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2018 DIGILAW 807 (ORI)

Damayanti Panda (Since dead) v. Bijoy Tanti

2018-11-19

D.DASH

body2018
JUDGMENT D.DASH, J. - The appeal under Section 100 of the Code of Civil Procedure (for short, called as “Code”) has been filed by one of the unsuccessful defendants of T.S. No.7 of 2002 on the file of the learned Civil Judge, Senior Division, Rourkela. The appellant, in this appeal, has called in question the judgment and decree passed by the learned Ad hoc Additional District Judge, Fast Track Court, Rourkela in R.F.A. No.33 of 2014 of 2005-06 whereby the judgment and decree passed by the learned Civil Judge, Senior Division, Rourkela in the suit, as above noted, have been confirmed. The suit filed by the respondent nos. 1 to 7 stands decreed directing the appellant to give delivery of vacant possession of the suit land to the respondents (plaintiffs). 2. It is pertinent to state here that the original plaintiff no.1, Birbal Tanti having died during the suit, the present respondent nos. 1 and 2 have come to be substituted and pursued the suit as also contested the appeal joining with other plaintiffs, who are the legal heirs of Manobadh Tanti. It may also be stated here that a daughter of Birbal has been arrayed as a defendant as she had not joined with the other legal heirs of the deceased-plaintiff no.1. 3. 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. 4. The plaintiff’s case is that land under plot nos. 694 and 695 being the Government land had been allotted in favour of Birbal Tanti, the original plaintiff no.1 and his brother Manobath Tanti dead. In pursuance of the implementation of the rehabilitation scheme floated by the Government of Orissa during establishment of the Steel Plant at Rourkela in or around the year 1959 for extending the benefits to the land losers whose land had been acquired for the purpose, the land under two plots as above had been so allotted to Birbal and Manobadh. It is stated that the original plaintiff no.1 and his brother Manobadh after said allotment had put up a Kacha house over there and stayed till the year 1966, whereafter they shifted to the quarters allotted to them by the plant authority. It is stated that the original plaintiff no.1 and his brother Manobadh after said allotment had put up a Kacha house over there and stayed till the year 1966, whereafter they shifted to the quarters allotted to them by the plant authority. It is next stated that Srinath Panda, the husband of defendant no.1 having the necessity and need, requested the plaintiff no.1 and his brother Manobadh to permit him to occupy said Kacha house, which fell vacant after they shifted to the quarters allotted by the plant authority and that was then permitted. It has also been pleaded that on his request to allow him to construct a building over the suit land, the plaintiff no.1 and his brother had also so permitted to accordingly go ahead with the condition that after occupying the said building for a period of 25 years without payment of any rent/charges, Srinath Panda or his legal representatives, as the case may be, would pay the house rent has as would then be assessed. Agreeing with such terms and condition, Srinath Panda possessed suit land and occupied the Kacha house first and then constructed a pucca house. It is the case of the plaintiffs that after the death of Srinath, his wife stepped into the shoes of her husband and then continued to reside therein as before. In the year 2001, the defendant no.1 instituted Title Suit No.3 of 2001 for declaration of her right, title and interest in so far as the suit land is concerned arraigning the plaintiff no.1 as the defendant. In the said plaint filed in that suit, she had claimed to be armed with an agreement for sale in her favour and accordingly, having remained in possession of the property in question stretching over a long period, it was asserted that title over the property had been acquired by her by way of adverse possession. It is the case the plaintiff that no house rent has been paid from the side of the defendant no.1 towards occupation of the said house, as agreed upon and thus there is violation of the condition imposed at the time of grant of permission. In view of that, the plaintiff has sought for a decree directing the defendant no.1 to hand over vacant possession of the suit land with the house standing over. 5. In view of that, the plaintiff has sought for a decree directing the defendant no.1 to hand over vacant possession of the suit land with the house standing over. 5. The defendant no.1, by filing written statement, contested the suit. She admitted the allotment of the said house in favour of the plaintiff no.1, Birbal and his brother Manobadh. But while admitting the possession of the suit land by the plaintiff and his brother, it has been stated that the same was until the month of February, 1960. 6. The trial Court analysing the evidence on record, has held the plaintiff’s entitlement to a decree for eviction. The first appeal filed by the unsuccessful defendant no.1 has been dismissed and for that reason, the defendant no.1 has filed the second appeal. 