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2019 DIGILAW 253 (ORI)

Mahesh Kumar Mishra v. Bhagwan Singh (since dead through his Lrs. )

2019-03-28

A.K.RATH

body2019
JUDGMENT : A.K.Rath, J. This appeal by the plaintiff assails the affirming judgment passed by learned Civil Judge (Senior Division), Rourkela, in Title Appeal No.2 of 1991. 2. Plaintiff-appellant no.1 instituted the suit for declaration that the agreement dated 16.9.1981 allotting the shop room in favour of defendant no.1 is a forged one, defendant no.1 has no title over the suit property and permanent injunction. 3. Case of the plaintiff is that after obtaining diploma in I.I.T., he approached Orissa Industrial Infrastructure Development Corporation, Bhubaneswar, (IDCO)-defendant no.2 on 20.06.1976 for setting up an automobile repairing centre. Defendant no.2 allotted the shop room in his favour by means of a lease deed. Subsequently, the plaintiff switched over to bakery business in the year 1981. He appointed defendant no.1 as supervisor on monthly salary of Rs.750/-. By end of January, 1985, he came to know that defendant no.1 committed irregularities in running the business. Taking advantage of his illness, defendant no.1 managed to get the premises recorded in his name in collusion with defendant no.2 by practising fraud and manufactured the documents. On 6.5.1985, defendant no.1 claimed to be the owner of the suit premises. Defendant no.2 has no authority to substitute the name of the plaintiff by inserting the name of defendant no.1 in the record. 4. Defendant no.1 entered contest and filed a written statement denying the assertions made in the plaint. Case of the defendant no.1 is that the suit premises was allotted to the plaintiff for running an automobile repairing shop in the name and style "M/s. Utkal Automobile Engineering Works". Subsequently the plaintiff switched over to bakery business. Plaintiff could not run the business. Plaintiff contacted him to manage the business. He applied for allotment of the shop room to defendant no.2. On 29.7.1982 defendant no.2 issued allotment letter, Ext.B/1. Possession of the premises was delivered to him on 01.04.1983 for a monthly rent of Rs.485/-. He is in possession of the suit premises. 5. Case of the defendant no.2 is that the plaintiff did not utilise the shop-cum-residence and defaulted in payment of rent. The lease was cancelled on 06.08.1979. On 31.03.1982, the plaintiff handed over the possession of the suit premises to defendant no.1 instead of defendant no.2. 6. On the inter se pleadings of the parties, learned trial court framed nine issues. Parties led evidence, oral and documentary. The lease was cancelled on 06.08.1979. On 31.03.1982, the plaintiff handed over the possession of the suit premises to defendant no.1 instead of defendant no.2. 6. On the inter se pleadings of the parties, learned trial court framed nine issues. Parties led evidence, oral and documentary. Learned trial court dismissed the suit holding that the plaintiff has to pay monthly rent amounting to Rs.12,535/- till June, 1981. Transfer of the suit premises by defendant no.2 in favour of defendant no.1 is in accordance with law. The suit is barred by limitation. Unsuccessful plaintiff filed T.A. No.2 of 1991 before the learned Civil Judge (Senior Division), Rourkela, which was eventually dismissed. It is apt to state here that during pendency of the appeal, the sole appellant as well as respondent no.1 died on 02.04.2018 and 19.11.2015 respectively, whereafter their legal heirs have been substituted as appellant no.1(a) and respondent nos.1(a) and 1(b) respectively. 7. Heard Ms. Neha Sharma on behalf of Mr. Soumya Mishra, learned counsel for the plaintiff, Mr. Ananda Chandra Swain, learned counsel for the respondent nos.1(a) and 1(b) and Ms. Soumya Priyadarsini, learned counsel for the respondent no.2. 8. Ms. Sharma, learned counsel for the plaintiff submits that plaintiff approached defendant no.1 for running a business in the suit premises. Defendant no.2 executed a lease deed, Ext.2. He was running the business. He suffered from paralysis. He appointed defendant no.1 to manage the business. But then, defendant no.1 in connivance with defendant no.2 recorded the property in his name and issued allotment letter dated 20.07.1982, Ext.B/1. She submits that no opportunity of hearing was provided to the plaintiff before allotment of the shop room in favour of defendant no.1. Defendant no.1 has no semblance of title over the property in question. She further submits that the courts below are not justified in holding that no stamp duty is payable on the agreement dated 16.9.1981 executed between the plaintiff and defendant no.1, Ext.A-1/1. 9. Per contra, Mr. Swain, learned counsel for the respondent no.1 submits that both the courts below have concurrently held that defendant no.2 has transferred the suit premises in favour of defendant no.1. There is no perversity in the said findings. 10. Ms. Soumya Priyadarsini, learned counsel for the respondent no.2 submits that plaintiff had not prayed to cancel the allotment letter issued by the defendant no.1. There is no perversity in the said findings. 10. Ms. Soumya Priyadarsini, learned counsel for the respondent no.2 submits that plaintiff had not prayed to cancel the allotment letter issued by the defendant no.1. Plaintiff had switched over the business from automobile business to bakery business. By letter dated 20.7.1982, Ext.B-1, the shop room was allotted to defendant no.1. The plaintiff has no title over the shop room. The suit is barred by limitation. 11. Admittedly, the shop room belongs to defendant no.2. Plaintiff was running the business. Plaintiff asserts that defendant no.1 was looking after the business by means of an agreement dated 16.9.1981. There was an agreement between the plaintiff and defendant no.1. Prayer has been made for a declaration that the said agreement is forged one. The suit was instituted in the year 1985. The period of limitation for institution of a suit is three years. Thus, the suit is barred by limitation. 12. Defendant no.2 allotted the suit premises to defendant no.1 by means of an allotment letter, Ext.B/1. There is no prayer to set aside the same. On a threadbare analysis of the evidence, oral and documentary and pleadings of the parties, learned appellate court came to hold that the agreement was admitted into evidence. The same was impounded and stamp duty and penalty had been realized. The agreement had been entered into between the parties. Since the plaintiff could not manage the business and violated the terms of the lease and for non-payment of rent, the allotment was cancelled. Re-allotment of the shop room was made after cancellation of the initial allotment. These are essentially finding of facts. There is no perversity or illegality in the said findings. 13. In view of the foregoing discussions, the appeal is dismissed, since the same does not involve any substantial question of law. There shall be no order as to costs.