PURUSOTTAM LAL KUMAR Vs. PADMALOCHAN PANDA

JUDGEMENT

(1.) Both these appeals are directed against one and the same judgment of the subordinate Judge, Bargarh, in Title Suit No. 85 of 1970. Defendants 1 to 3 are the appellants in First Appeal No. 184 of 1978 and plaintiffs are the appellants in First Appeal No. 229 of 1978.

(2.) Plaintiffs filed the suit for a decree for recovery of possession of the building described in Schedule-A of the plaint, for delivery of the mortgage deed and a sum of Rs. 5,400/- towards compensation for illegal occupation of the suit house from 1-12-1967 till 31-10-1970 and for further compensation as may be decreed by the Court till the possession of the suit property is delivered to the plaintiffs. It is alleged in the plaint that the disputed property was the self-acquired property of plaintiffs 3 and 4 and they had constructed the building on the land. For the construction of the said building, plaintiff No. 3 had taken a loan of Rs. 5,000/- from the father of defendants 4 and 5 by executing a deed of mortgage and gave him possession over the building. But as the building was under construction it was agreed that plaintiffs 3 and 4 would pay Rs. 50/- per month towards interest at 12 per cent, per annum for the principal amount advanced to the father of defendants 4 and 5 who would allow construction of the building by plaintiffs 3 and 4. The building was constructed by plaintiffs 3 and 4, but the finishing had not been done, as plaintiff No. 4 fell ill. Defendants 1 to 3 against the wishes of plaintiffs 3 and 4 took a temporary electric connection and are staying in the said house. Plaintiffs 3 and 4 in the meantime sold the building with the site to plaintiffs 1 and 2 for valuable consideration and gave them symbolical possession of the building. Although plaintiffs 3 and 4 promised to execute a regular sale deed, but they could not do so on account of illness of plaintiff No. 4, but duly authorised plaintiffs 1 and 2 to redeem the mortgage, pay Government dues and evict defendants 1 to 3 and recover possession of the land. In accordance with the said agreement, plaintiffs 1 and 2 have paid all the Government dues, paid the mortgage amount to the mortgagee on 31-10-1967 and also had paid the full consideration money that was payable to plaintiffs 3 and 4. They requested defendants 1 to 3 to vacate the land, but as the defendants did not vacate, the suit was filed. According to the plaint case, Rambharosa Sukla, the original mortgagee, died in June, 1969, and defendants 4 and 5 being his legal representatives were impleaded in the suit.

(3.) Defendants 1 to 3 filed a written statement denying the allegations made in the plaint and according to their case, they were occupying one of the houses of plaintiff No. 1 as a tenant paying monthly rent of Rs. 50/-. When the Court of the subordinate Judge was opened at Bargarh, there was no residential building for the subordinate Judge and, therefore, the members of the Bar including plaintiff No. 1 requested defendants 1 to 3 to vacate the house. The defendants agreed to vacate if they were provided with an alternative accommodation and, therefore, plaintiff No. 1, defendant No. 4 and the members of the Bar arranged the suit house for the occupation of defendants 1 to 3 which was then incomplete. Advocate Shri G.S. Shukla who is defendant No. 4 initially objected for the house being given on rent, but on the request of other members of the Bar he consented. The defendants thereafter spent a heavy amount for making the house habitable and shifted to the house. The rent for the house was fixed at Rs. 50 /- and the defendants had been paying that rent to said Shri Shukla from February, 196 6/10/1967. It is the further case of the defendants that there has been some payment thereafter and their tenancy not having been determined in accordance with law, the suit for eviction is not maintainable.