RAGHUNATH PANI Vs. RADHAKANTO DEB

JUDGEMENT

(1.) In this second appeal, the plaintiff Raghunath Pani is the appellant (hereinafter referred to as the alleged tenant) from a reversing decision of the learned Subordinate Judge, Puri, whereby he reversed a decision of the learned Munsif, Puri and dSsmissed the tenant's suit for setting aside an ex parte decree passed against him on the ground of alleged fraud by suppression of the summons in a rent suit filed by the defendant-respondent Radhakanta Deb, Bija Marfatdar Mahant Biswambhar Das Chela of late Madhab Das of Puri Town (hereinafter referred to as the alleged landlord).

(2.) The matter arose in these circumstances: In 1948-49 the landlord filed a case for appraisement of produce under Section 79 of the Orissa Tenancy Act being O.T.A. Misc. Case No. 188/- 48-49 which on January 4, 1949 was decided against the landlord with the observation by the Deputy Collector that there seems to be some dispute as regards the alleged Bhag transaction of the land in suit; that the landlord may seek remedy in the proper court claiming damage or mesne profits from the tenant but the proceedings under Section 79 of the Oissa Tenancy Act were not maintainable (Ext. 2). The appeal from the said order filed by the landlord was also dismissed on April 28, by the Additional District Magistrate, Puri, finding that there is nothing to show that the said Raghunath Pani (alleged to be the tenant) was a Bhagchasi tenant under the said Radhakanta Deb through Mohant Biswambar Das (claiming to be the landlord) and that no evidence of any kind had been adduced by the alleged landlord on his behalf (Ext. 2a). Thereafter the said landlord filed in 1919 a rent suit being Rent Suit No. 5120 of 1948-49 which also was dismissed on 18-12-1951. On 12-4-1950 the landlord filed another rent suit being Rent Suit No. 3064 of 1950-51 on which the said ex parte decree was. passed on 11-6-1951 against the tenant. Thereafter there was an execution case being Execution Case No. 699 of 195152 which was dismissed on 18-4-1952 (Ext. D) on the finding that the decree of the landlord decree-holder was not binding on the tenant judgment-debtor on the ground that the relationship of landlord and the tenant between the parties had not been established (Ext D). On appeal by the landlord the said order passed in the said execution case treating the decree as a nullity was vacated (Ext. D-1). Thereafter a petition was filed by the tenant for setting aside the said ex parte decree under Order 9, Rule 13 Civil Procedure Code on 7-11-1953 which was dismissed on 8-3-1954 (Ext. F). Then an 17-3-1954 the present suit was filed by the tenant for setting aside the said ex parte decree on the ground of fraud as alleged. The trial Court decreed the tenant's suit finding that there was fraud and the ex parte decree in the rent suit was set aside. In the landlord's appeal before the lower appellate Court, the trial Court's decision was reversed, the appeal allowed, and the suit was dismissed on the finding that there was no fraud and the ex parte decree in the rent suit was accordingly to stand. Hence this second appeal by the tenant.

(3.) Admittedly, there is a background in the case which was the genesis of the present litigation with which, though this Court is not directly concerned for deciding this appeal, yet on the question of alleged fraud, the background has some bearing indicative of the motive behind the scheme. The landlord is a Hindu deity Radhakanta Deb represented by Biswambar Das, the Marfatdar Mahant. It is alleged that the tenant claims to be the marfatdar himself. Thus, there appear to be certain rival claims to the marfatdari right in respect of the deity. In reply to the alleged tenant's contention that there is no allged relationship of landlord and tenant, the said alleged landlord relies on Ex. G dated 4-8-1950, Endowment Commissioner's Certificate that the said Biswambar Das is the hereditary trustee under Section 64 of the Orissa Hindu Religious Endowments Act, 1939 and thus claims to be in possession as such hereditary trustee. The landlord also relied on Ext. A a certified copy of the petition in O. S. No. 67 of 1951 on the file of the Subordinate Judge of Puri, filed by the said tenant Raghunath Pani for adding him as a party under Order 1, Rule 10 Civil Procedure Code-- claiming that he is the marfatdar. Thus it is clear that the relationship between the parties has not been at all happy for several years prior to the present litigation.