MUNICIPAL COUNCIL v. BHABAGRAHI SINGH — 1987 DIGILAW 164 (ORI)

S. C. MOHAPATRA, J. ( 1 ) PLAINTIFF is the appellant. The suit is for title and possession and damages in respect of 239 decimals out of plot No. 74 consisting of an area of 330 decimals. The land is situated in revenue village Sanjobra within Cuttack town and is in Khata No. 92 of the current settlement of the year 1931. ( 2 ) CASE of the plaintiff is that in 1968 it came to its notice that defendant 1 has constructed a building over the suit plot in which plaintiff was depositing materials for maintenance of the road when needed. Before any action was taken, defendant 1 issued a notice not to disturb in his possession. Case of the defendant 1 is that the land is recorded as waste land which was in actual possession of the intermediary of Touzi No. 2500. The intermediary was permitting persons to use it as timber yard since 1927. In the year 1940 the intermediaries permitted him to use it as timber yard on receipt of premium. In 1950 defendant 1 took it on temporary lease by a registered document and in 1953 a permanent lease deed was executed to that effect. The intermediaries filed ekpadia in respect of the land in name of the defendant 1 on vesting of the estate and State of Orissa has recognised the title of the plaintiff, has entered his name in the tenants' ledger and has collected rent from him. Plaintiff has also permitted the defendant 1 to construct house and has assessed and collected holding tax in respect of the building. Defendant 1 also claims to have adverse possession on account of his long possession. ( 3 ) BOTH the parties essentially depend on their respective title to the disputed property. The suit being one for possession based on title, Art. 65 of the Limitation Act is attracted whereunder the period of limitation for the suit would be twelve years from the date when the possession of the defendant became adverse to the plaintiff. Therefore, two questions require examination in this case. They are : (A) Whether the plaintiff has title to the disputed property ? and (B) In case plaintiff is found to have title, when has the possession of the defendant No. 1 become adverse to the plaintiff ? ( 4 ) WHILE dealing with issue Nos. Therefore, two questions require examination in this case. They are : (A) Whether the plaintiff has title to the disputed property ? and (B) In case plaintiff is found to have title, when has the possession of the defendant No. 1 become adverse to the plaintiff ? ( 4 ) WHILE dealing with issue Nos. 1 and 2, the trial court recorded :". . . . . . . . . . . . . . ADMITTEDLY, the suit plot No. 74 appertains to Khata No. 92 stands recorded in the name of Cuttack town under Touzi No. 2500. . . . . . . . . . . . . "this is an error of record. There is no admission that the suit plot appertains to Touzi No. 2500. Plaintiff has proved the original finally published record of rights (Ext. 3) of the current settlement of the year 1931 which discloses that the landlord in respect of plot No. 74 in Khata No. 92 is the Emperor of India under whom the plaintiff is the tenant. There is no mention of Touzi No. 2500 in the said document. Defendant 1 claims that Touzi No. 2500 is of his transferor, the intermediary and in that respect has proved the certified copy of the 'd' Register (Ext. O ). From the certified copy of the Khatian proved by defendant No. 1, Ext. N proves that plot No. 74 in Khata No. 92 is in Touzi No. 2500 where the predecessor in interest of the transferor of the defendant 1 is the landlord under whom the plaintiff is the tenant. Thus, in both the documents Ext. 3 and Ext. N plaintiff has been recorded as a tenant. Ext. 3 is the original finally published record of rights. This is not in dispute. It is a document of more than thirty years old. The presumption of correctness of every entry in the document is available as provided in S. 90 of the Evidence Act. Ext. 3 is a certified copy of the finally published record of rights. It is not a document of thirty years old even if it is the certified copy of a document of thirty years old. Presumption under Section 90 of the Evidence Act is not available to be drawn in respect of this document. Ext. 3 is a certified copy of the finally published record of rights. It is not a document of thirty years old even if it is the certified copy of a document of thirty years old. Presumption under Section 90 of the Evidence Act is not available to be drawn in respect of this document. In view of the difference between both the documents only one of them can be correct and not both. Ext. 3 is coming from the proper custody and is a document of thirty years old. It is a good evidence of title of the plaintiff. Both Ext. 3 as well as Ext. N indicate that while preparing the same due care was taken to record forcible possession in respect of plot No. 59/277 which is described as Bari. It is recorded to be in forcible possession of Chintamani Satpathy. This lends further assurance to the correctness of the entry in Ext. 3. Ext. 2 is a register of the municipality prepared under R. 163 of the Rules made under the Orissa Municipal Act. Having been prepared under a statutory rule, in the absence of any proof that it is a self-serving statement after the dispute arose and the same was prepared for the purpose of the suit, the entries therein are to be presumed to be correct. Ext. 2 (a) describes plot No. 74 to be waste land belonging to the plaintiff. This is another corroborative piece of evidence of Ext. 3. ( 5 ) THE case of the defendant No. 1 is that the record of the name of the plaintiff as a tenant is a mistake. In support of this plea the statement of the landlord in the temporary lease deed dt. 31-7-1950 (Ext. D) and the permanent lease deed dt. 24-4-1953 (Ext. E) have been relied upon where the lessor claiming to be the landlord in respect of this land has described the record of the name of the plaintiff to be a mistake. D. W. 1 Rajkishore Jena, the law agent of the lessors of defendant 1 has been examined to prove the case of defendant 1 that the entry of the name of plaintiff as tenant in the finally published record of rights is a mistake. The mistake was attributed by D. W. 1 to Banchhanidhi Pradhan, the gumasta of the intermediaries who was looking after the settlement work. The mistake was attributed by D. W. 1 to Banchhanidhi Pradhan, the gumasta of the intermediaries who was looking after the settlement work. It is said that being an old man he could not properly took after the settlement work. No explanation has been given why Banchhanidhi has not been examined which would have been the best evidence of the circumstances in support of the plea. He stated that prior to 1932, there was no settlement operation in Cuttack town. In 1905 settlement the suit khata was recorded in name of Satya Chandra and in 1932 settlement it is recorded in Nijdakhal of the ex-landlords, These documents have not been proved in this case. D. W. 1 further states that the intermediaries were Government servants. In 1941 they came to know for the last time about the wrong recording of the suit plot in the name of the municipality. If they would have taken care they could have also known that the Emperor of India has been recorded as the landlord. They did not take any action to correct the record of rights. It is stated that the ex intermediaries are residing in Bhubaneswar and Puri. No action has been taken to examine any of the intermediaries to explain why the mistake was not corrected. The inaction of the intermediaries in getting the record-of-rights corrected or getting declaration that despite the entry, the Emperor of India is not the landlord and the plaintiff is not the tenant, leads to an inference that in case they would have reopened the matter the document from which Ext. N was obtained as certified copy would have been proved to be wrong and would have been corrected. It would have been settled for all time to come that the Emperor of India is the landlord under whom the plaintiff is the tenant. Only in 1950, for the first time they disclosed that the entry in the name of the plaintiff as the tenant was a mistake. Judicial notice can be taken that by that time there was already a move for abolition of the estates. From absence of correction of the mistake, I am inclined to believe that the Emperor of India was the landlord and the plaintiff was the tenant under it. Judicial notice can be taken that by that time there was already a move for abolition of the estates. From absence of correction of the mistake, I am inclined to believe that the Emperor of India was the landlord and the plaintiff was the tenant under it. The trial court has not examined the matter in this light and accordingly, I reverse the finding of the trial Court to this extent. ( 6 ) MERE title of the plaintiff would not entitle it to get a decree for recovery of possession. It is also to be proved that within twelve years from the date when the possession of the defendant 1 became adverse the suit has been filed as provided in Art. 65 of the Limitation Act. Therefore, the date of possession of the defendant 1 to be adverse to the plaintiff is to be determined ( 7 ) DEFENDANT No. 1's case is that he was in possession of the disputed land since 1940. The nature of use is by stacking of timber. Not only the defendant No. 1 for the first time stacked timber therein, since 1927 others were also using the same as stacking yard being permitted by the intermediaries. Stacking timber in a vacant piece of waste (and without giving out by declaration of conduct that the same is as of right would not be adverse possession as against the person having title specially when it is with permission of another. Defendant No. 1 and others who were occupying the suit land since 1927 were admitting the intermediaries to be the landlord and not the Emperor of India. The intermediaries never claimed that they are the real landlords. Even in the documents of 1950 or 1953 they did not make any such claim. Mere permission to others to occupy a vacant piece of land and collecting premium for such permission would not be an adverse interest against the real landlord. Even if it would be so, adverse interest for a period of sixty years would only extinguish the landlord's title of the Emperor of India. When the Emperor of India was the landlord in the year 1931, such adverse interest would extinguish title of the Emperor of India in 1987 only as the law of limitation stood till 1963. On the basis of Ext. When the Emperor of India was the landlord in the year 1931, such adverse interest would extinguish title of the Emperor of India in 1987 only as the law of limitation stood till 1963. On the basis of Ext. 3, a backward presumption can be drawn that the