Rajkishore Biswal & Another vs Sikhar Behera & Another
2024 Latest Caselaw 3919 Ori

Orissa High Court

Rajkishore Biswal & Another vs Sikhar Behera & Another on 1 March, 2024

Author: D. Dash

Bench: D. Dash

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                                R.S.A. NO.264 OF 2022

    In the matter of an Appeal under Section 100 of the Code of Civil
    Procedure,1908 assailing the judgment and decree dated 22nd
    July 2022 and 5th August 2022 respectively passed by the learned
    District Judge, Nayagarh in R.F.A. No.06 of 2019 setting aside
    the judgment and decree dated 30.01.2019 and 13.02.2019
    respectively passed by the learned Additional Civil Judge
    (Junior Division), Ranpur in Civil Suit No.08 of 2016.
                                          ----

Rajkishore Biswal & Another :::: Appellants

-versus-

Sikhar Behera & Another :::: Respondents

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

=======================================================================================

For Appellants - Mr. Pronoy Mohanty, Advocate, For Respondents - -------------------

CORAM:

MR. JUSTICE D. DASH Date of Hearing: 19.02.2024 : Date of Judgment: 01.03.2024

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

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

assailed the judgment and decree dated 22nd July 2022 and 5th

August 2022 respectively passed by the learned District Judge,

Nayagarh in R.F.A. No.06 of 2019.

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The Respondents as the Plaintiffs had filed the suit (Civil

Suit No.08 of 2016) for eviction of the Appellants arraigned as

the Defendants therein and recovery of possession of the suit

land.

The suit having been dismissed, the Respondents as the

unsuccessful Plaintiffs had carried Appeal under section-96 of

the Code. The First Appeal has been allowed in part directing

the Appellants (Defendants) to vacate the suit land within a

month failing which the possession would stand recovered from

them in favour of the Respondents (Plaintiffs) following due

process of law. These Appellants, therefore, being the aggrieved

the Defendants having suffered from the judgment and decree

passed by the Frist Appellate Court have filed this Second

Appeal.

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: -

The suit land stands recorded in the name of the Plaintiff

No.1, Sikhar Behera, Padana and Madhab Behera, the three sons

of Chinta Behera. It is stated that in an amicable family partition,

the suit land had fallen to the share of Sikhar; and he with his son

had constructed house having asbestos roof over the suit land.

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The Defendants took the said house on rent from the Plaintiffs as

agreed on payment on rent of Rs.500/- per month to be paid by

15th day of the succeeding month of occupation. There was no

document in support of the said creation of tenancy. However,

the Defendants when were paying the rent, they defaulted in

making the payment of rent for their occupation from 01.10.2015.

The Plaintiffs, therefore, served notice upon the Defendants

demanding the payment of arrear rent and to vacate the suit

house. The Defendants did not respond the same and in turn

threatened the Plaintiffs which compelled the Plaintiffs to file the

suit.

4. The Defendants by filing the written statement asserted that

Madhab Behera, who is the brother of Plaintiff No.1 was in

possession of the suit land as that had fallen in his share in the

family partition of their properties amongst his brothers. It is

further stated that said Madhab having received a sum of

Rs.3000/- from the Defendants had delivered the possession of the

suit land to the Defendants and since then the Defendants are in

peaceful possession over the same by constructing the house over

there. Further no document has been executed to the above effect

by said Madhab. It is further stated that in order to regularize,

Madhab on 11.05.2016 executed an agreement to sale that

property in favour of the Defendants on receiving further sum of

Rs.50,000/- with the condition that after correction of record of

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right, he would execute and register sale deed in their favour. The

Defendants also pleaded that they are in possession of the suit

land openly, peacefully, and continuously to the knowledge of all

concerned including the Plaintiffs right from the year 1985. They

again pleaded to have purchased the suit land measuring Ac.0.73

decimals and thus state to have the legal right to possess the

same.

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

five (5) issues. Upon examination of evidence let in by the parties

and in the backdrop of the rival pleadings, having made an

overall assessment of the same, the Trial Court arrived at a

finding that the Plaintiffs have failed to prove their case that the

house in question standing over the suit land had been let out on

monthly rent to the Defendants. Taking that view, the Trial Court

dismissed the suit. The Plaintiffs thus being non-suited, carried

the First Appeal.

