Orissa High Court
Akhandalmani Mahadev And Ors. vs Dayanidhi Alias Daitari Mulia (Dead) ... on 27 September, 2002
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. Defendants 1, 2, 4, 4(a), 4(b), 4(c), 4(d), 5(ka), 5(kha), 8, 11 and 13 are the appellants in Second Appeal No. 194 of 1986 and rest of the defendants are the appellants in Second Appeal No. 234 of 1986. Both the appeals have been filed against a reversing judgment.
2. The suit out of which these appeals arise was filed for declaration that the plaintiff is the owner in possession of the suit land and the defendants have no right, title, interest or possession over the same except to realise rent from the plaintiff, for confirmation of possession and for permanent injunction restraining the defendants from, interfering with the possession of the plaintiff.
3. The respondent No. 1 who is the plaintiff pleaded that the suit schedule property is a residential Gharbari land with a well therein which originally belonged to the recorded tenant Sadhabi Bewa, widow of Ram Swain who was occupying the same as a Darpattadar under Khata No. 898 belonging to the Pattadar, Raghunath Sen and rent was being paid to the said Pattadar. The said Sadhabi Bewa for her legal necessities sold the suit schedule property to Birabar Mohapatra under a registered deed of sale dated 14.1.1925 and put him in possession. After purchasing the land Birabar Mohapatra remained in possession of the property and mutated the land in his name and was paying rent and taxes to the Municipality. After death of Birabara Mohapatra his son Jaikrishna Mohapatra came into possession of the said land and for legal necessities sold the same to the plaintiff under a registered deed of sale dated 26.7.51 and put the plaintiff in possession of the property. The disputed land is adjacent to the homestead of the plaintiff and he started staying in the residential holding standing thereon. After the said residential holding collapsed, the plaintiff only remained in possession of the land. It is further alleged in the plaint that the landlord Pattadar demanded exorbitant and illegal mutation fee to which the plaintiff did not agree whereafter a demand notice was served on him in December, 1952 demanding Khas possession of the disputed property. The plaintiff replied to such Advocate's notice issued by the Pattadar and since the Pattadar started refusing to accept the rent sent by money order, he deposited the same in the Collectorate. It is also alleged in the plaint that defendants 1 to 8 are influential persons of the locality and the plaintiff was asked by them to sell a portion of the same for the use of the defendant No. 1. Since the plaintiff did not agree, the aforesaid defendants prevailed upon the landlord Pattadar Raghunath Sen and got a registered deed of gift executed in their favour as Marfatdars of defendant No. 1 on 22.7.1957 in respect of certain undisputed property and purposefully included the disputed property in the deed showing the same to be under Khas possession of the Pattadar. Thereafter, the plaintiff approached the defendants to accept rent from him and after deferring the proposal for some time the defendant No. 8 the de facto Managing Trustee and Sebayat Marfatdar Trustee of the deity accepted the rent on behalf of the deity. When the matter stood thus, the defendant No. 3 again approached the plaintiff for purchasing a portion of the disputed land for use of the deity and when the plaintiff refused, the defendants 2 and 4 to 6 initiated a proceeding under Section 144, Cr.P.C. and obtained an ex parte order on 20.12.58 restraining the plaintiff from going upon the disputed land. In view of the orders passed in the 144 proceeding, the plaintiff had to file the suit claiming the reliefs as aforesaid.
