JUDGMENT

The unsuccessful defendant in C.S. No. 537 of 2007 of the Court of the Civil Judge (Sr. Division), First Court, Cuttack has challenged the judgment and decree passed therein by filing this appeal.

2.For the sake of convenience, clarity and to avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the Court below.

3The case of the plaintiff is as follows:-

The suit property which is a shop room of the size of 10 ft. x 8 ft. situated at Choudhury Bazar, Cuttack assigned with Holding no. 32 within the area of Cuttack Municipal Corporation originally belonged to one Nanda Kishore Goyanka. The plaintiffs purchased the suit property from him by registered sale deed dated 26.06.1995. Prior to such transfer the defendant had been inducted as a monthly tenant under the vendor of the plaintiffs. After the transaction of sale, defendant was intimated about the same to treat the plaintiffs as landlords and to pay the monthly rent to them. Thus, the defendant became a tenant under the plaintiffs since their purchase.

Defendant filed Title Suit No. 361 of 1995 against the plaintiffs and that has been dismissed for default. So, further proceedings were carried out for restoration of the suit and that was dismissed. So there was an appeal and then revision which did not yield any result in getting the suit restored. In those proceedings accepting the prayer of the plaintiffs, order was passed directing the defendant to deposit the monthly house rent of Rs. 475/- in Court and the defendant though had deposited the same for four years, but thereafter again defaulted. It is further stated by the plaintiffs that the suit house being not used, its condition became dilapidated. So, finally notice under Section 106 of T.P.Act was issued by the plaintiffs terminating the tenancy of the defendant and asking him to vacate the same. That having not been done, the suit for eviction has been filed with claim of arrear rent damage.

4.The case of the Defendants is as under:-

Preliminary objections as regards the maintainability, lack of enforceable right in favour of the plaintiffs, non-joinder of necessary party, the suit being barred by limitation have all been raised. It is also stated that the plaintiffs approach to the Court is not with clean hands and rather in concealment and suppression of material facts.

It is further stated that the shop room was never purchased by the plaintiffs. Relationship of the landlord and tenant stands denied. Therefore, it is stated that the question of termination of tenancy does not arise and so also the entitlement to the decree as brought for by the plaintiff is devoid of merit.

It is next stated that the plaintiffs in order to take possession of the suit shop room have taken all steps in accordance with law and having failed, again approached in this way. The defendant claims to be in possession of the shop room since long and he is also stated to be in peaceful and continuous possession to the knowledge of the true owner for upward of the statutory period. Thus, the defendant claims to have acquired title by adverse possession when they also deny the plaintiffs right, title, interest and possession in any manner over the shop room.

5.On such rival pleading the Court below has framed seven issues. Issue nos. 1 to 4 are relating to the preliminary objections, such as, maintainability lack of cause of action etc. the vital issue in the suit is issue No. 5, which concerns with the grant of the decree of eviction based upon the relationship of landlord and tenant between the parties.

Finding on this issue has decided the fate of the suit and, therefore, the affirmation of the said finding or otherwise would also decide the fate of this appeal. The next issue concerns with the realization of the arrear of house rent and damage and this is mainly dependent on the answer to the former issue besides the decision on quantum.

6.The trial Court on analysis of evidence in the touch sto