Orissa High Court
Rabinarayan Mohapatra(Since Dead) vs Lingaraj Rath And Another on 7 August, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.96 of 2002
(In the matter of an appeal under Section 100 of the Code of Civil
Procedure, 1908)
Rabinarayan Mohapatra(since dead) .... Appellants
through his LRs.
-versus-
Lingaraj Rath and another .... Respondents
Appeared in this case:-
For Appellants : Ms. P.P. Mohanty, Advocate
appearing on behalf of Mr. G.N.
Mishra, Advocate
For Respondents : Mr. S.K. Mishra, Sr. Advocate
Assisted by Mr. S. R. Behera,
Advocate
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 03.07.2024 / date of judgment :07.08.2024 A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment.
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2. The original appellant in this 2nd appeal, i.e., Rabinarayan Mohapatra was the sole defendant before the trial court in the suit vide T.S. No.462 of 1985 and he was the appellant before the 1 st appellate court in the 1st appeal vide T.A. No.57 of 1991.
When during the pendency of the 2nd appeal, Rabinarayan Mohapatra expired, then, his legal heirs have been substituted in his place as appellants.
The respondents of this 2nd appeal being husband and wife they were the plaintiffs before the trial court in the suit vide T.S. No.462 of 1985 and respondents before the 1st appellate court in the 1st appeal vide T.A. No.57 of 1991.
3. The suit of the plaintiffs(respondents in this 2nd appeal) vide T.S. No.462 of 1985 before the trial court against the defendant(appellant in this 2nd appeal) was a suit for eviction.
4. The case of the plaintiffs against the defendant was that, they(plaintiffs) are the owners of the suit schedule properties along with the house standing thereon. The house situated on the suit schedule properties was let out to the defendant on 28.10.1971 by the plaintiffs on monthly rent for Rs.25/- with a condition to pay the house rent of each month in the 2nd week of its next month. Accordingly, since 28.10.1971, Page 2 of 14 // 3 // the defendant was a monthly tenant of the plaintiffs in their house situated on the suit schedule properties. The defendant was paying the rent to the plaintiffs regularly till November, 1977, but, after November, 1977, the defendant defaulted in paying the monthly rent of the suit schedule house of the plaintiffs. When in spite of repeated demands/requests of the plaintiffs to the defendant for payment of arrear house rents, the defendant did not pay the same, instead of which, he(defendant) claimed his ownership over the suit schedule house falsely before the consolidation authorities projecting him as the owner of the suit properties, to which, the consolidation authorities negatived. Then, in order to evict the defendant from the suit house, the plaintiffs issued a notice under Section 106 of the T.P. Act, 1882 through their Advocate to the defendant requesting him to vacate the house, to which, the defendant received on 23.08.1985 and after receiving that notice of the plaintiffs under Section 106 of the T.P. Act, 1882, the defendant gave reply to the same through his Advocate denying the ownership of the plaintiffs over the suit schedule house and properties. For which, without getting any way, the plaintiffs approached the civil court by filing the suit vide T.S. No.462 of 1985 against the defendants praying for realization of arrear house rents and for a decree of eviction against him(defendant) in respect of the suit schedule house and properties.
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5. Having been noticed from the trial court in the suit vide T.S. No.462 of 1985, the defendant contested the same by filing his written statement denying the allegations alleged by the plaintiffs in their plaint against him taking his stands inter alia therein that, the suit of the plaintiffs vide T.S. No.462 of 1985 against him is not maintainable under law, because, the civil court has no jurisdiction to entertain the suit, as the nature of dispute between them(parties) squarely comes within the purview of OLR Act, 1960 and the dispute between them concerning suit schedule house and properties is subjudice before the competent OLR authorities. He(defendant) also denied his tenancy of the suit house under the plaintiffs. So, according to him(defendant) the question of realization of any rent from him as an arrear house rent and the passing of any decree for eviction against him does not arise.
