MURALIDHAR MARWARI Vs. LALIT MOHAN SAHU

JUDGEMENT

(1.) THIS appeal is by defendant No. 1 directed against an order dated 5-2-1960 passed by Sri B. K. Misra, Additional Subordinate Judge, Sambalpur, in Title Appeal no. 7 of 1960, confirming an order dated 5-8-1957 of Sri K. C. Kar Munsif of deogarh in Title suit No. 13 of 1956.

(2.) RESPONDENTS 1 to 3 are the legal representatives of the original plaintiff dasarathi Sahu who died after the judgment in the lower appellate Court. This is a suit for declaration of plaintiff's title and recovery of possession in respect of house property situate in the Deogarh town in the Ex-State of Bamra. Kunjabehari Majhi, defendant No. 3, owned some rooms standing on plot No. 1368 in Khata No. 296 with an area Order 19 in mouza Deogarh. By a registered sale deed dated 27-91949 (Ex. 1) he sold the suit rooms and the said plot to the plaintiff for a sum of rs. 1200/- and gave formal delivery of possession by asking defendants 1 and 2, who were occupying different portions of the said houses as monthly tenants, to pay the rent therefor to the plaintiff. Defendants 1 and 2 consented to the arrangement and agreed to pay to the plaintiff the same monthly rent as was settled between them and the original landlord, defendant No. 3. Thereafter the plaintiff filed an application for mutation of his name. At that stage defendant No. 1 objected to such mutation and contended that there was a previous agreement dated 20-8-1949 (Ex. D) between him and defendant No. 3 whereby the latter agreed to sell the very same property for a sum of Rs. 1000/and received Rs. 300/- as part consideration and in furtherance of the contract defendant No. 3 asked defendant No. 1 to continue in possession of the house and directed defendant No. 2 to pay his portion of the rent to defendant No. 1. Thus according to defendant No. 1, he was protected under Section 53a of the Transfer of Property Act In view of this controversy, the Mutation Officer could not decide in whose favour the mutation had to be made and directed the parties to go to the civil Court.

(3.) THEREAFTER the plaintiff issued registered notices to defendants 1 and 2 to vacate the house and to pay arrears of rent, but they having failed to do so the plaintiff filed Title Suit No. 9 of 1950 in the court of the Munsif of Bamra against defendants 1 and 2 and the present defendant No. 3 was also made a party in that suit. The plaintiff was unsuccessful both in the trial court as well as in the lower appellate court whereafter he filed Second Appeal No. 43 of 1954 in the High court. At the time of hearing of that second appeal, the plaintiff put in an application for permission to withdraw the suit with liberty to file a fresh suit. The application was disposed of in the following terms by the High Court: