IMPORTANT POINT
Finding of fact could not be disturbed by Court in Second Appeal.

JUDGMENT

SANJAY KAROL J.

Leave Granted.

2. The present appeal is directed against the judgment and order dated 20th June 2022 of the High Court of Orissa at Cuttack passed in RSA No.131 of 2011 (Second Appeal), whereby the concurrent findings returned by the Courts below vide judgments dated 12th October 2007 [Hereinafter referred to as “The Trial Court”] by Civil Judge (Senior Division), Berhampur and dated 29th January 2011 [Hereinafter, “First Appellate Court”] by 1st Addl. District Judge, Berhampur (District Ganjam), were overturned.

3. The brief facts giving rise to the present appeal are as under:

3.1 The dispute inter se the parties is one between the septuagenarian landlord-appellant [Hereinafter referred to as “plaintiff”] and octogenarian tenant-respondent [Hereinafter referred to as “defendant”] over two shop rooms situated in the compound of bungalow known as ‘Madhu Mandir’, Main Road, Berhampur, covered under Khata No. 293 and Plot No. 1325 (hereinafter referred to as ‘the suit premises’), originally owned by one Late Smt. Ashalata Devi.

3.2 The plaintiff claims that he is the adopted son of Smt. Ashalata Devi, and, as such, after her death the plaintiff inherited all her properties, including the suit premises.

3.3 As per the plaintiff, the suit premises were leased out to the defendant in 1974. The monthly rent for the shops was fixed at Rs.1,000/- per month with further agreement that the defendant would bear the electricity and other charges as per consumption and use. Since the defendant was an old acquaintance and had worked as a family servant, the plaintiff leased the suit premises without executing a formal lease deed. The defendant, however, denies the said relationship of landlord-tenant as also the status of the plaintiff being the adopted son of Smt. Ashalata Devi, thereby becoming the sole owner of the suit property.

3.4 It is contended by the plaintiff that from July 2001 onwards, the defendant stopped paying the rent, thereby becoming a defaulter. Consequently, the plaintiff issued a notice dated 27th January 2003 under Section 106 of the Transfer of Property Act, 1882, terminating the defendant’s tenancy w.e.f. 28th February 2003 and directing him to vacate the suit premises by 1st March 2003.

3.5 The defendant, however, vide his reply dated 24th February 2003, refused to vacate the premises, claiming that he had perfected his title over the suit premises by way of adverse possession and asserted that he had acquired the suit premises from the plaintiff’s adoptive mother (Smt. Ashalata Devi) by virtue of an oral gift.

3.6 Hence, the plaintiff filed a suit for eviction and recovery of arrears of rent and damages being C.S.No.276 of 2003 before the learned Civil Judge (Senior Division), Berhampur. After appreciating the oral and documentary evidence, the Trial Court decreed the suit in favour of the plaintiff vide judgment dated 12th October 2007, recording the following findings :

(i) The plaintiff, being the legally adopted son of Smt. Ashalata Devi acquired absolute ownership of the suit premises upon her demise.

(ii) The defendant failed to establish any rightful claim over the suit premises as -

(a) no right, title or interest over any immovable property can be passed or acquired by way of an oral gift;

(b) the defendant’s possession was permissive by nature and, therefore, could not be construed as an adverse possession; and

(c) no positive evidence of adverse possession was adduced by the defendant.

(iii) There existed a relationship of landlord and tenant between the plaintiff and defendant and the defendant occupied the suit premises as a tenant since 1974.

(iv) Even in the absence of conclusive proof of a landlord-tenant relationship, the defendant is liable to be evicted since he failed to prove his title over the premises, whereas the plaintiff has substantiated his title.

The Trial Court, therefore, directed the defendant to handover vacant possession of the suit premises to the plaintiff within two mont