Orissa High Court
Nityananda Pattnaik (Dead) vs Smt. Bisakha Dei on 10 July, 2019
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.2 of 1985
From the judgment and decree dated 5.9.84 and 25.9.84 respectively
passed by Sri L. Mohanty, learned Suboridnate Judge, Khurda in T.A.
No.11/83 confirming the judgment and decree dated 13.5.83 and 25.6.83
respectively passed by Sri J.M. Patnaik, learned Munsif, Khurda in O.S.
No.4/82(I).
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Nityananda Pattnaik (Dead)
through LRs and others ............... Appellants
---versus--
Smt. Bisakha Dei .................. Respondent
For Appellants : Mr. S.P. Mishra, Senior Advocate
For Respondent : Mr. R. K. Mohanty, Senior Advocate
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
---------------------------------------------------------------------------- Date of Hearing : 27.06.2019 │ Date of Judgment: 10.07.2019
---------------------------------------------------------------------------- Dr. A.K. Rath, J. This is defendants' appeal against a confirming judgment.
2. Plaintiff-respondent instituted the suit for permanent injunction. Briefly stated the case of the plaintiff is that the suit property is the stitiban property of the deity Siri Sri Brajabihari Dev. One Nityananda Pattnaik was a sikkim tenant. There was a house over it. He was residing therein with his brother, Chaitanya Pattnaik. He acquired occupancy right over it under Sec.236 of the Orissa Tenancy Act. The sikkim right was heritable and transferable as per the customs. Giridhari, s/o-Nityananda Pattnaik and the successors of Chaitanya Pattnaik sold the land along with other lands to Biswanath Ray by means of a registered sale deed dated 12.5.58 vide Ext.3. Thereafter, Biswanath Ray sold the land to the plaintiff by means of a registered sale deed dated 11.8.58 vide Ext.5. Since the 2 date of purchase, the plaintiff is in possession over the suit land as a sikkim tenant. In the year 1960, Damodar Pattnaik, natural father of defendant no.1, created disturbances in her peaceful possession, for which, proceeding under Sec.145 Cr.P.C. was initiated. By order dated 29.11.60, the Executive Magistrate, Khurda held that the plaintiff was in possession over the property. Thereafter Damodar along with defendant no.1 and others instituted O.S. No.92/61-I in the court of learned Munsif, Khurda for recovery of possession of the suit land. The suit was dismissed. The unsuccessful plaintiffs filed appeal. The same having been dismissed, they filed second appeal before this Court. But they withdrew the second appeal. Thereafter the defendants tried to forcibly dispossess her from the suit land. She initiated a proceeding under Sec.144 Cr.P.C., which was terminated after 60 days. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra.
3. The defendants filed written statement denying the assertions made in the plaint. Case of the defendants was that the deity Brajabihari Dev was the recorded owner of the suit property through marfatdar, Ramachandra Chhotray. Nityananda Pattnaik was the elder brother of Ramachandra's brother-in-law. Since Ramachandra was a minor, Nityananda was looking after him. Nityananda was working as a Clerk in Khurda Khasmahal office. He managed to record the suit land in his favour as sikkim tenant in Khasmahal record though he was not a tenant. He died in the year 1906. Ramachandra had inducted his son-in-law, Damodar as sikkim tenant, who was residing in the suit house and paying rent. While the matter stood thus, the plaintiff's husband had filed Objection Case No.2794/60 before the settlement authority in the year 1960 to record the plaintiff's name. The same was rejected. Damodar's name was recorded. Plaintiff filed Appeal No.317 of 1960. The same was dismissed. ROR was published in the year 1962 vide Ext.E in the name of Damodar Pattnaik as sikkim tenant. Damodar surrendered Ac.0.18 dec. of land in favour of the deity. Thus the deity became the owner of the property. Defendant no.1 as the marfatdar of the deity leased out an area Ac.0.18 dec. of land to defendant nos.2 to 6 on 17.11.1980 vide Ext.C. The rest portion of the suit 3 property was in possession of Sri Jagadananda Pattnaik and others, legal heirs of Damodar Pattnaik.
