Rabindra Ku.Sahoo Vs Shyama Sundar Sahoo

in RFA No.118 of 2013 is under challenge, whereby the judgment passed by learned 2^nd Additional Civil Judge (Senior Division), Cuttack on 17.08.2013 followed by decree in C.S. No.385 of 2012 was partly reversed.

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For convenience, the parties are described as per their respective status in the trial court.

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The facts of the case are that the plaintiff filed the suit for eviction of the defendants from the suit house, permanent injunction, arrear house rent and damages. The plaintiff’s case is that being one of the co-owners in respect of the suit property, the same being his ancestral property, some of the houses standing over the suit land were rented to different tenants on monthly rent basis including four rooms on the northern side to Banamali Sahoo, the father of the defendant No.1. Banamali Sahoo died leaving behind the defendants. The defendants initially vacated the suit house being asked by the plaintiff in November, 1998 but were again inducted as monthly tenants on Rs.500/- per month. They paid the house rent regularly till June, 2009 but thereafter they stopped doing so. As such, the plaintiff asked them to vacate the suit

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house on 01.09.2011, which they did not accede to for which, the plaintiff sent a legal notice under Section 106 of the T.P. Act on 19.02.2012. Since the defendants refused to vacate the suit house by disputing the tenancy, the plaintiff filed the suit claiming the aforementioned reliefs.

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The defendants contested the suit by filing a

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joint written statement, claiming that they are not tenants under the plaintiff but are successors of one Sadananda Sahoo, who is one of the co-owners of the suit property. It

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was claimed that the suit property originally belonged to one Jagabandhu Sahoo who died leaving behind six sons, namely, Anadi, Hadibandhu, Lokanath, Nabin, Dinabandhu and Sadananda. According to the defendants, the plaintiff belongs to the branch of Anadi but came over subsequently to Handibandhu’s branch.

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The defendants belong to the branch of Sadananda who died leaving behind his son Khetramohan and others. Khetramohan died leaving behind his only daughter Sunamani, who was staying with her husband in her father’s house on the suit property and Banamali, the

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father of defendant No.1 and one Jogi and Padu were her

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sons. Jogi and Padu died issueless and Banamali occupied the suit house till his death and after him , the defendants have continued to be in occupation of the suit house.

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Basing on the rival pleadings, the trial court

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framed the following issues for determination:-

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“(i) Whether the suit is maintainable in its present form?

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(ii) Whether the plaintiff has got any cause of action to bring this suit?

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(iii) Whether the defendants are the tenants under the plaintiff and are liable for eviction after receiving notice U/s. 106 of T.P. Act?

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(iv) Whether the plaintiff is entitled for permanent injunction restraining the defendants from coming over the suit land?

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(v) Whether the plaintiff is entitled for a decree of damage of Rs.50/- per day against the defendants for unauthorised occupation of the suit house since 19.03.2012 along with a decree of Rs.50,000/- towards arrear house rent?

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(vi) To what other relief or reliefs the plaintiff is entitled for?”

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Issue No.3 was taken up for consideration by

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the trial Court at the outset. After going through the oral

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and documentary evidence including the judgments

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passed in an earlier suit and appeal, the trial court found that as per the genealogy, there was no one named Sadananda in the family but one Sananda was a member of the family. The trial court further took note of the order passed by the then City Magistrate in Criminal Misc Case No. 337 of 1967 to hold that the defendants were not the co-owners/-co-sharers of the suit property. The trial Court further found that the plaintiff had established his title over the suit land by adducing cogent evidence. The trial Court also found that the plaintiff had proved that Banamali was inducted as a tenant and the defendants left the house in the year, 1989 and were re-inducted as tenants in the year, 2003. On such findings Issue No.3 was answered in favour of the plaintiff. Issue No.4 was also answered in favour of the plaintiff in view of the above findings. On Issue No.5, the trial court found that the defendants had stopped payment of house rent from the month of July, 2009 and being tenants, they are bound to pay the same from August, 2009. But the trial court was not inclined allow the claim of damages of Rs.50/- per

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day, considering the document submitted by the defendants. On such findings, the suit was decreed by directing the defendants to vacate the suit house within three months with permanent injunction thereafter and to pay a sum of Rs.50,000/- towards arrear house rent.

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The defendants carried the matter in appeal. Learned First Appellate Court after analyzing the oral and documentary evidence on record found that the trial court had rightly held the plaintiff to be one of the co-owners of the suit property whereas the defendants have no interest therein. Further, despite denying the claim of tenancy advanced by the plaintiff, the defendants could not prove their case. However, the First Appellate Court did not find cogent evidence regarding the tenancy but nevertheless held that the plaintiff had a better title than the defendants and that a co-sharer can file a suit for eviction of a stranger to the property. As such, the decree passed for eviction on the defendants was not interfered with. However, in the absence of proof of tenancy, the award of Rs.50,000/- by the trial court towards arrear house rent

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was held to be incorrect, though the plaintiff would be

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entitled to damage @ Rs.500/- per month. The First

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Appeal was thus allowed in part by confirming the decree of eviction of the defendants along with permanent injunction but the direction to pay Rs.50,000/- towards arrear house rent was set aside.

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Being further aggrieved, the defendants have preferred this Second Appeal, which was admitted on the following substantial question of law:-

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“Whether the lower appellate court in the instant suit has erred in law by granting the relief of eviction of the defendants as prayed for by the plaintiff on the fact of finding recorded by him that the plaintiff has failed to establish the relationship of landlord and tenant between himself and the defendants and whether such a course is permissible in law to be adopted by the lower appellate court in a suit of the present nature with the reliefs as claimed?”

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Heard Mr. Bibekananda Bhuyan, learned

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counsel for the defendant–appellants and Mr. B.C. Panda, learned counsel appearing for the plaintiff-respondents.

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Mr. Bhuyan would argue that both the courts below committed manifest error in entertaining the suit ignoring the settled position of law that a mere suit for ejectment on the face of bonafide dispute regarding

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tenancy is not maintainable. Mr. Bhuyan relies upon the

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judgment passed by the Supreme Court in the case of Laxmidas Morarji (Dead) by LRs v. Miss Behrose Darab

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Madan ,¹ . Further, the First Appellate Court committed gross error in not addressing the issue of maintainability, even though the tenancy was not proved.

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Per contra, Mr. Panda would argue that the defendants being strangers have no right to question the competence of the plaintiff, who is one of the co-owners to file the suit. Further, the claim of the defendants of being related to the family has already been decided earlier in the Second Appeal. The defendants completely failed to prove that they are the co-owners of the suit property. Mr. Panda further argues that the First Appellate Court categorically held that the plaintiff has a better title than the defendants and being a co-sharer, he can always maintain a suit for eviction of a stranger. The defendants are nothing but rank trespassers for which the suit is maintainable. The defendants never specifically disputed the receipt of notice under Section 106 of the T.P. Act. As

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1 (2009) 10 SCC 425

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such, their dispute with regard to tenancy is hit by Order8 Rule-5 of CPC, i.e., the doctrine of non-traverse

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Undisputedly, the plaintiff filed the suit on the specific plea that Banamali Sahoo, father of defendant No.1 had taken four rooms over the suit land on monthly rent of Rs.100/-. After death of Banamali, his wife and defendant No.1 continued to occupy the rooms as monthly tenants. The tenancy was terminated in November, 1989. However, the defendants were again inducted as tenants in August, 2003, on a monthly rent of Rs.500/-. Admittedly, there was no rent agreement. Moreover, no rent receipts were issued by the plaintiff. The defendants claimed to be co-sharers by projecting a genealogy in which one Sadananda was a co-owner. They claimed to belong to the branch of Sadananda. On comparison of oral and documentary evidence adduced by the parties, both the courts below found that the claim of the defendants had no legs to stand and that the plaintiff being a coowner has title over the suit property. The trial court in particular found that there was no one named Sadananda in the genealogy, but there was name of one Sananda

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therein, and it was not proved that Sadananda and Sananda are one and the same person. The trial Court as well as the First Appellate Court relied upon the order passed by the then City Magistrate in Criminal Misc. Case No.337 of 1967 to hold that the defendants were not the co-owners/co-sharers of the suit property. On such finding, the trial Court found that the plaintiff had established his title over the suit property. The trial court accepted the claim of the plaintiff that the defendants were monthly tenants under him but the First Appellate Court while accepting the finding that the plaintiff had title over the suit property however, did not accept the finding regarding tenancy. It was thus held that the tenancy as claimed by the plaintiff could not be proved adequately.

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The question that arises for consideration is, whether on the finding regarding absence of proof of tenancy can the suit for eviction be entertained. In this regard, Mr. Bhuyan has relied upon the judgment in Laxmidas Morarji (Dead) LRs (supra). Reading of the said judgment reveals that the same was rendered in the

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context of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The cited case obviously has no application to the facts of the present case. Be it noted here that the judgment of the First Appellate Court reversing the finding of the trial court that the defendants were monthly tenants under the plaintiff has not been challenged by the plaintiff independently or by way of cross appeal. The said finding must therefore, be treated as final. The challenge mounted by the defendants to the finding of both the courts below that the plaintiff proved that he is a co-owner of the suit property and thus has better title than the defendants is not acceptable in view of the failure of the defendants to substantiate their claim of having title. The factual position that emerges thus is, notwithstanding absence of cogent proof of tenancy, fact remains that the plaintiff has better title than the defendants over the suit property and the defendants neither being co-owners/co-sharers or having any manner of right, title and interest over the suit property can only be treated as trespassers.

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In such view of the matter, the plaintiff being a

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co-owner has every right to ask for ejectment of the defendants who, being trespassers/strangers to the suit property, have no right to occupy the same without consent of the plaintiff. The argument advanced by Mr. Bhuyan is therefore, not tenable. The further argument that the First Appellate Court did not address, the issue of maintainability of the suit is no longer required to be gone into in view of the finding that the plaintiff having a better title than the defendants and the defendants being in the position of a trespasser/stranger, the suit for ejectment is maintainable. Though not explicitly stated by the First Appellate Court, the impugned judgment clearly reflects the above principle.

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For the foregoing reasons therefore, this Court finds no merit in the Second Appeal, which is therefore, dismissed, but in the circumstances without any costs.

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……..…………………..

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Signature Not Verified

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Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Orissa High Court, Cuttack, Location: Orissa High Court, Cutt The 17^th January , 20 25/ ack B.C. Tudu Date: 17-Jan-2025 17:00:45

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Sashikanta Mishra, Judge

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Rabindra Ku.Sahoo v. Shyama Sundar Sahoo

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Rabindra Ku.Sahoo v. Shyama Sundar Sahoo

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