Orissa High Court
Hasmat Ali vs Amina Bibi & Others on 13 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.403 of 2017
In the matter of an Appeal under Section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 04.08.2017 & 18.08.2017
respectively passed by the learned 1st Additional District Judge, Rourkela in
R.F.A. No. 15 of 2015 confirming the judgment and decree dated
21.07.2015 & 01.08.2015 respectively passed by the learned Civil Judge,
Senior Division, Rourkela in C.S. No.15 of 2009.
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Hasmat Ali .... Appellant
-versus-
Amina Bibi & Others .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.Somya Mishra,
Advocate
For Respondents - Mr. Goutam Mishra,
Sr. Advocate
CORAM:
MR. JUSTICE D.DASH
DATE OF HEARING :03.11.2023 :: DATE OF JUDGMENT:13.11.2023
D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code
of Civil Procedure, 1908 (for short, 'the Code'), has assailed the judgment
and decree dated 04.08.2017 & 18.08.2017 respectively passed by the
learned 1st Additional District Judge, Rourkela in R.F.A. No. 15 of 2015.
The Respondents as the Plaintiffs had filed Civil Suit No.15 of 2009 in
the Court of Civil Judge, Senior Division, Rourkela seeking a declaration that
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the Appellant (Defendant) was a tenant under them till 31.03.2003 and
thereafter has been in occupation of the suit shop-room as a tress passer and a
decree for his eviction from the suit shop room as well as other reliefs.
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 Suit.
3. The Plaintiffs are the owners of the market complex which is known
as National Market Complex standing on the land owned by them. The
complex consists of four shop rooms from North to South on the main road
of Rourkela. The extreme eastern road which is D-Block was let out by the
original Plaintiff, who having died, his legal representatives have prosecuted
the suit as the newly added Plaintiffs, who are the Respondents in the present
Appeal. The Defendant was inducted as a monthly tenant in respect of the
suit shop room and the tenancy commenced with effect from 01.09.2000.
The agreed rent of Rs.500/- was payable by the 10th of each succeeding
month of occupation. The Defendant failed to pay the rent from the very
beginning of the tenancy and on being demanded, he avoided to pay the rent
on some plea or other. On 07.02.2003, the Plaintiff sent a notice to the
Defendant by registered post but the same returned unserved with an
endorsement of refusal. By that notice, the tenancy was terminated on expiry
on 31.03.2003. The Defendant was directed to give vacant possession of the
suit shop room to the Plaintiff. The Plaintiff thereafter again issued notice on
19.04.2003 to the Defendant. Said notice also returned unserved with an
endorsement addressee absent for seven days. Subsequent notice dated
08.05.2003 however returned with endorsement of refusal. The Plaintiff
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thereafter, personally approached the Defendant on 07.02.2003 to deliver the
vacant possession of the suit shop room. The Defendant did not pay any
heed to the same. Therefore, the suit was filed for eviction of the Defendant
from the suit shop room, claiming rent and damages.
4. The Defendant in his written statement asserted that the tenancy
created between him and the Plaintiff in respect of the suit shop room to be a
perpetual one. He claims to have paid a premium of Rs.2,71,000/- to the
Plaintiff. He denied all other plaint averments in respect of the termination
of the tenancy. The Trial Court faced with the above pleading framed as
many as nine issues. On going through the evidence on record and
appreciating the same in the backdrop of the pleading, the crucial issue as to
the cause of action, entitlement of the Plaintiff to a decree for eviction of the
Defendant from the suit shop room and claim of the Plaintiffs toward arrear
rent etc have been answered in favour of the Plaintiffs. The suit when stood
decreed, the Defendant carried an Appeal under section 96 of the Code. The
Appeal has also been dismissed. Therefore, the present Second Appeal is at
the instance of the aggrieved Defendant.
5. The Appeal has been admitted to answer the following substantial
question of law:-
"Whether the Courts below have committed error in holding the
termination of the tenancy to have been validly effected by the
Plaintiff prior to institution of the suit is accordance with the provision
of section 106 of the Transfer of Property Act, 1882 and in doing so,
the Courts below if have ignored the pleading and the evidence which
have been produced?"
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6. Heard Mr. Soumya Mishra, learned counsel for the Appellant and Mr.
Goutam Mishra, leaned Senior Counsel for the Respondent.
7. I have carefully gone through the judgments passed by the Courts
below. The rival pleadings and evidence have been perused.
8. The document projected by the Defendant Ext.A in support of his case
of perpetual tenancy has been rejected, since it is not a registered one as
mandatorily required under the provision of section 17 of the Indian
Registration Act. The view taken by the Courts below on the above score
cannot be found fault with. When it is said that tenancy cannot be looked to
be a perpetual one, it has to be taken to be a month to month tenancy. The
documents proved from the side of the Plaintiffs marked as Ext.2, 3 and 6 in
order to show the termination of the tenancy, reveal that the Plaintiff before
the institution of the suit had terminated the tenancy as required under
section 106 of the T.P Act. The notice sent to the Defendant by registered
post having being refused, in the absence any rebuttal evidence coming from
the side of the Defendant, the Courts below have rightly found that the same
has been served upon the Defendant in view of the presumption available in
law.
9. Learned Counsel for the Appellant in course of hearing has not been
able to point out any such evidence on record being tendered from the side
of the Defendant to dislodge the presumption of service of notice upon the
Defendant in terminating the tenancy.
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10. All these aforesaid provide the answer to the substantial question of
law in favour of the Plaintiffs which leads to confirm the judgments and
decrees passed by the Courts below.
11. In the result, the Appeal stands dismissed. There shall however, be no
order as to cost.
(D. Dash),
Judge.
Gitanjali
Signature Not Verified
Digitally Signed
Signed by: GITANJALI NAYAK
Reason: Authentication
Location: OHC
Date: 15-Nov-2023 15:07:57
R.S.A. No.403 of 2017