4. Stemming on the pleadings of the parties, learned trial court struck as many as eight issues. Both the parties led evidence, oral and documentary. Learned trial court decreed the suit holding that since the defendant no.1 had not challenged the order passed in the proceeding under Sec.145 Cr.P.C., vide Ext.8, nor successful in retrieving possession lawfully declared under the said provision in the subsequent suit, the plaintiff is deemed to be in possession of the suit land. There is no document to show that Ramachandra Chhotray transferred the suit land in favour of the father of the defendant no.1-Damodar Pattnaik. Ramachandra Chhotray was not the owner of the suit land. He was the marfatdar of the deity. The deity is the real owner. Thus the father of defendant no.1 cannot derive any title in respect of the suit land. The ROR, Ext.E, neither creates nor extinguishes title. The transfer of the suit land of the deity in favour of defendant no.2 is invalid and does not convey any title. It further held that the sikkim tenancy has been admitted to be heritable and transferable by custom for which the transfer by the original sikkim tenant is valid. As recovery of the suit land was not resorted to in accordance with law, title of both the landlord and the defendant stood extinguished by law of limitation. The unsuccessful defendants filed T.A. No.11 of 1983 before learned Subordinate Judge, Khurda. Learned appellate court held that the defendants admit that sikkim right was heritable by custom. The original sikkim tenant acquired such sikkim right by inheritance. Resultantly, the transfer by the sikkim tenant in favour of the vendor of the plaintiff was valid. Held so, it dismissed the appeal. It is apt to refer here that during pendency of the second appeal, the appellant no.1 died, whereafter the legal heirs have been substituted.
5. The second appeal was admitted on the following substantial question of law.
"Whether the conclusion of the lower appellate court on the question of adverse possession is justified ?"4
6. Mr. S.P. Mishra, learned Senior Advocate for the appellants, submitted that at the relevant time, when Ext.3 was executed in 1958, sikkim tenancy right was neither heritable not transferable, therefore, Giridhari, s/o-Nityananda Pattnaik, the so-called sikkim tenant nor his brother, Chaitanya Pattnaik had no right to sell the sikkim tenancy right in favour of Biswanath Ray. Biswanath was not a sikkim tenant. Biswanath had not acquired any sikkim right in respect of the property and thus, his vendors also had no saleable right. Consequently, the plaintiff, who claims to have purchased the land from Biswanath, could not have acquired any title as per Ext.5. The courts below proceeded with the assumption that even if the sale deeds are invalid in the eye of law, since possession has been given in favour of the plaintiff, by efflux of time, they have acquired title. The principle that 'if the owner of the property transfers the property by a RSD, and delivers possession and if the sale deed is proved to be void or invalid, from the date of the sale deed, the title becomes adverse and the purchaser can claim title by adverse possession, if he has completed his possession for more than the statutory period', is not application to the present case. The person who executed the sale deed was neither the owner of the property nor had saleable right and therefore, the intention to divest title does not arise. Sikkim tenant, who has admittedly offering and paying rent to the deity, cannot claim adverse possession, since the very offering of the rent is permissible possession in law. He further submitted that the finding of the courts below that the plaintiff has perfected title by adverse possession is absolutely misconceived and not sustainable in the eye of law. The suit for permanent injunction is not maintainable in the absence of declaration of title. He further submitted that the property belongs to the deity Siri Sri Brajabihari Dev, marfat Ramachandra Chhotray Mahapatra. Under Sec.69 of the Orissa Hindu Religious Endowment Act, 1951 ("OHRE Act") whenever the trustee or any religious institution is sued in any civil or revenue court in respect of any property belonging to or given, or endowed for the purpose of any religious institution, notice of such suit shall be given by the court concerned to the Commissioner, at least a month before commencement 5 of the hearing. In the absence of any notice, the suit should have been dismissed for non-compliance of the statutory requirements of law. He placed reliance on the decision of the apex Court in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. and others, AIR 2008 SC 2033 and the decisions of this Court in the case of Bhikhari Bhoi vs. Jagannath Mahapatra, 1961 (3) Ori.OJD-331, Biseswar Giri vs. Haraprasad Behera and others, AIR 1967 Ori.86 and Rama Chandra Sahu vs. Subhas Kumar Sinha and others, 107 (2009) CLT 210.
