HIGH COURT OF ORISSA: CUTTACK. R.F.A. NO.285 of 2008 From the judgment dated 22.11.2008 and decree dated 4.12.2008 passed by Miss. Namita Das Civil Judge (Senior Division), Second Court, Cuttack in C.S. (I) No.65 of 2008 (T.S. No.370 of 1999). Santosh Kumar Sahoo …… Appellant - Versus- Ramawatar Saha …… Respondent For Appellant : M/s. A.K. Das, R. Das and P. Panigrahi For Respondent : M/s. K.K. Jena, A.K. Mohapatra, S.N. Das and S.N. Upadhya --------- PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL Date of hearing – 27.4.2011 :: Date of judgment – 21.6.2011 B.K. PATEL, J. Defendant is in appeal against judgment and decree passed by learned Civil Judge (Senior Division), Second Court, Cuttack in C.S. (I) No.65 of 2008 (T.S. No.370 of 1999). 2. Plaintiff’s suit is a suit for eviction and for arrear rent and damages. Suit property comprises of a shop room. Defendant occupied the shop room as plaintiff’s tenant and used to pay rent. These facts are not in dispute. 3. Plaintiff’s case is that defendant defaulted in payment of rent since the month of November, 1996 in spite of service of notice dated 31.1.1997. In such circumstances, plaintiff served on the defendant notice dated 1.9.1997 under Section 106 of the Transfer of Property Act (for short ‘the Act’) terminating his tenancy. However, defendant falsely replied that postal cover containing notice under registered post contained blank paper. Therefore, it is averred, plaintiff served another notice dated 9.9.1997 requesting him to vacate the suit house on or before 1.10.1997. Defendant having failed to vacate the house, plaintiff filed the suit as he required the shop room for carrying on his own business. 4. Defendant filed written statement disputing valid service of notice under Section 106 of the Act. It is averred that rent has been paid till the month of November, 1996. Defendant’s case is that he is not required to pay rent to the plaintiff after November, 1996. It is asserted that on 8.11.1996 defendant’s wife purchased a house which was under occupation of the plaintiff and his brother as her vendor’s tenants. After purchase it was agreed upon by the parties that defendant would not pay rent for occupation of the suit house from the month of January, 1997 and, similarly, no rent would be payable by the plaintiff and his brother for occupation of the house purchased by the defendant’s wife. In other words, there would be adjustment of rent. It is also averred that having been astonished by institution on the 2 present suit, defendant’s wife filed T.S. No.305 of 2003 for eviction against the plaintiff. 5. Considering the nature of pleadings, following issues were settled by the learned trial court : (i) Is the suit maintainable ? (ii) Was there any cause of action for the plaintiff to file this suit ? (iii) Is the suit barred by law of limitation ? (iv) If the notice under Section 106 of the Transfer of Property Act is in accordance with law ? (v) If the defendant is a willful defaulter regarding payment of rent ? (vi) If the plaintiff is entitled to the reliefs, as sought for ? (vii) To what other relief, if any, the parties are entitle ? 6. In order to substantiate their respective cases, plaintiff examined four witnesses including himself as P.W.1 and also relied upon documents marked Exts. 1 to 17 whereas defendant examined himself only as D.W.1 and relied upon documents marked Exts. A and B. On an appraisal of evidence on record learned trial court answered all the issues in favour of the plaintiff and decreed the suit. 7. Learned counsel for the appellant submitted that appellant does not press the appeal and does not assail the finding of the learned trial court in favour of the plaintiff with regard to the issue no.(iv) relating to validity of notice under Section 106 of the Act. In assailing 3 the impugned judgment and decree it was contended that finding of the learned trial court with regard to default on the part of the defendant to pay rent is not based on correct appreciation of the evidence on record. Learned trial court should have accepted defendant’s stand that there was an agreement between the parties regarding adjustment of rent of the suit house and the house purchased by defendant’s wife. Learned trial court’s finding is based on a stray statement of defendant- D.W.1 to the effect that suit has been filed for recovery of arrear rent from plaintiff. It was contended that initially T.S. No.305 of 2003 was filed for eviction only without any prayer for realization of rent against plaintiff. However, subsequently, T.S. No.97 of 2004 was instituted against the plaintiff for realization of arrear rent from the year 1996 in view of institution of present