Payment of rent by a trespasser does not necessarily amount to an acknowledgment of the title of the recorded owner, especially when the trespasser pays rent to protect their interest and avoid sale of the property for non-payment of rent.

PATNAIK, J.

( 1 ) THE plaintiffs, who have been unsuccessful before the courts below, filed the suit for declaration of title, confirmation or in the alternative recovery of possession and for grant of mandatory injunction restraining the defendants from going upon the suit property.

( 2 ) THEIR case was that their father Matai was the owner of plots Nos. 395 and 425 in village Ghulghulia. Not being capable of cultivating his entire land, he got the suit land cultivated through Randa, the deceased father of defendants 1 and 2. In April, 1975, when he went with Ms labourers for conducting agricultural operation, the defendants obstructed and threatened with evil conseq uences. So an application under Section 145 Cr. P. C. was filed. Since the proceeding was protracted, the suit was filed. The plea of the defendants was that the property was sold orally to Randa their father, for a consideration of Rs. 90/ about 30 years back and possession was delivered to him. After the death of their father, they were in peaceful enjoyment of the property and paying rent therefor.

( 3 ) THE findings of the courts below are that the plaintiffs have failed to establish that the possession of the defendants was permissive and the defendants have been able to establish their case or oral sale in favour of Randa by Matai.

( 4 ) THERE is no dispute that the title originally inhered in Matai. It, is also not in dispute that the defendants are in possession since some years before 1955.

( 5 ) THE plaintiffs have sought to characterise the possession of the defendants as permissive whereas the defendants assert possession by virtue of their own right as owners, pursuant to the purchase by their father from Matai under an oral sale.

( 6 ) THE plaintiffs having alleged that the possession of Randa, the predecessor-in-interest of the defendants, was initially permissive, the burden is on them to establish the said plea and to satisfy by cogent and convincing evidence that Randa was let in to cultivate the land. The trial court has discussed this question under issue No. 4 and after an analysis of the evidence has observed:

"on the above evidence it is seen that the plea of the plaintiffs is not believable at all. . . . . None of the p. ws. have also stated that in their presence, the land was allotted to Randa". and has concluded that : the plaintiffs have failed to prove the claim that the land was allotted to Randa only for a temporary period and defendants were in permissive possession. '' The lower appellate court has independently analysed the evidence and held: "the learned Munsif has come to the right conclusion that the onus of permissive possession has not been proved by the plaintiffs. "

( 7 ) MR. S. C. Mohapatra appearing for the appellants in this Court has strenuously urged that the courts below have failed to draw the correct legal inference from the proved facts and Ext. 3 executed by defendant No. 1 before the police authorities undertaking to give up possession has not been properly considered and due evidential weight has not been given to this document. He has further urged that the defendants having admitted that they were paying rent for the suit land in the names of the plaintiffs have acknowledged the title of the plaintiffs and cannot plead adverse Dossession.

( 8 ) THE submissions though attractive are untenable. Defendant No. 1 is an illiterate person. His thumb impression appears to have been affixed to Ext. 3. Ext. 3 purports to record an undertaking given by the defendant No. 1 before the police authorities that possession would be handed over to the plaintiffs. Such an undertaking would not confer title if the plaintiffs had none, nor would divest the defendants of title if they had it. In my opinion, Ext. 3 is innocuous in character. It contained a mere promise. I am not going into the question whether the said document was duly executed by the illiterate defendant No. 1 though the counsel for the respondents has vehe