Orissa High Court
Rabindra Kumar Sahoo vs Shyama Sundar Sahoo (Dead) Lrs on 17 January, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 222 of 2015
An appeal under Section 100 Code of Civil Procedure.
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Rabindra Kumar Sahoo ...... Appellant
-Versus-
Shyama Sundar Sahoo (Dead) LRs..... Respondents
and others
Advocate(s) appeared in this case:-
_______________________________________________________
For Appellant : M/s.B. Bhuyan, S. Patra
B.N. Mishra, C.R. Swain,
P.M. Paltasingh, S.C. Pradhan &
S.L. Mishra, Advocates
For Respondents : M/s. B.C. Panda, S. Mishra
J.N. Panda & L. Das, Advocates
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
17.01.2025
SASHIKANTA MISHRA, J.
This is a defendants' appeal against a partly
reversing judgment. The judgment passed by learned
District Judge, Cuttack on 25.02.2015 followed by decree
in RFA No.118 of 2013 is under challenge, whereby the
judgment passed by learned 2nd Additional Civil Judge
(Senior Division), Cuttack on 17.08.2013 followed by
decree in C.S. No.385 of 2012 was partly reversed.
2. For convenience, the parties are described as
per their respective status in the trial court.
3. The facts of the case are that the plaintiff filed
the suit for eviction of the defendants from the suit house,
permanent injunction, arrear house rent and damages.
The plaintiff's case is that being one of the co-owners in
respect of the suit property, the same being his ancestral
property, some of the houses standing over the suit land
were rented to different tenants on monthly rent basis
including four rooms on the northern side to Banamali
Sahoo, the father of the defendant No.1. Banamali Sahoo
died leaving behind the defendants. The defendants
initially vacated the suit house being asked by the plaintiff
in November, 1998 but were again inducted as monthly
tenants on Rs.500/- per month. They paid the house rent
regularly till June, 2009 but thereafter they stopped doing
so. As such, the plaintiff asked them to vacate the suit
house on 01.09.2011, which they did not accede to for
which, the plaintiff sent a legal notice under Section 106
of the T.P. Act on 19.02.2012. Since the defendants
refused to vacate the suit house by disputing the tenancy,
the plaintiff filed the suit claiming the aforementioned
reliefs.
4. The defendants contested the suit by filing a
joint written statement, claiming that they are not tenants
under the plaintiff but are successors of one Sadananda
Sahoo, who is one of the co-owners of the suit property. It
was claimed that the suit property originally belonged to
one Jagabandhu Sahoo who died leaving behind six sons,
namely, Anadi, Hadibandhu, Lokanath, Nabin,
Dinabandhu and Sadananda. According to the
defendants, the plaintiff belongs to the branch of Anadi
but came over subsequently to Handibandhu's branch.
The defendants belong to the branch of Sadananda who
died leaving behind his son Khetramohan and others.
Khetramohan died leaving behind his only daughter
Sunamani, who was staying with her husband in her
father's house on the suit property and Banamali, the
father of defendant No.1 and one Jogi and Padu were her
sons. Jogi and Padu died issueless and Banamali
occupied the suit house till his death and after him, the
defendants have continued to be in occupation of the suit
house.
5. Basing on the rival pleadings, the trial court
framed the following issues for determination:-
"(i) Whether the suit is maintainable in its present
form?
(ii) Whether the plaintiff has got any cause of action
to bring this suit?
(iii) Whether the defendants are the tenants under the
plaintiff and are liable for eviction after receiving
notice U/s. 106 of T.P. Act?
(iv) Whether the plaintiff is entitled for permanent
injunction restraining the defendants from coming
over the suit land?
(v) Whether the plaintiff is entitled for a decree of
damage of Rs.50/- per day against the defendants
for unauthorised occupation of the suit house
since 19.03.2012 along with a decree of
Rs.50,000/- towards arrear house rent?
(vi) To what other relief or reliefs the plaintiff is
entitled for?"
