R.N. Misra, J.
1. This appeal by the plaintiff is directed against the concurrent decision of the learned Additional Subordinate Judge, Puri. The plaintiff had sued for title and possession in respect of a house standing on the disputed property and had claimed for recovery of arrears of house rent and damages all amounting to Rs. 96-25. Originally the plaintiff sued for recovery of arrears of rent only and had filed the suit in the S. C. C. Court. The defendant denied the plaintiff's title. Therefore, the plaint in the S.C.C. suit was returned and a comprehensive suit for title was instituted with a claim for the aforesaid reliefs.
2. The plaintiff alleged that the disputed property which is 9 decimals was purchased by his mother and his parents were in possession of the property. After them he has succeeded to it. The defendant as a tenant is residing on plot No. 111 under Ananda Pani, As that accommodation was insufficient he asked the plaintiff to let out the house standing on the disputed property on monthly basis and the plaintiff accepted the defendant as a tenant with effect from 15-2-1962 at a rent of Rs. 250/- per month. The defendant is said to have paid rent for three months after the commencement of the tenancy but with effect from 16-5-1962 he defaulted. The plaintiff, therefore, ultimately came with the suit.
3. The defendant denied the claim of tenancy and contended that the disputed property belonged to Shyamsundar Deb Thakur and the defendant had been in possession of the disputed property for more than 31 years prior to the suit by raising the construction upon the property. The defendant claimed that he was a Bhagchasi under the deity. Hari Pani, the marfatdar of the deity, is said to have inducted the defendant on permanent basis in respect of the land and the defendant claimed that he had raised the construction. He thus pleaded that he was the owner of the house and was a permanent tenant not liable to eviction. He also claimed that the court had no jurisdiction to maintain the suit.
4. The learned Trial Judge came to find that the plaintiff had failed to prove that the defendant was a monthly tenant inducted in 1962 on rental basis. He found that the defendant was on the property for more than 30 years and was entitled to protection under Section 236 of the Orissa Tenancy Act. He negatived the claim for rent raised by the plaintiff. He also found that the plaintiff was not the son of Hari and as the suit land originally belonged to Hari Pani's wife, the plaintiff was not entitled to the property. The suit was dismissed.
5. On appeal by the plaintiff, the learned Appellate Judge came to find that the plaintiff had proprietary interest in the disputed property. He however, found that the defendant was entitled to protection under Section 236 of the Orissa Tenancy Act. He accordingly up-held the dismissal of the suit. This concurrent decision of the lower appellate court is assailed in Second Appeal.
6. The plaintiff had sued for his title. The learned Appellate Judge reversing the finding of the trial court found that the plaintiff had proprietary interest in the suit land. On his finding which is no more in challenge the plaintiff was entitled to a decree for title. Mr, Patnaik appearing for the respondent concedes to such position. Accordingly the plaintiff must be found entitled to the decree for title of the property.
7. The plaintiff claimed that the defendant was inducted as a tenant in February. 1962. The Courts below on assessment of the evidence have come to find that the plaintiff has failed to establish the tenancy as set up and that the defendant was on the property for more than 30 years prior to the suit. Thus the claim for arrears of rent as raised on the basis of rental at Rs. 250/- per month cannot be decreed. While rejecting that claim of the plaintiff I am prepared to hold that the plaintiff is entitled to collect reasonable rent from the defendant for the property in question. But the claim for the period in question cannot be decreed on account of the failure of the plaintiff to establish that part of his claim.