4. Defendants 1 to 7 filed one set of written statement whereas the defendants 9 to 13 filed written statement separately. Before filing of the written statement some of the parties were impleaded on death of some parties and their legal heirs were substituted. However, in the written statement of defendants 1, 2, 3, 4(a), 5(Kha) and 6 the plaint averments were denied. According to the aforesaid defendants, Birabar Mohapatra was the Darpattadar in respect of the homestead land appertaining to plot No. 1649 measuring an area of 40 decimals and Raghunath Sen is the Pattadar in respect of the said plot. Birabar purchased the Darpattadari interest from one Sadhabi Bewa who was recorded as Darpattadar in respect of the suit plot. After purchase, the plaintiff got his name mutated in the Zamindar's sherista as well as in the municipal papers. A kutcha house was standing on the suit land and Birabar used to stay there. Two to three years prior to his death, Birabar went to his village and thereafter the said kutcha house got damaged and ultimately collapsed. Since no one possessed the disputed property after Birbar's death in his village, Raghunath Sen took over possession of the land. It is further contended on behalf of the said defendants that another plot of land situated to the west of the suit land bearing plot No. 1651 extending to an area of Ac. 0.054 decimals belonged to Raghunath Panda who was also recorded as a Darpattadar. The Pattadar Raghunath Sen took delivery of Khas possession of the said plot of land after obtaining a decree for eviction and thus remained in possession of the disputed land plot No. 1650 as well as 1651. The pattadar intended to build a temple for the deity on plot No. 1650 and further intended that Chitrakars of Haripur should take leading part in the management of the deity. Respecting the intention of the Pattadar, a registered agreement was executed by the Chitrakars on 8.12.30 and a temple was constructed by collecting subscription and deity Radha Gobinda Jew was installed therein and the Chitrakars of Haripur village took over management of the temple and Sevapuja of the deity. On 24.4.45 the Pattadar Raghunath Sen executed a registered deed of gift in respect of plot No. 1650 in favour of the deity through Marfatdar Charu Chandra Sen (defendant No. 3) and others. Sometimes thereafter, the Marfatdar and the villagers wanted to install the deity Akhandalamani Mahadeb on the land appertaining to plot No. 1651 which is adjacent to plot No. 1650. The Pattadar also executed a registered gift deed on 22.7.57 in respect of the suit plot in favour of the Chitrakar's community. After the gift deed was executed a pucca temple has been constructed and some thatched rooms standing on a part of the two plots were temporarily leased out to tenants on payment of rent. It is specifically pleaded by the said defendants that after death of Birabar neither his son Jaikrishna, the vendor of the plaintiff nor the plaintiff ever possessed the suit land.
5. Defendants 9 to 13 filed a written statement but did not participate in the suit and according to them, the defendant No. 1 is the deity of the Chitrakars of village Haripur and is a public deity. According to them, defendant No. 8 had no right either to induct the plaintiff as a tenant or to realise rent from him. Their plea is that Dinabandhu being a personal friend of the plaintiff, granted him a receipt for mutating his name whereas he had no power to act as the trustee exclusively nor he had been authorised to act as a trustee on behalf of other members.
6. On the pleadings of the parties, the learned First Addl. Munsif, Cuttack framed eleven issues and while answering the issues referring to the evidence led by the parties came to a conclusion that the plaintiff's a suit is to be dismissed and accordingly dismissed the same. The suit was dismissed on the following findings :
(a) No consideration passed under the sale deed (Ext. 3) executed in favour of the plaintiff and it is a suspicious document and it was not executed in good faith and is not genuine.
(b) There was no house on the suit land prior to 1946-47, as proved by the Municipal records.
(c) The sale deed (Ext. 3) was not meant to be acted upon and there was no mutation in the Municipal office (Ext. 15) or in the Pattadar's records and the explanation of the plaintiff or his vendor in not mutating their names is not acceptable and no consent of the Pattadar was taken before the sale deed was executed.
(d) Due to relinquishment-cum-abandonment of the suit land, Pattadar Raghunath took Khas possession of the suit land which was lying follow.
7. Against the aforesaid judgment and decree of the learned First Addl. Munsif, the plaintiff filed Title Appeal No. 154 of 1974 before the lower appellate Court. The said appeal was allowed without reversing the basic finding of the trial Court. Thereafter, the parties challenged the said judgment and decree in two separate second appeals i.e., Second Appeal No. 21 of 1978 and Second Appeal No. 35 of 1978. Both the appeals were heard together and the matter was remanded to the lower appellate Court for fresh disposal and a direction was given to the lower appellate Court to find out whether necessary pleadings were there in respect of the case so far as it relates to Section 236 of the Orissa Tenancy Act in terms of the decision rendered by this Court reported in AIR 1977 Orissa 194. The lower appellate Court after remand again allowed the appeal which is impugned before this Court in the present Second Appeals with the following findings :
(1) No specific provision has been made under the Orissa Tenancy Act as to what would be the right of the recorded Darpattadar in respect of the land in his possession.
