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2016 DIGILAW 4 (ORI)

Sara Bewa v. Rambha Bewa

2016-01-05

D.DASH

body2016
JUDGMENT : The appellant in this appeal has called in question the judgment and decree passed by the learned Additional District Judge, Jajpur in Title Appeal No. 13 of 1995. The appellant being the plaintiff had filed the T.S. No. 35 of 1981 in the court of the Munsif, Jajpur against the original defendant, namely, Rama Chandra Mohanty and Suna Patra. The suit is for declaration of right, title, interest and permanent injunction in respect of the suit land, in the alternative for recovery of possession if found to have been dispossessed during the suit. The original defendant no.1 Rama Chandra Mohanty died during pendency of the suit and his legal representatives have come forward to contest the suit who are now the respondents no. 1 to 7. The suit having been decreed, the unsuccessful defendants carried the appeal. The lower appellate court in allowing the appeal has set aside the judgment and decree passed by the trial court. Therefore, the unsuccessful plaintiff is now before this Court in this appeal under section 100 of the Code of Civil Procedure. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff’s case is that one Kalpataru Beuria was the Chandanadar in respect of the suit land which was recorded in the settlement record of right in the year 1923 under kisam ‘Gharbari’. It is stated that Muli Prusty, the father of the plaintiff was possessing the suit land and was paying rent and as such he became the Darchandanadar. On 03.08.1965, Muli sold the suit land to Suna Patra, the defendant no.2. But despite of the same, he continued to remain in possession till his death in the year 1967. On 09.04.1966, said defendant no.2 transferred western half of the suit land measuring Ac0.10 decimals to Musa Dei who is none other than wife of Muli Prusty i.e. the mother of the present plaintiff. Thereafter, on 08.10.1975 Musa gifted the western half of the suit land to the plaintiff under Ext.6. On 16.08.1986, the defendant no.2 sold rest land of Ac0.10 decimals to the plaintiff under Ext.4. The plaintiff then filed OLR Case No. 1416 of 1976 under Section 9 of the O.L.R. Act which was dismissed on 18.10.1993. Thereafter, on 08.10.1975 Musa gifted the western half of the suit land to the plaintiff under Ext.6. On 16.08.1986, the defendant no.2 sold rest land of Ac0.10 decimals to the plaintiff under Ext.4. The plaintiff then filed OLR Case No. 1416 of 1976 under Section 9 of the O.L.R. Act which was dismissed on 18.10.1993. It is stated that Muli had acquired right of occupancy over the suit land by virtue of the provision contained in section 236 of the Odisha Tenancy Act. The defendant no.2 all of a sudden having entered upon the suit land when attempted to dispossess the plaintiff, she filed the suit claiming the reliefs as aforestated. 4. The defendants in the written statement challenged the assertion made in the plaint that Muli was the occupancy tenant in respect of the suit land. It is stated that he was Kalpataru’s servant in his farm. It is said that one Mahendra Kumar Beuria, the grandson of Kalpataru inherited the suit land and while in possession, he sold the same to the original defendant no.1 i.e. Rama Chandra Mohanty for valuable consideration followed by delivery of possession. The house on the suit land where Muli used to reside collapsed and therefore, a new house was constructed by the original defendant no.1 over the suit land and he resided there with his family. The status of the plaintiff that she is the daughter of Musi is also denied. It is stated that the claim of the plaintiff as advanced, has been negatived in the proceeding under section 9 (1) of the O.L.R. Act and that has been rightly dismissed. Further stand has been taken that Muli Prusty has no right to execute the sale deed Ext.1 in favour of defendant no.2 which is invalid in the eye of law. 5. On the aforesaid rival pleadings, the trial court framed in total seven issues. It has rightly taken up the issue relating to the status of the plaintiff at first for decision. Upon examination of the evidence, both oral and documentary, issue has been answered against the plaintiff that she is not the daughter of Muli. 5. On the aforesaid rival pleadings, the trial court framed in total seven issues. It has rightly taken up the issue relating to the status of the plaintiff at first for decision. Upon examination of the evidence, both oral and documentary, issue has been answered against the plaintiff that she is not the daughter of Muli. Next going to the other issues, concerning plaintiff’s right, title and interest over the suit land vis-a-vis acquisition of right, title and interest over the same as claimed by the defendant no.2 vide registered sale deed