The main legal point established in the judgment is that the plaintiff had the right to evict the defendants, and Section 53-A of the T.P. Act could not be invoked by the defendants to protect their possession.

JUDGMENT :

A.K. RATH, J.

Defendant No.2 is the appellant against a confirming judgment.

2. Respondent no.1 as plaintiff instituted the suit for eviction of defendants from the suit property and for realization of arrear house rent and damages. The case of the plaintiff is that the suit schedule house standing over plot no.869 under khata no.952 appertaining to holding no.379 in ward no.14 of Cuttack Municipal Corporation originally belonged to Saran Pradhan. After his death, his legal heirs alienated the entire plot no.869 with an area of Ac.0.162 dec. inclusive of the suit property in favour of the plaintiff by means of a registered sale deed no.4344 dated 11.10.1999. Saran Pradhan had inducted defendant no.1 as a tenant into the suit property. The plaintiff permitted the defendant no.1 to continue as a tenant in the suit property under her on payment of house rent @ Rs.400/-per month till December, 1999. The defendant no.1 undertook to give vacant possession of the suit premises to the plaintiff by 31st December, 1999. The defendant no.1 did not vacate the suit property. The plaintiff issued notice under Section 106 of the Transfer of Property Act (hereinafter referred to as “T.P. Act”) terminating the tenancy. Despite receipt of notice, the defendant no.1 did not vacate the suit property nor replied.

3. Pursuant to issuance of summons, the defendants entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. Case of the defendants is that they were in possession of the suit property as a tenant under Saran Pradhan. He failed to evict the defendants from the suit property. He entered into an agreement with defendant no.2 on 27.6.1995 to sell the suit property for a consideration of Rs.2,00,000/-, received an amount of Rs.1,50,000/-towards part consideration and promised to execute the R.S.D. after ten days of receiving permission from the Urban Land Ceiling Authority. However, before executing the sale deed, he expired on 16.7.1995. Thereafter defendant no.2 requested the sons of Saran Pradhan to execute the sale deed. But they did not execute the sale deed for which defendant no.2 filed T.S.No.334 of 1998 against the sons of Saran Pradhan for specific performance of contract. Having come to know about the institution of such a suit by defendant no.2, sons of Saran Pradhan have executed a nominal sale deed in favour of the plaintiff. The same is illegal and not binding on her. To defeat the suit filed by defendant no.2, the plaintiff sent notice under Section 106 of T.P. Act. They are in possession of the suit property as of right, on the basis of the said agreement for sale and not as a tenant under the plaintiff. As the plaintiff is not the landlord, they are not liable to be evicted from the suit property.

4. On the inter se pleadings of the parties, the learned trial court struck eight issues, out of which, Issue Nos.3, 4 and 5 are pivotal. The same are:-

“3. Whether the plaintiff has got right, title and interest over the suit house and suit land ?

4. Whether the defendants are tenants under the plaintiff ?

5. Whether the plaintiff is entitled to a decree of eviction against the defendant on the suit schedule property ?”

5. To substantiate the case, the plaintiff had examined two witnesses and on his behalf, eight documents were exhibited. On behalf of the defendants, five witnesses had been examined and seven documents were exhibited. The learned trial court on a threadbare analysis of the record, both oral and documentary and pleadings, came to hold that the plaintiff has right, title and interest over the suit land and the house standing thereon and, accordingly answered Issue No.3 in favour of the plaintiff. It further held that the defendants are the tenants under the plaintiff and the plaintiff is entitled to a decree of eviction and, accordingly answered Issue nos.4 and 5 in favour of the plaintiff. The suit was decreed. Assailing the judgment and decree of the learned trial