7. The appeal has been admitted on the following substantial questions of law : (i) whether the learned Courts below committed legal error in not considering the provisions of Section 27 read with Section 65 of the Limitation Act while deciding the issue of limitation ? (ii) whether learned Courts below were in legal error in not taking note of the fact that there was no notice under Section 106 of the T.P. Act before filing the suit for eviction. ? (iii) whether the findings of the learned Courts below that possession of the defendants over the suit land is permissive in nature, is legally incorrect because of the finding of the said Courts that defendants had stopped paying rent as well as had raised permanent structure lover the suit land basing on an unregistered document.” 8. Learned counsel for the appellant, in attacking the finding of the Courts below on issue no.3, submitted that when the Courts below, in clear terms, have not found the plaintiffs to be having the title over the land in suit, such a decree for the eviction of the defendant from the same ought not to have been passed when the defendant no.1 has been found to be in possession of the suit land since long putting up structures over these. He further submitted that on the face of the evidence of long settled possession of the suit land by the defendant, on the failure of the plaintiffs to establish their title over the same, the plaintiffs suit for eviction is liable to be dismissed, more particularly when both are having same relationship with the original owner, i.e. State with respect to their claim of possession of the suit land and in that view of the matter, anybody other than the rightful owner, has no right to evict the defendant and come to possess. He, therefore, submitted that the substantial questions of law are to be answered in favour of the defendants and accordingly, he urged for setting aside the judgment and decree passed by the Courts below. 9. Learned counsel for the respondent no.1 submitted all in favour of the findings recorded by the Courts below. He submitted that the defendant no.1 having projected a case of adverse possession has admitted the antecedent title of plaintiffs over the suit land and, therefore, in the suit, she having failed to establish the case of acquisition of title by adverse possession is extinguishment of the title of the plaintiffs, the decree for eviction has been rightly passed. 10. In order to search the answers to the substantial questions of law by duly addressing the above rival contentions, first of all it is felt necessary to have a glance at the rival pleadings which are relevant for the purpose. It has been pleaded in paragraphs 1 and 2 of the plaint : “1. That the properties, the details of which are more fully given in Schedule-‘A’ of this plaint and which are hereinafter called ‘the Suit land” were originally Govt. Lands. During establishment of Rourkela Steel Plant, the suit land was allotted in favour of the plaintiff No.1 and his deceased brother Manbodh Tanti under the rehabilitation Scheme of Govt. of Orissa. To be more particular, it may be stated here that suit Plot No.694 was allotted in favour of Late Manbodh Tanti and suit Plot No.695 was allotted in favour of the Plaintiff No.1 under the aforesaid scheme. Thus, the plaintiff No.1 and his above named deceased brother lawfully acquired the suit land from the State Government in the year 1954; and 2. Thus, the plaintiff No.1 and his above named deceased brother lawfully acquired the suit land from the State Government in the year 1954; and 2. That, the plaintiff No.2 to 5 are the widow, sons and daughter of Late Manbodh Tanti who died in the year, 2000, hence the Plaintiff No. 2 to 5 being the legal heirs of late Manbodh Tanti have lawfully inherited suit Plot No.694 and accordingly all the plaintiffs became the lawful owners of the entire suit land as per law.” Countering the above plaint averments, it has been pleaded in paragraph 3 and 5 of the written statement that :- “3. That, as regards allegations in paragraph no. 3 & 4 of the plaint the defendant begs to state that the plaintiff and his deceased brother Manbodh Tanty possessed the suit land after the same was delivered to them till February, 1960. The allegation regarding construction of Kacha house by the plaintiff is not admitted and hence the plaintiff is put to strict proof thereof. The plaintiff and his deceased brother never remained in possession of any Kacha house over the suit land till 1966 or left the same under the lock and shifted to their allotted quarters of the Rourkela Steel Plant and hence the allegations of the para 3 and 4 are denied. Xx xx xx 5. That, the defendants strongly denies the allegations made in para no.6, 7 and 8 as false fabricated and concocted. As stated above neither the plaintiff no.1 nor his deceased brother Manbodh Tanty had any right and interest over the suit land. The suit land was only provisionally allotted to them without conveying right, title and interest in respect of the same, when they parted possession of the suit land in favour of the husband of the defendant during 1960’s.” 11. The suit land was only provisionally allotted to them without conveying right, title and interest in respect of the same, when they parted possession of the suit land in favour of the husband of the defendant during 1960’s.” 11. On the above rival case projected by the parties, when it stands admitted that the plaintiff no.1 and Manobadh having been provisionally allotted with the