dated 03.03.1965, the trial court has recorded the finding in favour of the plaintiff. Then proceeding to answer issue nos. 2 and 4 concerning the cause of action, the suit being barred by limitation and hit under section 67 of the O.L.R. Act, the trial court has rendered the finding in favour of the plaintiff. So, the suit has been decreed declaring right, title and interest over the suit land and confirming her possession. The defendants have also been permanently injuncted from interfering with the same. 6. Appeal being carried by the unsuccessful defendants, the lower appellate court has concurred with the finding of the trial court, upon examination of the evidence that the plaintiff is not the daughter of Muli and thus her right to succeed to the suit property by way of inheritance has been negatived. Then coming to the other questions, the lower appellate court has said that when the evidence on record reveal that Muli all along remained in possession and Ext.1 is a nominal sale deed and was never intended to be acted upon in further saying that the transfer by Muli without consent of the landlord is also not valid. At the end, the lower appellate court has found that Chandnadar, Kalpataru had not created any Darchandnadari right in favour of Muli. Therefore, the transaction during his life time transferring the suit land or any part thereof has been held as not valid. Moreover, even assuming Muli to be the Darchandnadar under Kalpataru, the Chandnadar, there being no proof of custom, the transfer has been held to be invalid. Therefore, the transaction during his life time transferring the suit land or any part thereof has been held as not valid. Moreover, even assuming Muli to be the Darchandnadar under Kalpataru, the Chandnadar, there being no proof of custom, the transfer has been held to be invalid. Accepting for a moment that Darchandnadari right was created in favour of Muli, it has further been held that the same came to an end in the year 1976 on the death of Musa, wife of Muli and the plaintiff being not the daughter of Muli, thus cannot claim the right of occupancy. So, plaintiff’s right, title and interest over the suit land has not been so found when also there remaining no proof of acquisition of the same by way of adverse possession. In view of above, the lower appellate court has finally non-suited the plaintiff. 7. The appeal has been admitted on the following substantial questions of law : (i) Whether the learned lower appellate court committed substantial error of law in not extending the benefits of proviso to sub-section-1 of section 236 of Odisha Tenancy Act in holding that the Vendor’s Vendor of the plaintiff had acquired occupancy right over the suit land? (ii) Whether the reversal judgment of the lower appellate court suffers from non consideration of probative value of Ext.1 and Ext.4, the registered sale deeds? (iii) Whether, the lower appellate court committed error of law in not holding that the occupancy right under section 236 of Odisha Tenancy Act is heritable and transferable and the said occupancy right is terminable by notice to quit by the landlord and in the absence of any material on record that the Darchandnadar right was terminated by notice? 8. Learned counsel for the appellant submits that even if it is proved that Muli was in possession of the suit land which is a piece of homestead land under Kalpataru, the Chandnadar on payment of rent, he is to be held to have acquired the status of Darchandnadar and when Muli was never dispossessed either by the Chandnadar or by the Zamindar; pursuant to the provision of section 236 of Orissa Tenancy (Amendment) Act 1946, he acquired status of occupancy raiyat in respect of the suit land which is heritable and transferable. He next contends that when Ext.A was executed by Mahendra Behuria in favour of original defendant no.1 Rama Chandra Mohanty, Muli Prusty had already acquired occupancy right over the suit land and was in possession of the same. So Mahendra being not in possession and having not sold the suit land, to the defendant no.1 with consent of Zamindar, Ext.A is an invalid document conferring no right, title and interest in respect of the suit land upon the original defendant no.1. He further contends that on the abolition of the estate, Muli became the tenant directly under the State and accordingly she possessed it till his death in the year 1967 whereas defendant no.1 was not in possession of the suit land as a tenant either under Zamindar or under Chandnadar at the time of vesting. Thus according to him, the plaintiff having got the suit property through the deed of gift as well as sale deed under Exts. 6 and 4 respectively, the trial court had rightly decreed the suit. It is submitted that the lower appellate court without properly appreciating the legal position has held that in the absence of proof of custom, the transfer made by Muli is invalid and it ought to have been held that Muli was Darchandnadar and became occupancy raiyat under section 236 of the Odisha Tenancy Act. So it is contended with vehemence that the lower appellate court has erred in law by setting aside the well reasoned and well discussed judgment and decree of the trial court which had declared the right, title, interest and possession of the plaintiff over the suit land. In support of his submission, he has placed the decisions reported in the case of Radhamani Dibya and others v. Braja Mohan Biswal and others, AIR (1984) Orissa-77; and Malati alias Mali Bewa and others v. Lokanath Sahu and others; 17 (1951) CLT-67. 9. In support of his submission, he has placed the decisions reported in the case of Radhamani Dibya and others v. Braja Mohan Biswal and others, AIR (1984) Orissa-77; and Malati alias Mali Bewa and others v. Lokanath Sahu and others; 17 (1951) CLT-67. 9. Learned counsel for the respondent while supporting the judgment and decree passed by the lower appellate court and its findings contends that when plaintiff has failed to prove the Darchandnadar right in favour of Muli during the life time of Kalpataru and that also not being transferable except upon proof of custom which the plaintiff has failed to prove, the document, Ext.1 which is the main basis of claim of title flowing to the plaintiff has been rightly held to be invalid and not enforceable in the eye of law. It is next contended that the plaintiff’s claim under section 9 of the O.L.R. Act as a raiyat in respect of the suit land having been dismissed and he having not approached the higher forum as provided under the Act, the suit is barred by provision of section 67 of the O.L.R. Act. It is also his contention that when plaintiff has not prayed for cancellation of registered sale deed, Ext. A which is dated 23.12.1947 in accordance with law, the original defendant no.1 has also acquired the title over the suit land by virtue of Ext. A; the substituted defendants having stepped into the shoes of defendant no.1, thus have exclusive right, title, interest and possession over the suit land. It is also urged that the sale deed being of the year 1947 is not open to challenge by the suit filed in the year 1981 in the garb of declaration of title which is in essence to set aside the same. Therefore, according to him the lower appellate court is right in holding that the right of plaintiff stood extinguished in terms of section 27 of the Limitation Act. He finally submits that the lower appellate court has rightly non-suited the plaintiff. He has cited the decision of this Court in case of Radhu Behera and others vrs. Radhashyam Sahu and others; 21 CLT 420. 10. At the outset it may be stated that the courts below have recorded concurrent finding that, the plaintiff is not the daughter of Muli Prusty and that is not questioned in this appeal. He has cited the decision of this Court in case of Radhu Behera and others vrs. Radhashyam Sahu and others; 21 CLT 420. 10. At the outset it may be stated that the courts below have recorded concurrent finding that, the plaintiff is not the daughter of Muli Prusty and that is not questioned in this appeal. Learned counsel for the appellant fairly concedes on that aspect placing that in view of the evidence on record as available, such a finding cannot be said to be the outcome of perverse appreciation of evidence. Thus, now arises for consideration as to how far the plaintiff has established the title over the suit land through various transactions. It is her case that Muli sold entire suit land and other properties to defendant no. 2 under Ext. 1 and defendant no. 2 in turn sold the suit land to Musa under Ext. 3 and gifted the said land to the plaintiff under Ext. 6. Sometime thereafter, the defendant no. 2 sold the other house directly to the plaintiff under Ext. 4. In view of the challenge leveled by the defendant, most important question next stands as to if Muli had any alienable right and interest over the suit land as because all other transactions as aforesaid have followed and flowed therefrom. The defendants challenge this sale-deed by Muli to be void and as such the vendees under those sale-deeds to have not acquired any right, title and interest by virtue of the same. 11. Admitted case of the parties is that Kalpataru was the Chandandar of the suit land. In the old record of right under Ext. -6 Muli’s possession finds mention as also his payment of rent. Evidence has been tendered that he had paid rent to the Chandandar – Kalpataru, Ext. 5 is the said rent receipt which has been duly proved. The trial court has accepted its authenticity as no such doubtful features have been noticed therein. During hearing, of this appeal nothing