RAMACHANDRA SAHU Vs. PRAMILA SAHU

JUDGEMENT

(1.) This is a second appeal by defendant No. 1 against the decision of the Additional Subordinate Judge, Cuttack in Title Appeal No. 30/5 of 1975/79 reversing the decision dated 16-1-75/24-1-75 of the Additional Munsif, Cuttack in Title Suit No. 97 of 1971 and decreeing the suit declaring the defendant No. 1 as a licensee and directing recovery of possession and permanent injunction restraining the said defendant from interfering with the right, title and possession of the plaintiff in regard to the suit property.

(2.) Pursuant to a gift made by her father under registered deed of gift dated 13-5-1939, the plaintiff alleged to have acquired title to the property and remained in enjoyment thereof. She constructed two houses on the land which was lying fallow, occupied one and allowed the defendant No. 1 to occupy the other on payment of Rs. 10/- per month as rent or licence fee for use and occupation of the said house. She got her name mutated and obtained a lease from the Khasmahal. Though initially the property in dispute was mutated in the name of defendant No. 1, ultimately mutation was made in the name of the plaintiff. With a view to evict the said defendant from the property, she instituted a proceeding under the House Rent Control Act (H.R.C. Case No. 63/64, Ext. 10) and got an order of eviction but in appeal (H.R.C. Appeal No. 18/70, Ext. N) she lost on a finding that defendant No. 1 was not a tenant. Thereafter the plaintiff asked defendant No. 1 to vacate the house and when he turned a deaf ear, she instituted the suit, for the reliefs stated above.

(3.) Defendant No. 1 alleged that one Choudhury Chakradhar Mohapatra who was the exclusive trustee of Sri (sic) Mahadev to whom the property belonged, in the year 1934 inducted him as a tenant in respect of the vacant land on receiving salami of Rs. 100/- and at an annual rental of Rs. 1.26. He made construction of the houses, got himself assessed by the Municipality and was in possession as a permanent tenant. He took an alternative plea that if the lease was a void one, he acquired title by his adverse, open, peaceful and continuous possession for more than the statutory period. Gift in favour of the plaintiff was denied and it was further pleaded that the plaintiff had filed Title Suit No. 126 of 1966 alleging the defendant No. 1 to be a monthly tenant but allowed the suit to be dismissed. He specifically pleaded estoppel against the plaintiff having regard to his stand in the previous litigation before the House Rent Controller as well as in the earlier suit and incompetency of the suit by reason of res judicata.