BHIMA PADHI Vs. VENKATESWARA SWAMY VARU AND ANR.

JUDGEMENT

(1.) THE suit out of which this appeal arises was filed on the following averments: T.S. No. 19/57 in the Court of the Additional Subordinate Judge, Berhampur was filed by the Plaintiff for recovery of possession of the disputed lands on the allegation that the Defendant and his vendor were trespassers. Defendant Bhima Padhi was Defendant No. 6 in that suit. He claimed to have purchased the disputed lands from Kaviraj Madhusudan Sarma who had purchased the same from Honnu Padhi, both of whom, bad been impleaded as Defendant Nos. 1 and 4 in that suit. All those Defendants were held to be trespassers and a decree for eviction was passed. In execution of the decree, Plaintiff was put in possession on 3 -3 -1959 (see Amin's report -Ex. 7 (b)). Defendant'" vendor filed F.A. No. 7/59 wherein the Defendant was Respondent No. 6. While the First Appeal was pending and the Plaintiff kept the disputed lands in his khas cultivation, Defendant threatened the Plaintiff with violence and gave out that he would remove the crop by force. Plaintiff accordingly filed T.S. No. 198/59 in the Court of the Munsif, Berhampur against the Defendant for permanent injunction to restrain the Defendant from interfering with the possession and cultivation of the suit lands. An interim injunction was issued. Defendant was, however, permitted to cut the crop on his depositing in Court Rs. 300 / - tentatively fixed as the value of the crop. On 1 -8 -1960, that suit was compromised. Defendant was allowed to cultivate the disputed lands till the disposal of F.A. No. 7/59 on his agreeing to give half of the yield of paddy to the Plaintiff by a specified date. Defendant did not give the paddy for the year 1960 to the Plaintiff. The latter accordingly filed M. S No. 69/61 in the Court of the Munsif, Berhampur for recovery of the value of the paddy. After service of notice in that suit, Defendant filed O.T. R case No. 32/61 in the Court of the O.T.R. Collector, Berhampur praying amongst other reliefs for a declaration that he was the tenant of the disputed lands and for permitting him to deposit the profits of the suit lands under the provisions of the O.T.R. Act (hereinafter to be referred to as the Act). Plaintiff's case is that there is no relationship between the Plaintiff and the Defendant as landlord and tenant. The latter was bound by the decree in T.S. No. 19/57 in the Court of the Addl. Subordinate. Judge and by the decree in T.S. No. 198/59 on the file of the Munsif, Berhampur. Further, an identical plea of the Defendant raised in O.T.R. case No. 19/59 had been previously withdrawn. F.A. No. 7/59 was dismissed for default on 21 -9 -1961. O.T.R. case No. 32/61 was dropped on 14 -5 -1962 as stated by Mr. P.V. Ramdas. As per the terms of the compromise decree in T.S. No. 198/59, Defendant was liable to vacate the disputed lands. On the Defendant's failure to leave possession, the suit was filed for recovery of possession and permanent injunction.

(2.) DEFENDANT pleaded that Honnu Padhi had occupancy rights in the suit lands which he transferred to Madhusudan Sarma, who in his turn, sold the same to the Defendant in 1954. Ever since then, the Defendant has been enjoying occupancy rights peacefully. Plaintiff is entitled only to receive Rajbhagam. The suit was not maintainable till disposal of O.T.R. Case No. 32/6l.

(3.) THE following questions arise for consideration in this appeal: