Back
HIGH COURT OF ORISSA
G. K. Misra, J.
BISESWAR GIRI - Appellant
Versus
HARAPRASAD BEHERA - Respondent
Second Appeal 141 Of 1964
Decided On : SEPTEMBER 14, 1966
HOMESTEAD - TRANSFERABILITY OF SIKIMI RIGHT - HERITABLE AND TRANSFERABLE BY CUSTOM - ONUS ON CLAIMANT TO PROVE - OCCUPANCY RIGHT - ORDINARILY RESIDES - NO FINDING - REMAND.
Fact of the Case:
Plaintiff filed a suit for declaration of title and recovery of possession of disputed homestead land. The land was originally held by Ambika Prasad Das as Sthitiban tenant, who transferred it to Radhakrishna by a registered sale deed. Radhakrishna sold the land to Bhagaban Behera and his brother, who in turn sold it to Hadi Behera. Hadi Behera sold the land to the plaintiff. The defendants, who were the daughters and son of the sikimi tenants, claimed that they had acquired occupancy rights in the land under Section 236 (1) of the Orissa Tenancy Act and that their sale deed to the defendants Nos. 1 and 2 was valid.
Finding of the Court:
The court found that the sikimi tenants did not abandon the disputed lands in 1942, as alleged by the plaintiff. The court also found that the defendants Nos. 1 and 2 did not acquire a valid title under the sale deed from the defendants Nos. 3 to 5, as the sikimi right was not heritable and transferable except by custom, and there was no evidence of such custom.
Issues: 1. Whether the sikimi right is heritable and transferable except by custom? 2. Whether the defendants Nos. 1 and 2 acquired a valid title under the sale deed from the defendants Nos. 3 to 5? 3. Whether the defendants Nos. 3 to 5 ordinarily resided in the disputed homestead so as to acquire the heritable and transferable right of an occupancy tenant under Section 236 (1) of the Orissa Tenancy Act?
Ratio Decidendi: 1. The court held that the sikimi right is not heritable and transferable except by custom, and the onus is on the person who claims the underraivati right to be heritable and transferable to prove it. 2. The court held that the defendants Nos. 1 and 2 did not acquire a valid title under the sale deed from the defendants Nos. 3 to 5, as there was no evidence of a custom that the sikimi right was heritable and transferable. 3. The court held that the issue of whether the defendants Nos. 3 to 5 ordinarily resided in the disputed homestead so as to acquire the heritable and transferable right of an occupancy tenant under Section 236 (1) of the Orissa Tenancy Act was not properly determined by the lower courts and remanded the case for a determination of this issue.
Final Decision: The court set aside the judgment of the lower appellate court and allowed the appeal. The case was remanded to the lower appellate court for a determination of the issue of whether the defendants Nos. 3 to 5 ordinarily resided in the disputed homestead so as to acquire the heritable and transferable right of an occupancy tenant under Section 236 (1) of the Orissa Tenancy Act.
G. K. MISRA, J.
( 1 ) THE disputed lands appertain to plot Nos. 1993, 1994 and 1995 in Sikimi Khata no. 5 in village Mahespur in the district of Balasore. These plots respectively constitute Bari, Ghar and Puruna padia with an area of 0. 26, 0. 10 and 0. 59 acres. Advocates for the parties do not dispute that the suit lands constitute homestead within the meaning of Section 236 (1) of the Orissa Tenancy Act (hereinafter to be referred to as the Act ). One Ambika Prasad Das was the Sthitiban tenant of these lands. He had two sons, Biswanath and Kshetramohan. They transferred the disputed lands to one Radhakrishna by a registered sale deed (Ex. 2) on 24-4-45. Radhakrishna sold the same by another registered document (Ex. 3) to Bhagaban behera and his brother on 17-3-47. Bhagaban and his brother sold the disputed lands to Hadi Behera by a registered sale deed (Ex. 6) on 29-10-49. Hadi Behera sold the disputed lands by a registered sale deed (Ex. 5) to the plaintiff on 10-1 51. Plaintiff's suit is for declaration of title and recovery of possession on the strength of this sale deed. In respect of this land, admittedly one Sebak Das was the sikimi tenant (underraiyal ). Sebak Das had four sons, Parbati, Daina, Balaram and Durgi. Defendants nos. 3 and 4 are the daughters of Parbati, who died in 1942. Defendant No. 7 is the son of Daina. Defendant No. 5 is the daughter of Balaram who died before 1942. Defendant No. 6 is the son of Durgi. In the current settlement khatian, parbati, Daina, Balaram and Bichitra (D/6) were recorded as sikimi tenants. Plaintiff's case is that as Parbati and Balaram died son-less, while living in a state of jointness, Daina, Madhusudan and Bichitra became the owners of the property. In 1942, the house collapsed by a cyclone. The sikimi tenant abandoned the disputed lands and went over to another village Perili where they resided. As the disputed lands were abandoned, the recorded Sthitiban tenants Biswanath and kshetramohan entered into khas possession whereafter they transferred the lands to Radhakrishna as already stated. On 28-11-57, defendants Nos. 3, 4 and 5 transferred by a registered sale deed (Ex. F) Rs. 0-10-8 pies interest in the disputed lands to defendants Nos. 1 and 2 who threatened to disturb plaintiff's peaceful and undisturbed possession. Plaintiff accordingly filed the suit for declaration of title, confirmation of possession and in the alternative for recovery of possession. Defendants Nos. 1 and 2 contested the suit. Defendants No. 3, 4 and 6 supported defendants Nos. 1 and 2. Defendant No. 7 supported the plaintiff's case. The case of the defendants Nos. 1 and 2 is that there was severance of joint status amongst the sikimi tenants Parbati, Daina, Balaram and Durgi. Defendants Nos. 3 and 4 are entitled to Rs. 0-4-0 and defendant No. 5 is entitled to another Rs. 0-4-0. Defendants Nos. 1 and 2 are, therefore, entitled to Rs. 0-8-0 of the disputed property, though by mistake Rs. 0-10-8 pies were sold and they were prepared to surrender the excess of Rs. 0-2-8 pies.
( 2 ) THE trial Court accepted the plaintiff's version that the sikimi tenants abandoned the disputed lands in 1942 and that Biswanath and Kshetramohan entered into possession of the disputed lands thereafter. He accordingly decreed the plaintiff's suit. In appeal, the learned Addl. Subordinate Judge held that the plaintiff failed to establish abandonment by the sikimi tenants. Though he held that Ex. 5 validly conveyed the occupancv right, he dismissed the plaintiff's suit on the finding that defendants Nos. 3 to 5 transferred the sikimi right to defendants Nos. 1 and 2 under a valid sale deed (Ex. F ). Against the appellate decree the second appeal has been filed.
( 3 ) MR. Sinha does not assail the findings of the lower appellate Court on the question of abandonment. It must, therefore, be held that the sikimi tenants did not abandon the disputed lands in 1942, as alleged by the plaintiff. Plaintiff's further case that Bis
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