(2) To me, the relationship between Raghunath Sen and Sadhabi Bewa was lesser and lessee with respect to the suit property and after purchase from Sadhabi Bewa, Birabar was recognised as a lessee.
8. At the time of admission, Second Appeal No. 194 of 1986 was admitted on the following substantial questions of law as enumerated in ground Nos. 'A', 'B', 'F' and 'G' of the memo of appeal and the same are quoted below :
"(A) Whether the learned lower appellate Court was correct in law to hold that the plaintiff was Darpattadar being transferee from the son of another Darpattadar, otherwise than under Section 236(1) of the Orissa Tenancy Act, as amended in the amending Act 1946 ? To illustrate further, could a person become a Darpattadar when Darpattadari right is not heritable or transferable when Darpattadar died before 1946 Amendment Act came into force ?
(B) Whether without pleadings and in utter violation of Order 6, Rule 2 of the Code of Civil Procedure a third case could be made out that Jaikrishna was a lessee under Raghunath Sen without answering the crucial point as to how Jaikrishna acquired lessee's right on the death of Birabar. To illustrate further the law is well-settled that Darpattadari right is neither heritable nor transferable. Consequently, Birabar who might be a Darpattadar, but failing the provisions of Section 236(1) of the Orissa Tenancy Act as amended, there is no other provision in law to hold that his son Jaikrishna would also become Darpattadar ?
(F) Whether the learned lower appellate Court was entitled under law to set aside a finding arrived at by the learned trial Court after detailed discussions merely stating that he disbelieved the evidence of D.Ws. and believed the evidence of plaintiff's witnesses ?
(G) Whether the decision of the learned lower appellate Court was correct in view of his own finding that the plaintiff has failed to plead and prove the possession over the suit land by Birabar and that after Birabar, Jaikrishna was entitled to remain on the suit land."
9. In Second Appeal No. 234 of 1986 this Court at the time of admission formulated the following substantial questions of law as enumerated in ground Nos. 'A', 'B', 'C' and 'D' of the memo of appeal and the same are quoted below :
"(A) For that the learned lower appellate Court after having rightly held that Birabar the purchaser of the Darpattadari interest from Sadhabi Bewa had not acquired occupancy right over the suit land under Section 236; Orissa Tenancy Act committed a serious error of law in holding that Darpattadar interest is transferable as an ordinary lease hold interest renewed from year to year ignoring the well settled position of law that Dapattadari interest or any other under rayati interest is neither heritable nor transferable without there being well established custom to that effect which has to be specifically pleaded and strictly proved and since admittedly the plaintiff (Respondent No. 1) had not pleaded or proved any such custom, the learned lower appellate Court should have held that after the death of Birabar, suit land was not legally inheritted by his son Jayakrishna who had therefore no transferable title or interest in respect of the same and further the transfer by him to the plaintiff under Ext. 3 is illegal and void and did not convey any title or interest to the plaintiff.
(B) For that the learned lower appellate Court committed a serious error of law in discarding the defence case that Birabar had surrendered and/or abandoned and that thereafter the Pattadar Raghunath Sen had entered into possession in the erroneous legal ground that there is no document evidencing the said surrender on abandonment ignoring the well settled position of law that the surrender or abandonment does not require a document to be effective.
(C) For that the learned lower appellate Court committed a serious error of law and record in holding that there is no pleading in the written statement even though there is specific pleading therein that neither Birabar nor her son ever reside with his family at his village Adhangha and that some two to three years before his death the Kutcha house on the suit land collapsed after which the land was lying fallow and thereafter the Pattadar Raghunath Sen took Khas possession thereof.
(D) For that the learned lower appellate Court committed a serious error of law and procedure in making out a new case for the plaintiff that Birabar was a lessee under the provisions of Transfer of Property Act although there is no such pleading in the plaint."