The specific case/plea of the defendant was that, he (defendant Rabinarayan Mohapatra) has already acquired his raiyati right under Sections 9 and 10 of the OLR Act, 1960 over the suit schedule house and properties, for which, he (defendant) had approached the OLR authorities by filing a case for a declaration of his raiyati right over the suit schedule house and properties under Sections 9 and 10 of the OLR Act, 1960. Though, he (defendant) owned in the 1st court of the OLR Act against the plaintiffs, but, he(defendant) lost before the appellate court under OLR Page 4 of 14 // 5 // authority. For which, he(defendant) has filed a revision under Section 56 of the OLR Act challenging the order of the appellate court, which is still subjudice for adjudication. Therefore, during the pendency (subjudice) of revision under Section 56 of the OLR Act, 1960, the suit for eviction of the plaintiffs is not maintainable under law being hit and bar under Section 67 of the OLR Act, 1960.
The further case of the defendant was that, the contents of his reply notice against the notice under Section 106 of the plaintiffs are correct and the same are based on facts. He(defendant) is a poor person. Initially, he was a Bhag tenant of the suit properties under the predecessor of the plaintiffs. Sometime in the year 1961, he (defendant) approached the predecessor of the plaintiffs for granting him permission to build a thatched house in a portion of the suit properties at his cost for his residential purpose and on the verbal permission of the predecessor of the plaintiffs, he (defendant) built up a thatched house on the suit properties and resided there with his family members. Gradually, he(defendant) dug a pond and a well on the same for the beneficial use of his house thereon. As such, he (defendant) has been residing in the suit schedule house on the suit properties since 1961-62. The plaintiffs are rich persons and as he (defendant) has built the house on the suit schedule properties as per the permission of the plaintiffs, for which, the plaintiffs should not create any Page 5 of 14 // 6 // sort of disturbance in his possession over the suit properties. When the plaintiffs created disturbances in his possession over the suit properties, he(defendant) initiated the OLR case against them (plaintiffs) praying for declaring him as a raiyat under Sections 9 and 10 of the OLR Act, 1960 of the suit schedule properties. In spite of the pendency of the OLR revision before the competent OLR authorities for adjudication, the plaintiffs have filed the suit for eviction against him (defendant). For which, the suit of the plaintiff is not maintainable. Therefore, the suit of the plaintiffs is liable to be dismissed against him (defendant) with costs.
6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether four numbers of issues were framed by the trial court in the suit vide T.S. No.462 of 1985 and the said issues are:-
ISSUES
1. Is the suit maintainable as laid?
2. Has the court jurisdiction to entertain the suit in view of pendency of dispute before OLR Court?
3. Have the plaintiffs any cause for the suit?
4. Are the plaintiffs entitled to any relief?
7. In order to substantiate the aforesaid reliefs sought for by the plaintiffs against the defendant in the suit vide T.S. No.462 of 1985, they Page 6 of 14 // 7 // (plaintiffs) examined three witnesses from their side as P.Ws.1, 2 and 3 and relied upon the documents vide Exts.1 to 3.
But, whereas, the defendant neither examined any witness on his behalf nor proved any document from his side.
8 After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiffs and against the defendant and basing upon the findings and observations made by the trial court in all the issues in favour of the plaintiffs and against the defendant, the trial court decreed the suit of the plaintiffs vide T.S. No.462 of 1985 on contest against the defendant with cost, as per its judgment and decree dated 15.04.1989 and 29.04.1989 respectively directing the defendant to pay a sum of Rs.900/- to the plaintiffs towards arrear house rent for the period since 19.12.1982 to 18.12.1985 and also directed the defendant to deliver the vacant possession of the suit house to the plaintiffs and to pay the above sum within a period of three months, failing which, the plaintiffs are at liberty to get him(defendant) evict from the suit house with realization of the aforesaid amount through due process of law assigning the reasons that, when it is the own admission of the defendant in his pleadings(written statement) that, he (defendant) had initiated OLR case claiming his raiyati right over the suit properties, but, he has Page 7 of 14 // 8 // lost his case in the OLR appeal and a revision is pending against the order of the OLR appellate court passed against him as per the certified copy vide Ext.3 and when, it is found from the contents of the Ext.1 that, the defendant was a monthly tenant in respect of the suit house under the plaintiffs and he was paying monthly rent of the same to the plaintiffs till November, 1977, for which, the civil court has jurisdiction to try the suit and when there is no material on behalf of the defendant to show that, civil court has no jurisdiction to try the suit, then, it is established that, the plaintiffs are the rightful owners over the suit properties and they(plaintiffs) have got every cause for the suit. For which, they(plaintiffs) are entitled for realization of arrear house rent of three years from the defendant and they (plaintiffs) are also entitled for the decree of eviction against the defendant.
