Back
1999 Supreme(Ori) 109
High Court Of Orissa
D. M. Patnaik
NATABAR BEHERA - Appellant
Versus
BATAKRUSHNA DAS - Respondent
Second Appeal 299 Of 1988
Decided On : 08/23/1999
B.N.Bhuyan, B.Routray, N.K.MISHRA, R.K.DAS, R.K.MOHAPATRA, Sadasiva Sahu
A lease deed executed by a Mahanta without prior sanction from the Endowment Commissioner is invalid, and the claimant cannot acquire title by adverse possession without denying the landlord's title and ceasing to pay rent.
Headnote:
LEASE DEED - VALIDITY - PRIOR SANCTION OF ENDOWMENT COMMISSIONER - ADMISSIBILITY OF UNREGISTERED DOCUMENT - POSSESSION - ADVERSE POSSESSION - BURDEN OF PROOF.
Fact of the Case:
Plaintiff filed a suit for declaration of title, recovery of possession, and injunction over a disputed land, claiming possession based on an unregistered permanent lease deed executed in 1937. The defendant claimed title and possession based on a registered permanent lease deed executed in 1942. The lower court held the plaintiff's lease deed valid and the defendant's invalid due to lack of prior sanction from the Endowment Commissioner. The lower appellate court reversed these findings.
Finding of the Court:
The High Court held that the lower appellate court erred in reversing the lower court's findings. It found that the plaintiff's lease deed, though unregistered, was admissible in evidence to show possession and payment of rent. The court also found that the defendant failed to prove that the plaintiff's lease deed was fabricated or that the rent receipts were forged. The court further held that the defendant did not acquire title by adverse possession since he did not deny the landlord's title and continued to pay rent.
Issues: 1. Whether the plaintiff's unregistered lease deed was valid to establish possession and payment of rent? 2. Whether the defendant's registered lease deed was invalid due to lack of prior sanction from the Endowment Commissioner? 3. Whether the defendant acquired title by adverse possession?
Ratio Decidendi: 1. An unregistered document is admissible in evidence for collateral purposes, such as to show possession and payment of rent. 2. A lease deed executed by a Mahanta (temple trustee) without prior sanction from the Endowment Commissioner is invalid under Section 19 of the Orissa Hindu Religious Endowments Act, 1939. 3. To establish adverse possession, the claimant must prove hostile animus towards the owner's title and possession of the land for the statutory period without payment of rent.
Final Decision: The High Court allowed the appeal, set aside the lower appellate court's judgment, and confirmed the lower court's judgment in favor of the plaintiff.
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. PC. 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 PWs 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 cr
