Dismissed¶53

Jagabandhu Paramanik v. Sripali Ghose

Orissa HC8 Aug 2025RSA/107/2012

Case brief

AI extract

What is this about?

Orissa High Court, RSA No.107 of 2012, Sashikanta Mishra, J., 8 August 2025: regular second appeal against concurrent decrees of eviction dismissed; notice under Section 106 Transfer of Property Act; objection of mis-description under Order 7 Rule 3 CPC rejected in view of plaint schedule with sketch map and tenants' written-statement admission of the house; non-joinder of co-sharer sisters held not fatal as a co-sharer plaintiff's suit for eviction enures to the benefit of all co-sharers; arrear rent Rs.3850/-; three months granted to vacate; Baripada; monthly rent Rs.350/-.

What did the court decide?

No relief to the appellants; the appeal was dismissed and the defendants, being in possession of the suit house, were directed to abide by the decree passed by the trial court and to vacate the suit house within three months. ¶53

Jagabandhu Paramanik Vs Sripali Ghose — Orissa HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Is the suit liable to fall due to want of specific description of suit land in view of Order 7 Rule 3 of the CPC? +2 more

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Court's answer

The suit property was properly described: the plaint schedule not only mentions the particulars of the suit plot but also contains a sketch map, and the defendants admitted in paragraph 11(b) of their written statement the existence of the house on the suit land; the defendants were therefore neither taken by surprise nor left in doubt as to the exact location of the suit house, and the plea of mis-description under Order 7 Rule 3 CPC fails.

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Ratio / Principle

On the contention that no issue was framed as to whether the suit house stands over Plot No.274, the Court held that in view of the defendants' admission there remains no doubt as regards the location of the property; it fully concurred with the finding of the courts below and answered substantial questions of law Nos. 1 and 3 accordingly.

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Key takeaways

The plaintiff is himself a co-sharer; being a co-sharer he sought eviction of the defendants from the suit house, an action which would enure to the benefit of all the other co-sharers; the Court declined to enter into the question whether there is cogent evidence of relinquishment of shares by the three married sisters.ratio¶49
Merely because of non-joinder of the sisters of the plaintiff the suit cannot be said to be bad in law; both the courts below correctly decided this issue, the Court concurs with the finding, and substantial question of law No.(ii) is answered accordingly.ratio¶51

Detailed headnote1 paragraphs

Eviction decree upheld in second appeal. Plaintiff Sripali Ghose (son of late Bhabanipati Ghose) sued for eviction of the defendants (appellant Jagabandhu Paramanik and others) from a house on Hal Plot No.274, Hal Khata No.135, Golapbag, Baripada, pleading that the defendants' father was inducted as tenant about thirty-two years earlier, that rent at Rs.350/- per month stopped from January 2008, and that a notice under Section 106 of the T.P. Act issued on 03.10.2008 determined the tenancy. The trial court decreed eviction with arrear rent of Rs.3850/-; the District Judge confirmed. On the admitted substantial questions of law the Court held: (i) the suit property was duly described, the plaint schedule carrying a sketch map and the written statement (para 11(b)) admitting the existence of the house on the suit land, answering SQ Nos.1 and 3 against the appellants; (ii) non-joinder of the plaintiff's three married sisters was not fatal, the plaintiff being a co-sharer whose action for eviction enures to the benefit of all co-sharers, answering SQ No.2. Appeal dismissed; defendants directed to vacate within three months. Coram: Sashikanta Mishra, J. (08.08.2025).

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IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 107 of 2012

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An appeal under Section 100 Code of Civil Procedure .

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Jagabandhu Paramanik ...… Appellant

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-Versus-

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Sripali Ghose ..… Respondent

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Advocate(s) appeared in this case:-

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_______________________________________________________ For Appellant : M/s. N.C. Pati, M.R. Dash & B. Das, Advocate. For Respondent : Mr. S.K. Mishra, Sr. Advocate M/s. J. Pradhan & D.K. Pradhan, Advocates

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CORAM: JUSTICE SASHIKANTA MISHRA

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JUDGMENT

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8th August, 2025

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SASHIKANTA MISHRA, J .

