Orissa High Court
Sk. Jan Hossain And Others vs Smt. Maithili Devi (Since Dead) on 9 August, 2019
Equivalent citations: AIRONLINE 2019 ORI 174, (2019) 202 ALLINDCAS 809, (2019) 2 CLR 1005 (ORI), (2019) 2 ORISSA LR 894
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.176 of 1986
From the judgment and decree dated 17.5.1986 and 30.6.1986
respectively passed by Shri R.K. Das, learned 1st Addl. District
Judge, Cuttack in T.A. No.59 of 1980 reversing the judgment and
decree dated 16.5.1980 and 1.7.1980 respectively passed by Shri
S.K. Satpathy, learned 1st Additional Subordinate Judge, Cuttack in
T.S. No.155 of 1974.
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Sk. Jan Hossain and others .................. Appellants
---versus--
Smt. Maithili Devi (since dead)
through L.Rs. and others .................. Respondents
For Appellants : Mr. D.P. Mohanty, Advocate
For Respondents : None
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
---------------------------------------------------------------------------- Date of Hearing :06.08.2019 │ Date of Judgment: 09.08.2019
---------------------------------------------------------------------------- Dr. A.K. Rath, J. Defendant nos.3 to 6 are the appellants against a reversing judgment.
02. The case of the plaintiff-respondent no.1 is that the suit land originally belonged to one Nial Papamma, who was recorded as Darchandanadar in the C.S. ROR. She was in possession of the land. After death of Nial Papamma, her daughter Rewa Lachhama, defendant no.1, inherited the suit property. Banchhanidhi Swain was the Chandanadar. Banchhanidhi had executed a registered lease deed in her favour on 1.12.1944. While the matter stood thus, defendant no.1 sold Ac.0.50 dec. of land out of Ac.0.110 dec. of 2 land appertaining to plot no.731 to her by means of a registered sale deed dated 1.5.65 for a consideration of Rs.4500/-. On 11.2.66, the defendant no.1 sold Ac.0.30 dec. from the same plot for a consideration of Rs.1500/- to her and delivered possession. She has constructed a house. She is in possession of the same. When the defendant nos.2 to 6 interfered with her possession, her husband initiated a proceeding under Sec.145 Cr.P.C. On enquiry, it was found that she was in possession. The defendants, who have no semblance of right, title and interest over the same, claimed possession over Ac.0.55 dec. of land. With this factual scenario, she instituted the suit for declaration of title, confirmation of possession and permanent injunction.
03. The defendant no.1, the vendor of the plaintiff, filed written statement supporting the stand of the plaintiff. The defendant nos.2 to 6 filed written statement denying the assertions made in the plaint. According to the defendants, the name of Nial Papamma, w/o-Abdul Kadar had been erroneously recorded as Darchandanadar in respect of plot no.731. One Elgada Papaya and Kaital Apal Swamy had their houses over portions of the suit plot either as Darchandanadar or as Dar Darchandanadar. After the death of Nial Papamma, the Chandanadar resumed possession of the suit plot and settled the portions of the suit land in favour of the above mentioned Darchandanadars. Rewa Lachhama was not related to Nial Papamma. She obtained a fresh sublease on 1.12.44 collusively. On 15.6.45, P. Appalama purchased Ac.0.10 dec. from Elgada Papaya out of Ac.0.20 dec. Thereafter she sold the same to Kumar Sahu by means of a registered sale deed dated 8.11.45. Elgada Papaya also sold the other Ac.0.10 dec. of land by means of a registered sale deed dated 10.7.47 to Bhramar Sahu and Kumar Sahu. Thus Bhramar Sahu and Kumar Sahu purchased the entire 3 Darpatadar right of Elgada Papaya in respect of Ac.0.20 dec. of land. One Gudu Ashreya who had got Ac.0.30 dec. of land in the suit plot from Kaital Apalswamy lost the same in T.S. No.168 of 47. The property was purchased in court auction by one Ahamad Bux, who sold the same to one S. Mutialama by a registered sale deed dated 30.12.48 who in turn sold the same to Bhramar Sahu and others by a registered sale deed dated 25.1.49. Thus Bhramar Sahu and others were in possession of Ac.0.50 dec. of land. They sold Ac.0.10 dec. to the defendant nos.2 to 6 by means of a registered sale deed dated 14.10.60, which on measurement was found to be Ac.0.15 dec. Again Bhramar Sahu and others sold Ac.0.32 dec. and Ac.0.13 dec. of land respectively with houses thereon to the defendant nos.2 to 6 by means of registered sale deeds dated 3.12.60 and 10.6.61. Though the defendants purchased Ac.0.50 dec. from Bhramar Sahu and others, but on measurement the area comes to Ac.0.55 dec. Therefore the defendants obtained a lease deed from defendant no.1, the vendor of the plaintiff in respect of Ac.0.5 dec. of land from the suit plot. It is further pleaded that when defendant no.1 created disturbance with their possession, they filed Criminal Misc. Case No.211/63-64. The proceeding terminated in favour of defendant no.2 on 30.5.64. Thereafter defendant no.1 demanded rent from the defendants. They paid the rent. Defendant no.1 gave her consent to the defendants to the transfer of Ac.0.55 dec. of land. The plaintiff and her husband colluded with defendant no.1 and obtained the fake sale deeds. The plaintiff filed Criminal Misc. Case No.379 of 66, which was decided against them. But then, in Criminal Revision No.238 of 67, the court directed to exclude the Ac.0.55 dec. of land purchased by the defendants. The defendant nos.2 to 6 have alternatively pleaded that they are in possession of 4 Ac.0.55 dec. of land since the date of purchase to the knowledge of all and as such perfected title by way of adverse possession.