10. Referring to the substantial questions of law formulated by this Court, Shri Pal, learned Senior Advocate for the appellants in one appeal and Shri B. Routray, learned counsel appearing for the appellants in the other appeal contended that the plaintiff claimed to be a Darpattadar being a transferee from the son of another Darpattadar and such Darpattadari rights are neither heritable no transferable, the Darpattadar having died prior to 1946, and the suit filed on such basis should have been dismissed. It was also contended that even though the plaintiff's case is that he had purchased the suit land from a Darpattadar, the lower appellate Court misdirected itself and went into the question as to whether the father of the vendor of the plaintiff was a lessee or not. It was also contended by the learned counsel for the appellants that the lower appellate Court without looking into the material evidence available on record relevant for the purpose of the case made out a third case in favour of the plaintiff and, therefore, was not correct in its approach.
11. Shri Patnaik, learned counsel for the contesting respondents on the other hand, submitted that the father of the vendor of the plaintiff was a Darpattadar in respect of the suit land and after his death, Jaikrishna, the vendor of the plaintiff became the Darpattadar. As Darpattadar, Jaiakrishna had full authority to sale the land in favour of the plaintiff and Jaiakrishna having attained the status of permanent tenant under the Orissa Tenancy Act, such transfer in favour of the plaintiff by Jaiakrishna cannot be challenged. The learned counsel also submitted that during pendency of the appeals before this Court some of the respondents expired and no step for substitution having been taken, the appeals abated.
12. In order to appreciate the submissions made by the learned counsel for the parties and the substantial questions of law on which the appeals have been admitted, I think it is necessary to refer to some of the pleadings of the parties. The specific case of the plaintiff is that the schedule property is a residential Gharabari land with a well therein which originally belonged to the recorded tenant Sadhabi Bewa, the widow of Ram Swain, who was residing there as a Darpattadar, Raghunath Sen being the Pattadar thereof. The further case of the plaintiff is that Sadhabi Bewa being in urgent need of money sold the same to Birabar Mohapatra under a registered deed of sale dated 14.1.1925. After death of Birabar who continued to have the status of Darpattadar, his son Jaiakrishna stepped into his shoes and sold the property to the plaintiff on 26.7,1951 for legal necessities. Therefore, the case of the plaintiff as it appears from the pleadings of the plaint that Raghunath Sen was the Pattadar in respect of the suit land and one Sadhabi Bewa was the Darpattadar. The Darpattadari interest of Sadhabi Bewa was purchased by Birabar Mohapatra and after his death, his son Jaikrishna came into possession and remained as Darpattadar. Such darpattadari right was again sold by Jaikrishna Mohapatra in favour of the plaintiff in the year 1951. From the pleadings of the defendants in the written statement it appears that there is no dispute about the fact that Raghunath Sen was the Pattadar in respect of the suit land. The case of the defendants-appellants is that Raghunath Sen was the Pattadar in respect of the suit plot No. 1649 as well as the plot Nos. 1651 and 1650 in mouza Rahusahupatna. So far as plot No. 1651 is concerned, it is alleged that Raghunath Sen was in Khas possession all throughout and in respect of plot No. 1650 one Raghunath Panda was the recorded Darpattadar and the said plot was taken back by the Pattadar Raghunath Sen by virtue of a decree for eviction against the said Raghunath Panda. So far as the land purchased by the plaintiff i.e. plot No. 1649 is concerned, Sadhabi Bewa was the Darpattadar who transferred her interest to one Birabar Mohapatra. Two to three years prior to his death Birabar Mohapatra shifted to his village and the Kutcha house standing on the said land collapsed. Since no one was occupying the said land after Birabar left for his village, the Pattadar Raghunath Sen took Khas possession on thereof and by virtue of a gift deed the defendants came into possession of the said plot. With the above background, it is to be seen as to whether the parties will be governed by the Orissa Tenancy Act or by Transfer of Property Act. In this connection, reference may be made to a decision of this Court in the case of Batakrushna Sahu and Ors. v. Kunja Behari Sahu, reported in 20 (1954) CLT 373. In the aforesaid decision this Court held as follows :
"It is true that the mere entry of the status of a person as that of a 'pattadar' or 'darpattadar' is not conclusive on the question as to whether he will be governed by the provisions of the Orissa Tenancy Act or by those of the T. P. Act and it is always open to a Court on the evidence adduced by the parties to hold that he comes within one of the classes of tenants as defined in Section 4(3) of the Act and is consequently governed by the provisions of that Act. But where there is clear evidence to show the land was used for residential purpose and for agricultural purpose and there is no evidence to show the purpose for which the land was originally let out and where during the last settlement the settlement authorities after careful enquiries did not recognise the land as a chandna holding it is idle to contend that the provisions of the Orissa Tenancy Act would apply.
