NARAYAN RANA Vs. BALASORE MUNICIPAL COUNCIL

JUDGEMENT

(1.) This Letters Patent Appeal filed by the defendant is directed against the decision of the learned Single Judge in First Appeal No. 172 of 1982 by which the decree of eviction has been confirmed.

(2.) The respondent filed the suit for eviction of the appellant from the suit tank and damages for illegal occupation thereof. Its case is that the suit tank is known as 'Aga Pokhari' and was a part of the estate of the Raja Manmathnath Deo, an intermediary. It was recorded as his Anabadi khata. The suit tank case to be vested in the State of Orissa free from all encumbrances under the Orissa Estates Abolition Act. Since the tank was maintained and managed by the respondent, it automatically vested in it under the provisions of the Orissa Municipal Act, 1950. It has been leasing out the right of pisciculture in the tank since 1953 with specific condition that the water of the tank should not be polluted. The appellant took lease for pisciculture in 1956 beginning from 16-3-1956 on annual rental basis. Although the lease expired on 31-3-1973, he did not hand over possession. Accordingly, the respondent served notice on him on 4-4-1973. Instead of delivering possession, he filed a suit for permanent injunction against the respondent. The said matter came to this Court in Second Appeal No. 287 of 1977. This Court on 8-1-1979 reversing the decrees of both the Courts decreed the suit making it clear that the respondent would not interfere with his possession without evicting him in due process of law. Accordingly, the present suit out of which this appeal arises was filed.

(3.) The case of the appellant was that the lease did not expire on 31-3-1973 as alleged. No notice under Section 106 of the Transfer of Property Act (hereinafter referred to as 'T.P. Act') having been issued to him, the suit for eviction is not maintainable. He further pleaded that there was an agreement between him and the respondent on 16-6-1956 that he would rear fish in the tank for five years and would construct two ghats. On 21-9-1958 another agreement was executed granting lease for 12 years from 1961 when the term of the earlier lease was to expire. When the Executive Officer asked the appellant to hand over possession on the ground that the term of the lease expired on 31-3-1973, he approached the Collector and the Revenue Divisional Commissioner. Being unsuccessful there, he had to file the suit which was decreed in the Second Appeal restraining the respondent from interfering with his possession so long as he was not evicted from the suit land in due course of law.