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2016 DIGILAW 1138 (ORI)

Haradhan Nag v. Saroj Kumar Mishra

2016-11-23

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. 1. This is an appeal against the judgment and decree dated 22.02.2013 and 02.03.2013 respectively passed by the learned District Judge, Sambalpur in R.F.A. No. 24 of 2012 confirming the judgment and decree dated 30.6.2012 and 16.7.2012 respectively passed by learned Civil Judge (Sr. Division), Sambalpur in T.S. No. 117 of 1998. 2. The respondent as plaintiff instituted the suit for declaration that the defendant is a tenant and for eviction. The case of the plaintiff is that the suit schedule land originally belongs to Gohil Estate. Khirabahi Gohil was the karta of the family. In the year 1975, there was a partition between the sons of Khirabhai Gohil. Schedule ‘A’ land fell to the share of Dayaram Gohil. The main house and the out houses situate in Ward No. 28 having holding no. 306. In the year 1986-87, the holding number of the house was changed to no. 133. Dayaram Gohil and his sons sold the land along with the four kachha khaprali rooms to Debendralal Agrawala by means of registered sale deed no. 153 of 1980. The defendant was working as a maid servant under the mother of Dayaram Gohil. She was allowed to stay in one room of the house in lieu of her service. When the partition effected, she was paid rent of Rs.12/- per month to Dayaram Gohil till 1983. Debendralal Agrawala initiated HRC No. 19/1982 for eviction of the defendant. The same was dismissed. Thereafter he filed H.R.C. Appeal No. 20/1983. The House Rent Appellate Court came to a conclusion that Debendralal Agrawala has failed to prove his claim that Holding No. 133/A is a portion of holding no. 306 of ward no. 28 and dismissed the appeal. Thereafter Debendralal Agrawala sold the land to the plaintiff by means of registered sale deed no. 1657/1996. Since the defendant did not vacate the house, he issued notice under Section 106 of the Transfer of Property Act and thereafter instituted the suit. 3. Pursuant to issuance of summons, the defendant entered appearance and filed written statement. She admitted that she was working as maid servant under the mother of Dayaram Gohil and in lieu of her service, she was allowed to stay in one room. She also admitted that she was a tenant under Dayaram Gohil and paid rent till 1983. 3. Pursuant to issuance of summons, the defendant entered appearance and filed written statement. She admitted that she was working as maid servant under the mother of Dayaram Gohil and in lieu of her service, she was allowed to stay in one room. She also admitted that she was a tenant under Dayaram Gohil and paid rent till 1983. She is in possession of the suit house for 35 years. She denied about the partition of Gohil Estate. The specific case of the defendant is that Debendralal Agrawala having lost in House Rent Control case, set up the plaintiff to evict her. Neither Debendralal Agrawala nor the plaintiff has the title over the suit schedule property. During pendency of the suit, the original defendant died whereafter the present appellant being the legal representative substituted. 4. On the interse pleadings of the parties, learned trial court struck seven issues, out of which, issue no.2 is a pivotal one and the same is quoted hereunder. “(2) Whether the suit is hit by the principle of res judicata in view of the findings in H.R.C. Case No. 19/82 and H.R.C. Appeal No. 20/83?” 5. To substantiate the case, the plaintiff had examined two witnesses and on his behalf eighteen documents had been exhibited. The defendant had examined two witnesses and on his behalf two documents had been exhibited. 6. The suit was decreed. Assailing the judgment and decree passed by the learned trial court, the defendant filed R.F.A. No. 24 of 2012 before the learned District Judge, Sambalpur. Learned appellate court came to hold that the findings on the issue arrived at by the H.R.C. Court will not operate as res judicata. Held so, learned appellate court dismissed the appeal. 7. The second appeal was admitted by a Bench of this Court on 28.6.2016 on the following substantial question of law as enumerated in ground no. b(i) of the appeal memo. “(i) Whether the learned courts below are correct in law while decreeing the plaintiff’s suit having held that the plaintiff’s suit is not hit U/s.11 Expl.-VIII of C.P.C. when the plaintiff’s vendor have already suffered a binding from the Court having jurisdiction that the suit property does not co-relate to hold on claimed by the plaintiff ?” 8. Heard Mr. Prafulla Kumar Rath, learned counsel for the appellant and Mr. Sukumar Ghosh, learned counsel for the respondent. 9. Heard Mr. Prafulla Kumar Rath, learned counsel for the appellant and Mr. Sukumar Ghosh, learned counsel for the respondent. 9. In Abhimanyu Jee vs. Dr. Gayaprasad and Others, AIR 1982 Orissa 207, this Court held that the finding in the House Rent Control proceeding that there was no relationship of landlord and tenant between the plaintiff and defendants operated as res judicata and the finding was not available to be re-adjudicated in the civil court. But then, in the case of Life Insurance Corporation of India vs. M/s. India Automobiles and Co. and others, AIR 1991 SC 884 , the apex Court observed that the decision rendered by court of limited jurisdiction, that is to say, the rent control court will not operate as res judicata in the subsequent suit relating to title notwithstanding the terms of Section 11 of the C.P.C. including Expl.VIII thereto. Taking a cue from Life Insurance Corporation of India (supra), this Court in the case of State of Orissa vs. Bhanu Mali (Dead) Nurpa Bewa and others, AIR 1996 Orissa 199 held that the decision in the case of Abhimanyu Jee (supra) must be taken to have impliedly overruled. In Bhanu Mali (Dead) Nurpa Bewa (supra), a question arose that whether the decision of the Revenue Officer in the proceeding under the Orissa Prevention of Land Encroachment Act will operate as res judicata in the subsequent suit filed by the plaintiff for declaration of title and recovery of possession. This Court held that the decision of the Revenue Officer in the proceeding under the Orissa Prevention of Land Encroachment Act can neither operate as res judicata nor Section 16 thereof can stand as a bar relating to the question of title in the subsequent civil suit by the plaintiffs. 10. The irresistible conclusion is that the finding in the House Rent Control proceeding that there was no relationship of landlord and tenant between the plaintiff and defendant will not operate as res judicata in the suit for declaration of title. 11. Resultantly, the appeal, being devoid of merit, stands dismissed. No costs.