JUDGMENT

M. M. DAS, J. — Though both these Second Appeals were listed for admission and both the parties have entered their appearance, they were taken up for hearing with regard to the question as to whether the appeals involve any substantial question of law.

2. The facts of the case reveal that the respondent No. 1-in R.S.A. No. 646 of 2003, as plaintiff, filed Title Suit No. 67 of 2001 (T.S. No. 23/98) before the learned Civil Judge (Junior Division), Cuttack praying for eviction of the appellants and the respondent No. 2 and for other consequential reliefs. The plain¬tiff pleaded that he is the owner of the Holding No. 266 of Ward No.11 of the Cuttack Municipal Corporation and the defendants are monthly tenants with respect of the said house since 1977. As they defaulted in payment of monthly rent, an application under Section 7 of the Orissa House Rent Control Act, 1967 (which was in force then) was filed for eviction of the tenants which was registered as H.R.C. No. 53/1983. An objection to the said appli¬cation was filed by the tenants denying the allegations with regard to non-payment of rent and further pleading that the plaintiff is not entitled to maintain the proceeding under the said House Rent Control Act as he was not the landlord. In the said case, the plaintiff also prayed for fixation of fair rent. Eventually, by judgment dated 6.2.1996, the House Rent Controller while fixing the fair rent of the tenanted premises at Rs. 350/- per month with effect from the date of the application, rejected the prayer for eviction of the tenants. The said judgment was challenged by the plaintiff in H.R.C. Appeal No.2 of 1996 so far as it relates to the rejection of the prayer for eviction of the tenants-defendants. It appears that during pendency of the said appeal under the Orissa House Rent Control Act, 1967, the plain¬tiff having attained majority, issued notice under Section 106 of the Transfer of Property Act to the defendants-tenants and there¬after filed the suit for eviction.

3. In the written statement filed by the defendants, the question of maintainability of the suit at the behest of the plaintiff was raised on the ground that the original owner of the property was one Rukmani Devi and the land over which the house stands is a Khasmahal land. The father of the defendants was inducted as tenant by the said Rukmani Devi in the year, 1967 and the father of the defendants expired in the year 1973 after which the defendants continued as tenants by paying rent to the said Rukmani Devi. Rukmani Devi died in the year 1977 leaving behind her son Hiralal Modi and daughter Jamuna Devi, as legal heirs. The plaintiff is one of the son of the said Hiralal Modi who filed H.R.C. case in the year 1983 during his minority being represented by his father Hiralal Modi. The prayer for eviction in the said H.R.C. case having been rejected, the said order has become final. The notice issued to the defendants under Section 106 of the Transfer of Property Act cannot be construed to be a valid notice under the said provision and the plaintiff who claims his title on the basis of the Will said to have been executed by the said Rukmani Devi cannot claim exclusive title to the property on the basis of the said 'Will’ which has been ob¬tained by fraud.

4. In R.S.A. No. 646 of 2003, the defendants in the suit are the appellants and the plaintiff is the respondent whereas in R.S.A. No. 92 of 2004, the plaintiff is the appellant and the defendants are the respondents. The defendants have preferred the second appeal against the judgment and decree of eviction passed by the learned trial Court and confirmed by the learned lower appellate Court whereas the plaintiff has filed the second appeal as his prayer for decreeing damages at the rate of Rs. 100/- per day with effect from 30.1.1998, was not allowed by the learned trial Court and the cross appeal filed by the plaintiff in that regard before the learned lower appellate Court has also been rejec