Kamal Prasad Sahu vs Pranabandhu Biswal

Mr. D. Dash, J.—This appeal has been directed against the judgment and decree passed by the learned District Judge, Keonjhar in R.F.A. No.

50 of 2004 reversing the judgment and decree passed by the learned Civil Judge (Sr. Division), Keonjhar in Civil Suit No. 74 of 2002, wherein

the suit filed by the respondent no. 1 as the plaintiff had been dismissed. The first appeal having been allowed, the suit has been decreed directing

the appellant-defendants to vacate the suit premises or else to face the legal consequences through process of law meant for the purpose.

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.

Plaintiff�s case is that, the suit land had been recorded in the name of the ancestors of the plaintiff namely, Rasika Biswal in the record of the

sabik settlement. Rasika had three sons namely, Banamali, Ghurudu and Pachha. Out of them, Pachha died issueless, Banamali and Ghurudu

resided in separate mess and estate possessing some property each for their convenience. In the hal settlement record, the suit land has been

recorded solely in the name of the plaintiff i.e., son of Ghurudu and his other properties have been recorded jointly in the name of plaintiff and his

other cosharers. It is stated that Banamali during his lifetime sold an area of Ac. 0.11 decimals out of land under his possession to Akuli Prusty and

Banamali�s son Sadhu had sold an area Ac. 0.15 decimals to one Chhutu. Because of the sales made by the Banamali and his son Sadhu;

Ghurudu was allowed to possess the suit land exclusively and over the same, he constructed the house by spending money from his own sources.

It is stated that father of defendant no. 1 namely, Banamali was in very good terms with Ghurudu and accordingly on request he was permitted to

open a shop in the house standing over the suit land and remain in occupation thereof on payment of rent. Thus, he continued to occupy the shop

room till his death, where after the sons have been in possession on payment of rent by usually running the shop and carrying on the business. The

plaintiff claims that he only knows to put his signature, but not the art of reading and writing. Taking advantage of that, this defendant no. 1 in

convenience with the settlement authorities had somehow been able to get the names of heirs of Benudhar recorded in so far as the suit land is

concerned. Being aware of the same, the plaintiff had filed an objection case which unfortunately stood rejected. However, an appeal being filed,

the same has been allowed and accordingly the final record of right has been published being so corrected in the name of the plaintiff. It is stated

that the property was the exclusive property of Ghurudu and was being enjoyed by him, and other cosharers of the plaintiff have not been

arraigned as parties since they have no interest. The plaintiff asserts that the defendants have no manner of right, title and interest over the suit land

and their possession is thus permissive as tenants. However, on 03.05.2002, they attempted to dig earth forcibly for construction of the building

over the suit land. So immediately though steps for restraining them was taken by initiation of a proceeding under section 144 Cr.P.C., the order

could not be promulgated as the local police came out to extend help to the defendants. As such, defendants proceeded with the construction. The

plaintiffs thus finding no other alternative by duly terminating the tenancy through issuance of notice under section 106 of the Act and upon its

service came with the suit.

The defendant no. 1, the son of Benudhar in his written statement questioned the exclusive right of Ghurudu over the property while denying the

fact that he had constructed the house over the same utilising his own source. It is stated that his father Benudhar had orally purchased the suit from

its owner 60 years prior to the filing of the written statement and has accordingly possessed the same. He had constructed the houses over the suit

land and was thus in peaceful possession of the same as its owner. It is he who had let out the shop rooms to different persons inducting them as

tenants on payment of monthly rent and upon his death; his heirs are collecting the rent from those tenants. It is next stated that despite the order in

settlement appeal, the defendants have been in possession of the suit land. It is further claimed that the plaintiff even if, was having the right, title and

interest over the suit property, the same stood extinguished long since by efflux of time and the suit land being in possession of Benudhar and

thereafter with the defendant no. 1 openly, peacefully and continuously with the exercise of all the rights of ownership over the same denying the

title of the plaintiff and his predecessors, alternatively they have perfected the title by adverse possession. With these pleadings, the defendant no. 1

prayed to non-suit the plaintiff.

Defendant no. 2 and 3 and other co-sharers of defendant no. 1 yet have set up another case in the written statement that the suit land with other

lands were the waste land, Ghurudu, the father of the plaintiff had acquired the same by reclaiming it. In an amicable partition, the suit land had

been allotted in the share of Ghurudu. It is next stated that Ghurudu had sold the property to Benudhar in the year 1960 for a consideration of Rs.

90/- and delivered the possession of the same. Accordingly, Benudhar possessed the suit land since then as its owner. Since Ghurudu was dead at

the time of last settlement operation, this plaintiff had admitted before the settlement authority that Benudhar was in possession of the suit land

having orally purchased it. The order in the settlement appeal is said to be not binding upon them as they were by then minors and were thus not

properly represented. It is further stated that after purchase, Benudhar had constructed a house over the same and these defendant no. 2 and 3 are

in possession of said house. It is also the case of these defendants that they have been in open, peaceful and continuous possession over the suit

land for much more than prescribed period prior to the suit as its owner exercising of the rights of ownership to the knowledge of the plaintiff.

Thus, there has been perfection of title by adverse possession and thereby the plaintiff�s title has long since been extinguished. They denied the

relationship of land lord and tenant between the plaintiff�s father and Benudhar.

