Appeal against a decree restoring possession of a shop to landlord after tenancy expiry. Held that maintenance and ownership are incidental; proven tenancy relationship bar tenant's opposite plea in other suit.
The judgments and decrees under challenge are confirmed; the appeal is 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.485 OF 2017
From the judgment and decree passed by the learned District Judge, Khurda in RFA No.37 of 2017 by confirming the judgment and decree passed by the learned Senior Civil Judge, Bhubaneswar in C.S. No.1597 of 2016.
Naba Kishore Sahoo ::: Appellant -versus- Basanta Kumar Pradhan.
::: Respondent
Appeared in this case by Video Conferencing Mode:
For Appellant M/s. S.K. Sarangi, S.K. Sarangi, A.K. Nayak, L.K. Sahoo, S. Jain, Advocates. For Respondent - M/s. Amit Prasad Bose, V. Kar, A .K. Mohanty, S.S. Dash, N. Hota, D .J. Sahoo, Advocates.
CORAM: MR. JUSTICE D.DASH
DATE OF HEARING & JUDGMENT ::17.09.2021
D.Dash, J . The Appellant, by filing this Appeal, under section 100
of the Code of Civil Procedure (for short, ‘the Code’) has assailed the
judgment and decree passed by the learned District Judge, Khurda in RFA No.37 of 2017.
By the said judgment and decree, the Appellant court in that Appeal under Section-96 of the Code has confirmed the judgment and decree passed by the learned Senior Civil Judge, Bhubaneswar in
C.S. No.1595 of 2016 in decreeing the suit filed by the Respondent as
Plaintiff for recovery of the possession of the suit shop from the
{{ 2 }}
Appellant (Defendant) followed by the award of damage @ Rs.200/per diem with effect from 01.12.2013 till vacation to be paid by the Appellant (Defendant) to the Respondent (Plaintiff).
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 . The Plaintiff’s case is that he is the owner of the plot of land over which the building having three rooms at its ground floor stands. It is stated that he had inducted the defendant as the tenant in respect of suit shop consisting of three rooms in the year, 1997 and an agreement to that effect had been entered into between them from time to time. It is the case of the Plaintiff by the last agreement, the tenancy commencing from 01.01.2013 was created for a period of eleven month on the condition as to payment of rent of Rs.4,800/- per month excluding electricity charges of Rs.500/- every month. It is his case that after expiry of the period of tenancy i.e. on 30.11.2013, he for his own requirement and need requested the Defendant to vacate the possession of the shop. Then Defendant is said to have dragged on with the matter on different pretexts. The Defendant however went on paying monthly rent of Rs.6,500/- excluding electricity charges.
When the matter stood thus, the Plaintiff came to know about the institution of a suit bearing C.S. Case No.724 of 2016 by the
{{ 3 }}
Defendant as the Plaintiff therein against him for permanent injunction. The suit has been filed to restrain the present Plaintiff from evicting him by force and without following due process of law. The Defendant having not vacated the suit shop as so wanted by him, the present Plaintiff served a notice dated 18.04.2016 which stood retuned by the postal authority without any specific endorsement. So, the Plaintiff again dispatched the notice dated 25.04.2016 requesting the Defendant that in terms of earlier notice, let him vacate the suit shop. When no development in that direction took place, this suit for recovery of possession in respect of the suit shop, from the Defendant has been filed by the Plaintiff, in further claiming the damage for such occupation after the termination of tenancy.
4 . The Defendant in the written statement questioned the maintainability of the suit on the ground of improper description of the subject matter of the suit i.e. the suit shop. The Defendant also questioned the ownership of the Plaintiff in so far as the suit shop is concerned and as claimed by him. He denied his relationship with the Plaintiff as tenant and landlord. It is specifically pleaded that the Defendant has been inducted as a tenant in respect of the suit shop in the year, 1997 vide agreement dated 25.11.1997 by execution of the
same by one Hemanta Kumar Pradhan and the Plaintiff who happens to be his brother as landlords. It is his case that when the Plaintiff
{{ 4 }}
without any right whatsoever threatened to dispossess him from the suit shop and so evict him therefrom; he had filed the suit i.e. C.S. No.724 of 2016. It is his specific case that the Plaintiff has no right to seek the decree of eviction from the suit shop.
5 . On the above rival pleadings, the Trial Court framed as
many as eight issues. Parties having let in oral and documentary evidence, the Trial Court appears to have rightly taken up the issues relating to maintainability of the suit for improper description of the subject matter and the entitlement of the Plaintiff to the decree of eviction of the Defendant together for decision.
