Posted On by &filed under High Court, Orissa High Court.


Orissa High Court
Narayan Rana vs Balasore Municipal Council on 10 August, 2000
Equivalent citations: AIR 2001 Ori 1, 2000 II OLR 367
Author: A K Patra
Bench: R Patra, P Misra


JUDGMENT

A. K. Patra, J.

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.

4. Five witnesses were examined on behalf of the respondent. Documents (Exts. 1 to 9) were also filed in its behalf. The appellant examined three witnesses and proved certain documents. On the basis of the evidence on record, the trial Court decreed the suit for eviction and compensation amounting to Rs. 12,000/- at the rate of Rs. 2,000/- per year. Against the aforesaid decree of the trial Court, the defendant filed First Appeal which was dismissed, so far as the decree for eviction is concerned. Hence this Letters Patent Appeal.

5. There is no dispute that the suit tank belongs to the respondent. The appellant took the same on lease on 16-3-1956 for five years by executing a registered deed of agreement (Ext.1). The lease was extended for further period of 12 years with effect from 1960-61 which expired on 31-3-1973. There was no further extension of the lease beyond 1-4-1973.

6. It was argued before the learned Single Judge which has been reiterated before us that no notice under Section 106 of the T.P. Act having been validly issued by the respondent, the suit for eviction as laid, is not maintainable. This argument of the learned counsel is based on the judgment of this Court in Second Appeal No. 237 of 1977 in which it was observed that the respondent cannot evict the appellant save and except in due course of law. The aforesaid second

appeal arose out of Title Suit No. 43 of 1974 filed by the appellant for permanent injunction against the respondent which was dismissed on 22-12-1975. Title Appeal No. 17/ 3 of 1976 was filed by the appellant before the District Judge against the said decree which was also dismissed. In the Second Appeal No. 287 of 1977 filed by the appellant this Court while decreeing the suit observed that although the appellant has no right to continue in possession, he can only be evicted in due course of law. In the circumstances, the judgment of this Court in Second Appeal No. 287 of 1977 is of no assistance.

7. It may be seen that the right to rear and catch fish from the suit tank was given to the appellant in the year 1953 for seven years and the lease would have expired in 1960-61. The respondent passed a resolution on 15-9-1957 for extension of the period of lease provided the appellant agreed to re-excavate the tank at his own cost. Thereafter Ext. 9 was executed on 29-1-1958 extending the period of Lease for 12 years. The lease on the basis of the contract was thus for more than one year. Under Section 106 of the T.P. Act, lease of immovable property for agricultural or manufacturing purposes where there is no contract to the contrary, shall be deemed to be a lease from year to year and lease of immovable property for any other purpose shall be deemed to be a lease from month to month. In this case, provision of Section 106 of the T.P. Act is not attracted as the period fixed under the contract was more than one year and it cannot be held to be either a lease from year to year or month to month. Section 111(a) of the T.P. Act lays down that lease is determined by efflux of time limited by the contract. As the lease in question has come to an end by efflux of time, no notice as required under Section 106 was necessary. There is no evidence that after determination of the lease the respondent received rent or agreed to the appellant’s continuance in possession. The doctrine of ‘holding over’ has no application when the person in possession is not a lessee or tenant. After the expiry of the lease the appellant cannot be held to be a lessee or tenant. Since the appellant had no right to continue to rear or catch fish after 31-3-1973 or even after 1975, the learned Single Judge rightly agreed with the trial Court that the decree for eviction cannot be faulted with.

8. It was further contended that the suit filed for eviction is not maintainable in view of Section 14 of the Orissa Public Premises (Eviction of unauthorised Occupants) Act, 1972. Section 14 of the aforesaid Act provides that no suit or other proceeding In respect of matters or disputes for determining or deciding which provision is made in the said Act shall be instituted in any Court of Law, except under and in conformity with the provisions of this Act. Section 14 as such was not attracted when the suit was filed in the year 1979. By the Orissa Act 11 of 1983, the definition of ‘public premises’ (Section 2 (f)) was amended to include the premises belonging to or taken on lease by the Municipal Council. The aforesaid amendment is prospective in nature. Therefore, the suit which had been filed prior to the commencement of the amended provision is not hit by Section 14 of the Act.

9. No other point worth-mentioning was urged on behalf of the appellant.

10. In the result, there is no merit in this appeal which is accordingly dismissed.

P. K. Misra, J.

11. I agree.


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