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1999 Supreme(Ori) 108
High Court Of Orissa
D. M. PATNAIK
GHANASHYAM SAHU - Appellant
Versus
KENDRAPARA MUNICIPALITY - Respondent
Second Appeal 280 Of 1991
Decided On : 08/23/1999
BASUDEV MISHRA, BIJAN RAY, Manoja Mishra
A Sikimi tenant can transfer his possessory title, even though he cannot transfer any proprietary title.
Headnote:
ADVERSE POSSESSION - TENANCY - ORISSA TENANCY ACT, 1913 - SECTION 61(2) - TENANCY RIGHT - ADVERSE POSSESSION AGAINST LANDLORD - SALE OF LAND BY LANDLORD DURING SUBSISTENCY OF CONTRACT - POSSESSION OF PLAINTIFF BECOMING PERMISSIVE - NO ADVERSE POSSESSION AGAINST TRUE OWNER - TRANSFER OF POSSESSION BY SIKIMI TENANT - VALID.
Fact of the Case:
Plaintiff claimed title to the suit land based on a 'hukumnama' executed by the original owner, Giridhari Tripathy, authorizing him to reclaim the land and appropriate the usufructs for ten years in return. The plaintiff alleged that he continued to possess the land after the expiry of the ten-year period and acquired title by adverse possession. The Kendrapara Municipality, the main defendant, claimed title through a sale deed executed by Giridhari Tripathy in favor of Sadhu Charan Behera in 1939 and a subsequent sale deed executed by Sadhu Charan Behera's sister-in-law, Shrimati Bewa, in favor of the Municipality in 1964.
Finding of the Court:
The court held that the 'hukumnama' did not create a tenancy right in favor of the plaintiff since there was no payment of rent or bhag produce to the landlord. The court further held that the plaintiff's possession of the land after the expiry of the ten-year period was permissive and not adverse, as there was no evidence of any hostile animus or denial of title by the true owner, Sadhu Charan Behera. The court also held that Shrimati Bewa, being a Sikimi tenant, was competent to transfer her possessory title to the Municipality.
Issues: 1. Whether the 'hukumnama' created a tenancy right in favor of the plaintiff? 2. Whether the plaintiff acquired title to the land by adverse possession? 3. Whether Shrimati Bewa, being a Sikimi tenant, was competent to transfer her possessory title to the Municipality?
Ratio Decidendi: 1. The 'hukumnama' did not create a tenancy right in favor of the plaintiff since there was no payment of rent or bhag produce to the landlord. 2. The plaintiff's possession of the land after the expiry of the ten-year period was permissive and not adverse, as there was no evidence of any hostile animus or denial of title by the true owner, Sadhu Charan Behera. 3. Shrimati Bewa, being a Sikimi tenant, was competent to transfer her possessory title to the Municipality.
Final Decision: The appeal was dismissed, and the lower appellate court judgment was confirmed.
D. M. PATNAIK, J.
( 1 ) THIS second appeal is against the reversing judgment of the lower appellate Court wherein it allowed the defendants' appeal thereby dismissing the plaintiff's suit for title and permanent injunction.
( 2 ) PLAINTIFF's case is, one Girdhari Tripathy executed a 'hukumnama' dated 10-7-1932 in respect of the land measuring Ac. 2. 76 decimals thereby authorising him to reclaim the area by removing the thorny bushes and make it fit for cultivation. In return, the plaintiff was to possess the same for ten years and appropriate the usufructs. In the year 1935 the plaintiff started cultivation. After death of Giridhari, his son Shyamsundar asked the father of the plaintiff to give up possession of the land in the year 1936. The father of the plaintiff did not agree to this and continued to possess till 1960. The plaintiff continued his possession thereafter till 1984 without interruption. In the year 1984 the Kendrapara Municipality started to construct houses for the sweepers' colony on the suit land. Since the Municipality disturbed the possession of the plaintiff he filed the suit for declaration of title, confirmation of possession, etc.
( 3 ) THE Kendrapara Municipality, the main defendant in the case, took the stand that the land originally belonged to Giridhari Tripathy who had mortgaged the same by a registered mortgage deed on 10-9-1929 to one Sadhu Charan Behera. Since Giridhari could not repay the mortgaged loan, he sold the land to Sadhu Charan Behera on 13-1-1939 by a registered sale deed. While said Sadhu Charan Behera was possessing in his own right, title and interest, Sadhu inducted Shrimati Bewa, his widowed sister-in-law as a sub-tenant in the year 1959. While so possessing Shrimati sold the land on 31-7-1964 to the Kendrapara Municipality for consideration and delivered possession. The defendants thus pray for dismissal of the suit.
( 4 ) MR. Bijan Ray, learned counsel for the appellant, advanced extensive arguments touching various factual aspects as well as points of law involved in the case. Mr. Manoj Mishra, learned counsel for the Municipality, also advanced extensive arguments and drew the attention of this Court to various documents particularly the sale deed in favour of the Municipality and other documents thereby supporting the judgment of the lower appellate Court. The contentions of the respective counsel are disposed of in the following manner.
( 5 ) ADMITTEDLY, the suit land belonged to Giridhari Tripathy and it is proved that he executed the Hukumnama, Ext. 9, which is dated 10-7-1932. Mr. Ray, referring to the Hukumnama, Ext. 9, strenuously urged that the terms and conditions of the said document would make it clear that the plaintiff was inducted to possess the land neither as a labourer nor as a servant, but to cultivate the suit land for consideration and therefore it was leased out by the landlord to the tenant which constituted a contract of tenancy. It was further stressed that when on the basis of contract of tenancy, the person continues to possess the same as a non-occupancy Rayat and if he continues to possess the same in that capacity for more than 12 years he acquires the status of the occupancy rayat and once he acquires the status of an occupancy rayat, consequently he becomes a settled rayat of the village under Section 29 of the Orissa Tenancy Act. To fortify this argument the learned counsel relied on the cases of Radhamani Dibya v. Braja Mohan Biswal, AIR 1984 Orissa 74 , and Indramani Mohanty v. Purusottam Ray, (1971) 1 Cut WR 730. He submitted that the plaintiff was entitled to the benefit of Section 61 (2) of the Orissa Tenancy Act. As a corollary to this Mr. Ray strenuously urged that in view of the Hukumnama, the sale by Giridhari in favour of Sadhucharan Sahu in the year 1939 was void, since Giridhari Tripathy was not competent to make such a transfer. Mr. Manoja Mishra, on the other hand, countered this argument by stating that such an argument is