Upon consideration of evidence on record and their detail discussion in the backdrop of the settled position of law holding the field, the Trial Court having held the suit at the behest of the Plaintiff to be competent has finally answered those issues in favour of the Plaintiff and has found the Plaintiff as entitled to the decree for eviction of the Defendant and award of damage to be paid by the Defendant.
6 . The Defendant being aggrieved by the aforesaid judgment and decree passed by the Trial Court having carried the appeal under Section-96 of the Code has been unsuccessful in getting any relief therein. Hence, the present Second Appeal under Section100 of the Code.
{{ 5 }}
7 . The Appeal has been admitted on the following substantial question of law:-
8 . Heard Mr. S.K. Sarangi, learned counsel for the
Appellant and Mr. A.P. Bose, learned Counsel for the Respondent at length. Perused the judgments passed by the Courts below. I have also carefully gone through the rival pleadings and the evidence both oral and documentary, let in by the parties.
9 . In the exercise of arriving at an answer on the substantial question of law formulated while admitting the Appeal, this Court at first feels it proper to have a look at the evidence piloted by the parties. The last agreement pleaded by the Plaintiff to have been executed by him is dated 11.11.2013 and that has been admitted in evidence and marked as Ext.5/b; the Plaintiff and the Defendant are the parties to the same. It appears therefrom that the Plaintiff being
the landlord has executed the said agreement; wherein the Defendant stands as his tenant and the period of agreement as per that was to end on 30.11.2013. From the side of the Plaintiff, the plaint filed by the Defendant in instituting the suit i.e. C.S. No.742 of 2016 has been
{{ 6 }}
proved and marked as Ext.1. The Defendant being the Plaintiff in the said suit has pleaded that the Plaintiff herein the present suit and his brother Hemanta Pradhan are the owners of the suit premises and that he is occupying the suit shop on payment of monthly rent to them. It has also been specifically stated therein that in an amicable partition
between the present Plaintiff and his brother Hemanta, the suit shop had fallen to the share of present Plaintiff for which he executed the agreement with the Defendant from time to time and the last one was on 01.01.2013 wherein the period of tenancy was coming to an end on expiry of 30.11.2013. The Defendnat has also proved Ext.A showing the payment of rent for the suit shop to the Plaintiff.
This being the evidence on record, it stands established that the Plaintiff is the landlord of the Defendant in respect of the suit shop. In the present suit, the Defendant has asserted that the Plaintiff is not having the ownership over the said shop situated on the ground floor of the building. Such a stand is just opposite to the one that the Defendant has taken in the very suit filed by him as Plaintiff to protect his possession of the suit shop from the hands of this Plaintiff who according to him was then attempting to forcibly oust him despite his status as a tenant therein and without taking recourse to law. Thus, when the Defendant has filed the suit i.e. C.S. No.724 of 2016, seeking protection as regards the occupation of his suit shop
{{ 7 }}
from being taken away by the present Plaintiff by not following the due process of law asserting himself as the tenant under the PlaintiffLandlord, he is stopped from saying otherwise in the present suit and such a plea is barred in law which is also so provided in Section-116 of the Evidence Act. Moreover, in a suit for eviction based on the relationship of landlord and tenant, the question of ownership is of no significance. Once the relationship is proved and it is held that the tenancy has been terminated as required in law, the decree for eviction has to follow. As per the settled position of law, the decree for being passed in favour of the landlord for eviction of tenant under him is consequent upon the finding as to existence of such relationship between them and due termination of the tenancy prior to the suit. Such a decree does in no way affect the right, title and interest of the actual owner/title holder of the property in question.
In view of all the aforesaid discussion that even if for a
moment, it is said that the ownership of the land over which the building consisting said shop does not rest with the Plaintiff; the Courts below did commit no error in decreeing the suit filed by the Plaintiff granting him the relief of eviction of the Defendant and damage for his occupation after termination of tenancy till the vacation. The substantial question of law formulated while admitting the Appeal is accordingly answered against the case of the Defendant.
{{ 8 }}
10. In the wake of aforesaid; the judgments and decrees
under challenge are hereby confirmed.
Accordingly, the Appeal is dismissed and in the facts and
circumstances no order as to cost is passed.
…………………..
(D. Dash), Judge.
Narayan
2 issues framed by the court
Whether the courts below erred in holding the suit maintainable despite non-joinder of the State in the Department of General Administration?
Whether a decree for eviction can be passed based on established landlord-tenancy relationship even if ownership of the property is disputed?
3 provisions across 2 enactments
Naba Kishore Sahoo
Basanta Kumar Pradhan
D. Dash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