13. In view of the guidelines laid down by this Court, it becomes necessary to look into the evidence adduced by the parties before the trial Court. The plaintiff examined himself as P.W. 5 in the suit. Though in examination in-chief he said that they had a house on the suit land, in cross-examination he has admitted that after death of Birabar he has not paid holding tax to the Municipality in respect of the house claimed to be standing thereon and he was not able to say who was paying the municipal holding tax. He was also not in a position to say for what period the holding tax had been paid and has only said that his father had paid the municipal tax till 1942. He has also admitted in his evidence that in the year 1946 Birabar was removed to his village due to his illness and he died there and that he had not taken any step to get his name recorded in respect of the suit land after death of his father Birabar in the Municipal record. In view of such evidence adduced by the plaintiff himself, it can safely be said that there was no house standing on the plot after 1942. Had there been any house standing on the suit land, the holding tax would have been paid to the Municipality and receipt produced before the trial Court. From the aforesaid evidence, it is clear that the land was being used for the residential purpose up to the year 1942 though there is no evidence to show the purpose for which the land was originally let out. Shri Patnaik, the learned counsel appearing for the respondents in this connection submitted that Section 236 of the Orissa Tenancy Act has also application to homestead land. The provisions contained in the said Section is quoted below ;
"(1) When a raiyat holds his homestead otherwise than as part of his holding as a raiyat, the incidence of his tenancy of the homestead shall be regulated by local custom or usage, and applicable to land held by a raiyat.
(2) Save as otherwise expressly provided in this Act, the incidence of the tenancy of a chandnadar shall be liable to re-assessment on each, revision of a land revenue settlement."
14. Even accepting the contention of the learned counsel Shri Patnaik under no stretch of imagination Jaikrishna and Birabar Mohapatra can be held as raiyats as defined in Section 4 of the Act. They can only be termed as under raiyats. In this connection, another decision of this Court in the case of Bisweswar Giri v. Haraprasad Behera and Ors. reported in AIR 1967 Orissa 86 may be referred to. In the said decision this Court held that under-raiyats constitute a class of tenants under Section 4(3) of the Act. The under-raiyat is a tenant holding whether immediately or mediately under raiyat. The rights and liabilities of under-raiyats are enumerated in Sections 56 and 57 of the Act which constitute the entire Chapter VIII. Statutorily under-raiyati rights are not heritable and transferable and the Act does not contain any specific provision conferring such rights as in the case of occupancy raiyats. Therefore, even if the argument advanced by Shri Patnaik is accepted, in my view, Sadhabi Bewa can only be termed as under-raiyat and therefore had no right to transferthe land in favour of Birabar Mohapatra. Consequently, his son Jaikrishna had also no right to transfer the same in favour of the plaintiff. Another decision of this Court reported in 3 (1937) CLT 67 in the case of Madhusudan Swain v. Durga Prasad Bhagat and Ors. may also be referred to. In the aforesaid decision, this Court laid down the principles on which the presumption may be available with regard to permanent tenancy. The Court while answering the said question observed as follows :
"The elements necessary to raise the presumption of permanency are :
(1) The origin of a tenancy for residential purpose must be unknown. (2) The existence of permanent building which need not necessarily be pucca, on the land built long before any controversy arises and to the knowledge of the landlord. (3) Uniform payment of rent.
(4) Recognition of succession and transfer by the landlord."
