KILLAMSETTI SURYANARAYAN Vs. MAHARAJA SRI SRI SRI VIKRAMA DEO VARMA AND AFTER HIM SRI RAMKRISHNA DEO, THROUGH NEXT FRIEND GENERAL MANAGER, SRI G.B. BEHERA
LAWS(ORI)-1953-11-8
HIGH COURT OF ORISSA
Decided on November 24,1953

Killamsetti Suryanarayan Appellant
VERSUS
Maharaja Sri Sri Sri Vikrama Deo Varma And After Him Sri Ramkrishna Deo, Through Next Friend General Manager, Sri G.B. Behera Respondents

JUDGEMENT

Mohapatra, J. - (1.) THIS is a Defendant's first appeal against the judgment and decree dated 22 -11 -49 of Sri G.B. Misra, Agency Subordinate Judge of Jeypore, arising out of a suit brought by the Plaintiff for ejectment of the Defendant from the disputed house and for recovery of damages amounting to Rs. 93/ -. The Plaintiff is the Maharaja of Jeypore. The Plaintiff's case is that on the main road of Jeypore and on the western row thereof there was a thatched ahead consisting of three rooms abutting the temple compound wan of Shri Chaitanya. The Plaintiff is the landlord of these rooms and the room described in the schedule attached to the plaint is one of them which was let out to one V. Seetaramswamy on a monthly tenancy with a rental of Rs. 2/10/8 on the hasis of lease executed in the year 1927 (Ext. 3). The said Seetaramswamy having fallen into arrears of rent made an application to the Plaintiff for accepting the present Defendant Suryanarayan as a tenant in his place and that the Defendant was ready to pay up the arrears also on a demand notice being served on him. The Defendant having agreed to abide by the terms of the lease of the year 1927 and having undertaken to pay the entire amount of arrears of rent on receipt of a notice of demand, the house, in question, was lab out to the Defendant since the year 1981 on the same terms, that is, on a monthly rental of Rs. 2/10/8. The Maharaja's name appeared in the House Tax Demand Register preserved by the Union Board in respect of these three rooms prior to the year 1935. After the year 1935, the other two rooms stood recorded in the Register in the name of the Plaintiff. Maharaja as occupier; but in respect of the house, in question, for the years 1935 to 1940, the name of the Defendant was so entered in place of the Plaintiff. The same entry in the name of the Defendant was renewed in the next House Tax Demand Register for the years 1940 to 1945 and 1945 to 1950 as well. In the year 1948, the Plaintiff made an application before the Union Board for correcting the entry and recording his name in the place of that of the Defendant. Notice having been served on the Defendant and the Defendant having objected to in the Plaintiff's petition was rejected and the Defendant's name was allowed to continue. The Defendant asserted in those proceedings that he was the owner of the house and not the Maharaja. Thereafter the Plaintiff on 24 -7 -48 served a notice on the Defendant that the Defendant having dishonestly and maliciously asserted his title in respect of his (Plaintiff's) house adversely to that of the Plaintiff he was called upon to execute a rent -deed in favour of the Plaintiff or else a suit for ejectment was to be brought. In reply to this notice (Ext. 0) the Defendant completely repudiated the title of the Plaintiff in respect of the suit house and alleged that the Plaintiff's claim was absolutely frivolous. The Plaintiff, therefore, has brought the present suit on 5 -7 -49 chasing the plaint on the cause of action of the Defendant's repudiation of the title of the Plaintiff -landlord.
(2.) THE defence is that the room which was in existence in the -year 1927 belonged to Seetaramswamy and in the year 1981 the Defendant had purchased the room from him. Thereafter he had reconstructed the house by spending a sum of Rs. 1500/ - or more and is in possession of the house in his own right ever since the year 1931, and the Plaintiff has no right, title and interest whatsoever so far as the house is concerned. But the Plaintiff is only entitled to ground -rent of Rs. 2/10/8 and the rent is not payable in respect of the house which belongs to the Defendant. His further claim was that he being in adverse possession of the house for more than 12 years be had matured his title and, as such, was not liable to eviction, and his last plea is that in any event he is entitled to compensation to the extents of Rs. 500/ - which he spent in reconstructing the house. The learned trial Court completely disbelieved the story of the Defendant's purchase of the room from Seetaramaswamy as a myth. He found that in fact the Defendant was a tenant in respect of the house itself which was in occupation of Seetaramaswamy, his predecessor. The rental of Rs. 2/10/8 is the house -rent and not the ground -rent. He further found that the Defendant being a tenant and having continued as a tenant on payment of Rs. 2/10/8 p.m. as rental, the plea of adverse possession was not open to him. He found that the Defendant had spent nearly Rs. 1000/ - by way of reconstructing the house and lastly relying upon a decision reported in Darbari Lal v. Raneeganj Goal Asscn. : A.I.R. 1944 Pat. 30, he disallowed his claim for compensation, but nevertheless on passing a decree for ejectment allowed him sufficient time for removal of the structure.
(3.) MR . M.S. Rao, appearing on behalf of the Appellant, argues his first point that the rental of Rs. 2/10/8 was really one in respect of the site on which the house stood and not house -rent. In our opinion, this contention is bound to fail in the face of some, of the documents which appear to be unimpeachable. Ext. 3 is that deed of lease between the Defendant's predecessor Seetaramaswamy and the Plaintiff on 20 -4 -27. The recital in paragraph 2 of the lease makes the point absolutely clear and runs thus: The lessee hereby covenants with the lessor (i) that from this 20th day of April, 1927, onwards for one year he shall be paying him a sum of Rupees (2/10/8) two, annas ten and pies eight monthly towards the rent for the room situated all the pial of the thatched house on the western side, opposite to the temple of the deity Sri Chaitanya in the town of Jeypore. This document has been proved by one of the attestors to the document and also by the lessee (Seetaramaswamy). The genuineness of the document appears to be beyond all possible doubts. Ext. 5 is the petition filed by Seetaramaswamy on 7 -1 -31 to the Killadar, Jeypore Samasthanam Fort, wherein he writes the rent in question relates to the small room on the pial of the house situate on the western side of the main road of this town opposite to the Chaitanya Muth which I have been using as a shop and the amount agreed to be paid monthly as such is Rs. 2 -10 -8. Further on he recites that the Defendant, agrees to pay the arrears of rent and will run business in the shop for himself in the place of Seetaramaswamy. It is important to mark that the present Defendant has made an endorsement on this application. (Ext. 5/a) under his own signature to the effect that he binds him self to abide by the aforesaid terms and undertakes to pay the entire amount of arrear rent on receipt of a notice of demand. Eventually the Defendant was accepted as a lessee in respect of the room by the Plaintiff. The learned Court below has accepted this petition and the endorsement made by the Defendant as sufficiently proved relying upon the evidence of P.W. 4 who is still working is a clerk in the estate's office. The position that what was paid by the Defendant was a house -rent and not merely a ground -rent seems to have been conclusively proved by the above two documents long with Ext. 1 series, that is, counterfoils of rent -receipts produced by the Plaintiff. Consistently we find in Ext. 1 series that in every receipt in every year the rent has been described as house rent. The position is further strengthened by the endorsement made by the Defendant himself Ext. 2) on the back of the counterfoil (Ext. 1a) and accepted the rental as house -rent. In our view, therefore, there is no doubt in our mind that the learned Court below found correctly that the Defendant had paid the above sums as house -rent ana nab merely as ground -rent.;


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