land in suit were in possession and had delivered the possession of the same to the defendant no.1; in pursuance of a document coming into being, the plaintiff’s case can only be defeated when the defendant proves either a case of acquisition of title by adverse possession in extinguishment the right, title and interest of the plaintiffs or when the defendant establish that she is possession the land in suit on the basis of any such other acquired right to do so which is subsisting, at least standing as a shield sufficient enough to thwart the sword blow from the side of the plaintiffs. In that event, the plaintiff’s suit has to fail. 12. The defendants have projected their case as under : “17. That, the facts constituting the issue between the plaintiffs and defendant are set out below :- (a) That, the plaintiff no.1 and his deceased brother Manbodh Tanty were allotted with Plot Nos. 695 and 604 respectively in Jhirpani Resettlement Colony measuring an area of 11 (eleven) decimals in total. The plaintiff No.1 was employed with R.S.P. on consideration of displaced person quota from his family. During those period the husband of the defendant gained acquaintance with plaintiff No.1 and through him with his brother Manbodh Tanty. The aforesaid brothers used to remain in wants seeking money on credits and they started visiting the house of the defendant seeking credit. The defendant and her husband initially gave hand loans of small quantity to them but on demand of payment both the brothers offered the above stated two plots given to them, by the Govt. on rehabilitation scheme. The used acknowledge the receipt of money in written in various forms and even offered to execute the registered instruments and plain paper writing evidencing receipt of money from the defendant and her husband. on rehabilitation scheme. The used acknowledge the receipt of money in written in various forms and even offered to execute the registered instruments and plain paper writing evidencing receipt of money from the defendant and her husband. Due to demand of repayment both the plaintiff No.1 and his deceased brother delivered vacant possession of the suit land in favour of the defendant and her husband and that is how the suit land came into the exclusive physical possession of the Defendant and her husband. The plaintiffs and their deceased brother thereafter occupied portions of vacant land in the same locality and started living there with their family since the year 1962-63. (b) That, the defendant and her husband, sometime after coming into the occupation over the suit land constructed a pucca house thereon and remained in physical possession thereof peacefully without any hindrance from any quarters, whatsoever, including that of the plaintiffs as well as the Govt. of Orissa, the true and the supreme owner of the suit land. (c) That, the defendant along with her husband till his death enjoyed the suit land by occupying the residential house to the conscious knowledge and sight of the whole world including that of the true owner continuously since the year 1962-63 without any manner of objection or disturbance from any person or authority till today excepting the claim of the plaintiff as on the date of the suit and never prior to that. Hence the defendant has acquired and perfected lawful rights, title and interest over the suit land by her exclusive & unhindered continuous possession for more than 40 (Forty) years by dint of her own right.” 13. Coming to the evidence on record, it is seen from the evidence of D.W. 1 that he had learnt from Srinath Panda that Birbal and Manbodh delivered absolute possession of the land to the defendant No.1 conveying lawful title under an outright sale of the same for valuable consideration. it has been stated by D.W. 2 that he had learnt from his grandfather that Birbal and Manbodh, after taking possession of the land from the Government, did not stay there by constructing house and sold away the same to defendant no.1 in the year 1960. 14. it has been stated by D.W. 2 that he had learnt from his grandfather that Birbal and Manbodh, after taking possession of the land from the Government, did not stay there by constructing house and sold away the same to defendant no.1 in the year 1960. 14. Let us now have a glance at the evidence of defendant no.1, it is stated that her husband, after discussion, decided to purchase the suit land in her name so as to settle at Rourkela. It is further stated that her husband had paid Rs.500/- for each plot to Birbal and Manbodh, who accepted the same and delivered possession thereof to her on 14.02.1960. It is further stated that memorandums had been prepared evidencing such transaction and such memorandums had been scribed by one Dibakar Badnaik. It is her further evidence that after the same, the land in question has been in her possession and she has been continuing as such all through being its owner. These two memorandums have been marked as Exts. A and B and those are dated 14.02.1960. Both being written on plain papers and are said to be the memorandums of sale; first one said to have been executed by Birbal and the second one by Manbodh. So, having proved these two documents, its now clear that the claim of the defendant No.1 in so far as the suit land is concerned is founded upon said on purchase under those two