6. Issue No.3 was taken up for consideration by
the trial Court at the outset. After going through the oral
and documentary evidence including the judgments
passed in an earlier suit and appeal, the trial court found
that as per the genealogy, there was no one named
Sadananda in the family but one Sananda was a member
of the family. The trial court further took note of the order
passed by the then City Magistrate in Criminal Misc Case
No. 337 of 1967 to hold that the defendants were not the
co-owners/-co-sharers of the suit property. The trial Court
further found that the plaintiff had established his title
over the suit land by adducing cogent evidence. The trial
Court also found that the plaintiff had proved that
Banamali was inducted as a tenant and the defendants
left the house in the year, 1989 and were re-inducted as
tenants in the year, 2003. On such findings Issue No.3
was answered in favour of the plaintiff. Issue No.4 was
also answered in favour of the plaintiff in view of the above
findings. On Issue No.5, the trial court found that the
defendants had stopped payment of house rent from the
month of July, 2009 and being tenants, they are bound to
pay the same from August, 2009. But the trial court was
not inclined allow the claim of damages of Rs.50/- per
day, considering the document submitted by the
defendants. On such findings, the suit was decreed by
directing the defendants to vacate the suit house within
three months with permanent injunction thereafter and to
pay a sum of Rs.50,000/- towards arrear house rent.
7. The defendants carried the matter in appeal.
Learned First Appellate Court after analyzing the oral and
documentary evidence on record found that the trial court
had rightly held the plaintiff to be one of the co-owners of
the suit property whereas the defendants have no interest
therein. Further, despite denying the claim of tenancy
advanced by the plaintiff, the defendants could not prove
their case. However, the First Appellate Court did not find
cogent evidence regarding the tenancy but nevertheless
held that the plaintiff had a better title than the
defendants and that a co-sharer can file a suit for eviction
of a stranger to the property. As such, the decree passed
for eviction on the defendants was not interfered with.
However, in the absence of proof of tenancy, the award of
Rs.50,000/- by the trial court towards arrear house rent
was held to be incorrect, though the plaintiff would be
entitled to damage @ Rs.500/- per month. The First
Appeal was thus allowed in part by confirming the decree
of eviction of the defendants along with permanent
injunction but the direction to pay Rs.50,000/- towards
arrear house rent was set aside.
8. Being further aggrieved, the defendants have
preferred this Second Appeal, which was admitted on the
following substantial question of law:-
"Whether the lower appellate court in the
instant suit has erred in law by granting the
relief of eviction of the defendants as prayed
for by the plaintiff on the fact of finding
recorded by him that the plaintiff has failed to
establish the relationship of landlord and
tenant between himself and the defendants
and whether such a course is permissible in
law to be adopted by the lower appellate
court in a suit of the present nature with the
reliefs as claimed?"
9. Heard Mr. Bibekananda Bhuyan, learned
counsel for the defendant-appellants and Mr. B.C. Panda,
learned counsel appearing for the plaintiff-respondents.
10. Mr. Bhuyan would argue that both the courts
below committed manifest error in entertaining the suit
ignoring the settled position of law that a mere suit for
ejectment on the face of bonafide dispute regarding
tenancy is not maintainable. Mr. Bhuyan relies upon the
judgment passed by the Supreme Court in the case of
Laxmidas Morarji (Dead) by LRs v. Miss Behrose Darab
Madan,1. Further, the First Appellate Court committed
gross error in not addressing the issue of maintainability,
even though the tenancy was not proved.
11. Per contra, Mr. Panda would argue that the
defendants being strangers have no right to question the
competence of the plaintiff, who is one of the co-owners to
file the suit. Further, the claim of the defendants of being
related to the family has already been decided earlier in
the Second Appeal. The defendants completely failed to
prove that they are the co-owners of the suit property. Mr.
