JUDGMENT : B.K. Patra, J. - This is an application under Articles 226 and 227 of the Constitution of India praying for the issue of a writ of certiorari quashing the order dated 3-3-1969,passed by the House Rent Controller, Dhenkanal in R.R.C. Case No. 5 of 1968 on his file and the appellate order dated 13-5-1971 passed by the Additional District Magistrate (Judl.). Dhenkanal in House Rent Control Appeal No. 1 of 1909. 2. The Petitioner?s case is this: The house bearing holding No. 171 in ward No. 6 of Dhenkanal town belonged to late Sarangadhar Das. By a registered Will Sarangadhar Das bequeathed the property to a trust and appointed the Petitioner as his executor. The Petitioner applied for probate of the Will and during the pendency of the proceeding Shri Srinibas Misra an Advocate of this Court was appointed as receiver. One Mrunalini Devi the predecessor-in-interest of opposite parties opposed the grant of probate. But the District Judge over-ruled her objections and granted probate. As against the decision of the District Judge an appeal was filed in High Court which has since been dismissed. During the pendency of the appeal in the High Court, the Petitioner was appointed as a receiver in place of Shri Srinibas Misra. Mrunalini Debi as dead and the opposite parties who are her legal representatives are in possession of the house. After obtaining permission of the High Court. to sue the opposite parties for realisation of rent from them and for eviction from the disputed house, the Petitioner as receiver of the disputed house filed H.R.C. Case No. 5 of 1968 in the Court of the Controller for fixation of fair rent in respect of the house. 3. The opposite parties contended inter alia that there was no relationship of landlord and tenant between them and the Petitioner and the latter is not entitled to realise the rent either on his behalf or (In behalf of any other person. In short, they claimed to be in possession of the house as owners thereof in their own right. They contended that the disputed property originally belonged to one Gangadhar Das and after his death the property devolved on his two sons Paramananda and Benudhar and both of them having died unmarried. their sister Murnalini Debi succeeded to the property. In short, they claimed to be in possession of the house as owners thereof in their own right. They contended that the disputed property originally belonged to one Gangadhar Das and after his death the property devolved on his two sons Paramananda and Benudhar and both of them having died unmarried. their sister Murnalini Debi succeeded to the property. Opposite party No. 1 is Nlrunalini?s husband and opposite parties 2 to 7 are her children. Sarngadhar Das had therefore no interest in the property and had no right to execute a Will in respect thereof. They, therefore contended that they not being tenants in the disputed house, the House Rent Controller had no jurisdiction to fix fair rent in respect thereof. 4. In support of their respective cases the Petitioner examined two witnesses and opposite parties one witness. After considering their evidence and the documents filed by the parties, the Controller recorded the following findings: (1) The disputed house belonged to Sarangadhar Das and it was belong let out from time to time to different persons. (2) Although the opposite parties had been staying in the disputed house, there is absolutely no evidence to show that they were indicated as tenants by Sarangadhar Das or that they paid any rent to him. (3) When there was no relationship between Sarangadhar Das and opposite parties, the Petitioner by merely being appointed as a receiver in respect of the properties cannot automatically become the landlord qua the opposite parties. In view of the findings above, the Controller rejected the application holding that it is only where the relationship of landlord and tenant exists that an application u/s 5 of the Orissa House Rent Control Act, 1958 (hereinafter referred to as the Act) for fixation of fair rent is maintainable at the instance of the landlord or the tenant and that no such relationship having been established, the Petitioner?s application is not maintainable. As a matter of abundant caution, however, the Controller held that Rs. 115/- per month would be the fair rent for the house. 5. The opposite parties filed an appeal before the Additional District Magistrate (Judicial). He upheld the findings recorded by the Controller including the finding that the fair rent for the house is Rs. 115/- per month and dismissed the appeal. 6. 115/- per month would be the fair rent for the house. 5. The opposite parties filed an appeal before the Additional District Magistrate (Judicial). He upheld the findings recorded by the Controller including the finding that the fair rent for the house is Rs. 115/- per month and dismissed the appeal. 6. The only submission made by Shri S. Misra (1) learned Counsel appearing for the Petitioner is that by virtue of the definition of the expression "landlord" occurring in Section 2(4) of the Act, the Petitioner would fall in the category of a landlord and that even if the opposite parties are not tenants as that expression is defined in Section 2(5) of the Act, still the land lord?s application for fixation of fair rent u/s 5 of the Act is maintainable. Incidentally he also submitted that in view of the finding of the Courts below, that the house belonged to Sarangadhar Das and that from time to time he was letting out the same to tenants and in view of the admitted case of the opposite parties that they are staying in the disputed house, the Courts below ought to have found that the opposite parties are tenants. 7. So far as the last contention is concerned, the concur. rent findings of the Courts below that the Petitioner has failed to establish that the opposite parties were ever inducted as tenants into the disputed house is not open to be assailed in this proceeding. Not only (sic) there no evidence that they were ever inducted to the disputed house as tenants by Sarangadhar Das or that the latter ever collected rent from them, but also the stand taken by the opposite parties in the probate proceeding that they are the owners of the disputed house and that consequently Sarangadhar Das had no right to execute a Will in respect thereof renders the existence of such relationship highly improbable. The Courts below were, therefore, night in their finding that the Petitioner has failed to establish that the opposite parties are tenants in respect of the disputed property. 8. The only point for consideration therefore is whether in spite of this finding, an application by the Petitioner u/s 5 of the Act is maintainable. 9. It is contended by Mr. The Courts below were, therefore, night in their finding that the Petitioner has failed to establish that the opposite parties are tenants in respect of the disputed property. 8. The only point for consideration therefore is whether in spite of this finding, an application by the Petitioner u/s 5 of the Act is maintainable. 9. It is contended by Mr. Misra for the Petitioner that as the Courts below have found that the house belonged to Sarangadhar Das and that he was from time to time letting out the same, the Petitioner as receiver is entitled to maintain this application even though the opposite parties might not have been inducted as tenants into the disputed house. In support of this contention he relied on Section 5 of the Act which provides that any landlord may make an application to the Controller to fix a fair rent and argued that he is the landlord in respect of the disputed house and that consequently he is entitled to file this application. 10. The expression "landlord" is defined thus in the Act: "landlord" includes any person who is receiving or is entitled to receive the rent of a house whether on his own account or on behalf of another or on behalf of himself and others. The expression "tenant" is defined to mean: any person by whom or on whose behalf rent is payable for any house and includes every person who from time to time derives title under a tenant, or a person continuing in possession after the termination of his tenancy otherwise than under the provisions of this Act and shall include any person against whom a suit for ejectment but not a person against whom a decree or order for eviction has been made by such a Court. It is thus clear that both these definitions postulate the relationship of landlord and tenant which can come into existence only by transfer of interest in immoveable property. The expression ?landlord? in respect of a house cannot be equated with the owner of the house. If u/s 5 an application is made by a landlord for fixation of fair rent the tenant should be a party to such proceeding and vice versa. The expression ?landlord? in respect of a house cannot be equated with the owner of the house. If u/s 5 an application is made by a landlord for fixation of fair rent the tenant should be a party to such proceeding and vice versa. In view of the findings of the Courts below which we find to be correct that there was no relationship of landlord and tenant between the parties, they were right in dismissing the Petitioner?s application for fixation of fair rent. 11. The writ petition, therefore, fails and is dismissed with costs. S. Acharya, J. 12. I agree. Final Result : Dismissed