of the courts below that the appellants were trespassers residing with permission were perverse.
Dillip Kumar Pal
Smt. Hemalata Panda
A.K. Rath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