04. On the interse pleadings of the parties, learned trial court struck nine issues. Parties led evidence, oral and documentary. Learned trial court dismissed the suit holding that the defendant no.1 had only Darchandanadari interest in the suit land. She had no right to transfer the same in favour of the plaintiff. None of the witnesses examined by the plaintiff had deposed that there was any custom prevailing for transferring Darchandanadari right. Thus the plaintiff had no title over the suit land. The defendant nos.2 to 6 have not perfected title by way of adverse possession. But then, the transfer of the suit land in their favour by Bhramar Sahu and others has received the consent of defendant no.1. Assailing the judgment and decree of learned trial court, the plaintiff filed T.A. No.59 of 1980 before learned 1st Additional District Judge, Cuttack. The same was allowed. It is apt to state here that during pendency of the appeal, the appellant no.3 and the respondent no.1 died. Thereafter, their legal representatives have been substituted. During pendency of the suit, the defendant no.1 died. Her legal representatives had been substituted.
05. The second appeal was admitted on the substantial question of law enumerated in Ground No.C of the appeal memo. The same is:
"The appellate court has committed an error of law in finding that Rawa Lachhama (plaintiff's vendor) acquired an occupancy right in respect of the entire 110 decimals of land in the suit plot by virtue of Section 236 of the Orissa Tenancy Act as amended by Act 10 of 1946 and Act 32 of 1947. In the first place Rawa Lachhama was not a Chandanadar but a Darchandanadar. She therefore could not have taken advantage of Section 236 of the Orissa Tenancy Act. In the second place by the time of acquisition of Dar-5
Chandandari right by Rawa Lachhama she was in khas possession of 55 dec. of land only, the remaining 55 decimals being in possession of different sub-lessees whose status Rawa Lachhama has acknowledged by her endorsements on different documents of transfer."
06. Heard Mr. D.P. Mohanty, learned Advocate for the appellants. None appeared for the respondents.
07. Mr. Mohanty, learned Advocate for the appellants, submitted that Rewa Lachhama, defendant no.1, was the Darchandanadar. She had no right to alienate the property in favour of the plaintiff in absence of any custom. There is no evidence on record that Chandandar right is heritable and transferable in accordance with the custom. The defendants-appellants are the bonafide purchaser for value. He further submitted that Darchandanadar's interest is a precarious tenancy. But such a tenancy is terminable by a notice to quit. In absence of any notice to quit, the suit is not maintainable. He placed reliance on the decision of this Court in the case of Abdul Hamid vs. Bora Tataya and others, AIR (38) 1951 Ori.153 and Malati alias Mali Bewa and others vs. Lokanath Sahu and others, Vol.XVII CLT 67.
08. On scanning of evidence on record and pleadings, learned lower appellate court held that from the record of right, Ext.3, it is evident that the suit land is a homestead. The same stands recorded in the name of Nial Papamma as Darchandanadar. Though Ext.3 shows that Ananda Swain was the Chandanadar of the property, but Ext.4 shows that Banchha Swain and others were Chandanadars. It is evident from the lease deed, Ext.5, that Banchhanidhi Swain is the son of Ananda Swain. The plaintiff pleaded that after death of recorded Darchandanadar, Chandandar took possession of the suit plot and again transferred the same to Rewa Lachhama, defendant no.1, daughter of the recorded 6 Darchandanadar by means of a registered deed dated 1.12.44. Ext.5 reveals that son of the recorded Chandanadar transferred the suit land by means of a registered lease deed dated 1.12.44 in favour of the defendant no.1. The inferior right merged with the superior right, i.e., Chandanadari right of the Chandanadar. Subsequently, the Chandanadar transferred his superior right under the lease deed. Defendant no.1 acquired the right of Chandanadar. The finding of the learned court below that under the lease deed, Ext.5, defendant no.1 acquired Darchandanadari right is illegal. It further held that sub-sec.(1) of Sec.236 of the Orissa Tenancy Act ("OT Act") was substituted by Act 10 of 1946 and the explanation thereto has been inserted by Act 32 of 1947. Sub-sec.(1) of Sec.236 of the OT Act provides that any tenant including holder of a service tenure in respect of the homestead in which such tenant ordinarily resides shall be held to be an occupancy raiyat. Explanation to the said sub- section stipulates that a Chandanadar is also to be treated as a tenant. The house of defendant no.1, Chandanadar, was in existence by the time Orissa Act 32 of 1947 came into force. In view of the amendment to the Orissa Tenancy Act, the defendant no.1 became an occupancy raiyat of the entire suit plot including the suit land. The occupancy raiyat transferred the suit land in favour of the plaintiff by means of a registered sale deeds, Exts.1 and 2. Thus the plaintiff became the owner in possession of the suit land. It further held that there is no evidence on record as to how Elgada Papaya and Kaital Apal Swami got the said land. They had no title over the suit land. No title had passed to the vendors of defendant nos.2 to
6. The lease deed, Ext.Q/3, has been manufactured by defendant nos.2 to 6 for the purpose of creating evidence. It concurred with the finding of the learned court below that the defendants have not perfected title by way of adverse possession. There is no perversity 7 in the said finding. The substantial question of law is answered accordingly.
09. In Abdul Hamid, this Court held that a Chandanadar himself has only a non-transferable interest and it follows that a Darchandanadar also cannot transfer his right, except by way of proof of custom.
10. In Malati alias Mali Bewa and others, this Court held that Darchandanadar's interest is a precarious tenancy. But such a tenancy is terminable by a notice to quit. In absence of any notice to quit, the suit is not maintainable.
There is no quarrel over the proposition of law. But in the instant case, Chandanadar took over possession of the suit land and transferred the same to the daughter of the Darchandanadar.
11. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 9th August, 2019/Basanta