7. Per contra, Mr. R.K. Mohanty, learned Senior Advocate for the respondent, submitted that the substantial question of law framed is wholly inapplicable to the present case inasmuch as the impugned decree does not declare the plaintiff's title on the basis of adverse possession. Learned courts below in substance have come to a conclusion that the defendant no.1 was not in possession of the suit land. He has failed to recover possession within the statutory period for which he has lost his right by efflux of time. The order passed under Sec.145 Cr.P.C. is final and conclusive. The same is intended to be effective until the party in whose favour the order is made is evicted in due course of law. The plaintiff has not been dispossessed by following due process of law. On the contrary, pursuant to the proceeding under Sec.145 Cr.P.C., the defendant no.1 filed a civil suit which refused to retrieve possession from the plaintiff. The withdrawal of the case in the High Court could have saved the defendant no.1, but he failed to act upon the order of the High Court and consciously did not again move for recovery so that the consequence of the order under Sec.145 Cr.P.C. would have been mitigated. The title of the plaintiff is not under a cloud of suspicion. Thus the suit for permanent injunction is maintainable. The appeal does not involve any substantial question of law and liable to be dismissed. He placed reliance on the decision of the apex Court in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. and others, AIR 2008 SC 2033.
8. In Biseswar Giri, a contention was made that sikkim right is not heritable and transferable except by custom. This Court held that 6 under-raiyats constitute a class of tenants under Sec.4(3) of the Orissa Tenancy Act. The under-raiyat is a tenant holding whether immediately or mediately under raiyat. The rights and liabilities of under-raiyats are enumerated in Secs.56 and 57 of the Orissa Tenancy Act which constitute the entire Chap.VIII. Statutorily, under-raiyati rights are not heritable and transferable. The Act does not contain any specific provision conferring such rights as in the case of occupancy raiyats. Law is well settled that under-raiyati right is not heritable or transferable, except by proof of custom. Such rights existing on the basis of custom have been saved under Sec.237 of the Orissa Tenancy Act which says that 'nothing in this Act shall affect any custom, usage or customary right not inconsistent with, or not expressly or by necessary implication modified or abolished by, its provisions'. Thus, this Section protects under-rayati rights heritable or transferable by custom to continue as such. The section and illustration give legislative recognition to the well-established position of law that under-raiyati right is not heritable and transferable, except by proof of custom.
9. The same view has been taken in Bhikhari Bhoi. In the said case, there was no pleading that defendant nos.1 and 2 claimed that under-raiyati to be heritable and transferable. This Court negatived the plea of the defendants.
10. In Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. and others, AIR 2008 SC 2033, the apex Court held:
"11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
711.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."
11. Reverting to the facts of the case and keeping in view the law laid down in the decisions cited supra, this Court finds that in paragraph 3 of the plaint, it is stated that as per local custom, the sikkim right was heritable and transferable. Nityananda Pattnaik was the sikkim tenant in the settlement records of the years 1898 and 1913. After his death, his son, Giridhari Pattnaik along with the successors of Chaitanya Pattnaik transferred the suit land along with other lands to Biswanath Ray by means of a registered sale deed dated 12.5.58. Biswanth Ray was in possession over the suit property as a sikkim tenant. He alienated the suit land to the plaintiff by means of a registered sale deed dated 11.8.58. The said transfers were also duly accepted by Chintamoni Rautray, who was the marfatdar of the deity. Learned appellate court on scanning of the evidence of D.W.1 came to a conclusion that D.W.1 admitted that his natural father, Damodar Pattnaik, was the sikkim tenant in respect of the suit land till his death. After his death, his sons are continuing as sikkim tenants. Thus, the sikkim right is heritable. There is no perversity in the said finding.
12. Title of the plaintiff is not under a cloud of suspicion. The simple suit for permanent injunction is maintainable.
13. There is neither any pleading nor any evidence on record that the deity is a public deity. No issue was framed. Thus it is too late on the 8 day to contend that the provision contained under Sec.69 of the OHRE Act was not complied with, moreso when the defendant no.1 had leased out an area of Ac.0.18 dec. of land to defendant nos.2 to 6 vide Ext.C without obtaining prior permission from the Commissioner of Endowment.
14. Both the courts came to a conclusion that sikkim right is heritable and transferable by custom. The plaintiff has title over the suit property. Thus the finding of the courts below with regard to adverse possession is that the plaintiff has perfected title by way of adverse possession is of no consequence. The substantial question of law is answered accordingly.
15. Resultantly, the appeal fails and is dismissed. There shall be no order as to costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 10th July, 2019/Basanta