9. On being dissatisfied with the aforesaid judgment and decree passed by the trial court in T.S. No.462 of 1985 in favour of the plaintiffs and against the defendant, he(defendant) challenged the same by preferring the 1st appeal vide T.A. No.57 of 1991 being the appellant against the plaintiffs arraying them(plaintiffs) as respondents.
After hearing from both the sides, the 1st appellate court dismissed that 1st appeal vide T.A. No.57 of 1991 of the defendant on contest against the plaintiffs as per its judgment and decree dated 05.12.2000 Page 8 of 14 // 9 // and 16.12.2000 respectively concurring / accepting the findings and observations made by the trial court in favour of the plaintiffs and against the defendant.
10. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st appeal vide T.A. No.57 of 1991 of the defendant passed by the 1st appellate court, he(defendant) challenged the same by preferring this 2nd appeal being the appellant against the plaintiffs arraying them (plaintiffs) as respondents.
11. This 2nd appeal was admitted on formulation of the following substantial questions of law, i.e.,:-
"(i) Whether the learned courts below have acted illegally in directing eviction of the defendant-appellant from the suit property even after disbelieving the agreement of tenancy?
(ii) Whether the suit is maintainable in view of the fact that, the proceedings under the OLR Act were prosecuted by the parties during the pendency of the suit?"
12. When during the pendency of this 2nd appeal, the appellant (defendant) expired, then, his legal heirs have been substituted in his place as appellants.
13. I have already heard from the learned counsel for the appellants and the learned counsel for the respondents.
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14. In order to assail the impugned judgment and decree of the trial court and 1st appellate court, the learned counsel for the appellants relied upon the following decision:-
(i) AIR 1976 Orissa-103 : Sankar Kumar Bhattar and others vrs. Tehsildar-cum-Revenue Officer, Basta and others--Orissa Land Reforms Act (9 of 1974), Sections 15(1)(d) and 67--Scope--Dispute as to relationship of landlord and tenant--Revenue Officer is the only competent authority--Provisions of Section 15(1)(d) are retrospective--Civil Court has no jurisdiction to decide the dispute even in pending cases.
15. As, the above two formulated substantial questions of law are interlinked with the judgment and decree passed by the trial court and the 1st appellate court as per the pleadings and evidence of the parties, for which, both the substantial questions of law are taken up together analogously for their discussions hereunder:-
It is the specific arguments of the learned counsel for the appellants that, the suit of the plaintiffs for eviction against the defendant vide T.S. No.462 of 1985 was not maintainable under law before the civil court being hit and bar under Section 67 of the OLR Act, 1960, due to the pendency of revision under Section 56 of the OLR Act, 1960 challenging the order passed by the appellate authority under OLR Act in OLR Appeal No.75 of 1982.
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// 11 // At the time of answering issue nos.2 and 3, the trial court has specifically stated in para no.7 of the judgment that, when the claim of raiyati right of the defendant under Sections 9 and 10 of the OLR Act, 1960 in respect of suit schedule house and properties has already been negatived/denied by the appellate authority under OLR Act in OLR Appeal No.75 of 1982, then, the pendency of revision under Section 56 of the OLR Act, 1960 filed by the defendant challenging the order of the appellate court under OLR Act, 1960, cannot be a bar under Section 67 of the OLR Act, 1960 for the suit of the plaintiffs against the defendant for eviction of the defendant from the suit schedule house and properties along with the realization of arrear house rents.
16 It appears from the materials on record that, after the judgment of the appellate court passed in OLR Appeal No.75 of 1982, the plaintiffs have filed the suit vide T.S. No.462 of 1985 against the defendant praying for passing the decree of eviction against the defendant from the suit schedule house and properties and for realization of the arrear house rents from him (defendant).
17. Now, the question arises, whether the suit of the plaintiffs against the defendant for eviction during the sub-judice/pendency of the revision under Section 56 of the OLR Act was maintainable under law or the suit of the plaintiffs was hit and bar under Section 67 of the OLR Act, 1960. Page 11 of 14
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18. The appellate court under OLR Act, 1960 in OLR Appeal No.75 of 1982 has dismissed the case of the defendant giving observations that, the defendant is not a raiyat under Sections 9 and 10 of the OLR Act under the plaintiffs in respect of the suit schedule house and properties.
The law concerning the maintainability of the suit at hand under the situations/circumstances as stated above has already been clarified by the Hon'ble Courts and Apex Court in the ratio of the following decisions:-
(i) 2016(I) OLR-1059 : Sara Bewa vrs. Rambha Bewa and others--Section 100-Orissa Land Reforms Act, 1960 -
Section9(1) & 67-- Simply because, the party had approached with an application under Section 9(1) of the OLR Act, 1960, which has been rejected, the civil court's jurisdiction for that simple reason cannot be said to be inferred to have been outsted. In view of that, the dismissal of the proceeding under Section 9(1) of OLR Act, 1960, being rightly held to be having no impact on the suit. (Para-13)
(ii) 2022(I) CCC(S.C.) 139 : Assa Singh(D) BY LRS. vrs.
Shanti Parshad(D) by Lrs. & others--Ouster of jurisdiction of Civil Court is not readily inferred--If a landlord-tenant relationship is disputed, despite exclusive jurisdiction conferred on Revenue Court, to even Order eviction of a tenant, Civil Court would still retain jurisdiction in a case where there is a dispute relating to landlord-tenant relationship.(Paras 48, 50 and
53)
19. Here in this suit/appeal at hand, when in the judgment passed in OLR Appeal No.75 of 1982 filed by the defendant, the appellate court set aside the order of the 1st court under OLR Act and held that, the defendant is not a raiyat under Sections 9 and 10 of the OLR Act, 1960 Page 12 of 14 // 13 // in respect of the suit schedule house and properties, but, the plaintiffs are the owners of the suit schedule house and properties, then, in view of the principles of law enunciated in the ratio of the aforesaid decisions, in spite of pendency of revision before the revisional authority under OLR Act against the judgment passed in OLR Appeal No.75 of 1982 filed by the defendant, the civil court retains its jurisdiction for passing the decree of eviction in respect of the suit schedule house and properties against the defendant in the suit filed by the plaintiffs. Therefore, it cannot be held that, the suit of the plaintiff vide T.S. No.462 of 1985 against the defendant was not maintainable under law being hit and bar under Section 67 of the OLR Act, 1960 due to the pendency of the revision under the OLR Act. For which, in other words, it is held that, the suit for eviction and for realization of arrear house rents filed by the plaintiffs vide T.S. No.462 of 1985 against the defendant was maintainable under law before the trial court. The findings made by the 1st appellate court in dismissing the 1st appeal of the defendant are neither improper nor unreasonable. Therefore, the decision relied upon by the appellants indicated in para no.14 of this judgment is not applicable to this suit/appeal at hand on facts and law as discussed above.
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20. As per discussions and observations made above, when it is held that, the suit of the plaintiffs against the defendant was maintainable under law and the judgment and decree passed by the trial court and 1st appellate court in favour of the plaintiffs and against the defendant for eviction as well as for realization of arrear house rent are neither unreasonable nor improper, then at this juncture, the question of interfering with the same through this 2nd appeal filed by the defendant does not arise.
Therefore, there is no merit in the appeal of the appellants. The same must fail.
21. In result, the appeal filed by the appellants is dismissed on contest, but, without cost. The judgment and decree passed by the trial court as well as 1st appellate court in T.S. No.462 of 1985 and T.A. No.57 of 1991 are confirmed.
( A.C. Behera ) Judge Orissa High Court, Cuttack The 7TH of August, 2024/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 08-Aug-2024 10:36:14 Page 14 of 14