A RAJESWARI Vs. BRUNDABAN MOHAPATRA

JUDGEMENT

(1.) DEFENDANT is the appellant before this Court against a confirming judgment.

(2.) PLAINTIFF -respondent filed a suit for eviction of the defendant and for restoration of possession and for recovery of damages amounting Rs. 8,960/- along with future damages till delivery of possession of the shop room to the plaintiff. Case of the plaintiff is that he is the owner of the suit shop room and defendant had taken it on monthly rent in the year 1989 to open a bangle shop. From July, 1989 defendant ran into huge debts and her business was almost closed. In September, 89 she requested the plaintiff to give her in writing that she would be occupying the suit shop room for five years so as to create confidence in the minds of others and also get financial assistance. Out of pity the plaintiff gave in writing to the plaintiff that she would be allowed to continue as tenant for five years. Since the aforesaid agreement was executed in a plain paper which is not valid under law, another agreement was executed for a period of one year commencing from 1.11.1989 and the said agreement was executed on 23.10.1989 superseding the earlier agreement. As per the agreement dated 23.10.1989 the defendant was required to pay rent by 5th of each succeeding month and she was required to vacate the shop room on 1.11.1990. Though defendant had agreed to vacate the premises by 1.11.90, notice being served on her, she vacated the shop room on 3.11.90 and the plaintiff took possession thereafter. However, the defendant on the next date lodged a false complaint at Bolagarh police station against son of the plaintiff and thought the plaintiff had kept sand and stones for repair of the suit shop, 2.12.1990 defendant attempted to take possession of the shop room forcibly, as a result of which a constable was posted to keep watch. Thereafter the plaintiff filed Title suit No. 66/90 praying for permanent injunction to restrain the defendant from entering into the suit room and in the suit a pleader commission was deputed for local inspection. However, during pendency of the said suit the defendant forcibly entered into the shop room and took possession thereof and in view of the changed circumstances prayer for amendment of the plaint was sought for. Said prayer having been rejected the present suit was filed for eviction. According to the plaintiff the defendant forcibly took possession of the shop room on 24.11.92 and having attempted to take possession on 2.12.1990 she is liable to pay damages to the plaintiff for the entire period of unauthorised occupation @ 280/- per month.

(3.) TRIAL Court on consideration of the pleadings prayer framed as many as six issues and while answering Issue Nos. 3 and 4 held that the defendant's claim of continuous possession over the suit premises without surrendering the same to the plaintiff at point of time cannot be believed and that the defendant forcibly entered into the suit room on 24.11.92 after surrendering possession thereof in favour of the plaintiff on 3.11.90. Trial Court also held the agreement dated 23.10.89 to be valid one and also held that earlier plain paper agreement vide Ext. A is not valid one. Trial Court also found that the agreement vide Ext. D2 is for a period of one year and in view of the terms of agreement (Ext. 2), no notice under Section 106 of the Transfer of Property Act was necessary for termination of the tenancy. So far as damages are concerned, trial Court directed for recovery of damages for the amount claimed by the plaintiff and also further directed that the future damages @ 280/- per month shall be recovered. Challenging the said judgment of the trial Court the defendant preferred an appeal before the Addl. District Judge, Khurda. The learned Addl. District Judge while confirming the finding of the trial Court modified the decree so far as damages are concerned and directed that the plaintiff shall be entitled to damages for a period of 8 years and 7 months @ 280/- per month commencing from July 1993. However, the lower appellate Court agreed with the trial Court so far as future damages are concerned and directed that the future damages at the same rate of Rs. 280/- per month till date of recovery of possession shall be allowed.