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The defendants have filed this appeal against a

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confirming judgment. The suit filed by the plaintiff for

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eviction of the defendants from the suit house was

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Page 1 of 9

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decreed by the trial court and confirmed by the 1st Appellate Court.

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For convenience, the parties are described as per their respective status before the trial Court.

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The plaintiff’s case, briefly stated is that he is the son of late Bhabanipati Ghose and has three married sisters. The sisters have relinquished their right over their land appertaining to Hal Plot No.274 under Hal Khata No.135 of Golapbag in Baripada town measuring Ac.0.08 decimals in favour of the plaintiff. A house situates in the north-west side of the land over an area measuring Ac.0.02 decimals and 500 square links. The suit house is said to be in a dilapidated condition. The father of the defendants was inducted as a tenant into the suit house about thirty two years prior to filing of the suit. After his death, the defendants continued to be in possession paying rent @Rs.350/- per month. However in January, 2008, they stopped paying house rent. The plaintiff wanted to demolish the suit house in order to make further construction thereon. Accordingly, on 03.10.2008

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Page 2 of 9

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he issued a notice under Section 106 of the T.P. Act to the defendants asking them to vacate the suit house. Though the defendants received the notice on 07.10.2008, they did not vacate the house. Hence, the suit.

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The defendants appeared and contested the suit by filing a joint written statement, inter alia, taking the plea of non-joinder of the three sisters of the plaintiff as parties and further that the suit house was not properly described. On facts, it was pleaded that the plaintiff’s father having come to Baripada was in search of a person to stay in his house to look after his property and family members. Accordingly, on his request the father of the defendants started residing in the suit house providing service to the father of the plaintiff. He used to pay Rs.10/- per month for use of the suit house.

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On such pleadings, the trial court framed the following issues for determination:-

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i) Whether the suit is maintainable in the eye of law?

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ii) Whether the plaintiff has got any cause of action to file the suit?

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Page 3 of 9

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iii) Whether the suit is hit under Order 7 Rule 3 CPC?

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iv) Whether the suit is bade for non-joinder of necessary parties?

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v) Whether the defendants are the tenants under the plaintiff on the basis of monthly rent Rs.350/- per month?

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vi) Whether the defendants have withheld the payment of monthly rent to the plaintiff since January, 2008 and plaintiff issued notice on 03.10.2008 u/s. 106 of the T.P. Act to vacate the suit house within one month hence?

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vii) To what other relief(s) the plaintiff is entitled to?

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Taking up Issue Nos.5, 6, and 7 for

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consideration at the outset, the trial court examined the oral and documentary evidence on record to hold that the defendants have been residing in the suit house as tenants since 2008 without paying rent. The plaintiff is therefore entitled to realize the arrear rent from them. The trial court thereafter held that the notice under Section 106 of the T.P. Act having been validly served, the defendants have lost the status of tenancy and as such they are trespassers over the suit land, liable to be evicted. On Issue No.3, the trial court, taking note of the

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Page 4 of 9

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admission of the defendants in the written statement regarding existence of the suit house, held that the suit was not hit by Order-VII Rule 3 of CPC. On Issue No.4, it was held that the plaintiff being one of the co-sharers is entitled to claim eviction on behalf of the other co-sharers and therefore, non-joinder of the other co-sharers (married sisters) is of no consequence. In view of the findings on the main issues as noted above, the remaining issues were answered accordingly and the suit was decreed by holding that the defendants are liable to be evicted from the suit house, with further direction to them to deliver vacant possession of the suit house to the plaintiff. Further, the plaintiff was also held entitled to arrear rent of Rs.3850/- to be paid within three months of the decree.

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Being aggrieved, the defendants carried appeal to the District Court. Learned District Judge, after reappreciating the oral and documentary evidence on record found no reason to interfere with the judgment and decree

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passed by the trial court.

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Page 5 of 9

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Being further aggrieved, the defendants have filed the present appeal, which has been admitted on the following substantial questions of law:-

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“1 Is the suit liable to fall due to want of specific description of suit land in view of Order 7 Rule 3 of the CPC?

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Is the suit liable to fail due to non-joinder of three daughters of late Bhabanipati Ghosh ?and

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Whether the suit shall fail due to non-framing of issue as to whether the suit house stands over the suit plot No.274 or over some other plot?”

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Heard Mr. B. Das, learned counsel for the defendant-appellants and Mr. S.K.Mishra, learned Senior Counsel with Ms. S. Sahu for the plaintiff-respondent. 10. Mr. B. Das argues that the plaintiff has not described the suit property properly in the plaint schedule inasmuch it has not been specifically mentioned as to in which portion of Plot No.274, the suit house situates. He further argues that admittedly the plaintiff has three sisters and even if they are married, they have interest over the property. Therefore, non-impletion of the sisters, is fatal to the suit.

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Page 6 of 9

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Per contra, Mr. Mishra, learned Senior Counsel would argue that there is no dispute whatsoever with regard to the description of the suit property and in fact the defendants have admitted the existence of the suit house in their written statement. Having done so it is not open to them to raise the plea of mis-description. Mr. Mishra further argues that the married sisters of the plaintiff have relinquished their shares in favor of the plaintiff. Even otherwise, the plaintiff being a co-sharer is competent to sue for eviction which can be treated as an action taken on behalf of the other co-sharers.

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Having considered the rival submissions as above, as also on perusal of the impugned judgments, this Court finds that both the courts below consistently held that the suit property was properly described. In order to satisfy itself as to the correctness of such findings, this Court has perused the schedule appended to the plaint, which not only mentions the particulars of the suit plot but also contains a sketch map. Even otherwise, the defendants in their written statement have admitted

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Page 7 of 9

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under paragraph -11(b) about the existence of the house on the suit land. So, it is not a case where the defendants were taken by surprise or were left in doubt as regards the exact location of the suit house. In fact, it is their own case that they have been possessing the property after death of their father, who was inducted as a tenant by the father of the plaintiff. In view of such admission there remains no doubt as regards the location of the property. This Court therefore, fully concurs with the finding of the courts below. This answers the substantial question of law Nos. 1 and 3.

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As regards the plea of non-joinder of the married sisters of the plaintiff as parties to the suit, this Court does not wish to enter into the question as to whether there is any cogent evidence of relinquishment of their shares by the three sisters of the plaintiff in his favour. It would suffice to note that the plaintiff is himself a co-sharer. Being a co-sharer he sought for eviction of the defendants from the suit house. This is an action which would enure to the benefit of all the other co-

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Page 8 of 9

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sharers. It cannot therefore be said that merely because of non-joinder of the sisters of the plaintiff, the suit was bad in law. Both the courts below have correctly decided this issue and this Court concurs with the finding. The substantial question of law No.(ii) is answered accordingly. 14. For the foregoing reasons therefore, this Court

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is not persuaded to interfere with the impugned orders.

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In the result, the appeal fails and is therefore, dismissed. Since the defendants are said to be in possession of suit house till date they shall abide by the decree passed by the trial court and vacate the suit house within three months hence.

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……..…………………..

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( Sashikanta Mishra) Judge

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B.C. Tudu

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Signature Not Verified

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Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cutt ack Date: 19-Aug-2025 19:17:47

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Page 9 of 9

Jagabandhu Paramanik v. Sripali Ghose

Case brief

What is this about?

What did the court decide?

Jagabandhu Paramanik v. Sripali Ghose

Case brief

What is this about?

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What the court decided

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