has also been shown even to raise any finger of suspicion over the genuineness of Ext. 5. This Kalpataru Beuria’s family hail from another district and were having no cultivable land in the mouza where the suit land situates. The suit land is a piece of homestead land. During hearing, of this appeal nothing has also been shown even to raise any finger of suspicion over the genuineness of Ext. 5. This Kalpataru Beuria’s family hail from another district and were having no cultivable land in the mouza where the suit land situates. The suit land is a piece of homestead land. The case projected by the defendant that Muli was a farm servant under Chandandar with a bid to negate his claim as Darchandandar, thus, falls flat. The circumstances as above being cumulatively viewed leads to accept the case of the plaintiff that Muli was Darchandanadar under Chandandar –Kalpataru Beuria. The lower appellate court now even having accepted the status of Muli vis-à-vis the suit land as Darchandandar, has taken the view that when such Chandandar right has not been proved to be transferable by custom or local usage and as without the consent of the landlord transferred by Muli in favour of Suna Patra, the defendant no. 2 under Ext. 1, being also not acted upon has held it to be not a document to have conferred title on him. So, the subsequent transfers have been held by the lower appellate court to be invalid and inoperative in the eye of law without clothing the purchaser with title. As regards acquisition of right of occupancy by Muli over the suit land under 236 of the Orissa Tenancy Act Act, the lower appellate court has said that there is no proof that Darchandandari right was created by the Muli during the lifetime of Kalpataru and for the purpose Ext. 5, the rent receipt has not been given any such importance. At this juncture, however it has gone to say that the Darchandandar right, if any, was created, it came to an end in the year 1976 with the death of Musa, wife of Muli. So, in view of the finding with regard to the status of the plaintiff that she is not the daughter of Muli, her inheriting the right does not arise. 12. The finding of lower appellate court that Muli was not the Darchandandar under Chandandar-Kalpataru Beuria has been rendered by ignoring the material evidence on record, more importantly Ext. 5 on a flimsy reason, in the absence of any such serious challenge as regards its genuineness or authenticity when also the documents has come to be proved from proper custody. 12. The finding of lower appellate court that Muli was not the Darchandandar under Chandandar-Kalpataru Beuria has been rendered by ignoring the material evidence on record, more importantly Ext. 5 on a flimsy reason, in the absence of any such serious challenge as regards its genuineness or authenticity when also the documents has come to be proved from proper custody. Next when attention is given to the provision of section 236 of the Orissa Tenancy Act, it is seen that the explanation to sub-section 1 of said section explains the Chandandar also a tenant within the meaning of the sub-section and it has been held in case of Malati @ Mali Bewa & Others (supra) that Darchandandar interest is precarious tenancy interest which means the interest or the tenancy on Will which is terminable on notice to quite. However, it has been said that till it is terminated, like any other property it would pass from father to son i.e., it is heritable by virtue of the provision of section 236 of the O.T. Act which has been proved in this case that Muli has remained in possession and was never dispossessed either by the Chandandar or by the Zamindar and he continued to remain in possession till he sold the suit land to the defendant no. 2 under Ext. 1. In the meanwhile on abolition of the estate, he has to be held to become a tenant directly under the State by virtue of operation of law as contained under section 8(1) of O.A. Act and thus he can be said to have held the land with the same right and subjected to the same restriction and liability as he was entitled or subject to immediately before the date of vesting. The position has been well settled in case of Radhamani (supra). In that view of the matter, the finding of the lower appellate court that Ext. 1 is an invalid document is unsustainable. Plaintiff is seen to be residing in the suit village in 197475 as the same not only reveals from the evidence let in by the plaintiff but also from the evidence of the witnesses of the defendants as also the documents. 