The legal principle established is that a person who comes into occupation through a tenant and does not claim to have independently come to occupy the premises is presumed to be an assignee of the tenant.

JUDGMENT

1. The Appellant, by filing this Appeal under Section 100 Civil Procedure Code (for short, 'the Code'), has assailed the judgment and decree dated 20.11.2004 and 04.12.2004 respectively passed by the learned Ad hoc Additional District Judge (Fast Track), Khurda in Title Appeal No.18/4 of 2004-2001.

By the said judgment and decree, while allowing Appeal filed by the present Respondent (Defendant) under section 96 of the Code, the judgment and decree dated 11.12.2000 and 05.01.2001 respectively passed by the learned Civil Judge (Junior Division), Banpur in Title Suit No.13 of 1995, have been set aside.

The Appellant-Plaintiff has been non-suited in the suit that he had filed against the Respondent (Defendant No.1) for her eviction from the suit premises, claiming arrear rent as damage. It may be stated here that the original Appellant (Plaintiff) having died, now his legal heirs, having come on record, are pursuing this Appeal.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

3. The Plaintiff's case is that he is the landlord in respect of the suit premises. The Defendant No.1 (Respondent No.1) is the sister of Defendant No.2 (Respondent No.2). It is stated that they are the tenants-at-will under the Plaintiff in respect of the suit premises. The Defendants 1 and 2 had taken the suit premises from the Plaintiff on monthly rent of Rs.140/- and occupied the room in question in the month of January, 1992. They having paid the rent as agreed upon till 31.12.1994, thereafter defaulted in payment of the same. So, the Plaintiff served notice under section 106 of the Transfer of Property Act terminating their tenancy and demanding the vacant possession as also the payment of arrear house rent. That having not been paid any heed to, the suit has been filed.

4. The Defendant No.1, in her written statement, has denied the existence of relationship of landlord and tenant between the Plaintiff on the one hand and they on the other. It is, however, stated that their brother, namely, Kalia is a tenant under the Plaintiff in respect of the very suit room and he was paying rent to the Plaintiff regularly. That Kalia had accommodated the Defendant No.1 allowing her to stay in the suit premises. So, it is stated that there arises no cause of action for filing the suit against her (Defendant No.1).

The Defendant No.3 (Kalia) having been impleaded as party, has stated in his separate written statement that neither his father nor his sister (Defendant No.1) and brother (Defendant No.2) are the tenants under the Plaintiff in respect of room nos.6 and 8. It is his specific stand that in the year 1985, he took the rooms on rent from the Plaintiff and occupied the same and subsequently he accommodated his father Parikhita in one of the rooms and sister in another room. He claims to have been paying the rent in respect of both the rooms.

5. Faced with the above rival pleadings, the Trial Court has framed six issues. Coming to answer the crucial issues with regard to the relationship of landlord and tenant as also the liability of the Defendants 1 and 2 in paying the arrear rent and damages; on examination of the evidence and upon their evaluation, conclusion has been recorded that Defendant No.1 is liable to deliver the vacant possession of the suit premises to the Plaintiff. With regard to the other issue, in the absence of any specific evidence, simply the Defendant No.1 has been directed to pay damage to the Plaintiff @ Rs.2/- per diem from the date of filing of the suit till actual vacation.

6. The Defendant No.1, being aggrieved by the said judgment and decree passed by the learned Trial Court, having preferred the Appeal, has been successful in annulling the judgment and decreed passed by the Trial Court.

7. The Appeal has been admitted on the following substantial question of law:-

'When as per the case of the Defendants, the