Raj Kishore Subudhi vs Unknown
2021 Latest Caselaw 12262 Ori

              HIGH COURT OF ORISSA : CUTTACK
                             RSA NO.228 OF 2008

      In the matter of appeal under Section-100 of the Code of Civil
Procedure assailing the judgment and decree dated 24.5.2008 and
26.6.2008 respectively passed by the learned Additional District Judge,
Nayagarh in RFA No.23 of 2007.
                               .........

       Raj Kishore Subudhi                            ::::   Appellant.

                                  -:: VERSUS ::-
       Sri Lachhaman Balaji Dev,
       Bije Danda Sahi, Ranpur Town                   ::::   Respondent.

Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode.

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For Appellants ... M/s. P. Kar, A.K. Mohanty, B.K.

Senapati, G. Kar, J. Behera, M.R.

Satpathy & K. Khuntia, Advocates

For Respondent ... M/s. Ramakanta Mohanty, Sr.Advocate, A. P. Bose, S.N.

Biswal, S.K. Mohanty, P. Jena, D.

Varadwaj, Advocates

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PRESENT:

THE HON'BLE MR. JUSTICE D.DASH

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Date of Hearing & Judgment: 30.11.2021

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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 dated 24.5.2008 and 26.6.2008 respectively passed {{ 2 }}

by the learned Additional District Judge, Nayagarh in RFA No.23 of 2007.

By the said judgment and decree while dismissing the First

Appeal filed by the Appellant (Defendant) under section 96 of the Code,

the First Appellate Court has confirmed the judgment and decree passed

by the learned Civil Judge (Junior Division), Ranpur in Title Suit. No. 7

of 1991.

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 suit is for eviction of the Defendant from the

rented house and realization of rent etc. The Plaintiff is the Deity

represented by its Marfatdar. It is stated that over the land owned by

Deity which adjoins the main road of Ranpur, four pucca rooms stand

and out of those four rooms, the Defendant had taken one room as a

tenant on payment of monthly rent of Rs.150/-. The Defendant was

inducted as tenant from September, 1989. It is stated that having paid

rent up to end of March, 1990, the Defendant avoided to pay the rent

thereafter and that he was also failed despite repeated demand from the

Plaintiff. So the notice was served and as that did not bring any response

from the Defendant, the suit has come to be filed.

{{ 3 }}

4. The Defendant in the written statement raised the plea that the suit

is not maintainable as no such cause of action had arisen for the same. It

is stated that the suit is barred by limitation being filed after 12 years of

continuous possession of the suit premises by the Defendant. It is also

stated that the person who is representing the Plaintiff-Deity as its

Marfatdar was never the Marfatdar and that status he claims on the basis

of forged Will being prepared after death of Mahanta Brudaban Das. It

is further stated that said Mahanta Brundaban Das had lost his title over

the property much prior to his death. So the Plaintiff is stated to be a

stranger and as such having no locus to bring the suit. It is further said

that since the year 1917, the land was lying fallow and in the year 1938

after the captivation of the State by Britishers the King-Ruler lost his

control and therefore people possessed these fallow lands. The grand-

father of the Defendant namely Gopinath Subudhi had constructed a

thatched house over the same and thereafter the father of the Defendant

came to enjoy. When the state of affair was thus continuing, in the year

1953, Damodar Subudhi constructed an old model Kotha house over the

suit land and in the year 1970, the doubled storied building was put up.

It is thus stated that since the time of the grand-father of the Defendant,

the land has been in their open, peaceful, continuous possession, without

any interference from any quarter and it was to the knowledge of {{ 4 }}

Mahanta Brundaban Das and his Guru Mahanta Nilachakra Das. It is

stated that the record of right and rent receipts as are projected by the

Plaintiff are of no value as those do not relate to the disputed house.

5. On the above rival pleadings, the Trial Court in total framed 11

issues. First coming to answer issue no. 4 as to the Marfatdarship of the

Deity, the answer has been rendered basing upon the order passed by the

learned District Judge, Puri in Probate Proceeding holding the Will in

favour of the Plaintiff to be genuine and issuance of the letter of

administration in his favour. The order of the Endowment

Commissioner admitted in evidence and marked as Ext. 5 is in

recognition of the position as the Mahanta. Thus having found locus of

the person concerned to represent the Plaintiff-Deity in filing the suit,

the Trial Court has proceeded to answer the other issues touching the

relationship of landlord and tenant and termination of tenancy in favour

of the Defendant.

Having gone through the evidence it is seen that all those answers

have been rendered in favour of the Plaintiff and lastly, the plea of the

Defendant in asserting his independent claim over the suit property has

also been negated.

{{ 5 }}

The Lower Appellate Court as it appears from para-3 and 4 of its

judgment on vivid discussion of evidence both oral and documentary on

record has held the findings of the Trial Court to be well in order.

6. Heard learned counsel for the Appellant as also the learned

counsel for the Respondent.

Perused the judgments passed by the Trial Court as also the First

Appellate Court.

Having kept the submission advanced in view the judgments of

the courts below being gone through, it is seen that from the side of the

Plaintiff, the record of right in respect of the land in question has been

proved under Ext. 1 which shows that the land is recorded in the name

of deity. Ext. 2 the rent receipts also stand in support of payment of rent

to the State for the land under Ext. 1. Vide order under Ext.4, the

District Judge has granted the letter of administration giving the

approval to the due execution and the genuineness of the Will executed

by Mahanta Brundaban Das. The order of the Commissioner

Endowment, Bhubaneswar in O.A Case No. 106 of 1987 (Ext.5) shows

that Mahanta Sri Gopal Saran Das has been recognized as Mahanta of

Deity and thus the affairs of the Deity being managed by the Marfatdar

stands established. The courts below have found on detail discussion of

the evidence that the Defendant has occupied the suit house on monthly {{ 6 }}

rent and it had been let out to the Plaintiff on monthly rent of Rs.150/-

and no such glaring infirmity is noticed therein. The possession of the

suit room is being thus permissible, it has been rightly held that the plea

of adverse possession as advanced by the Defendant is untenable.

During hearing, learned counsel for the Appellant (Defendant) has

not been able to invite attention of this Court to any such material before

the Court so as to say that the findings returned by the courts below are

the outcome of perverse appreciation of evidence and thus the result

recorded in favour of the Plaintiff by the courts below suffers from the

vice of perversity.

In view of all the aforesaid, this Court is of the view that no such

substantial question of law surfaces for being answered in this Appeal.

7. Accordingly, the Appeal stands dismissed. No order as to cost.

(D. Dash), Judge.

Aksethy