Orissa High Court
Purna Chandra Naik vs State Of Orissa on 11 August, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
S.A.No.109 of 2001
From a judgment and decree dated 21.10.2000 and 25.10.2000
respectively passed by Mr.K.B.Sahu, 2nd Additional District Judge,
Puri in T.A.No.8/105 of 1993/91 confirming the judgment and decree
dated 29.10.1991 and 11.11.1991 passed by the learned Sub-Judge,
Puri in T.S.No.147 of 1987.
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Purna Chandra Naik ....... Appellant
Versus
State of Orissa ....... Respondent
For Appellant -- Mr.S.K.Mishra, Advocate
For Respondent -- Mr.P.C.Panda, Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing: 3.8.2001 & Date of Judgment: 11.08.2017
Dr.A.K.RATH, J.This is a plaintiff's appeal against an affirming judgment.
2. An area of 25 acres of land appertaining to sabik khata no.298, sabik plot no.1654 of mouza Konarak is the subject matter of dispute. The case of the plaintiff is that the suit land originally belonged to ex-intermediaries, namely, Birabhadra Sahu, Banchaniddhi Sahu, Bansidhar Sahu, Loknath Sahu, Indrani Sahu, Satyabati Sahu, Padma Charan Sahu and Dibyasingh Sahu respectively. The ex-intermediaries executed an unregistered lease 2 deed on 22.2.1942 in favour of Nalu Naik, father of the plaintiff for a premium of Rs.500/-, and received full consideration. Possession was delivered to him. The annual rent of Rs.25/- was accepted. Thereafter his father had planted casurina and cashew-nut trees and enjoyed the usufructs. In the year 1953, the estate vested in the State. The ex-landlord submitted 'Jamanbandi' in his father's name whereafter the tenant's ledger was prepared. His father paid rent and cess from the year 1953 to 1961-62 and obtained receipt on 30.3.1962. His father died in the year 1976 leaving behind him. Thereafter he is in possession of the suit land. He had also planted casurina trees. When he offered rent to the local R.I., it was not accepted. He enquired into the same and came to know that during the preparation of the draft R.O.R., the name of the plaintiff had not been mentioned. Thereafter the local Range Officer threatened to dispossess him. With this factual scenario, he instituted Title Suit No.147 of 1987 in the court of the learned Civil Judge (Sr.Division), Puri for declaration of occupancy raiyat and permanent injunction.
3. The defendant entered appearance and filed a written statement denying the assertions made in the plaint. The case of the defendant is that the suit land belongs to the State. In the settlement operation, the land was recorded as Abada Jogya Anabadi. The report of the Amin reveals that the suit land was recorded under Rakhit khata as per the settlement record. The draft R.O.R. had been prepared in the name of the State. Neither the plaintiff, nor his father objected to the recording of the name of the defendant in the preliminary stages of settlement operation which started in the year 1962.
34. On the inter se pleadings of the parties, the learned trial court struck three issues. Both the parties led evidence, oral and documentary, to substantiate their case. The learned trial court held that the lease deed, Ext.1, is an unregistered document. The document does not confer any right of the plaintiff. The plaintiff has failed to establish that he is an occupancy tenant in respect of the suit land and that he has got right, title, interest and possession over the same. Held so, the learned trial court dismissed the suit. The unsuccessful plaintiff filed an appeal before the learned District Judge, which was subsequently transferred to the learned 2nd A.D.J., Puri and registered as Title Appeal No.8/105 of 1993/1991. The appeal was eventually dismissed.
5. The second appeal was admitted on the following substantial questions of law enumerated in ground no.6(A), (C) and (F) of the appeal memo. The same are :
"(A) When the lease vide Ext.A is for agricultural purpose and lease for agricultural purpose is not compulsorily registrable whether the learned courts below are justified in ignoring the admissibility of the said document while considering the tenancy right of the plaintiff's father.
(C) Whether the learned courts below have misconstrued in not holding that plaintiff's father is a settled raiyat by operation of law in view of Sec.24 read with Sec.16 of the Tenancy Act when his possession over the suit land on the basis of Ext.1 was more than 12 years.
(F) When law is well settled that even if the lease deed is an unregistered one, and is, therefore, inadmissible as evidence of title, it will be always open to the tenant concerned to show that he obtained raiyati interest on the strength of actual possession and acceptance of rent by the landlord and further when the plaintiff has proved 4 the lease deed through the evidence of P.W.3 and the rent receipts which were proved without objection and evidence of P.W.1 and 2 to prove his possession; thus establishing raiyati interest of the plaintiff;
Whether the conclusion of the courts below on Issue Nos.2 and 3 is perverse and whether the same is sustainable in law ?"
6. Mr.S.K.Mishra, learned Advocate for the appellant submitted that both the courts below have proceeded on the premises that the lease deed, vide Ext.1, was required to be compulsorily registered. The lease deed was for agricultural purpose. An agricultural lease can be created by acceptance of rent. Thus the lease deed was not required to be registered. Therefore non-registration of a lease deed for agricultural purpose will have no effect on the tenancy/occupancy right of a tenant. The finding of the courts below that Ext.1, being an unregistered one, is not admissible in evidence, is perverse and as such vitiates the judgment. He further submitted that father of the plaintiff was in possession of the suit land and used to pay rent to the ex-intermediaries as well as State. The same has been marked as exhibit without objection. The evidence of P.W.3 coupled with the lease deed and the rent receipt makes it crystal clear that father of the plaintiff became a settled raiyat by virtue of operation of Section 23 of the O.T.Act having been in possession in the land for more than 12 years. Therefore, father of the plaintiff has right of occupancy in view of operation of Section 24 of the O.T.Act. To buttress his submission, he relied on the decisions of this Court in the case of Nrusingha Charan Samal and another Vrs. Kuntala Kumari Samal and others, 2001 (I) OLR 208 and Manmohan Rout (and after him) Sundari Devi and others Vrs. State of Orissa an others,1992 (II) OLR 529.