Panda further argues that the First Appellate Court
categorically held that the plaintiff has a better title than
the defendants and being a co-sharer, he can always
maintain a suit for eviction of a stranger. The defendants
are nothing but rank trespassers for which the suit is
maintainable. The defendants never specifically disputed
the receipt of notice under Section 106 of the T.P. Act. As
(2009) 10 SCC 425
such, their dispute with regard to tenancy is hit by Order-
8 Rule-5 of CPC, i.e., the doctrine of non-traverse
12. Undisputedly, the plaintiff filed the suit on the
specific plea that Banamali Sahoo, father of defendant
No.1 had taken four rooms over the suit land on monthly
rent of Rs.100/-. After death of Banamali, his wife and
defendant No.1 continued to occupy the rooms as monthly
tenants. The tenancy was terminated in November, 1989.
However, the defendants were again inducted as tenants
in August, 2003, on a monthly rent of Rs.500/-.
Admittedly, there was no rent agreement. Moreover, no
rent receipts were issued by the plaintiff. The defendants
claimed to be co-sharers by projecting a genealogy in
which one Sadananda was a co-owner. They claimed to
belong to the branch of Sadananda. On comparison of oral
and documentary evidence adduced by the parties, both
the courts below found that the claim of the defendants
had no legs to stand and that the plaintiff being a co-
owner has title over the suit property. The trial court in
particular found that there was no one named Sadananda
in the genealogy, but there was name of one Sananda
therein, and it was not proved that Sadananda and
Sananda are one and the same person. The trial Court as
well as the First Appellate Court relied upon the order
passed by the then City Magistrate in Criminal Misc. Case
No.337 of 1967 to hold that the defendants were not the
co-owners/co-sharers of the suit property. On such
finding, the trial Court found that the plaintiff had
established his title over the suit property. The trial court
accepted the claim of the plaintiff that the defendants
were monthly tenants under him but the First Appellate
Court while accepting the finding that the plaintiff had
title over the suit property however, did not accept the
finding regarding tenancy. It was thus held that the
tenancy as claimed by the plaintiff could not be proved
adequately.
13. The question that arises for consideration is,
whether on the finding regarding absence of proof of
tenancy can the suit for eviction be entertained. In this
regard, Mr. Bhuyan has relied upon the judgment in
Laxmidas Morarji (Dead) LRs (supra). Reading of the
said judgment reveals that the same was rendered in the
context of Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947. The cited case obviously has no
application to the facts of the present case. Be it noted
here that the judgment of the First Appellate Court
reversing the finding of the trial court that the defendants
were monthly tenants under the plaintiff has not been
challenged by the plaintiff independently or by way of
cross appeal. The said finding must therefore, be treated
as final. The challenge mounted by the defendants to the
finding of both the courts below that the plaintiff proved
that he is a co-owner of the suit property and thus has
better title than the defendants is not acceptable in view of
the failure of the defendants to substantiate their claim of
having title. The factual position that emerges thus is,
notwithstanding absence of cogent proof of tenancy, fact
remains that the plaintiff has better title than the
defendants over the suit property and the defendants
neither being co-owners/co-sharers or having any manner
of right, title and interest over the suit property can only
be treated as trespassers.
14. In such view of the matter, the plaintiff being a
co-owner has every right to ask for ejectment of the
defendants who, being trespassers/strangers to the suit
property, have no right to occupy the same without
consent of the plaintiff. The argument advanced by Mr.
Bhuyan is therefore, not tenable. The further argument
that the First Appellate Court did not address, the issue of
maintainability of the suit is no longer required to be gone
into in view of the finding that the plaintiff having a better
title than the defendants and the defendants being in the
position of a trespasser/stranger, the suit for ejectment is
maintainable. Though not explicitly stated by the First
Appellate Court, the impugned judgment clearly reflects
the above principle.
15. For the foregoing reasons therefore, this Court
finds no merit in the Second Appeal, which is therefore,
dismissed, but in the circumstances without any costs.
...............................
Sashikanta Mishra,
Signed by: BHIGAL CHANDRA TUDU
Authentication
High Court, Cuttack,
Location: Orissa
The 17thHigh Court, ,Cuttack
January 2025/ B.C. Tudu
Date: 17-Jan-2025 17:00:45
