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1999 DIGILAW 294 (ORI)

GHANASHYAM SAHU v. KENDRAPARA MUNICIPALITY

1999-08-23

D.M.PATNAIK

body1999
D. M. PATNAIK, J. ( 1 ) THIS second appeal is against the reversing judgment of the lower appellate Court wherein it allowed the defendants' appeal thereby dismissing the plaintiff's suit for title and permanent injunction. ( 2 ) PLAINTIFF's case is, one Girdhari Tripathy executed a 'hukumnama' dated 10-7-1932 in respect of the land measuring Ac. 2. 76 decimals thereby authorising him to reclaim the area by removing the thorny bushes and make it fit for cultivation. In return, the plaintiff was to possess the same for ten years and appropriate the usufructs. In the year 1935 the plaintiff started cultivation. After death of Giridhari, his son Shyamsundar asked the father of the plaintiff to give up possession of the land in the year 1936. The father of the plaintiff did not agree to this and continued to possess till 1960. The plaintiff continued his possession thereafter till 1984 without interruption. In the year 1984 the Kendrapara Municipality started to construct houses for the sweepers' colony on the suit land. Since the Municipality disturbed the possession of the plaintiff he filed the suit for declaration of title, confirmation of possession, etc. ( 3 ) THE Kendrapara Municipality, the main defendant in the case, took the stand that the land originally belonged to Giridhari Tripathy who had mortgaged the same by a registered mortgage deed on 10-9-1929 to one Sadhu Charan Behera. Since Giridhari could not repay the mortgaged loan, he sold the land to Sadhu Charan Behera on 13-1-1939 by a registered sale deed. While said Sadhu Charan Behera was possessing in his own right, title and interest, Sadhu inducted Shrimati Bewa, his widowed sister-in-law as a sub-tenant in the year 1959. While so possessing Shrimati sold the land on 31-7-1964 to the Kendrapara Municipality for consideration and delivered possession. The defendants thus pray for dismissal of the suit. ( 4 ) MR. Bijan Ray, learned counsel for the appellant, advanced extensive arguments touching various factual aspects as well as points of law involved in the case. Mr. Manoj Mishra, learned counsel for the Municipality, also advanced extensive arguments and drew the attention of this Court to various documents particularly the sale deed in favour of the Municipality and other documents thereby supporting the judgment of the lower appellate Court. The contentions of the respective counsel are disposed of in the following manner. Mr. Manoj Mishra, learned counsel for the Municipality, also advanced extensive arguments and drew the attention of this Court to various documents particularly the sale deed in favour of the Municipality and other documents thereby supporting the judgment of the lower appellate Court. The contentions of the respective counsel are disposed of in the following manner. ( 5 ) ADMITTEDLY, the suit land belonged to Giridhari Tripathy and it is proved that he executed the Hukumnama, Ext. 9, which is dated 10-7-1932. Mr. Ray, referring to the Hukumnama, Ext. 9, strenuously urged that the terms and conditions of the said document would make it clear that the plaintiff was inducted to possess the land neither as a labourer nor as a servant, but to cultivate the suit land for consideration and therefore it was leased out by the landlord to the tenant which constituted a contract of tenancy. It was further stressed that when on the basis of contract of tenancy, the person continues to possess the same as a non-occupancy Rayat and if he continues to possess the same in that capacity for more than 12 years he acquires the status of the occupancy rayat and once he acquires the status of an occupancy rayat, consequently he becomes a settled rayat of the village under Section 29 of the Orissa Tenancy Act. To fortify this argument the learned counsel relied on the cases of Radhamani Dibya v. Braja Mohan Biswal, AIR 1984 Orissa 74 , and Indramani Mohanty v. Purusottam Ray, (1971) 1 Cut WR 730. He submitted that the plaintiff was entitled to the benefit of Section 61 (2) of the Orissa Tenancy Act. As a corollary to this Mr. Ray strenuously urged that in view of the Hukumnama, the sale by Giridhari in favour of Sadhucharan Sahu in the year 1939 was void, since Giridhari Tripathy was not competent to make such a transfer. Mr. Manoja Mishra, on the other hand, countered this argument by stating that such an argument is not tenable in view of the pleadings of the parties and the evidence on record. ( 6 ) AS is indicated at page 