57. Per contra, Mr.P.C.Panda, learned Additional Government Advocate submitted that a lease of immovable property from year to year, or for any term exceeding one year is required to be compulsorily registered as per Section 107 of the T.P.Act, 1882. In view of the embargo under Section 49(a) and (c) of the Registration Act, an unregistered document cannot be received as evidence. Therefore the unregistered lease under Ext.1 in inadmissible in evidence and cannot be relied upon. He further submitted that for declaration of occupancy right, a tenant is to first prove that he is a settled raiyat as per Sections 23 and 24 of Orissa Tenancy Act, 1913. The plaintiff has failed to prove that his father was a settled tenant of the village. Thus the suit has been rightly dismissed. He relied on the decisions of this Court in the case of Collector of Puri Vrs. Budhinath Samantray and another, 35 (1969) CLT 552 and Pitambar Champati Vrs. State, disposed of on 21.12.2016.
8. Before adverting to the contentions raised by the counsel for both the parties, it will be necessary to set out some provisions of the O.T.Act. Sub.sec (2) of Section 5 of the O.T.Act defines raiyat.
"Raiyat" means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family or by hired servants, or with the aid of partners, and includes also the successors-in-interest or persons who have acquired such a right. Section 23 defines the expression "Settled Raiyat". Section 24(1) provides that every person who being a settled raiyat of a village within the meaning of Section 23 held land as a raiyat in that village at any time between the tenth day of September, 1891 and the commencement of this Act, shall be deemed to have acquired a right of occupancy in that land under the law then in force; but nothing in 6 the sub-section shall effect any decree or order passed by a Court before the commencement of this Act.
9. In Ram Nath Mandal and others Vrs. Jojan Mandal and others, AIR 1964 Pat-1, the Full Bench of Patna held that under Section 117 of the T.P.Act, a lease for agricultural purposes is not necessary to be made by a written instrument and it may be effected by an oral agreement in which case the question of registration will not arise. However, if the transaction is reduced to writing, then in the case of a lease from year to year or for any term exceeding a year or reserving a yearly rent, registration would be required under Section 17 of the Registration Act, and if unregistered the lease will be inadmissible in evidence under Section 49 of the Registration Act and other evidence of its terms will be precluded under Section 91 of the Evidence Act. In that case, the claim of creation of tenancy on the basis of rent receipts in pursuance of an oral agreement was negatived on the ground that no such case had been put forward by the plaintiff in the plaint.
10. In Buddhiram Samantray (supra), the respondent filed the suit for a declaration of occupancy right. According to the plaintiff, defendant no.2 inducted him as a tenant under a lease for agricultural purposes and put him in possession of the properties by accepting premium of Rs.15,900/- on an annual rent of Rs.68/12/-. The plaintiff being a settled raiyat of the village claims to have acquired occupancy rights therein. Subsequently on the vesting of touzi in the state of Orissa under the provisions of the Orissa Estates Abolition Act, proceedings were initiated under Section 5(I) on 4.11.1957 by the Deputy Collector, who set aside the lease holding that the same had been granted subsequent to 1.1.1946 with the 7 object of defeating the provisions of the Act. The appeal filed by the plaintiff against the said order was dismissed. Thereafter he instituted a suit. Defendant no.2 resisted the claim of the plaintiff on the ground that the land vested in the State, that the plaintiff was not in possession of the suit land and that the lease in his favour was not genuine. The suit was decreed. It was held that right of occupancy is a creature of statute. A person entitled to get the declaration prayed for only if he proves that he has acquired the same in accordance with the statutory provisions i.e., Section 24 of the O.T.Act. To acquire a right of occupancy, it is incumbent to establish that he is a settled raiyat as defined under Section 23. The relationship between the landlord and tenant in respect of agricultural tenancy can be treated by acceptance of rent. It was further held that the plaintiff has not purported to base claim of tendency solely on the unregistered lease deed alleged to have been executed on 15.6.1945. The Full Bench of Patna High Court was distinguished on facts, since the plaintiff has not purported to base his claim on tenancy solely on the unregistered lease deed alleged to have been executed in his favour.
11. On perusal of the plaint, it is evident that the plaintiff has based his claim on the basis of an unregistered lease deed dated 22.2.1942 value of which was more than Rs.500/-. In view of the authoritative pronouncement of the Full Bench decision in the case of Ram Nath Mandal (supra), the same requires registration under Section 17 of the Registration Act. The suit property is a vast patch of forest land near seashore. There is neither pleading nor any evidence that the father of the plaintiff was a settled raiyat of village. The substantial questions of law are answered accordingly.
812. In Nrusingha Charan Samal (supra), this Court held that agricultural land can be leased out orally by acceptance of rent and delivery of possession. The hata pata even though unregistered can be taken to be a document evidencing such oral lease. But in the instant case, the plaintiff based his case on the basis of an unregistered leased deed. Thus, the case is distinguishable on facts. In Manmohan Rout (and after him) Sundari Devi and others (supra), this Court held that no document of lease is necessary for agricultural purposes. There is no quarrel over the proposition of law. As held above, the plaintiff based his case on the basis of an unregistered lease deed, value of which exceeds Rs.100/-. Thus, the decisions are distinguishable.
13. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 11th August, 2017/CRB 9