JUDGMENT

S. PANDA, J. — Challenge in this appeal is to the judgment dated 19.02.1983 and decree dated 26.02.1983 passed by the learned Subordinate Judge, Sambalpur in T.S. No.61 of 1978.

2. The facts of the case, in a nutshell, are as follows;

Plaintiff is the appellant. He purchased the suit land on 20th April, 1957 by a registered sale deed and constructed a house thereon. The defendant was a tenant of the same on a month¬ly rent of Rs.60/- and the tenancy was completed according to the English calendar. As the defendant was a chronic defaulter and did not pay the rent since February, 1974 in spite of repeated demand, plaintiff filed the suit for eviction from Schedule-A property and prayed for delivery of possession of the same to him through Court on the allegation that defendant damaged the suit house as a result of which the value of the house was diminished and plaintiff wanted the suit house for his own use. As the defendant did not vacate the suit house, he issued a notice on 6.6.1975 by registered post demanding eviction and for arrear rent. As the defendant did not give any reply to the said notice nor did he do anything to vacate the suit house, plaintiff again issued another notice on 10th April, 1978 under Section 106 of the Transfer of Property Act (in short “the Act”) terminating the tenancy and demanding possession of the suit premises. But the defendant did not reply to the said notice also. Therefore, the plaintiff has filed the suit for eviction along with a prayer for arrear rent of last three years i.e. Rs.2160/-.

3. The defendant in his written-statement, while travers¬ing the plaintiff’s allegations, admitted that though the plain¬tiff purchased the vacant piece of land in the year 1957, he did not construct the house thereon. According to the defendant, he wanted to settle at Gomadera and for that purpose approached the plaintiff to sell the suit land to him to which the plaintiff agreed in the year 1962. The defendant pleaded that sale of the suit house was fixed for a consideration of Rs.600/- and the plaintiff received an advance of Rs.200/- towards the part con¬sideration from him and delivered possession of the suit land to him. It was agreed that balance consideration of Rs.400/- would be received by the plaintiff when he would execute the registered sale deed. In pursuance of the oral agreement for sale, the defendant constructed a “Jhumpudi” on the land in question and possessed the entire land under a fence and after three years, he constructed a Pucca Khaparli house consisting of four rooms and a verandah and continued to live in the said house. Thereafter, plaintiff did not receive the balance consideration nor did he execute the registered sale deed in spite of repeated requests. The defendant has taken a further stand that by virtue of his adverse possession for more than 12 years, he has derived title over the suit property and is not liable to be evicted from the suit house as he was never a tenant in respect of the suit house under the plaintiff. On the aforesaid grounds, he prayed that the suit was not maintainable and plaintiff has no cause of action to file the suit and the suit should be dismissed with costs.

4. On the aforesaid pleadings of the parties, the learned Subordinate Judge formulated as many as five issues which are as follows;

“1. Whether the defendant is in possession of the suit house as a tenant or in pursuance of the agreement for sale ?

2. Is the defendant entitled to protect his possession u/s. 53(a) of the Transfer of Property Act ?

3. Has the defendant perfected his title by adverse posses¬sion ?

4. Is the suit maintainable ?

5. To what relief ?”

5. The trial Court on analysing the evidence adduced by the parties in support of their respective claims came to the following findings;

From the oral evidence of defendant, it can not be believed that the defendant possessed the suit land by virtue of an agree¬ment for sale and he constructed the house thereon. The plaintif