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2015 DIGILAW 25 (ORI)

Om Prakash Nangalia @ Agarwal v. Bansidhar Saha

2015-01-15

B.K.NAYAK

body2015
JUDGMENT : B. K. NAYAK, J. Judgment and decree respectively dated 13.04.2009 and 27.04.2009 passed by the learned Civil Judge (Senior Division) 1st Court, Cuttack in Civil Suit No.539 of 2007 have been challenged in this appeal by the defendant-appellant. 2. The plaintiff filed the aforesaid suit for eviction of the defendant from the suit property and for realization of arrear house rent and damages. The suit property consists of a shop room of size 10’ x 13’ standing on Hal Plot No.1232 under holding No.33-A in Choudhury Bazar, Ward No.12 of Cuttack Municipal Corporation. 3. The plaintiff’s case is that on 27.06.1995 he purchased the suit property from its previous owner-Nandakishore Goenka under a registered sale deed. Before such transfer, the defendant had been inducted as a monthly tenant by the plaintiff’s vendor. After purchase of the suit property, the plaintiff so also his vendor intimated the defendant about such transfer and asked him to treat the plaintiff as his landlord and to pay the monthly rent to him. As such the defendant became the tenant of the plaintiff in respect of the suit premises from the date of execution of the sale deed. It is the further case of the plaintiff that with some ulterior motive the defendant filed T.S. No.262 of 1995 in the court of the Civil Judge (Senior Division), 1st Court, Cuttack, against the plaintiff and his vendor for specific performance of contract of sale on the basis of an oral agreement with false allegations. The suit was dismissed on contest by the Second Additional Civil Judge (Senior Division), Cuttack by judgment dated 30.04.2003. Challenging the said judgment, the defendant filed RFA No.100 of 2003 before this Court, which was also dismissed on 19.11.2005. It is stated that in the said First Appeal as well as in AHO 220 of 2001, arising out of judgment in W.P.(C) No.9044 of 2004, this Court has held that the present defendant is a tenant under the plaintiff. The judgment passed in the said First Appeal was challenged by the defendant in SLP No.5889 of 2006 before the Hon’ble Supreme Court, which was also dismissed. The judgment passed in the said First Appeal was challenged by the defendant in SLP No.5889 of 2006 before the Hon’ble Supreme Court, which was also dismissed. The further case of the plaintiff is that the suit shop room was in a dilapidated condition and that the plaintiff was also himself in need of the suit premises for his own use and, therefore, issued notice to the defendant terminating his tenancy with effect from the last day of August,2006. In spite of such notice, the defendant did not vacate the suit shop room and did not clear up the arrear rent, for which the plaintiff was constrained to file the suit. 4. The defendant filed his written statement challenging the maintainability of the suit on grounds of lack of legal and enforceable right, non-joinder of parties and as barred by law of limitation. The specific case of the defendant is that originally his father was a tenant in respect of the suit shop room and after his death the defendant is continuing as a tenant under the original owner, Nandakishore Goenka. The original owner, entered into an agreement for sale of the shop room to the defendant and received Rs.5,000/- towards part consideration. But subsequently he illegally executed the sale deed in favour of the plaintiff, for which the defendant filed T.S. No.262 of 1995 against the original owner. It is also stated that the defendant is never a tenant under the present plaintiff and, therefore, the questions of termination of tenancy and eviction from the suit shop room and payment of arrear rent and damages do not arise. In the next breath it is stated by the defendant that he paid rent to the plaintiff through account payee cheque till April, 2006 and thereafter the plaintiff refused to accept cheques for which the defendant deposited rent in a separate Bank account. It is stated that he is in peaceful and continuous possession of the shop room since long last to the knowledge of the true owner, for more than the stipulated period and has therefore acquired title thereto by way of adverse possession. 5. It is stated that he is in peaceful and continuous possession of the shop room since long last to the knowledge of the true owner, for more than the stipulated period and has therefore acquired title thereto by way of adverse possession. 5. On the pleadings of the parties, the trial court framed six issues and on consideration of the evidence came to hold that the defendant-appellant is a tenant under the plaintiff and that his tenancy was terminated by a valid notice under Section 106 of the T.P. Act. Accordingly, the suit was decreed directing eviction of the defendant from the suit premises and for payment of arrear rent @ Rs.600/-per month from 01.05.2006 till 31.08.2006 and to pay damages to the plaintiff @ 1200/-per month from 01.08.2006 till delivery of possession of the premises to the plaintiff. 6. In assailing the impugned judgment, the learned counsel for the appellant has contended that the defendant’s tenancy was terminated by the plaintiff by issuance of notice dated 02.09.1995 for vacating the suit shop room on before 30.09.1995 and the defendant having not vacated the premises, the plaintiff did not take steps for eviction of the defendant from the shop room and, therefore, the defendant’s possession after 30.09.1995 became unauthorized and that the present suit having been filed by the plaintiff more than 12 years after the termination of such tenancy he has acquired title by adverse possession over the property and the suit is barred by limitation under Article 65 of the Limitation Act. 7. The learned counsel for the plaintiff-respondent submits that earlier Title Suit No.262 of 1995 having been filed by the defendant against the present plaintiff and his vendor for specific performance of contract of sale, in which the present defendant did not admit his tenancy under the present plaintiff’s vendor and that by filing the suit itself claiming to be in permissive possession, the defendant cannot now contend that his possession was adverse. It is also his submission that by filing the said suit denying his tenancy and plaintiff’s title over the shop room, fresh cause of action to file the present suit arose after disposal of the First Appeal arising out of the previous suit. He further submits that the original possession of the defendant being permissive and he having admitted his tenancy, his possession cannot be adverse to the plaintiff. 8. He further submits that the original possession of the defendant being permissive and he having admitted his tenancy, his possession cannot be adverse to the plaintiff. 8. The question of bar of limitation for the suit and question of acquisition of title by the defendant by adverse possession are interlinked. The earlier suit (Title Suit No.262 of 1995) was filed by the defendant for specific performance of oral contract of sale by the vendor of the present plaintiff, who had sold the suit land to the plaintiff. The defendant then did not admit that he was a tenant on the premises, but claimed that he was in possession by way of part performance of contract of sale. The said suit was not one to decide landlord-tenant relationship. The said suit was dismissed on finding that there was no valid agreement for sale. After sale of the suit shop room in favour of the plaintiff, the original owner (Plaintiff’s vendor) issued notice, Ext.2 of attornment to the defendant. Similarly, the present plaintiff also under notice vide Ext.4 issued under registered post intimated the defendant about his purchase of the suit shop room by him asking him to pay rent to him treating him as his landlord and also asking him to vacate by 30.09.1995. It is now contended on behalf of the defendant-appellant that since the defendant’s tenancy was terminated since 30.09.1995, but he continued to possess thereafter which must be treated to be unauthorized, and the plaintiff filed the present suit on 22.12.2007, that is, more than twelve years after 30.09.1995, he must be held to have acquired title by adverse possession and the plaintiff’s suit for recovery of possession must be held to be barred by limitation. 9. The contention is wholly fallacious and not acceptable. Plaintiff’s title over the shop room was not admitted by the defendant in T.S. No.262 of 1995 filed by him. The judgment and decree in that suit was also confirmed in the common judgment in RFA No.100 of 2003 and AHO No.220 of 2001, dated 19.11.2005, Ext.12 and this Court while confirming title of the present plaintiff on the basis of his purchase, observed that present defendant was in occupation of the premises as tenant and that if the landlord wants to evict him, he may take recourse to eviction proceeding as per law. Therefore, the plaintiff served notice dated 31.07.2006 (Ext.8) under Section 106 of the T.P. Act terminating the tenancy of the defendant with effect from 31.08.2006 and the defendant having not vacated the shop room, the plaintiff filed the present suit in 2007, which must be held to be well within the period of limitation. Since in the earlier suit filed by him the present defendant did not accept his tenancy and the title of the plaintiff, a fresh cause of action arose on the disposal of the earlier suit and finally on the disposal of the First Appeal arising therefrom. Hence, it cannot be said that for the present suit limitation should be counted from 30.09.1995. 10. The learned counsel for the appellant has relied upon the decision of the apex Court reported in AIR 2000 SC 212 , Ajit Choptra v. Sadhu Ram & Others in support of his contention that the defendant has acquired title to the suit shop room being in adverse possession since 30.09.1995, when earlier notice of termination of tenancy (Ext.4) was served on him. The cited decision does not support the contention of the appellant. The facts in the cited case are that eviction order being passed in a valid proceeding, the same was not executed for more than twelve years and thereafter a fresh suit for eviction was filed by the landlord. The apex Court held that the earlier eviction order was challenged in appeal and also in revision before the High Court which was also dismissed giving three months time to the tenant to vacate and therefore the subsequent suit for eviction having been filed within 12 years from the date of dismissal of the revision by the High Court against earlier eviction order, which furnished a fresh cause of action, there was no question of the tenant acquiring title by adverse possession. The decision cited by the appellant, therefore, does not help him in any way. 11. That apart it is admitted by the defendant in his written statement and also by the plaintiff in his evidence that the defendant paid rent to the plaintiff by cheque till April,2006. This means that even after Ext.4 notice the plaintiff having received rent from defendant, the latter’s possession would be as a tenant holding over which is permissive and not adverse to the plaintiff. 12. This means that even after Ext.4 notice the plaintiff having received rent from defendant, the latter’s possession would be as a tenant holding over which is permissive and not adverse to the plaintiff. 12. The apex Court in the case of Shri Sarbeswar Mohanty v. Chintamani Sahu, 88 (1999) CLT 433 (SC) have held that possession of a lessee even if the lease is void in permissive and not adverse. For the reasons stated above, the contentions of the appellant fail and I find no infirmity in the trial court’s judgment. The appeal is, therefore, dismissed.