NARAYAN CH RANA Vs. BALASORE MUNICIPAL COUNCIL

JUDGEMENT

(1.) Defendant is appellant in this first appeal against decree for eviction from a tank and damages for illegal occupation thereof.

(2.) Case of plaintiff is that the suit tank is known as Agapokhari. It was part of the estate of Raja Manmathnath Deb an intermediary under the Orissa Estates Abolition Act and was recorded in his Anabadi Khata. This tank vested in State of Orissa free from all encumbrances under the said Act. Since tank was used by public plaintiff maintained and managed the tank and being a public tank, it automatically vested in the Municipality under provisions of the Orissa Municipal Act, 1950. Plaintiff was leasing out the right of pisciculture in the rank since the time it took over management in the year 1953 on specific condition that water of the tank shall not be polluted. Defendant took lease for pisciculture in 1956 beginning from 16-3-1956 on annual rental basis. Lease having expired on 31-3-1973, plaintiff served notice on defendant on 4-4-1973 to vacate. Without vacating, defendant filed a suit for permanent injunction against plaintiff from interfering with his possession. In Second Appeal No. 237 of 1977 decided on 8-1-1979, High Court reversing decrees of both Courts decreed the suit making it clear that plaintiff would not interfere with possession of defendant without evicting him in due course of law. Accordingly, suit for eviction has been filed claiming compensation for six years amounting to and for pendente lite and future damages Rs. 18,000/- at the rate of Rupees 3,000/- per year.

(3.) Case of defendant is that lease did not expire on 1-4-1973 and no notice under S.106 Transfer of Property Act having been issued to defendant, suit for eviction is not maintainable. According to him, there was an agreement between Municipality and defendant on 16-3-1956 that he would rear fish in the tank for five years and would construct two ghats. Annual premium was fixed at Rs. 280/-. On 29-1-1958, another agreement was executed granting lease for 12 years from 1961 when term of the earlier lease was to expire with specific condition that defendant would reexcavate the tank for which premium was reduced to Rs. 100/- per year. This term of lease was extended for a further period of two years. When Executive Officer asked defendant to hand over possession on the ground that term has expired on 31-3-1973, defendant approached Collector and Revenue Divisional Commissioner. Being unsuccessful there, he had to file a suit which was decreed in Second Appeal restraining Municipality not to interfere with his possession as long as he is not evicted from the suit tank in due course of law. Defendant specifically asserted that lease was valid till 1975 and letter of Executive Officer dated 4-4-1973 calling upon plaintiff to give possession of the tank on the ground that term of lease expired on 31-3-1973 is not correct.