Faced with the rival pleadings, the trial court framed nine issues. Taking up issue No. 7 and 8 which are really the important issues standing for

decision as the fate of the suit hinges upon the answer to those, the trial court after necessary discussion of evidence has came to a definite

conclusion on the point of right, title and interest in respect of the suit land as claimed by both sides. The finding has been that the plaintiff has the

right, title and interest over the suit land but is not in possession. It has been categorically found that the defendants have not perfected title over the

suit land by adverse possession. Next coming to issue no. 6 as regards relationship of landlord and tenant between the parties and the validity of

the notice under section 106 of the T.P. Act and it service as per law, the answer however has been that, there was no such tenancy. Finally, the

trial court in view of above findings has gone to hold that the suit for eviction and injunction as laid is not maintainable in the absence of the prayer

for declaration of title. It has also held that the suit being undervalued cannot proceed without payment of required court fees.

The unsuccessful plaintiff, was thus led to move the lower appellate court by carrying first appeal under section 96 of the Code of Civil

Procedure challenging the dismissal of the suit and refusal by the trial court to grant him the reliefs as prayed for. The lower appellate court has

allowed the appeal by setting aside the judgment and decree impugned before it and thus has decreed the suit directing the vacation of the

defendants as aforesaid.

On 03.08.2010, the second appeal has been admitted on the following substantial questions of law:-

(a) If the courts below are correct in holding that the possession of defendant no. 1 over the suit land is permissive one?

(b) If the lower appellate court is correct in holding that the suit is based on the title and therefore no necessity arises for the plaintiff to pray for

declaration of his title in the facts and circumstances of the case?

I have heard the learned counsel for the parties at length and have perused the judgment of the courts below carefully as also have gone through

the evidence of the witness and the documents proved by both the sides, as admitted in evidence and marked exhibits.

The plaintiff having stated in the plaint to be the owner of the suit properties having the right, title and interest over the same, tracing the same

unto his ancestor has next averred that the defendant no. 1 was a tenant under his father and then under him.

The defendants case is that Benudhar had purchased the suit land orally from Rasika Biswal, the father of the plaintiff. Thus, the defendants admit

the title of Rasika Biswal over the suit land and then they claim title to have so passed in view of the oral sale made by Benudhar. Admittedly, the

lands stand recorded in the name of the plaintiffs and others in the record of right finally published on closure of the Hal Settlement. The attempt by

the defendants to get their name, noted as the recorded tenants has failed. Although it is stated that long-long back Rasika had sold the property to

Benudhar, there has never been any attempt for correction of the land records in tune of the same. The courts below have concurrently found on

analysis of evidence that the defendants have failed to establish their ownership and title over the suit property either by virtue of the oral

transaction for sale or to have acquired title by adverse possession. Such finding of the trial court was not put to challenge by the defendants by

filing any cross-objection or cross-appeal. This Court also finds absolutely no infirmity in such concurrent findings of the courts below that the title

over the suit property rests with the plaintiff and the defendants have failed to establish their case as projected in the written statement to be the

owner of the suit property either by virtue of such oral transaction for sale or in view of their open, peaceful and continuous possession as its owner

for all these periods giving rise to a case of acquisition of title by adverse possession.

In course of hearing, learned counsel for the appellants has not been able to draw the attention of this Court to any other material evidence in

saying that the same has not been brought to the arena of the consideration by courts below which if it would have been so, the finding might have

been otherwise. Thus, there remains absolutely no scope for this court to tinker with the above findings from any angle as those are also found to

be the outcome of detail discussion of evidence on record as also the rival pleadings and backed by very good reasons forming the soul of the said

findings.

The question next falls for consideration that in this suit for eviction filed by the plaintiff claiming his title over the property as also the

relationship of the landlord and tenant saying that the defendant is a monthly tenant under him and when in that very suit, the defendant has come

forward to set up a case of title over the suit property unto himself and the court finds the plaintiff�s right, title and interest over the suit property

to be subsisting as on date; whether in the absence of any proof of relationship of landlord and tenant and finding in specific on that score, the court

can pass a decree for eviction of the defendants.

It is the settled position of law that in a suit for eviction filed by the landlord arraigning the defendant assigning the status as tenant, where both

sides set up competing claim of title and the court decides the same in favour of the plaintiff seeking eviction, notwithstanding the failure on the part

of the plaintiff to prove the relationship of landlord and tenants between them, the Court has all the power to pass a decree for eviction since the

possession of the defendant in that event is nothing but wholly permissive even though not as a tenant.

Law has been well settled in case of Bhagabat Prasad v. Chandramaul; AIR 1966 SC 735 that in a suit for ejectment when the plaintiff is

found to be the owner and defendant is in possession, with his permission, the relationship between them would be either that of landlord and

tenant or that of an owner of the property and that of a licensee. No other alternative either logically or legitimately possible. It has accordingly

been held that a decree for ejectment can be passed even though the tenancy is not proved. This Court in case of Maguram Agarwal v. Sri

Puaralal; 2008 (II) CLR 391 has held that in a suit for eviction of the defendant on the ground that he is a tenant if the court finds title with the

plaintiff then even in case of failure of the plaintiff to establish his case of relationship of landlord and tenant between them, the suit can be decreed

for eviction of the defendant instead of driving the plaintiff to file another suit to get the relief. The same is founded upon the view of the Hon�ble

Apex Court in case of Bhagabat Prasad (supra) that once the possession of the suit premises with the defendant is found to be as that of a licensee

it would be futile to drive the plaintiff to go for another suit against the defendant for the same subject matter and on that basis.

The case in hand being examined in the light of above, the answer to the question posed at para -9 above run in the affirmative and against the

appellants. The aforesaid discussion and reasons accordingly provide the answers to the substantial questions of law as noted above.

In the result, the appeal stands dismissed with cost throughout. The judgment and decree passed by the learned District Judge, Keonjhar in

R.F.A. No. 50 of 2004 are hereby confirmed.