SABITRI BUCHWANI AND OTHERS Vs. NARENDRA CHANDRA PANDEY

JUDGEMENT

(1.) The present appellants being the legal representatives of original defendant in the trial court as also the appellant in the lower appellate court have filed this appeal challenging the judgment and decree passed by the learned Additional District Judge, Jharsuguda in R.F.A. No. 5 of 2014 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Jharsuguda in C.S. No. 63 of 2012.

(2.) For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the court below.

(3.) The respondent as the plaintiff had filed the suit for eviction of the sole defendant from the suit house and had also claimed a sum of Rs. 3,60,000/- as mesne profit from July, 2009 to June, 2012 with pendent lite and future mesne profit @ Rs. 10,000/- per month till actual vacation. The plaintiff's case is that he is the owner-cum-landlord of the shop premises described in the schedule which is the subject matter of the suit. It originally belonged to the father of the plaintiff and on his death, he with other legal heirs have jointly succeeded to the same. It is stated that in an amicable family settlement between the plaintiff and his other co-sharers, the suit shop premises had fallen to his share and that has also been so ordered in a proceeding under section 19(1)(C) of the O.L.R. Act in O.L.R. Case No. 23 of 2008. Pursuant to the order passed therein the land over which the suit shop house stands has also been recorded in the name of the plaintiff. As per the case of the plaintiff, the defendant was inducted as a monthly tenant by his father in respect of the suit shop house and the date of commencement of the tenancy was from 01.12.1966 fixing the rent @ Rs. 100/- per month. The creation of said tenancy was evidenced by a mutual Kararnama Patra and that was duly executed, the original of which is said to be with the defendant and the copy in the hands of the plaintiff. The plaintiff has further said that the suit shop house was in a dilapidated condition requiring renovation and the father of the plaintiff was in a position to go for it because of paucity of funds, as he was in debt. So, the defendant was requested to provide some monetary help for the purpose. It is stated that for such reconstruction a sum of Rs. 8,300/- was spent and out of that 50% was the contribution of the defendant as agreed to be adjusted towards rent. In other words, such payment was towards advance rent. In addition to this, the plaintiff further states to have taken Rs. 6,000/- from the defendant. The plaintiff admits that a sum of Rs. 10,150/- was gradually adjusted towards the monthly rent, which was finally completed by the end of May, 1975. The tenancy is said to have been continuing all along as before. It is stated that the plaintiff requested the defendant to suitably enhance the monthly rent because of the growth of the commercial activity in the area where the suit shop house is situated and as the income of the defendant has gone high. The request was paid any heed to. So, there arose the discontentment between them as regards the quantum of rent. This resulted stoppage of payment of rent by the defendant from the year 1998. The plaintiff thereafter issued notice to the defendant to pay the arrear monthly rent @ Rs. 100/- per month and to vacate the suit house as required for his own use as well as that of his son. The notice dated 30.03.2004 is said to have been refused by the defendant as per the postal endorsement dated 01.04.2004. So, another notice was issued under section 106 of the T.P. Act, which was also refused on 28.06.2004. The tenancy thus finally being terminated on expiry of 31.07.2004 and the defendant having delivered vacant possession of the suit house, the suit came to be filed claiming the reliefs as already stated. The defendant admits that the original landlord was Gopal Chandra Pandey, the father of the plaintiff. It is stated that after Gopal Chandra Pandey one Birendra Chandra Pandey was collecting rent from defendant and he was so paying either to Birendra or his other agent Basudev Pandey. It is stated that all the legal heirs of Gopal Chandra Pandey have succeeded to the suit shop house and thus they are necessary parties. The partition amongst the legal heirs as claimed by the plaintiff is denied. It is said that he took the suit shop house on lease and constructed one pucca shop room with A.C. sheet roofing and had spent a sum of Rs. 6,000/- which was agreed to be adjusted towards monthly rent. It is stated that the suit shop room is in a commercial junction in the township of Jharsuguda. The defendant's case is that initially monthly rent was Rs. 100/- that has been subsequently enhanced to Rs. 300/- and in the year 1998 the rent though tendered was received. So, he kept it in deposit. It is also stated that though the plaintiff claims to have been allotted with the suit shop room in an amicable family settlement amongst his co-sharers, no such intimation was ever given to the defendant. Therefore, according to him, the plaintiff cannot be said either to be the owner or the landlord so far as the suit shop room is concerned. The notice of termination of tenancy is said to be invalid in the eye of law. With all such pleadings, the defendant prayed to non-suit the plaintiff.