ASHABATI GUPTA Vs. RAM PRATAP AGARWAL

JUDGEMENT

(1.) This Second Appeal has been preferred against the judgment and decree passed in T.A. No. 9/15 of 2001-2002 by which the learned appellate court reversed the judgment and decree passed by the learned trial court in T.S. No. 5 of 1993 and the counter claim registered as T.S. No. 85 of 1997. The appellants are the original defendants and the legal heirs of one of the defendants, who expired during pendency of this case. The respondent as plaintiff filed T.S. No. 5 of 1993, where the suit property covers the area measuring Ac. 0. 14 decimals with shop rooms standing thereon.

(2.) The case of the plaintiff-respondent is that he possessed the suit land (shop room) with due permission of the owner thereof, namely, Dulari Toppo (now deceased). But one Brij Bhusan Gupta (defendant no.7) with his brothers fell out with the plaintiff-respondent and demanded rent of the suit house from the plaintiff. The plaintiff-respondent not only questioned the ownership of defendant no. 7 over the suit shop house, but also refused to pay any rent. The plaintiff-respondent also pleaded that T.S. No. 33 of 1976 in the court of the learned Munsif, Panposh filed by the defendant no.7 ended in a compromise in which the plaintiff-respondent agreed to pay monthly house rent in respect of the suit house at the rate of Rs. 150/- to the defendant no. 7 regularly without any default. The plaintiff-respondent also pleaded that he continued to pay the monthly rent regularly, but stopped paying rent when he received a notice from the court of the Revenue Officer, Panposh under the provisions of Orissa Scheduled Areas Transfer of Immovable Property (by Schedule Tribes) Regulation, 1956 for his eviction from the suit property. The plaintiff-respondent appeared in the said case and represented in court that by virtue of the compromise decree in T.S. No. 33 of 1976, he was paying rent to the defendant no. 7 and, as such, his name should be deleted from the case record and should proceed against the defendant no. 7 and his father. The Misc. Case was dropped against the plaintiff-respondent and proceeded against the defendant no.7. The defendant no. 7 filed show cause in the said Revenue Misc. Case before the Revenue Officer taking the plea that he had purchased the disputed plot measuring an area of Ac. 0. 09 decimals by virtue of an oral sale with due delivery of possession against payment of total consideration of Rs. 95/- in the year 1955 and has been possessing the same till date. But subsequently, due to nonappearance of the defendant no. 7 before the Revenue Officer, an ex parte order was passed on 19.3.1979 directing the defendant no. 7 to make over possession of the suit land in favour of the recorded tenant Dulari Toppo in the said case registered as R.M.C. Case No. 4/226 of 1972-78. Subsequently, the plaintiffrespondent and Dulari Toppo jointly filed a memo in the court of the said Revenue Officer on 1.5.1979 to the effect that there has been attornment of tenancy by Dulari Toppo in favour of the plaintiff-respondent in respect of the suit house. The memo was accepted by the Revenue Officer and an order was passed by the Revenue Officer to the effect. Long thereafter, the defendant no. 7 filed appeal before the Collector (Revenue Appeal No. 13 of 1979) against the ex parte order of the Revenue Officer dated 19.3.1979 passed in R.M.C. No. 4/226 of 1972/78. The Collector, while considering the appeal remanded the case to the court below for fresh consideration.

(3.) After remand of the case, a fresh order was passed on 11.5.1987 with a direction to drop the eviction case in view of the changing circumstances that the suit property was validly sold by Dulari Toppo after obtaining due permission from the competent authority in favour of the plaintiff-respondent making him owner of the suit property on the basis of a registered sale deed. It is also averred in the plaint that during the appellate stage some penalty was imposed against the defendant no. 7 for illegal occupation of Adivasi property and the defendant no. 7 on 9.1.1984 deposited the penalty amount. The plaintiff has further alleged that in the year 1981 the defendant no. 7 and his father had filed H.R.C. case against the plaintiff-respondent for his eviction from the suit shop rooms in which an eviction order was passed against the plaintiffrespondent, but in the appeal, the said eviction order was set aside against which a writ petition was filed in this Court by defendant no. 7 and this Court quashed the order of the appellate court and confirmed the eviction order passed in H.R.C. Case No. 4 of 1981. The plaintiff-respondent asserts that under a limited jurisdiction vested in the Writ Court, the title of the plaintiffrespondent over the suit land has not been decided and the civil court being competent, the plaintiff-respondent has filed the suit for the above reliefs.