Orissa High Court
Natabar Behera vs Batakrushna Das on 23 August, 1999
Equivalent citations: 1999(II)OLR319
JUDGMENT D.M. Patnaik, J.
1. This second appeal is at the instance of the plaintiff against a reversing judgment of the lower appellate Court dismissing the plaintiff's suit for declaration of title, recovery of possession and injunction.
2. Plaintiff's case is, one Mahanta Jagannath Das, Marfatdar of the deity Gopal Jew Thakur, executed an unregistered permanent lease deed on 17.1.1937 in favour of the plaintiff who was then a minor, but represented by his father-guardian Ganesh and delivered possession. The plaintiff's father possessed the land as a permanent lessee on payment of Rs. 10/- as the rent per year. The defendant claimed both title and possession in respect of the very same land on the basis of another permanent registered lease deed executed by the said Mahanta on 26.1.1942. It is the case of the defendant that he also took possession of the same land. When dispute arose relating to possession, at the instance of the defendant a proceeding Under Section 144, Cr. P.C. was initiated which was ultimately converted to a proceeding Under Section 145, Cr. P.C. vide Criminal Misc. Case No. 189/67 which was subsequently dropped. It is claimed by the plaintiff that the defendant being the brother of the present Mahanta Shri Basudev Das and being a Police Inspector on the basis of false police reports managed to initiate another proceeding Under Section 144, Cr. P.C, vide Criminal Misc. Case No. 334/69 which ultimately went in his favour for which the plaintiff was constrained to file the suit.
3. The lower Court held that the permanent lease deed dated 17.1.1937 in favour of the plaintiff was a valid one and he was in possession of the land in question. Secondly, the lease deed dated 26.1.1942 in favour of the defendant, though registered, was an invalid one, in the absence of prior sanction of the Endowment Commissioner as required Under Section 19 of the Orissa Hindu Religious Endowments Act, 1939. The lower appellate Court reversed both the findings, the correctness of which is challenged in this appeal.
4. Mr. R.K. Mohapatra, learned counsel for the appellant strenuously urged that the lower appellate Court committed gross error in not holding that the lease deed (Ext.F) executed in favour of the defendant was invalid in absence of prior sanction Under Section 19 of the O.H.R.E. Act. With regard to the fact of possession, the learned counsel further stated that there was nothing to disbelieve the evidence of the P.Ws. who were competent witnesses to speak of possession. Further, he argued that even though the lower Court discarded the rent receipts Exts. 1/G.to 1/N the same having been disputed and not proved, yet should have accepted the rent receipts Exts. 1 to 1/F which were certainly corroborative evidence regarding possession.
5. Mr. N. K. Misra, learned counsel for the defendant-respondent on the other hand, has supported the judgment of the lower appellate Court.
Respective contentions be examined.
6. There is no dispute with regard to identity of the disputed land which is indicated as 'B' schedule property in the plaint. The same measures total Ac. 0.80 decimals comprising of two areas, such as Ac.0.43 decimals under Niz-Dakhal Khata No. 22 bearing plot Nos. 1502 and 1506, and another land relating to Bazyafti Sthitiban Khata No. 357 bearing Plot Nos. 1504 and 1505 measuring Ac. 0.037 decimals of Mouza Bakhrabad. Cuttack town. It is also not disputed that Mahanta Jagannath Das was the Marfatdar of the deity and that he was succeeded by the present Mahanta Basudev Das and defendant No. 1 is the brother of the said Mahanta.
7. In the present case, there are two lease deeds. The first one is of the year 1937 and is an unregistered one in favour of the plaintiff and the other one is of the year 1942 registered in favour of the defendant. Admittedly, there is no prior permission of the Endowment Commissioner Under Section 19 of the Orissa Hindu Religious Endowments Act for creating a lease exceeding five years as in the present case.
The lower Court relying on the cases of Mt. Ugni and Anr. v. Chowa Mahto and Ors., AIR 1968 Pat. 302: Chini alias Chain Mahanta v. Ram Chandra Bej and Anr., 36 (1970) CLT 924: and Muralidhar Kulthia v. Smt. Tara Dye, AIR 1953 Cal. 349, held that even though the lease deed, Ext. 2 in favour of the plaintiff is not a registered document and could not by itself create title with the plaintiff as a lessee, yet the plaintiff was permitted to show that he obtained a Rayati interest on the strength of his actual possession and acceptance of rent by the land owner. In other words, the lower Court rightly held that an unregistered document would be admissible in evidence for any collateral purpose and such collateral purpose in the present case was the nature of possession and payment of rent. Keeping this above proposition in mind, after analysing the evidence of the witnesses the Court accepted the version of the P.Ws. as true. It particularly relied on the evidence of P.W. 3, the Gumasta who was working under Mahanta at the relevant time.
