STATE OF ORISSA Vs. LOKANATH BEHERA AND ORS.

JUDGEMENT

(1.) PLAINTIFF is the Appellant. Plaintiff's case is as follows: Plaintiff is the proprietor and owner of the Khasmahal lands situate in the town of Cuttack. The father of Defendants 2 to 5 was the recorded tenant under the Plaintiff in respect of the suit land described in the schedule of the plaint. The lease was a non -agricultural one and the terms and conditions of the tenancy were contained in the lease and the kabuliyat (Ext. 2). The terms were binding on the sub -tenant (Defendant No. 6). The lease expired on March 31, 1943. The recorded lessee failed to pay rents on due dates and transferred the suit land, without the permission of the Collector, to Defendant No. 1 by a registered sale -deed dated April 15, 1938 in contravention of Clause (3) of the lease and the Kabuliyat. The lessee also contravened Clause (8) of the lease and the kabuliyat by failing to keep the land free from jungle. 'The holding was put to sale by the Certificate Officer as it fen into arrears of rent, and Defendant No. 1 purchased it on April 2, 1942 under Sale Certificate (Ext. A -1) for Rs. 50/ -. Certificate proceedings were started against Defendants 2 to 5 as their father had previously transferred the leasehold interest in 1938. Defendant No. 1 applied for getting his name mutated. The Collector ordered that he was to pay Rs. 100/ - as penalty and mutation fee by a particular date. Mutation was allowed subject to those conditions. Defendant No. 1 failed to comply with the conditions of permission and ultimately permission was withdrawn. In exercise of the right of ejectment reserved by the lessor under Clauses (17) of the lease and the kabuliyat, it was decided by the Collector to eject the Defendants and a notice to quit was served on May 13, 1946, asking them to vacate. Defendant No. 1 is in actual possession as a trespasser. Plaintiff accordingly prays for a decree for ejectment and delivery of vacant possession of the suit land and for recovery of Rs. 41/4/ - with future interest against Defendant No. 1 as damages for use and occupation.

(2.) DEFENDANT No. 1 contested the suit setting up his title on two -fold grounds - firstly, on the basis of the sale certificate (Ext. A -I) dated April 2, 1942, and secondly, on the basis of the purchase by the registered sale -deed, dated April 25, 1938. He also took the plea that he was recognised as tenant by the order of mutation and the Plaintiff was entitled only to realise the penalty by certificate proceedings, and the permission granted was not a conditional one. Defendant No. 6 also filed a separate written statement.

(3.) MR . Bath, learned Standing Counsel, raised two contentions in support of the appeal: