Sukanti Paramanik vs Prativa Giri & Others
2024 Latest Caselaw 341 Ori

Orissa High Court

Sukanti Paramanik vs Prativa Giri & Others on 8 January, 2024

Author: D.Dash

Bench: D.Dash

                   HIGH COURT OF ORISSA : CUTTACK
                                    RSA NO.45 of 2023

           In the matter of appeal under Section-100 of the Code of Civil
     Procedure assailing the judgment and decree passed by the learned
     Additional District Judge, Rairangpur in RFA No.24 of 2017 in
     confirming the judgment and decree passed by the learned Civil Judge
     (Senior Division), Rairangpur in Civil Suit No.103 of 2014.
                                     .........

            Sukanti Paramanik                                     ::::    Appellant.
                                       -:: VERSUS ::-
             Prativa Giri & Others                                 :::: Respondents.

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

-----------------------------------------------------------------------------------------

             For Appellant                  ...      M/s.H.B. Dash, P.K. Nayak,
                                                   A.C.R. Das & K.K. Jena (Advocates)
             For Respondents                ...      ---     ---     ---,

                                             ------
     CORAM :
     MR. JUSTICE D.DASH

--------------------------------------------------------------------------------------- Date of Hearing: 02.01.2024 :: Date of Judgment: 08.01.2024

--------------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under Section-100 of the

Code of Civil Procedure, 1908 (for short, 'the Code') has assailed the

judgment and decree passed by the learned Additional District Judge,

Rairangpur in R.F.A. No.24 of 2017.

The Respondents as the Plaintiffs had filed Civil Suit No.103 of

2014 in the Court of learned Civil Judge (Senior Division), Rairangpur

for recovery of possession of the suit house and land measuring Ac.0.03 {{ 2 }}

dec. (better described in the schedule of the plaint) from the present

Appellant and her father being arraigned as the Defendants therein.

The suit having been decreed, the aggrieved Defendant had the

Appeal under section 96 of the Code. Said Appeal has also been

dismissed.

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. Plaintiff's case is that the Defendant No.2-Shashadhar who is the

father of the Defendant No.1-Sukanti had been inducted as a tenant in

respect of the suit land and house by Jagannath Giri as a monthly tenant.

Accordingly, Jagannath received the monthly rent till May, 1998. On the

death of Jagannath, the Defendant No.2 continued to be a tenant under

Hemalata, the wife of Jagannath and was paying the rent to her.

Sometime in the month of February, 2005, the Defendant No.2 vacated

the suit house and thereafter on his request, the suit house was let out to

his daughter-Defendant No.1 from March, 2005. On 01.04.2013, the

Defendants despite termination of tenancy by issuance of notice

remained in unauthorized occupation of the suit land and house. In

April, 2014 when they tried to make construction over the vacant land, a

proceeding under section 144 of the Code of Criminal Procedure, 1973

(for short, 'the Cr.P.C.') was initiated, which was later on converted to

{{ 3 }}

one under section 145, Cr.P.C. In the meantime Hemalata died on

01.05.2011. After the death of Hemalata, Plaintiff No.1 has been

looking after the suit house and the land for and on behalf of all the

Plaintiffs and the Defendant went on paying rent to the Plaintiffs till

July, 2012 but thereafter stopped paying the same. The Plaintiffs,

therefore, filed the suit for recovery of possession of the land and house

from the Defendants and realization of arrear house rent of Rs.5,400/- @

Rs.600/- per month from July, 2012 to 30.03.2013 and damage @

Rs.2,00/- per day from 01.04.2013 onwards.

4. The Defendant No.1 in her written statement submitted that her

father Shasadhar had encroached a piece of Government land and

resided over there by constructing a house. He had also constructed

another house over the suit land in the year 1975 with the full

knowledge of Jagannath and continued to possess the same

uninterruptedly for upward of the statutory period. It is stated that

thereby Shasadhar had acquired right, title and interest over the suit land

by way of adverse possession having remained in open, peaceful and

continuous possession for upward of the period prescribed to the

knowledge of Jagannath in denying his title and claiming the title unto

himself. It is asserted that there was never any relationship of landlord

and tenant between Jagannath and Shasadhar nor any rent has been paid

by anyone for such occupation of the suit house.

{{ 4 }}

The Defendant No.2 adopting the written statement filed by the

Defendant No.1 asserted against the claim of the Plaintiff as regards the

tenancy.

5. The Trial Court on the above rival pleadings framed as many as

six issues. Analyzing the evidence on record in the touchstone of the

rival pleadings, the Trial Court although came to conclude that the

Plaintiffs have not been able to establish their claim that the father of the

Defendant No.1 was a tenant in respect of the suit land and house but

has then decreed the suit for recovery of possession on the basis of the

finding that the title of the suit land is resting with the Plaintiffs when

the Defendants have utterly failed to prove their claim of acquisition of

title over the said land and house by way of adverse possession.

6. The First Appellate Court being moved by the Defendants, who

have suffered from the decree of recovery of possession passed by the

Trial Court in the suit has refused to interfere with the said findings and

the ultimate order passed by the Trial Court has thus withstood the tests

in the First Appeal.

7. Mr. H. B. Dash, learned counsel for the Appellant submitted that

when the Courts below in the suit for eviction filed by the Plaintiffs

basing upon the tenancy as pleaded have found the Plaintiffs to have

failed to establish the said fact; no decree ought to have been passed

basing upon the title of the Plaintiffs. According to him, in the present

{{ 5 }}

suit the question of title was redundant and that issue ought not to have

been taken up for decision at all. He submitted that when the Courts

below found the Plaintiffs to have failed to establish the tenancy as

pleaded in respect of the suit land and house, there was no other option

but to dismiss the suit. He thus urged for admission of the Appeal to

answer the above as the substantial question of law.

7. Keeping in view the submissions made, I have carefully read the

judgments passed by the Courts below.

8. It is true that the Courts below on the basis of the evidence on

record have held that the Plaintiffs have failed to prove their case of

tenancy as pleaded.

It is true that in a suit for eviction at the behest of the Plaintiffs

placing in the position of the landlords and the Defendant as the tenant,

the Court is only required to look into the establishment of relationship

and then the termination of tenancy as per law in order to decide in

favour of grant of the decree or refusal to do so.

9. Above being the settled law, it is however seen in the case at hand

that when the Plaintiffs have claimed to have the title over the suit land

and house and also state the factum of induction of

Defendant No.2 as a tenant in respect of the same; the Defendants,

however, while denying the tenancy have pleaded to have perfected title

over the suit land by way of adverse possession. Thus thereby they have

{{ 6 }}

admitted the Plaintiffs title. In such situation, there being pleading on

the question of title of the Plaintiffs and its extinguishment by way of

adverse possession; the Defendants since have led evidence to establish

their claim of acquisition of title over the suit land by way of adverse

possession, the Courts below are found to have rightly proceeded to

decide that issue and there is absolutely nothing wrong in doing that.

10. It is seen that the Trial Court as well as the Frist Appellate Court

having scrutinized the evidence have concurrently found the Defendants

to have failed to prove the required ingredients for establishment of a

claim of acquisition of title over the suit land by way of adverse

possession. In fact the pleadings and evidence being given a reading are

found to be highly deficient with regard to the foundational facts

touching upon the ingredients for the purpose. This Court thus finds no

such perversity in the said finding.

In that view of the matter, the submission of the learned counsel

for the Appellant fails.

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

(D. Dash), Judge.

Himansu

Signed by: HIMANSU SEKHAR DASH