15. The Court further held that absence of either of the elements in (1) and (2) as stated above would be ordinarily fatal to any claim of permanency on the theory of lost grant. If the facts of the present case are analysed it will be clear that there is no existence of permanent building and in fact the evidence available on record can at best go to show that there was a kutcha house in the year 1942 long before the parties enterted into possession. There is also no evidence to show that there was payment of holding tax in respect of such a house standing on the land after 1942. I, therefore, agree with the learned counsel appearing for the appellants and hold that there being no evidence to show existence of such a house after 1942 or payment of holding tax in respect of the same the claim of the learned counsel for the respondents that Orissa Tenancy Act will be applicable has no basis. Even if as discussed above the contention of Shri Patnaik is accepted, Sadhabi Bewa can atleast be held as under-raiyat and in view of the principles rendered by this Court in case of Bisweswar Gin (supra) she had no right to transfer the property in favour of Birabar.
16. Though I am not required to discuss the evidence as a second appellate Court, I find that the lower appellate Court has completely misdirected himself and went into the question as to whether Sadhabi Bewa and thereafter Birabar Mohapatra were lessees in respect of the suit land or not. When the admitted case of the plaintiff is that Sadhabi Bewa was a Darpattadar under the Pattadar Raghunath Sen, there was no need for the lower appellate Court to go into the question as to whether Sadhabi Bewa was the lessee in respect of the suit land.
Since I find that the lower appellate Court has ignored some material and relevant evidence with regard to the question of abandonment, I am referring to the pleadings and the evidence which is permissible for a second appellate Court in view of the decision of the Apex Court in the case of Iswar Das Jain v.
Sohan Lal reported in AIR 2002 SC 426. In the written statement the specific plea is that in respect of the suit plot No. 1649 Sadhabi Bewa was a Darpattadar who transferred her interest to one Birabar Mahapatra. The said Birabar Mahapatra was a resident of Adhanga were he usually lived with his family. Some two to three years prior to his death the said kutcha house standing on the suit land collapsed and the land was lying fallow and the Pattadar Raghunath Sen took Khas possession thereof. In support of such pleadings, evidence has also been led from the side of the defendants. D.W. 2 in his evidence has stated that the possession of the land was taken by the Pattadar Raghunath Sen from Birabar Mohapatra. The said witness is the son of the Pattadar. D.W. 4 another witness examined on behalf of the defendants also supported such pleadings and said that Jaikrishna was never in possession of the suit land as claimed by the plaintiff. In view of such pleadings and evidence on record, I hold that after Birabar left for his village due to his illness, no body occupied the land and there was no house standing thereon. Raghunath Sen who was the Pattadar in respect of the suit land had taken Khas possession of the same and Jaikrishna was never in possession thereof at that point of time.
17. So far as question of abatement is concerned, it appears that defendant No. 1 Akhandalmani Mahadev is the deity who has been represented through Marfatdar villagers and the painters in whose favour a gift deed was executed by Raghunath Sen. Even though some of the defendants have expired and no substitution has taken place, not only defendant No. 1 is represented but also painters community has been represented. The Apex Court in the case of Collector of 24 Parganas and Ors. v. Lalith Mohan Mullick and Ors. reported in AIR 1988 SC. 2121 held that even if some of the defendants died during the pendency of the appeals, if their estates are sufficiently represented, abatement does not take place. In view of the observations made above, I hold that though some of the defendants expired during pendency of the appeal and no substitution has taken place, the deity and the painters community having been sufficiently represented, there shall be no abatement of the appeals.
18. At the time of hearing of the appeal, an application under Order 41, Rule 27(1)(b), CPC was filed by the plaintiff-respondent for adducing additional evidence. According to the said petition during pendency of the appeal the land has been recorded in the name of the plaintiff-respondent and therefore, the said document i.e., record of rights may be taken into consideration in the appeal to show that the plaintiff is the owner of the property. An objection has been filed on behalf of the appellants stating that such recording has been done by the settlement authorities on the basis of the judgment delivered by the lower appellate Court in favour of the plaintiff and, therefore, such recording is subject to the result of the second appeals and the same should not be accepted for consideration of the merits of the case. I agree with the learned counsel for the appellants that since the ROR produced before the Court along with the application is only on the basis of the judgment of the lower appellate Court which is subject matter of challenge before this Court in the second appeals, the same cannot be taken into consideration for the purpose of deciding the appeals.
19. In view of the discussions made above, both the appeals are allowed, the judgment and decree passed by the lower appellate Court are set aside and the judgment and decree of the trial Court are confirmed.