SUBAL BALIARSINGH Vs. CHANCHALA BEWA

JUDGEMENT

(1.) THE defendants are the appellants against a reversing judgment. The suit was filed for eviction of the defendants from the suit properties, for damages along with arrear rent as described in Schedule 'C' of the plaint, for permanent injunction restraining the defendants from entering into the suit plots and alternatively for recovery of possession in the event the plaintiffs fail to prove tenancy in respect of the suit property.

(2.) THE case of the plaintiffs is that one Gangadhar Srichandan was the owner of the suit properties described in Schedules 'A' and 'B' consisting of two plots i.e. 400 and 398 extending to an area of Ac. 0.048 decimals and Ac. 0. 020 decimals respectively. The dispute relates to 20 decimals of land over which a pucca building consisting of three rooms and a shed is existing. So far as the rest portion of the disputed lands are concerned, they are partially used for the purpose of growing crops and are exclusively under the possession of the plaintiffs. The disputed plot No. 398 is recorded as Raiyati holding in the name of Gangadhar and he had been recorded as Sikimi tenant in respect of the disputed plot No. 400. Plaintiff No. 1 is the wife and plaintiff No. 2 is the adopted son of late Gangadhar. The further case of the plaintiffs is that Gangadhar in order to instal a rice huller and carry on business, constructed the suit house along with the verandah and the approach road situated over the suit plots. Though the required building had been constructed, the same could not be utilised by Gangadhar for running the business and as such remained vacant. The defendant No. 1 sometime in the year 1967 approached Gangadhar to take the house on monthly rent of Rs. 50/ in order to instal a rice huller there and carry on business. An agreement was entered into between Gangadhar and defendant No. 1, pursuant to which the defendant No. 1, occupied the suit land as a monthly tenant at will and installed the rice huller therein. After death of Gangadhar in the year 1973, the defendants defaulted in payment of rent and they had also not paid the rent prior to death of Gangadhar. It is also alleged in the plaint that the defendants made attempt to record their names in the Government records in respect of the suit properties and also attempted to deprive the plaintiffs from their legitimate right, title, interest as well as possession over the suit property on the pretextthat defendant No. 1 had taken the suit land on annual ground rent of Rs. 30/ from Gangadhar, constructed the disputed house wherein the rice huller was installed. The defendants also alleged that there was an agreement of sale of the suit land to the defendant No.2 (wife of defendant No. 1) for which Rs. 3,000/ had been paid to Gangadhar. It is further averred in the plaint that the defendants have got no manner of right, title and interest over the suit land and the defendants having not vacated the suit property in spite of service of notice under Section 106 of the Transfer of Property Act, the suit had been filed.

(3.) ON the above pleadings of the parties, the learned Subordinate Judge, Khurda framed eleven issues and on discussion of the evidence on record, dismissed the suit on the following findings :