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2016 DIGILAW 450 (ORI)

Suresh Kumar Singhi v. Kirit Kotecha

2016-06-23

D.DASH

body2016
JUDGMENT : 1. In this appeal, the appellants have called in question the judgment and decree passed by the learned Addl. District Judge, Balasore in RFA No. 73/69 of 2009-2006 confirming the judgment and decree passed by the learned Civil Judge (Sr.Divn.), Balasore in C.S. No. 809 of 2003-I. 2. The appellants were the defendants in the suit and being aggrieved by the judgment and decree of the trial court had carried the first appeal. The suit is for eviction of the defendants being the tenants with respect of the suit premises under the plaintiff-respondents. 3. The predecessor-in-interest of the defendants namely Bhanwarlal Singhi having filed one suit i.e. T.S. No. 903 of 2000 in the court of Additional Civil Judge (Sr.Divn.), Balasore for specific performance of contract for sale of the suit premises and has finally lost in the trial court as well as before the first appellate court in RFA No. 152 of 2003. He had carried an appeal i.e. R.F.A. No. 151 of 2003 against the judgment and decree passed in T.S. No. 725 of 2000 filed by the respondents as plaintiffs in the court of Additional Civil Judge (Sr.Divn.), Balasore wherein he was directed to pay the rent for his occupation of the suit premises as the tenant to the plaintiffs. That has also been dismissed. The finding in that suit has been that he is a tenant in respect of the suit premises under the plaintiffs who are the lawful owners of the same. Thus now the finding with regard to the existence of relationship between the parties is no more open to challenge. The courts below have recorded concurrent finding of fact that there has been due termination of tenancy by service of notice under section 106 of the T.P.Act. 4. The following substantial questions of law have been formulated for admission of this appeal:- “(i) Whether in view of the fact that the RFA No. 151 of 2003 has been filed challenging the decree passed in T.S. No. 903 of 2000 filed by the present appellants for specific performance of the agreement dated 28.7.1997, the suit filed by the plaintiffs for eviction in C.S. No. 809 of 2003 is maintainable? (ii) Whether in view of the admitted fact that the original owners had entered into agreement as per Ext. (ii) Whether in view of the admitted fact that the original owners had entered into agreement as per Ext. F with the father of the appellants and had received part consideration money, and when the possession of the appellant’s father was accepted on the basis of agreement, the Ext-F which was found to be genuine, if the subsequent transferees are entitled to file suit for eviction of the appellants? (iii) Whether in view of the fact that there was no pleading nor evidence led by the plaintiffs to the effect that they had made any enquiry if their venders had entered into agreement with anybody and as a matter of that with the father of the appellants for sale of the suit property; if the transferees must be deemed to have the notice of the agreement and as also of the part performance of the agreement for the reasons that they would have actual notice of the agreement and their willful abstention from making enquiry during the purchase does not entitle them to file the suit for eviction of the appellants? (iv) Whether for the reasons stated above if the decisions of the forums below in passing a decree for eviction are sustainable?” 5. After the dismissal of RFA No. 151 of 2003 arising from T.S. No. 903 of 2000 and RFA No. 152 of 2003 arising from T.S. No. 725 of 2000-I all the above substantial questions of law in my considered view do not more survive of being answered. The suit for specific performance of the agreement for sale filed by Bhanwarlal Singhi, the predecessor-in-interest of these appellants has finally been dismissed on the finding that the agreement for sale is a forged document which cuts at the root. The part decree passed in the suit filed by these respondent holding the relationship of land lord and tenant to be there between them and Bhanwarlal and accordingly directing Bhanwarlal to pay rent to these respondents has also finally been confirmed. The present suit had been filed for eviction since in the earlier suit said prayer had been declined for non-termination of tenancy in accordance with the provisions of section 106 of the T.P.Act. The present suit had been filed for eviction since in the earlier suit said prayer had been declined for non-termination of tenancy in accordance with the provisions of section 106 of the T.P.Act. In this suit which has given rise to the present appeal both the courts below have concurrently held that there has been due termination of tenancy in accordance with the provisions laid down in section 106 of the T.P.Act. No such infirmity is shown to be surfacing therein. That being so, the present appeal is devoid of merit. 6. For the aforesaid, the appeal stands dismissed with cost.