documents. In that view of the matter, the defendant No.1 cannot take the advantage of the absence of any document of title in favour of Birbal and Manbodh. It is thus clear that in the event the defendant No.1 fails to prove her title and as such the right of possession, the only option remains for the Court is to pass a decree for eviction. Accepting said case of the defendant No.1; the documents being unregistered are inadmissible in evidence since it is stated that each plot was then valued at Rs.500/-, which was the consideration involved in the each transaction. Accepting said case of the defendant No.1; the documents being unregistered are inadmissible in evidence since it is stated that each plot was then valued at Rs.500/-, which was the consideration involved in the each transaction. So, the question now arises as to even assuming the defendant No.1 to have remained in possession of the property pursuant to such transaction which are ipso facto not cognizable by the Court of law, can she advance a claim of acquisition of title by adverse possession when admittedly by virtue of those documents, no title over the land in question can be said to have passed on to the hand of defendant No.1. 15. Section 17 of the Registration Act, 1908 Act is a disabling Section. The documents defined in clauses (a) to (e) therein require registration compulsorily. Accordingly, sale of immovable property of the value of Rs.100/- and more requires compulsory registration. Part X of the 1908 Act deals with the effects of registration and non-registration. Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be registered. Section 49 reads thus : “S. 49.- Effect of non-registration of documents required to be registered. No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall – (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1877 (1 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.” The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs.100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act. In the case of K.B. Saha and Sons Private Limited v. Development Consultant Limited, (2008) 8 SCC 564 , the Apex Court noticed the following is the statement of Mulla in his Indian Registration Act, 7th Edition, at page 189 :- “... The High Court of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh, the Judicial Commissioner’s Court at Peshwar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it....” The Court then culled out the following principles :- “1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 4. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.” To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance. 16. In the backdrop of the above legal proposition, in my considered view, when a person comes to possess the land of another, particularly claiming to have derived the right, title and interest under a transaction evidenced by a document, which is inadmissible in evidence, the same cannot even be looked into for the purpose that the delivery of possession of the land has been made in favour of a person so as to allow him/her to possess the said land as its owner thereunder as admittedly the ownership inspite of said document coming into being continued to remain with the executant. The ownership having not been transferred under a document as is mandatorily required under law, even the owner of the land in question in that way cannot clothe the other with the ownership of the property in question at his desire without being in accordance with law. The possession, even if so delivered, thus can never be said to have been so taken as that of the owner. Therefore, the person coming to possess the land and continuing as such on that basis cannot be said to have possessed the land by disowning the ownership of the vendor. Thus in my considered view, it is in the nature of precarious possession. Therefore, the person coming to possess the land and continuing as such on that basis cannot be said to have possessed the land by disowning the ownership of the vendor. Thus in my considered view, it is in the nature of precarious possession. In such cases, where the transaction is not invalid but is one which is legally not permissible for being looked into for the purpose, there is no question of treating the parties as vendor and vendee. So any further deed/act done pursuant to it, has to be viewed in that light so long it is claimed such. In order to claim that so called possessor as shown in the transaction has acquired title over it by adverse possession, it is then incumbent upon him/her to prove through acceptable evidence that after that initial entry over the land, someday, the possessor having abandoned his/her claim under that document have no value in the eye of law, and shunning that nature of possession altogether, started to possess the land on his own denying the title of the vendor to his knowledge exercising all such rights as owners openly, peacefully and without any interruption for upwards of the prescribed period. This being not the case of the defendant no.1, this Court finds no such fault in the ultimate result as has been recorded in the suit. The substantial questions of law are accordingly answered against the defendant no.1. 17. In the wake of aforesaid, appeal stands dismissed and in the facts and circumstances without cost. Appeal dismissed.