8. The main question for consideration in this appeal is as to whether the defendant is entitled to protection under Section 236 of the Orissa Tenancy Act. That section provides,
'(1) Notwithstanding anything in this Act, the incidents of tenancy of any tenant including the holder of a service tenure, in respect of the homestead in which such tenant ordinarily resides, shall be regulated by the provisions of this Act applicable to land held by an occupancy raiyat:
Provided that when a homestead Is held as a service tenure or a part thereof and the holder of such tenure ceases to perform the service, he shall be liable to pay such rent for the occupation of the homestead as may be determined by the Collector on an application filed either by the landlord or by the holder of such tenure. xxxxx'
Mr. Mohapatra for the plaintiff-appellant contends that the plea of protection under Section 236 of the Orissa Tenancy Act was not raised in the written statement and no issue was struck. As such the courts below were not entitled to extend protection of that provision to the defendant. The plaintiff has been prejudiced by grant of such protection in the absence of any definite plea laying the foundation for such protection. Mr. Patnaik, on the other hand, contends that all the materials facts necessary forthe purpose have been pleaded and though no reference was made to Section 236 of the Orissa Tenancy Act specifically, it was open to the courts to grant such reliefs as in law were available to be given on the facts of the case. The learned Appellate Judge has stated.
'It appears that the defendant is living on the suit land by constructing a house thereon in between 1935 and 1940 under Hari Pani who was the husband of the purchaser of the suit land by Ext. 1. The suit land is an occupancy holding. So the defendant acquired the right of under-raiyat and by virtue of the provisions of Section 236 of Orissa Tenancy Act he has acquired a right of occupancy thereon. This proposition is supported by the decision reported in (1949) 15 Cut LT 111. Further, as contended by the learned counsel for the respondent, the defendant is to be deemed to be a raiyat in respect of the suit land by virtue of Section 9 of the Orissa Land Reforms Act.'
It has now been found that the construction on the property had been raised by the defendant. Only the site was taken. There is no dispute that the defendant ordinarily resides in the house. There is also no dispute that he is an agriculturist. A Bench of this Court in the aforesaid case, (1949) 15 Cut LT 111, Dina Bhoi v. Jagannath Patjoshi held,
'It was the admitted case of the plaintiffs themselves that from the year 1939 the defendant was actually residing in the hut on the land in dispute. The status of the defendant as a tenant (under the O.T. Act) is beyond question. Khatians have been proved to show that he is a settled raiyat of the village and as such he comes within the definition of the expression 'tenant' as given in Section 3 (23) of that Act. Therefore his claim to occupancy rights in respect of the homestead will succeed unless it can be shown that he does not ordinarily reside in the homestead.'
It is contended by Mr. Patnaik that it is not necessary that the tenant must have been a settled raiyat of the village in order to have the benefit of Section 236 (1) of the Orissa Tenancy Act. Under Chapter V such status could have been acquired if the tenant was already a settled raiyat of the village. Section 236 as amended provides an additional protection by way of exception and limits the conferment of benefit to homesteads only. I think there is substantial force in this contention. There would have been no need for such a provision if the true intention was that the benefit would be available only in respect of settled raiyats. That benefit as such was already provided for in Chap. V of the Orissa Tenancy Act.
9. There is some force in Mr. Mohapatra's contention that when a party wanted to set up a particular defence which would stand in the way of the plaintiff getting the relief claimed specific plea should be raised. In the instant case, however, the material facts seem to have been really pleaded and both the courts below have already dealt with such provision. I do not think in Second Appeal I would rule out application of Section 236 of the Orissa Tenancy Act merely on the ground that specific plea had not been raised in the pleading.
10. There is also considerable force in the finding of the lower appellate court that by virtue of Section 9 of the Orissa Land Reforms Act the defendant would acquire a non-evictable right in respect of the disputed property. There has been a finding that the defendant raised the structure. Even if the defendant was not a tenant for the purpose of the Orissa Tenancy Act he is certainly a tenant for the purpose of the Land Reforms Act. Therefore, if there was any defect in his claim of permanent interest it has now been validated by the subsequent legislation. The plaintiff is thus not entitled to a decree for eviction of the defendant from the premises.
11. The net result of the aforesaid discussion is that the plaintiff would be entitled to a decree for his superior title. He would, however, not be entitled to any claim for recovery of possession or arrears of rent as sued for in this case. Since the plaintiff has his superior title and the defendant is a tenant under him, though protected against eviction, the plaintiff is entitled to arrears of rent to be claimed in accordance with law for the land only. The Second appeal is partly allowed. As success is divided costs of the litigation at all stages shall be borne by the parties.