suit by the plaintiff violating the agreement for adjustment of rent. It was further argued that T.S. No.305 of 2003 was decreed and disposed of before disposal of the present suit by the learned trial court holding that there was an agreement for adjustment of rent between the plaintiff and defendant. Such finding would operate as res judicata in respect of the issue relating to default in payment of rent in the present suit. Learned trial court failed to take note of judgment in T.S. No.305 of 2003 as a result of which conflicting finding was recorded in the present suit. 8. In reply, it was contended by the learned counsel for the respondent that plaintiff himself is not an occupant of the house 4 purchased by defendant’s wife. Defendant examined himself only as a witness and did not choose to examine any other witness including his wife. In his evidence defendant categorically admitted that T.S. No.97 of 2004 has been instituted against the plaintiff claiming arrear house rent in respect of house asserted to be belonging to defendant’s wife and under plaintiff’s occupation. Therefore, learned trial court rightly rejected defendant’s stand of adjustment of rent in view of defendant’s admission that he has not paid rent for occupation of the suit house since the month of November, 1996. It was further argued that defendant never raised before the learned trial court issue of res judicata which is a mixed question of fact and law. Admittedly, neither T.S. No.305 of 2003 nor T.S. No.97 of 2004 is a suit between the plaintiff and the defendant. Moreover, judgment and decree passed in T.S. No.305 of 2003 having been set aside by the learned Ad hoc Additional District Judge, FTC-1, Cuttack in RFA No.109 of 2007, defendant’s wife has preferred RSA No.191 of 2010 before this Curt. 9. In view of nature of contentions raised on behalf of the parties, adjudication in the present appeal is confined to the sustainability of the finding of the learned court below with regard to issue no.(v) as to whether defendant is a willful defaulter in payment of rent. Defendant has pleaded that his wife Smt. Hemalata Sahoo purchased a house which was under occupation of the plaintiff and his brother as tenants. In the month of November it was agreed among the 5 plaintiff and his brother on the one hand, and defendant and his wife on the other that defendant would not pay any rent for his occupation of the suit house from the month of January,1997, and that plaintiff and his brother would not pay rent to the defendant’s wife for the house under their occupation. Such agreement is asserted to have made in presence of witnesses. However, defendant has not made any attempt to prove such agreement, oral or documentary. Though in paragraph 19 of his cross-examination defendant admits that proposal regarding adjustment of rent was given and accepted on 23.11.1996 in presence of one Sahubabu, neither Sahubabu nor defendant’s wife has been examined as witness. Defendant also admits in his cross-examination regarding institution of T.S. No.305 of 2003 and T.S.No.97 of 2004 by his wife against plaintiff respectively for eviction from and for realization of arrear rent in respect of the house purchased by her. Defendant also admits that his wife’s vendor Binod Kumar Sahoo asked plaintiff and his brother to pay rent @ Rs.3,000/- per month to his wife in respect of the house purchased by her which was accepted by them. In view of the nature of evidence on record, there appears no infirmity in the finding of the learned trial court that defendant has failed to prove his plea of adjustment of rent on the face of his admission to be a tenant under the plaintiff in the suit house. 10. Defendant does not appear to have raised the issue of bar of res judicata before the learned trial court. In fact, in his examination in 6 chief defendant is altogether silent regarding institution of T.S. No.305 of 2003 and T.S. No.97 of 2004. Moreover, admittedly, defendant is not asserted to be a party to either of the suits instituted by his wife. That apart, it is not disputed that T.S.No.305 of 2003 (C.S.No.65 of 2008) in which finding constituting res judicata is asserted to have been recorded stands dismissed by the judgment and decree passed by Ad hoc Additional District Judge, FTC-I, Cuttack in RFA No.109 of 2007. Therefore, there is no basis for the contention with regard to bar of res judicata. 11. In view of the above, there is no merit in the appeal which is liable to be dismissed. Accordingly, appeal is dismissed. Impugned judgment and decree are confirmed. Parties shall bear their own costs. ….……………… B.K. Patel, J. Orissa High Court, Cuttack, Dated the 21st June,2011/Jhankar 7