1 is an invalid document is unsustainable. Plaintiff is seen to be residing in the suit village in 197475 as the same not only reveals from the evidence let in by the plaintiff but also from the evidence of the witnesses of the defendants as also the documents. The evidence is also there that Muli and Musa remained in enjoyment of the suit land till there death in 1967 and 1976 respectively and this plaintiff has been residing with Musa, the wife of Muli during her life time. So, Musa having gifted half of the suit land to the plaintiff which has been duly proved through P.W. 2 and there is nothing to discard the evidence on that score as no such doubtful feature emanates from the evidence piloted by the plaintiff as also when the defendants have not tendered any evidence to impeach it, the same is to be accepted. Then, Musa having purchased such land from defendant no. 2 in the year 1966 under Ext. 3, he acquired the title over that half and that he having transferred to the plaintiff during the suit when it is found that the vendor had valid title on the date of the suit, the defendant no. 2 has to be held to have acquired title over the same and so also the plaintiff by the subsequent purchase. The cited case of Radhu Behera & Others (supra) which had been decided by the High Court on 05.08.1955 setting aside the confirming judgment and decree passed by the trial court on 23.08.1950 and lower appellate court on 29.09.1951. There it was a suit brought by transferee from Chandandar for ejecting the heirs Darchandandar. Defendants were the sons of Darchandandar as indicated in the Maintainance Khatian of the year 1912, the plaintiff purchased Chandandar plot from the Chandandar and then after serving the notice to quit had filed the suit. The case tossed about from court to court for about a decade and initially in a second appeal, the suit was remanded to give opportunity to the parties to adduce evidence for effective decision of the suit as the court felt that actual points in controversy had been misconceived by the parties. The case tossed about from court to court for about a decade and initially in a second appeal, the suit was remanded to give opportunity to the parties to adduce evidence for effective decision of the suit as the court felt that actual points in controversy had been misconceived by the parties. When the matter come for the second time, the court formulated the points as in controversy as under:- (i) The plaintiff is a purchaser from the Chandandar had the nature of the right he acquires under the purchase is questioned by the defendants. Their contention is that a Chandandari holding is non-transferable by custom and the onus is on the plaintiff to prove the custom of transferability in order that he may maintain the suit. (ii) According to the plaintiff, the heirs of a Dar-Chandandar are not entitled to protection against eviction either under the law or under custom, and whatever protection had been afforded by the amended sections 236 and 237 of the Orissa Tenancy Act, by the amending Acts of 1946 and 1947, are not available to Dar-Chandandars of their heirs. Finally, it has been held that the landlord’s consent for transfer may be binding between him and his tenant namely, the Chandandar, but the plaintiff in order to succeed must go further and establish that there is a custom showing that in all cases where the transferee obtains the consent of the landlord, such transfer is valid. It has also been held that:-In case of the occupancy rights the landlord’s consent to the transfer was formerly necessary, but this has been obviated by the amended Section-31-A of the Act. The parties were evidently under a mistaken impression that the incidents of an occupancy holding would attach to a Chandana holding as well. I can find no justification for this view. No provision is made in the Act regulating the incidents of an occupancy holding would attach to a Chandana holding as well. I can find no justification for this view. No provision is made in the Act regulating the incidents of a Chandana holding except in Sections 74 and 75. In the absence of express provision in the Act, a Chandana holding is still subject to the law of custom and usage. I can find no justification for this view. No provision is made in the Act regulating the incidents of a Chandana holding except in Sections 74 and 75. In the absence of express provision in the Act, a Chandana holding is still subject to the law of custom and usage. We have therefore arrived at the conclusion that the plaintiff has failed to prove that there is a custom recognizing the transfer of a Chandana holding and as such he is not entitled to maintain the suit for eviction. It must be remembered that this being a suit for eviction the onus lies primarily on the plaintiff to prove his right to evict, and he must establish that the heirs of a Dar-Chandanadar are liable to eviction either under the terms of the contract or by custom. No evidence has been adduced in proof of either. In fact the origin of the tenancy is unknown and admittedly the defendants have been in possession for