The plaintiff can obtain a decree for eviction based on ownership, even without proving the landlord-tenant relationship. Section 60(b) of the Indian Easements Act requires the licensee to have executed work of a permanent nature and incurred expenses in the execution to acquire a non-evictible right.

JUDGMENT :

D. Dash, J.

1. This appeal has been filed calling in question the judgment and decree passed by the learned 2nd Addl. District Judge, Cuttack in RFA No. 65 of 2009 confirming the judgment and decree passed by the learned Civil Judge (Sr. Divn.), 1st Court, Cuttack in Civil Suit (1) No. 401 of 2004.

The respondent as the plaintiff had filed the suit for eviction of the defendant, realization of arrear rent and damages with other reliefs. The suit having been decreed directing the defendant to give vacant delivery of possession of the suit house and pay damage of Rs. 50/- per day till actual vacation, the defendant had carried an appeal. The same having been dismissed, the present appeal has been filed.

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

2. Plaintiff's case is that he is the owner of the suit house and premises. The defendant is a tenant and was paying a sum of Rs. 700/- per month as rent which included the charges towards electricity and water consumption. It is stated that the parties being relation, no formal document was prepared. According to the case of the plaintiff, the lease was for eleven months commencing from 1-6-2003 and the defendant had paid rent for a month. So, when he defaulted for making a payment, notice as required under law being served, the suit has been filed.

The defendant contested the suit by filing the written statement. While traversing the plaint averments, the relationship of landlord and tenant between the parties as stated by the plaintiff is denied. It is stated that the defendant is the son-in-law of the plaintiff and on the 10th day of his marriage which was solemnized in the year 1990, the plaintiff as promised had given him two thatched rooms standing over the suit land for then-stay. Thereafter, the plaintiff has allowed the defendant in carrying out necessary renovations by spending huge-amount. Thus, the defendant states that since then the rooms were in his occupation wherein his family members are also staying. Subsequently, as per the request of the plaintiff, he states to have vacated one room for occupation of the elder sister of his wife. It is next stated that since in the year 1990, the room being in his occupation, he has spent around a sum of Rs. 30,000/- for renovation etc. The present move for eviction falsely claiming the relationship of landlord and tenant is only to avoid payment of the said sum which was asked by the defendant to be paid back to him.

3. On such rival pleadings, the trial Court framing seven issues has gone to answer first issue No. 4 concerning the passing of the decree of the eviction of the defendant as provided for by the plaintiff. On that issue, the trial Court has arrived at the conclusion on the basis of evidence that the plaintiff has failed to establish the relationship of landlord and tenant between him and the defendant. However, finding the title with respect to the suit house to be resting with the plaintiff and to have been proved, the trial court has held the plaintiff to be entitled to the decree of ejectment. It has also been held that the defendant is in permissive possession of the suit premises having no right, title and interest over the same on the basis of the oral gift as asserted. Practically, the answer on this issue has led the trial court to decree the suit. The lower appellate Court has in the process of examining defensibility of the finding of the trial Court and the legality of the ultimate decree of ejectment has concurred with the finding as regards the failure of the plaintiff to prove his relationship with the defendant as that of landlord and tenant. In the same line, it has been held that the plaintiff having established his title and the defendant being in permissive possession, the decree for ejectment has been found to be in order. In view of above, the lower appellate court has