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HIGH COURT OF ORISSA
S. Acharya, J.
DEBENDRANATH NANDI - Appellant
Versus
NATHA BHUIYAN - Respondent
Second Appeal 387 Of 1969
Decided On : DECEMBER 01, 1972
LANDLORD AND TENANT - SUIT FOR EVICTION - COMMISSIONER'S REPORT - DISMISSAL OF SUIT WITHOUT DIRECTING FURTHER ENQUIRY - ERROR OF LAW - REMAND.
Fact of the Case:
Plaintiff filed a suit for recovery of possession of the suit land purchased by him, for eviction of the defendant from the suit house thereon and for consequential reliefs, such as recovery of arrears of rent and damages etc. The defendant denied the plaint allegations, and averred that he had constructed his own hutment on a portion of plot No. 323 having taken lease of that portion of land from the District Board.
Finding of the Court:
The appellate Court erred in dismissing the suit without directing a further enquiry into the matter through another Civil Court Commissioner. The trial Court's decision to depute a Commissioner for local investigation was indicative of the fact that in view of the evidence before the Court it considered it necessary to obtain a report from the Commissioner about the correct and actual position of the disputed property.
Issues: 1. Whether the appellate Court erred in dismissing the suit without directing a further enquiry into the matter through another Civil Court Commissioner? 2. Whether the finding of the appellate Court that there was no relationship of landlord and tenant between the plaintiff and defendant should be allowed to be re-agitated? 3. Whether the finding of the appellate Court that the suit is barred by limitation is correct?
Ratio Decidendi: 1. The appellate Court erred in dismissing the suit without directing a further enquiry into the matter through another Civil Court Commissioner. The trial Court's decision to depute a Commissioner for local investigation was indicative of the fact that in view of the evidence before the Court it considered it necessary to obtain a report from the Commissioner about the correct and actual position of the disputed property. 2. The finding of the appellate Court that there was no relationship of landlord and tenant between the plaintiff and defendant should not be allowed to be re-agitated as that finding has been arrived at on the assumed basis that the suit house is on plot No. 327. The Court below has proceeded to discuss this aspect of the matter on the assumption (not on the finding) that the suit house is on plot No. 327 belonging to the plaintiff. 3. The finding of the appellate Court that the suit is barred by limitation is incorrect in view of the fact that Article 142 of the old Limitation Act, on the basis of which this finding has been arrived at, does not apply to this case, as admittedly, the suit was instituted after the passing of the new Limitation Act, which applies to this case.
Final Decision: The judgments and decrees of both the Courts below are accordingly set aside and the case is remanded back to the trial Court for fresh disposal in accordance with law and the above directions, on notice to both the parties.
S. ACHARYA, J.
( 1 ) THE sole plaintiff has filed this second appeal against the reversing decision dated 9-7-1969 of the Subordinate Judge, Bal asore in Miscellaneous Appeal No. 120/6/9/3 of 1966/67/68 (1 ).
( 2 ) THE plaintiff's case, in short, is that he purchased 8 decimals of land on 28-31959 appertaining to plot No. 327 of Holding No. 15 in village Natakhata from one rameshwar Marwari of Balasore town as per a redstered sale deed, Ext. 1 dated 28-3-1959, and on a portion of the said land measuring 0. 005 decimals he constructed a mud and thatched house. After the construction of the house the defendant was allowed to occupy the said house as a monthly tenant on a rental of rs. 3/- per month. He paid rent to the plaintiff regularly till March, 1962, but thereafter as he defaulted in payment of the same, the plaintiff issued a notice, thro ugh his lawyer on January 16, 1964 (Ext. 2) for payment of rent and for vacating possession of the house. The defendant did not accept the same, as according to him, the address given in the said notice was incorrect. Thereafter the plaintiff instituted this suit for recovery of possession of the suit land purchased by him, for eviction of the defendant from the suit house thereon and for consequential reliefs, such as recovery of arrears of rent and damages etc.
( 3 ) THE defendant denied the plaint allegations, and averred that he had constructed his own hutment on a portion of plot No. 323 having taken lease of that portion of land from the District Board. According to him, he has been for the last 20 years staying in the said hutment constructed by him on plot No. 323 on his own right. He was paying rent for the occupation of the said land to the District board, and after the abolition of the District Board, he has been paying rent to the state of Orissa. He has specifically denied to be a tenant under the plaintiff in respect of the house on plot No. 327. He denied receipt of the notice.
( 4 ) THE trial Court found that the suit house was situated on a portion of plot No. 327 belonging to the plaintiff; the defendant occupied the said house as a tenant under the plaintiff, and the plaintiff was entitled to realise the arrears of rent from the defendant and to evict him from the suit house. Mostly on the aforesaid finding, the trial Court decreed the plaintiff's suit.
( 5 ) THE appellate Court, inter alia finds that the plaintiff has failed to prove that the suit house is on plot No. 327; there is no reliable evidence to prove the relationship of landlord and tenant between the parties in respect of the suit house; and the suit house was never leased out to the defendant on rent. The appellate Court also finds that as per Article 142 of the old Limitation Act the suit is barred by limitation, as the plaintiff has failed to prove his possession of the house within 12 years next before the institution of the suit.
( 6 ) MR. Pal, the learned counsel for the appellant at the outset urged that the Court below, after discarding the report of the Civil Court Commissioner, which had been accepted and acted upon by the trial Court, committed an error of law in proceeding to decide the matter thereby dismissing the suit without directing a further enquiry into the matter through another Civil Court Commissioner. In this case a Civil Court Commissioner was deputed to find out whether the suit house actually was on plot No. 327, as alleged by the plaintiff, or on plot No. 323, as alleged by the defendant The Civil Court Commissioner in his second report accepted by the trial Court has stated that the suit house stands on plot No. 327 and not on plot No. 323. A sketch map, Ext. 3, was also submitted by the said commissioner in support of his above report The trial Court accepted that report and proceeded to decide the matter on that basis. The appellate Court on its own appreciation of the Commissioner's report found that the said report was not satisfactory and so it could not rely upon th
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