Geeta Devi Sharma vs Vinay Kumar Sharma
2021 Latest Caselaw 11852 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                                RSA No.344 of 2007

            Geeta Devi Sharma                       ....          Appellant
                                                         Mr.R.K. Mohanty
                                                             Sr. Advocate
                                        -versus-

            Vinay Kumar Sharma                      ....        Respondent
                                                           Mr.B. Mohanty

                      CORAM:
                      MR. JUSTICE D.DASH
                                        ORDER

17.11.2021 Order No.

07. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode).

2. The Appellant, by filing this Appeal Section 100 of the Civil Procedure Code (for short, 'the Code'), has assailed the judgment and decree passed by the learned Additional District Judge, Baripada in R.F.A. No.39/62 of 2007-05.

By the said judgment, while allowing the First Appeal filed by this Appellant under section 96 of the Code, the First Appellate Court has set aside the judgment and decree dated 28.11.2005 and 05.12.2005 respectively passed by the learned Civil Judge, Junior Division, Baripada in T.S. No.33 of 1998.

3. The Respondent is the Plaintiff in the Suit. He being the owner and landlord of the suit shop room had filed the Suit for eviction of the Appellant-Defendant in occupation of the same since the time of her husband, who was a tenant under the Respondent-Plaintiff. The Appellant-Defendant contested the Suit

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in admitting the relationship of landlord and tenant between the Respondent-Plaintiff and her husband, she stated to have been occupying said shop room as such after the death of her husband and that she having offered the rent, the same was being avoided to be accepted by the Respondent-Plaintiff with an oblique motive to project that as the ground for termination of the tenancy in finally seeking eviction. The Trial Court, based on such admitted relationship and nature of occupation, had dismissed the Suit holding that ground set out for termination of the tenancy has not been established by the Respondent-Plaintiff.

The First Appellate Court, on detail discussion of the evidence on record as also the legal position holding the field, has held the Respondent to be entitled to a decree of eviction of the Appellant-Defendant. Accordingly, the First Appellate Court has directed the Appellant-Defendant to vacate the suit shop room within three months and pay compensation @ Rs.10/- per day with effect from 20.01.1998 till delivery of vacant possession.

4. Heard learned counsel for the Appellant (Defendant) in the matter of admission of this Appeal.

He submits that the Appeal merits admission on the following substantial question of law:-

"Whether the continuance of the Appellant in the suit premises as the successor of the original admitted tenant on payment of rent without any agreement and continuing to occupy with the permission of the Respondent can be construed under law to have created a fresh tenancy in favour of the Appellant?"

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5. Keeping in view the submissions made, the judgments rendered by the First Appellate Court has been carefully gone through.

6. Admittedly, the husband of the Appellant- Defendant was a tenant in respect of the suit shop room. The Appellant- Defendant, in her evidence, has admitted that her husband had paid rent up to December, 1996 and she has been occupying the shop room as such after the death of her husband was and is always ready and willing to pay the rent which is purposely not received by the Respondent- Plaintiff. The First Appellate Court having made detail discussion of the provisions of Section 106 and 107 of the Transfer of Property Act is seem to have rightly arrived at the conclusion with the occupation of the suit shop room by the Appellant-Defendant is as of a tenant by sufferance. Accordingly, further going through the evidence on record having held the tenancy to have been duly terminated, the First Appellant Court has held decreed the suit filed by the Respondent-Defendant granting the reliefs as aforesaid.

7. This Courts finds no such infirmity with the findings so arrived at by the First Appellate Court. Thus finding no such substantial question of law standing to be answered in this Appeal, this Court is not in a position to accept the submission of the learned Counsel for the Appeal so as to admit this Appeal.

8. Accordingly, the Appeal stands dismissed. No order as to costs.

(D. Dash), Judge.

Basu