SIRIA MADHEI (DEAD) Vs. NAKULA ACHARYA

JUDGEMENT

(1.) The respondent as the plaintiff had filed Title Suit No. 24 of 1995 in the court of Munsif, Berhampur (at it was then) for vacation of appellant arraigning her as the defendant. In the said suit, there was a prayer for delivery of possession, also for recovery of arrear rent of Rs. 345/- and thereafter, rent @ of Rs. 15/- per month till delivery of possession. The appellant-defendant has also been directed to deliver possession of the suit shop room to the plaintiff-respondent. Being aggrieved by the said judgment and decree, the unsuccessful defendant had carried an appeal. As that move has also not been successful, the present appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Berhampur in Title Appeal No. 01 of 1999 confirming the judgment and decree passed by the trial court.

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

(3.) The case of plaintiff is that her mother had filed Title Suit No. 79 of 1992 against the husband of the defendant in the court of Civil Judge (Jr. Division), Berhampur and that was a suit for declaration of her title in respect of the suit house and recovery of possession of the same. The husband of the present defendant being also the defendant there had contested the said suit denying the right, title and interest of the mother of the plaintiff and her entitlement to possession. He asserted his own right title and interest over the same and also stated to have been in possession as owner thereof. The trial court in the said suit finally held the present plaintiff's-mother to be the owner of the suit house along with her children. The claim of perfection of title by adverse possession by said defendant over the same was declined holding the same in the negative. It is next held that the husband of the defendant was in possession of the said shop room as a tenant under the mother of the plaintiff. With these findings, the trial court in that suit though declared the right, title and interest of the mother of the plaintiff, yet held her to be not entitled to recover possession of the shop room from the husband of the defendant, holding his possession to be that of a tenant under the plaintiff's mother and as the said tenancy had not been terminated in accordance with law. The said judgment and decree were neither challenged by the plaintiff's mother nor by the defendant's husband and thus have attained its finality. The said judgment was rendered on 26.03.1994. Sometime thereafter both the mother of the plaintiff and the husband of the present defendant died. So the present plaintiff issued notice under section 106 of the T.P. Act to the present defendant who stepping into the shoes of her husband remaining in occupation as a tenant and called upon her to vacate the suit house by paying arrear rent. He then waited for the required period. But when he found no response, the suit has been filed. The defendants while traversing the plaint averments denied the relationship of landlord and tenant between herself and the plaintiff. She asserted to be the rightful owner of the suit property having valid title and possession. It is sated that her husband had never stayed in the suit house. The earlier suit was said to be collusive one, at the instance of the father of the plaintiff and husband of the defendant. With all these, the defendant prayed to non-suit the plaintiff.