HEMALATA SAHOO Vs. BANSIDHAR SHAH AND ANOTHER

JUDGEMENT

(1.) The appellant, who is the plaintiff, filed T.S. No. 305 of 2003 before the learned Civil Judge (Sr. Division). First Court. Cuttack seeking a decree for eviction of the defendants from the suit property on the ground that the property originally belonged to one Adhikari Ramakrushna Das, who sold the same to one Nityananda Sahoo. The properties were partitioned and fell to the share of the vendor of the plaintiff. The respondents-defendants were tenants under Nityananda.

(2.) A notice under section 106, T.P. Act was issued to the respondents-defendants and they having not vacated the premises, the plaintiff filed the suit. The defendants-respondents, while denying the title of the plaintiff over the disputed property. also raised a question that there was no atonement. The learned Trial Court framed issues, one of which was with regard to the right, title and interest of the plaintiff and ultimately decreed the suit declaring the right, title and interest of the plaintiff over the disputed property and directing eviction of the defendants. The defendants preferred R.F.A. No. 109/2007 before the learned District Judge, Cuttack. The learned District Judge confirmed the decree with regard to declaration of right, title and interest of the plaintiff and while holding that provision of section 106, T.P. Act has been duly complied with, came to the conclusion that the said notice is of no consequence as the plaintiff has failed to prove atonement. But, simultaneously held that the defendants have no legal right to possess the suit shop room and were treated to be trespassers. Strangely, the learned Lower Appellate Court even though held that defendants as trespassers and the suit was one for eviction, instead of confirming the decree of eviction reversed the same. Once the title of the plaintiff has been confirmed and prayer in the plaint was for a decree for eviction, even though the learned Lower Appellate Court found that the defendants are not tenants, but trespassers, he could not have reversed the decree of eviction passed by the learned Trial Court.

(3.) During course of hearing of the second appeal, it was submitted at the Bar that the plaintiffs husband is a tenant in respect of another shop room belonging to the defendants and the defendants having filed a suit for eviction, the same has been decreed and has been confirmed in a first appeal by this Court. The said decree of eviction is under execution. Though Mr. Pradhan, learned Counsel for the respondents submits that given six months time, the defendants-respondents will vacate the suit shop room, but Mr. Singh, learned Counsel for the appellant submits that the defendants, who are plaintiff in the other suit, are proceeding with the execution of decree of eviction, against the husband of the appellant and are trying to evict him from the shop room in which he is a ten- ant under the defendants.