Decided on August 29,1978



R.N.Misra, J. - (1.) This is an application for a writ, of certioran at the instance of the landlords and is directed against the affirming appellate order of the Additional District Magistrate (Judicial) (opposite party No. 11) upholding the rejection of the petition for eviction of the opposite parties 1 to 9 series.
(2.) The disputed house is situated in the town of Berhampur and once upon a time constituted the joint asset of a trading family of Nimakhandi, Title Suit No. 23 of 1943 in the Court of the Subordinate Judge at Berhampur was filed for partition of the joint family assets. On 13-5-1958, a partial final decree was passed in which inter alia the disputed house fell to the share of the petitioners. In Execution Petition No. 16 of 1961, the decree-holders asked for possession of the properties including the house and their application was resisted by opposite parties 1 to 5 and some others. As possession of the house had not been obtained when the execution petition was dismissed on part satisfaction, a fresh execution proceeding being E. P. No- 74 of 1965 was started for obtaining delivery of possession of the premises. Opposite parties 1 to 5 along with another filed objertion. but they took the stand that they had been admitted as monthly tenants by late Damodar Sahu who had been appointed receiver in the suit. The objection was overruled and symbolical possession was taken on 12-71970. The tenants, however, did not pay any rent but opposite parties 1, 2 and 3 filed interpleader suits being Title Suits Nos. 67, 68 and 69 of 1970. During the pendency of the suits, petitioners along with the late Kasinath Sahu applied to the House Rent Controller for eviction of opposite parties 1 to 5 on the allegation that petitioners and opposite paries 6 to 9 were entitled to possession of the house on the basis of being owners thereof and the tenants were wilful defaulters, they had damaged the house and had sublet parts thereof without the consent of the landlords and the premises were necessary for personal occupation both for business as also residential purpose of the owners. Opposite parties 4 and 5 did not enter contest and were set ex parte. Opposite parties 1 to 3 while admitting their status as tenants under the petitioners disputed the allegations of damage, subletting and bona fide requirement of the owners to be in possession. They also disputed the allegation that they were wilful defaulters in the matter of payment of rent and maintained that they had been repairing the house and paying the municipal taxes therefor. As to who would be the owner of the property, was uncertain and. therefore, they had filed interpleader suits. In that view of the matter, they cannot be held to be defaulters.
(3.) The Controller came to find, (i) the opposite parties 1 to 3 had come to know during 1970-71 that the disputed house fell to the share of the petitioners. In Jan., 1970, in E. P. No. 74 of 1965, the executing court had directed these opposite parties to deposit the rent in court; (ii) these opposite parties had been paying monthly rent to late Damodar Sahu and after his death to his son and had been obtaining rent receipts. Therefore, it could not be said that they were defaulters; (iii) alterations made in the premises were with the consent of Damodar; (iv) the municipal taxes had been paid on the clear understanding that the same would be adjusted out of rent; (v) there was no evidence of damage to the house; (vi) a joint application for eviction of different tenants on different terms of tenancy was not maintainable. The prayer for eviction of all the opposite parties 1 to 5 was rejected notwithstanding the fact that the opposite parties 4 and 5 did not enter contest.;

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