7 of the lower Court judgment, interpreting the terms of Hukumnama, Ext. Mr. Manoja Mishra, on the other hand, countered this argument by stating that such an argument is not tenable in view of the pleadings of the parties and the evidence on record. ( 6 ) AS is indicated at page 7 of the lower Court judgment, interpreting the terms of Hukumnama, Ext. 9, it was contended by the defendant that the plaintiff was not a rayat and did not hold the land for cultivation and was not a tenant as he did not cultivate the land under any special contract and did not pay rent to the landlord. The lower Court held that these contentions were not acceptable being not convincing. The lower appellate Court in para 7 of the judgment held that the 'hukumnama', Ext. 9, was not a genuine one. But I do not accept this finding of the lower appellate Court that Ext. 9, is a highly suspicious document and that it is not of much help to the plaintiff in proving the case. The reason given by the lower appellate Court is that the document is not a registered one and no other persons were present at the time of the execution, the plaintiff did not claim to be present at the time when the document was written, the scribe is the only witness who stated about the execution, the scribe is not a licensed deed writer. Other neighbouring persons were also not cited as witnesses and so on and so forth. These are all very innocuous reasons to reject the document without a finding that either it was executed fraudulently or that the document was the result of any undue influence or coercion. Mr. Mishra, learned counsel for the respondent also has not challenged the genuineness of the document during the course of argument. Therefore, I hold that the document is a genuine one. ( 7 ) BUT I am unable to accept the contention of Mr. Ray that this document created a contract tenancy in favour of the plaintiff. To appreciate the point the material portion of the document (Ext. 9) is reproduced below with a translation in English. This schedule land is uneven land with thorn bushes and is unfit for cultivation and is lying abandoned. Ray that this document created a contract tenancy in favour of the plaintiff. To appreciate the point the material portion of the document (Ext. 9) is reproduced below with a translation in English. This schedule land is uneven land with thorn bushes and is unfit for cultivation and is lying abandoned. The plaintiff (Grahita, means who accepts) with his own money shall remove the shrubs and level the land and convert the same to be cultivable and make it fit for vegetation for which the land is hereby given possession. The money spent by him and the amount spent towards his labour shall be recoverable by way of possessing the land for ten years and by appropriating the usufructs. The same was signed by Giridhari Tripathy on 10-7-1932. The clear language of the document is, this is nothing but an agreement between the parties that the plaintiff shall reclaim the land, at his own cost make it fit for cultivating and the cost of such reclamation shall be reimbursed by appropriating the usufructs for a period of ten years. As rightly submitted by Mr. Mishra, learned counsel for the defendant the same does not create any tenancy right since there is no question of payment of rent or bhag produce to Giridhari Tripathy by the plaintiff. I have no quarrel over the proposition laid down by the decision of this Court in the cases referred to above by Mr. Ray, but the facts and circumstances of the present case are different. ( 8 ) THE next point for decision is, whether the plaintiff has acquired title by adverse possession. Ext. 9 is a document which is admittedly an unregistered one. This document is not a document to be compulsorily registrable as required under Section 17 of the Registration Act, because there is no transfer of any title or ownership of the land in question, nor it is found to be a document for the purpose of a lease for which any rent is reserved for more than a year in which case it would need a compulsory registration. It is merely an arrangement by way of an authority given by Giridhari Tripathy to the plaintiff to reclaim the land and reimburse the cost of such reclamation by enjoying the usufructs raised by the plaintiff for ten years. The document therefore is valid though not registered. It is merely an arrangement by way of an authority given by Giridhari Tripathy to the plaintiff to reclaim the land and reimburse the cost of such reclamation by enjoying the usufructs raised by the plaintiff for ten years. The document therefore is valid though