Though the defendant challenged the genuineness of the lease deed. Ext. 2, the Court rightly held that the defendant failed to prove that the document was a fabricated one. The defendant also challenged the genuineness of the rent receipts accepted by the Mahant in favour of the plaintiff and those are Exts. 1/G to 1/N. Because of this dispute, the documents and the rent receipts Exts. 1/G and 1/N were sent to the Handwriting Expert who examined them and opined that they not in the Handwriting of the Mahant. The lower Court accepted these writings of the Mahant as genuine giving a reason that the disputed writings/signatures and the admitted signatures of the Mahant, Exts. A to E were not contemporaneous handwritings and the Court relied on the authority of the writer Abborn that unless the disputed writings were compared with the contemporaneous admitted writing there cannot be a definite conclusion whether the same is a traced forgery or not. This is the correct approach by the lower Court in judging the traced forgery of a document when so alleged. Considering this the Court held that the rent receipts granted by the Mahant in favour of the plaintiff were genuine.
9. The lower appellate Court, on the other hand, reversed the findings the correctness or otherwise of which is judged in the following manner.
10. The lower Court held that the Ext. 2 is the lease deed in favour of the plaintiff was a genuine one since the defendant who challenged the same to be a fabricated one should have sent it for opinion of the expert. Such a finding cannot be said to be incorrect since burden of proving a document as fabricated or forged is on the person who alleges this fact. The lower appellate Court, so far as Ext. 2 is concerned, was wrong in holding that since the plaintiff had brought the suit the burden of proving was on the plaintiff to establish his case. By observing this the lower appellate Court forgot that the burden of proving that a particular document was a forged one was on the person who alleges such forgery.
11. So far as the finding of the lower Court with regard to rent receipts to be genuine is concerned, the lower appellate Court did not accept this stating that once the lower Court itself observed that it was a lapse on the side of the plaintiff not to take steps for examining and cross-examining the expert as a witness, on the same breath it should not have held that the opinion of expert was not acceptable, since on a factual comparison made by him, he found the disputed writing to be genuine. This reasoning of the appellate Court is disposed of as follows.
The plaintiff relied on the rent receipts Exts. 1 to 1/N. The rent receipts Exts. 1/G to 1/N were sent to the Handwriting Expert for comparison. Therefore, rest of the rent receipts i.e. Exts. 1/A to 1/F certainly were not disputed as is clear from the judgment. The lower appellate Court has not said anything about their rejection. Therefore those rent receipts assuming other receipts were not proved, themselves proved that the plaintiff was paying rent and this is notwithstanding the fact that the lower appellate Court did not accept the Court's finding that the rent receipts Exts. 1/G to 1/N were genuine.
I am not able to accept the reason given by the lower appellate Court in differing from the finding of the lower Court with regard to the genuineness of the rent receipts since admittedly the writings which were sent for examination i.e. both disputed and admitted signatures which were sent to the Handwriting Expert were not contemporaneous. The finding of the lower appellate Court in this regard is therefore set aside
12. As regards possession of the land in question, the lower Court accepted the evidence of P.W. 1 who was an adjacent house-owner and who categorically stated that there was a boundary wall made of bricks on the north-west and south-east of the suit land and that the plaintiff was in possession of the same which he had been seeing since attending his age of discretion and that plaintiff used to carry business in fuel and fish in a Chalia thereon. The lower Court also relied on the evidence of P.W. 3 who was admittedly Gumasta of the Math from 1936 to 1966. This witness also proved the lease deed and the rent receipts as well as possession of the plaintiff. He seems to be competent and natural witness and I do not think that the lower Court committed any error in accepting the evidence of P.W. 3. The only thing the lower appellate Court observed that the evidence of P.W. 3 should not have been accepted by the lower Court since admittedly the present Mahant who is the brother of the defendant had filed a suit against P.W. 3 for which the latter was enemically disposed of towards the defendant. The lower Court has correctly held that this was not a sufficient ground to discard the evidence of P.W. 3, a competent witness.
13. The lower Court accepted the evidence of P.W. 4 with regard to construction of the compound wall by the plaintiff. P.W. 4 was a mason. The lower Court found the witness corroborating the plaintiff's evidence with regard to possession. The Court also found that nothing substantial has been elicited from his cross-examination to impeach his credibility. Dealing with the evidence of this P.W. 4 the lower appellate Court held that it was the plaintiff's father who had engaged the mason to raise the compound wall around the suit land and therefore in such circumstance the plaintiff should have examined his father at least on commission. This is a reason wholly unacceptable to me because the competency and reliability of the version of a witness is judged with regard to his knowledge of fact which he disposes in Court. If a particular witness is competent to depose a fact, his version should not be discarded merely because at one point of time he worked for the person for whom he speaks. There must be some material to show his interestedness. If the lower Court relied on the evidence of the mason who constructed the compound wall at the instance of the plaintiff, his evidence should not have been discarded merely because he was so engaged by plaintiff's father and not by the plaintiff himself. Therefore, the lower Court committed no error in relying on the evidence of P.W. 4.
14. The lower Court also held that in the absence of the prior permission of the Endowment Commissioner the lease deed of the year 1942 in favour of the defendant was invalid.
The lower appellate Court in para-17 of the judgment accepted this position but reversed the finding with the reason that in the absence of the Math and the Endowment Commissioner as party to the suit it would be 'hard to hold' that the required sanction had not been secured by the trustee at the time of execution of Ext. F. This reasoning is wholly unacceptable to me. The document does not convey any title whatsoever being invalid in the eye of law.
15. Mr. Mishra, learned counsel for the respondent, strenuously urged that even assuming that Ext.F., lease deed, in favour of the defendant was invalid because of absence of prior permission of the Endowment Commissioner, yet defendant acquired title by way of adverse possession.
This contention of Mr. Mishra cannot be accepted because it is not the case of the defendant that he at any time denied the title of the landlord and when it is his case that he was paying rent to the Mahant/ Math, question of denying the title of Mahant as the landlord cannot be accepted. Adverse possession means hostile annimus to the title as well as the possession of the owner of the land. Once such a case is pleaded, question of adverse possession would not arise. However, to make' it clear it may be noted that he might acquire title of tenant by way of adverse possession if he continues to possess the land adversely for more than statutory period without payment of rents and this is not the case of the defendant.
That apart, D.W. 1 claims to be Gumasta of the Mahanta since 1934. He stated that Mahanta Jagannath Das expired on 4.10.1965 and on 13.6.1966 Banambar Das the present Mahant gave him a power of attorney. In para-2 of the examination-in-chief he stated that Mahanta Jagannath Das executed registered deed, Ext. F. and it was scribed by Trilochan Das and D.W. 1 was also present and two persons Gopal Chandra Kanungo and Sarbeswar Patnaik were the attesting witnesses. Mahadev Swain was the store-keeper. This witness did not say anything about delivery of possession given to defendant either on the date of execution of Ext. F or thereafter. He merely stated that defendant was in possession of the suit land and plaintiff never raised any objection.
Defendant was examined as D.W. 2. In para-2 he stated that after taking the lease in 1942 he raised a Chalia. This statement obviously is with regard to taking possession of the land. He also stated that Mahanta after executing the lease-deed delivered possession to him. This delivery of possession was all the more necessary since prior to that the plaintiff was in possession on the basis of lease-deed (Ext. 2)and this possession of the plaintiff has been found by the lower Court and lower appellate Court has not reversed this finding so far as possession of plaintiff from 1937 to at least 1942 is concerned. Therefore, it was incumbent on the part of the defendant to prove that even though lease deed in his favour was invalid in the eye of law, yet he possessed the same in his own right.
D.W. 3 was the brother of the Mahadev Swain who only proved the signature of Mahadev Swain and he did not state anything about defendant taking delivery of possession from the Mahant.
D.W. 4 merely stated to have seen the defendant to be in possession of the land since his attending the age of discretion. Therefore, he is also not competent to state when defendant delivered possession.
D.W. 5 in para-2 of the examination-in-chief merely stated that the defendant was in possession of the suit land which he saw since last 40 years. He also stated that defendant built a house, whereas it is the evidence of the defendant that he started possessing the land by constructing a Chalia.
Thus, there is no evidence with regard to the defendant at any time taking delivery of possession of the land in question. Mere payment of municipal taxes on land revenue without any corroborative evidence with regard to possession would not be sufficient material to hold that the defendant was in possession.
On an analysis of evidence of the witnesses for the plaintiff and the defendant, I agree with the finding of the lower Court that the evidence with regard to possession of the plaintiff is found to be acceptable than that of defendant.
16. The rest part of the judgment of the lower appellate Court is found all to be with innocuous reasoning in disturbing the clear-cut finding of the lower Court with regard to payment of rent by the plaintiff as well as the plaintiff's possession at the initial point of time and subsequently thereto.
No other substantial question being raised, the appeal succeeds.
17. In the result, the appeal is allowed. The lower appellate Court's judgment is set aside and that of the lower Court is confirmed. No cost.