at least 40 years. Our attention was drawn to the amended Section 236 of the Orissa Tenancy Act. Sub-section(2) of the section says that the incidents of tenancy of a Chandandar in respect of that portion of his land which is not the homestead in which he ordinarily resides, shall be regulated by the local custom or usage. The admitted case of the parties is that the Chandandar never resided, nor does he reside, on the suit holding. Consequently, the incidents of his tenancy and his right to evict his sub-tenant are regulated by local custom or usage which must be established. We were also referred to a number of cases a few of which may be noticed now. In Jahabai Khan v. Sri Krishna Dey (1), it was held that the landlord’s right to eject a Chandandar on grounds other than for arrears of rent, is regulated by local custom or usage, and that he is not entitled to eject him after due service of notice to quit, unless he proves local usage or custom to that effect. In Abdul Hamid v. Bora Tatayya (2) S.B. we held that a Chandana right is not transferable apart from proof of custom in any particular case, and that there is no general and well recognized custom in this behalf. In Abdul Hamid v. Bora Tatayya (2) S.B. we held that a Chandana right is not transferable apart from proof of custom in any particular case, and that there is no general and well recognized custom in this behalf. I went further than my learned brothers in holding that the protection afforded by Sections 235 and 236 extended to the transferee of a Dar-Chandandar also. In Dina Bhoi v. Jagannath Patajoshi (1) another Division Bench of this Court held that the benefit of Section 236 of the Orissa Tenancy Act is available to a person to whom the land and the structures thereon had been let out on rent. In a very recent case, Bhikary Behera v. Jagat Ballav Das (2), Mohapatro J, held that the defendants in that case who were under-rayaits were protected against eviction under Section 236 of the Orissa Tenancy Act. It is necessary to refer to cases decided under the Bengal Tenancy Act as the very same principle has been adopted in that Act also. We are therefore satisfied that there is a considerable body of authority in favour of the contention raised by the defendants that a Chandandar should, in the first instance, prove that his right is transferable by custom and that he has consequently the right to evict the Dar-Chandardar by custom. As I have already shown above, the plaintiff has failed to establish either of these propositions and it is unnecessary, in the circumstances, to discuss whether the defendants have succeeded in affirmatively establishing a custom in their favour. Sections 236 and 237 afford a complete answer in their favour. 12. Adverting to the case in hand it is seen that by December, 1947, when Ext. A was executed, Muli Prusty had acquired occupancy right over the suit land by virtue of Odisha Tenancy Second Amendment Act No. 32 of 1947 and he was in exclusive possession over the same. So, Mahendra had absolutely no title over the same whatsoever. Therefore, defendant no. 1 acquired no title or possession on the basis of Ext. A. Here in the case it has not been disputed that in the locality Chandandar right was alienable which gets support from the documents Ext. 2 the sale deed and the ROR of undisputed Chandana Holding No. 245 filed by the defendants. Therefore, defendant no. 1 acquired no title or possession on the basis of Ext. A. Here in the case it has not been disputed that in the locality Chandandar right was alienable which gets support from the documents Ext. 2 the sale deed and the ROR of undisputed Chandana Holding No. 245 filed by the defendants. Thus, it is held that the lower appellate court had erred in law by upsetting the finding of the trial court on issue no. 3 and 7. 13. Here, the plaintiff was neither a raiyat nor a tenant in respect of the land under any individual and in the year 1976, she had acquired permanent and heritable right by virtue of the alienation made in her favour vide Ext. 6. Muli was in possession of the property by constructing a house, so the provisions of section 9(1) of the OLR Act have no application at all. Thus, the trial court had rightly said that simply because the party had approached with said application which has been rejected, the Civil Court’s jurisdiction for that simple reason cannot be said nor inferred to have been ousted. In view of that the dismissal of the proceeding being rightly held to be having no impact on the suit, the view taken by the lower appellate court in that regard is unsustainable. 14. In the result, the appeal stands allowed and in the facts and circumstances without cost. The judgment and decree passed by the lower appellate court are thus set aside and those passed by the trial court stand confirmed.