not registered. It only reveals a contractual obligation between the two and does not create any permanent tenancy. The possession of the plaintiff right from the beginning i. e. from 1932 till 1939, when Giridhari Tripathy sold the land to Sadhu Charan Behera, was only permissive though possessed on a terms laid down therein. There is no dispute that Giridhari Tripathy sold the land to Sadhu in the year 1939. This is amply proved from the records and also held by the Courts below by a concurrent finding. The position therefore remains that during the subsistency of the contract between Giridhari and the plaintiff, Giridhari divested himself in respect of the title of the land in question by executing the sale deed in favour of Sadhu Charn. This was a valid transaction. Therefore, the question of acquiring title by adverse possession against Giridhari would not arise, but would arise only against Sadhu Charan since he became the title holder in the year 1939 on the basis of the registered sale-deed. The lower appellate Court dealt with this aspect of the case very elaborately somuch so it has gone to the extent of quoting the deposition of the plaintiff vide para 13 of the judgment. I have also gone through the evidence. The plaintiff stated that in year 1936 when Shyamasundar son of Giridhari told them to vacate the suit land they did not vacate it, but for that there was no case between them. On going through the evidence of the plaintiff it is found that Shyamsundar asked him to vacate the land in the year 1936 to which as per the evidence of the plaintiff his father (plaintiff's father) stated that they had taken the land for ten years and that's why they should vacate the same. Since this evidence of the plaintiff relates to the denial of giving back the delivery of possession during the subsistency of the contract the same cannot be said to be a denial of title of the landlord, i. e. Giridhari nor it shows anything about the hostile animus for enjoying the property. Since this evidence of the plaintiff relates to the denial of giving back the delivery of possession during the subsistency of the contract the same cannot be said to be a denial of title of the landlord, i. e. Giridhari nor it shows anything about the hostile animus for enjoying the property. This has been rightly decided by the lower appellate Court which held that, in the absence of any evidence with regard to such hostile possession, the possession of the plaintiff in the worst case even assuming that he was continuing in possession could not be adverse but could be permissive possession. The lower appellate Court also has rightly held that the plaintiff failed to prove as to when his possession become adverse to the true owner, i. e. Sadhu Charan Behera. I agree with the finding of the lower appellate Court because no materials have been placed to hold as to at what particular point of time the possession of the plaintiff became adverse. Therefore, the plaintiff having failed to prove his case, the suit has been rightly dismissed by the lower appellate Court. ( 9 ) NOW the question is whether Kendrapara Municipality has got a title or not. In this regard, Mr. Ray has drawn the attention of this Court to the cases reported in (1971) 2 Cut WR 800, Udayanath Padhan v. Daitari Maharana, and (1978) 46 Cut LT (SN) Page 16, Fakir Sahu v. Trilochan Mohapatra, and submitted that Shrimati Bewa being a Sikimi tenant was not competent to transfer the land in question and any such transfer by a Sikimi tenant is void. There is no dispute with regard to the proposition of law laid down by this Court in the above decisions, but there is no bar for a Sikimi tenant to transfer his possession. Though under Ext. A the Municipality cannot get any proprietary title, in the absence of a proprietory with Shrimati Bewa yet the possessory title is transferable which Shrimati Bewa was competent to transfer the same. Possession in respect of a land by person is itself a right which can be transferred in favour of any one. Possession itself is a right which is good enough against all the world except the true owner. Possession in respect of a land by person is itself a right which can be transferred in favour of any one. Possession itself is a right which is good enough against all the world except the true owner. In view of the above finding I hold that the plaintiff has no title to the property in question nor he has acquired any such title by way of adverse possession. ( 10 ) IN the result, the appeal fails and dismissed. The lower appellate Court judgment is confirmed. No costs. Appeal dismissed.