Emperor of India was the landlord previously also. If the action of the ex intermediaries in permitting other persons to occupy the land since 1927 would be a hostile claim against the Emperor of India, the title of the Emperor of India would be extinguished in the year 1987. When the law of limitation was such and before extinguishment of the title of the landlord, i. e. , the Emperor of India, the estate vested in the State of Orissa in the year 1954. The transferors of the defendant 1 lost their landlords' interest if there was any on such vesting. The intermediaries never claimed any adverse interest against their tenant, the plaintiff. Vesting with the State of Orissa would not be contrary to the interest of the plaintiff in view of S. 8 of the Orissa Estates Abolition Act ( 8 ) WHEN the title of the landlord was with the Emperor of India and defendant 1 was only in permissive possession for 1940. 50 and his possession was in the same manner as before by essentially stacking of timber, a document like the temporary lease deed creating title of defendant 1 by a person having no title would not be adverse against the plaintiff. The intermediaries were not claiming to be occupying the land as tenants under the Emperor of India. In such circumstances, when they were permitting others for occupying the land as landlord without creating any tenancy right in them, defendant 1 cannot have any interest as a tenant adverse to that of the plaintiff. There is no openness of claim of right of defendant 1. There is also no hostility. The only ingredient of continuity of possession would not be sufficient to extinguish the title of the plaintiff. Therefore, in disagreement with the trial court I am inclined to hold that long possession of defendant 1 does not extinguish the title of the plaintiff and the suit for recovery of possession is not barred by limitation. The only ingredient of continuity of possession would not be sufficient to extinguish the title of the plaintiff. Therefore, in disagreement with the trial court I am inclined to hold that long possession of defendant 1 does not extinguish the title of the plaintiff and the suit for recovery of possession is not barred by limitation. ( 9 ) FILING of ekpadia and preparation of tenants' ledger and acceptance of rent are sought to be utilised as circumstances in favour of defendant 1. Except vague assertions, no direct evidence of the person filing the ekpadia is available. D. W. 1 clearly stated that there was no list of documents filed at the time of vesting. The witnesses of the defendant 1 from the Anchal do not claim to have seen the ekpadia. The person in custody of the alleged ekpadia has not been examined to prove how the document is lost. No record of the Anchal is produced indicating the loss of such document. The direct evidence of the person preparing the tenants' ledger has not been adduced. In the circumstances, it is difficult to attract the presumption of correctness of the official register. i. e. , the tenants' ledger. Acceptance of rent on that basis would not confer any interest on defendant 1, specially in view of S. 8 of the Orissa Estates Abolition Act. ( 10 ) MR. R. K. Mohapatra, the learned counsel for defendant 1, submitted that the plaintiff has collected licence fee from defendant 1 for stacking of timber. The licence fee is not for possession of the land. It is for carrying on the business. That would not be an adverse circumstance against the plaintiff. It is submitted by the learned counsel that the permission has been given to construct building on the disputed land and holding tax has been assessed which was being collected. The sanction of the plan has not been proved in this case. Even the occupier is liable to pay holding tax under the Orissa Municipal Act. In such circumstance, it cannot be said that to the knowledge of the plaintiff, the defendant 1 was claiming hostile title in the peculiar circumstances of this case. ( 11 ) FROM the aforesaid discussions, I am satisfied that the plaintiff has title and possession of defendant 1 is not adverse to the plaintiff for extinguishment of its title. In such circumstance, it cannot be said that to the knowledge of the plaintiff, the defendant 1 was claiming hostile title in the peculiar circumstances of this case. ( 11 ) FROM the aforesaid discussions, I am satisfied that the plaintiff has title and possession of defendant 1 is not adverse to the plaintiff for extinguishment of its title. Accordingly, the relief for recovery of possession is to be granted to the plaintiff. ( 12 ) PLAINTIFF has also claimed damages. It is seen that the plaintiff was paying licence fees earlier for similar use. In such circumstance, plaintiff would not be entitled to damages. The claim for damages, if any, would have been available from the date of notice of defendant No. 1 to the plaintiff not to interfere with his possession. Even though the plaintiff would have been entitled to damages from that period, the quantum of damages is not ascertainable in this case. Accordingly, the suit as regards the relief for damages is dismissed. ( 13 ) IN the result, the appeal is allowed in part and the suit is decreed in part to the extent of recovery of possession of the disputed land from defendant No. 1. In the peculiar circumstances of the case, both parties shall bear their own costs throughout. Appeal partly allowed. .