The Trial Court having undertaken the exercise of critical

examination of the evidence and their evaluations has arrived at a

conclusion that the suit property is the joint family property of

the Plaintiffs and there has been no partition of the joint family

property in metes and bounds among the members of the joint

family. Without accepting the oral evidence let in by the Plaintiffs

that the house in question had been let out to the Defendants on

monthly rent basis, having found the Defendants to be in

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possession of the suit land on the basis of an unregistered

agreement for sale which they proved and got marked as Ext.A/4

which had come into being during pendency of the suit, the First

Appellate Court has directed for recovery of possession of the suit

land and house in favour of the Plaintiffs who are the co-sharers

in holding that the same is permissible as would enure to the

benefits of all the co-sharers. The Defendants are therefore before

this Court in Second Appeal.

6. Learned Counsel for the Appellants (Defendants) submitted

that when the First Appellate Court has found the Plaintiffs to

have failed to prove the case that they had inducted the

Defendants as tenants in respect of suit house standing over the

suit land as tenants on payment of rent per month as the agreed

upon; the First Appellate Court ought not to have granted the

decree for recovery of possession in the present suit which

according to him is not permissible. He further submitted that the

base of the suit of the Plaintiffs being the relationship of landlord

and tenant between the Plaintiffs and the Defendants, when that

has not been proved by pre-ponderance of probability, the

judgment and decree passed learned First Appellate Court are

unsustainable. He next submitted that the Appellants being in

possession of the suit house for long, in the alternative they be

given the breathing time to shift and relocate which is not that

easily and readily available. He, therefore, urged for admission of

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this 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 Trial Court as well as the First

Appellate Court.

8. Admitted position stands that the suit property stands

recorded in the name of Plaintiff No.1 and his two other brothers

namely Padan and Madhab. When Plaintiff No.1 and his son

Plaintiff No.2 claim that the Defendants had been inducted as

tenants in the asbestos roofed house standing over the suit land

which had been constructed over the suit land which has fallen in

the share of the Plaintiff No.1 in an amicable family partition, the

Defendants deny their status as the tenants under the Plaintiffs

and they also refute the status of the Plaintiffs as their landlord.

They however, state to have purchased the property from the

brother of Plaintiff No.1, namely, Madhab Behera on payment of

consideration of Rs.3,000/- coupled with delivery of possession. It

is also stated that later on during pendency of the suit on

11.05.2016, Madhab has executed an agreement for sale on receipt

of a sum of Rs.50,000/- with the stipulation that after the creation

of the Record of Right, he would execute the sale-deed in their

favour. Admittedly, both sides have not proved a scrap of paper

in support of the amicable family partition in showing that the

suit land had either fallen to the share of the Plaintiff No.1 or in

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the share of Madhab. The property thus is the joint family

property of the Plaintiffs and other co-sharers, the members of

their family.

The possession of the Defendants can only be traced to have

flown with effect from 11.05.2016 on the basis of that agreement

for sale said to have been executed by Madhab vide Ext.A/4.

When it is said that they remained in possession of the property

with that agreement for sale which was executed as a measure of

regularization, although the possession had been delivered much

prior to that, the agreement being unregistered is not admissible

in the eye of law as per section- 17(1-A) of the Indian Registration

Act. Therefore, it is not legally permissible to say that the

Defendants came to possess the suit land as the proposed vendee

so as to receive any protection under section-53(A) of the Transfer

of Property Act. In that view of the matter, when the Defendants

have no legal right to possess the suit land and as such their

possession in the eye of law is that of the trespassers, the Plaintiffs

being the co-sharers even on their failure to prove the fact and

that the Defendants had been inducted by them as tenants in

respect of the suit house and land, First Appellate Court is found

to have committed no error in granting a decree for recovery of

possession which would enure to the benefits of all the members

of the joint family that is the recorded tenants and their legal heirs

and successors as the case may be.

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9. In the wake of aforesaid discussion and reasons, the

submission of the learned Counsel for the Appellants

(Defendants) cannot be countenanced with to say that there arises

any substantial question of law for being answered, meriting

admission of this Appeal.

Taking into account the alternative submission of learned

Counsel for the Appellants, it is felt that the interest of justice

would be served and meet its end; if the Defendants are allowed

some time for vacating the suit premises. In that view of the

matter, the Defendants are directed to give delivery of possession

of the suit house and premises on expiry of 31st day of August,

2024 failing which it would invite legal consequences for violation

of the directions of the Court and in that event the matter would

be viewed seriously.

Since this order has been passed without notice to the

Plaintiffs; liberty is given to them to approach this Court in case

they so desire to oppose above grant of time to the Defendants for

recall/ modification.

10. The Appeal stands accordingly disposed of. However, there

shall be no order as to cost.

(D. Dash), Judge.

Signature NarayanNot Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 05-Mar-2024 12:19:04