ABHIMANYU JEE Vs. GAYAPRASAD

JUDGEMENT

(1.) The plaintiff's suit for permanent injunction having been dismissed and the decree passed by the trial court in his favour having been reversed by the lower appellate court, this second appeal has been filed.

(2.) The appellant (hereinafter described as the plaintiff) asserted that the disputed house located in Nimchouri, Cut-tack belonged to one Durga Prasad Bha-gat, the father of respondents 1 and 2 (hereinafter described as defendants 1 and 2), Durga Prasad had let out one room from the western side to the plaintiff on a monthly rental of Rs. 8/-. After the death of Durga Prasad, defendants 1 and 2 acknowledged the plaintiff as tenant and received rent from him. Bhikari Charan Behera, defendant No. 3, took on rent from Durga Prasad the room on the eastern side and at his own cost constructed a shed. Defendants I and 2 instituted H. R. C. Case No. 78 of 1969 against Bhikari Charan Behera for his eviction. The proceeding was in respect of the entire house (the rooms both on the eastern and western sides). Defendants I and 2 obtained an order for eviction of defendant No. 3 in the said proceeding and filed Execution Case No. 175 of 1971 for possession. The plaintiff asserted that he was a tenant in respect of the western side room and without a proceeding for eviction under the Orissa House Rent Control Act, 1967 and an order for his eviction passed under the provisions of the said Act, he was not liable to be evicted, and defendants 1 and 2 should be restrained by permanent injunction from executing the order of eviction obtained by them in H. R. C. Case No. 78 of 1969.

(3.) Defendants 1 and 2 opposed the suit mainly on the ground of res judicata. Their case was that the plaintiff is the Godson of defendant No. 3, Bhikari Charan Behera. In the year 1957-58 though the plaintiff had taken the disputed western side room on rent, he quit the same and after some time defendant No. 3 took the entire house, i.e. both the eastern side and the western side rooms on rent from Durga Prasad and was paying rent to him. There was no relationship of landlord and tenant between the plaintiff and late Durga Prasad or defendants 1 and 2. When defendant No. 3 committed default in payment of rent, proceeding under the Orissa House Rent Control Act was initiated and an order for eviction was passed against him, H. R. C. Appeal No. 105 of 1970 filed by defendant No. 3 was dismissed. They further averred that in respect of the disputed room, the plaintiff had filed H. R. C. Case No. 152 of 1969 for fixation of fair rent alleging that he was a tenant in respect of the said room. The said case was dismissed on a finding that there was no relationship of landlord and tenant between the plaintiff and defendants 1 and 2. Against the said judgment, the plaintiff filed H, R. C. Appeal No. 106 of 1970 which was sought to be withdrawn and was dismissed as not pressed. The present suit, they alleged, was filed with a view to delay the execution proceeding. The trial Judge held that the suit was not barred by res judicata and the plaintiff was the tenant under defendants 1 and 2 in respect of the disputed house. So holding, the trial Judge granted a decree in favour of the plaintiff restraining defendants 1 and 2 from proceeding with the execution case. In appeal, the find-ing on the question of res judicata was reversed and it was held that the decision in the H. R. C. proceeding to the effect that the plaintiff was not a tenant under defendants 1 and 2 operated as res judicata and the self-same issue was not available to be re-adjudi-cated in the suit. The further finding, though not expressly stated, which can be inferred from his discussions in paragraphs 9 and 10 of the judgment, is that the plaintiff was not a tenant.