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Naban Bewa Vs. Nabakishore Samal - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 152 of 1961
Judge
Reported inAIR1964Ori16; 29(1963)CLT428
ActsRegistration Act, 1908 - Sections 17(1) and 49; Transfer of Property Act, 1882 - Sections 117; Evidence Act, 1872 - Sections 91
AppellantNaban Bewa
RespondentNabakishore Samal
Appellant AdvocateV. Pashayat, ;N.C. Patnaik, ;B.B. Mohanty and ;A.C. Mohanti, Advs.
Respondent AdvocateN. Mukherji and ;S.K. Dutta, Advs.
DispositionAppeal dismissed
Cases ReferredPadmanabha Gountia v. Dalganjan Patel
Excerpt:
.....settled that the possessionis prima facie proof of title so as to eject a trespasserunless the latter shows a better title. the appellate court has clearly found that theplaintiff was inducted upon the suit-land by the landlordwho accepted the rent from him and the plaintiff had beenin possession of the suit land......7-4-45 settled the land in favour of the plaintiff. according to the plaintiff he cultivated the suit land on bhag for a period of about 15 years prior to the execution of ext. 1 and he also continued to remain in possession after execution of ext. 1 and had acquired an occupancy right therein. the defendant who was in possession of eight decimals of his homestead towards the south-west of the said plot, being instigated by the enemies' of the plaintiff created trouble in the possession of the plaintiff for which a proceeding under section 145 cr. p. c. was started in which the plaintiff was the first party and the defendant was the second party. in the said proceeding the possession of the defendant having been declared on 17-9-56, the plaintiff has filed the present suit for the.....
Judgment:

Das, J.

1. This is a defendant's appeal against the reversing judgment of the Additional District Judge of Cuttack, arising out of a suit for declaration of title and recovery of possession.

2. The disputed land measuring 16 decimals forms part of plot No. 1082 which comprises a total area of 24 decimals. The land originally was the Nijjote land of the zamindar Umesh Chandra Roy, who by an unregistered patta Ext. 1 dated 7-4-45 settled the land in favour of the plaintiff. According to the plaintiff he cultivated the suit land on Bhag for a period of about 15 years prior to the execution of Ext. 1 and he also continued to remain in possession after Execution of Ext. 1 and had acquired an occupancy right therein. The defendant who was in possession of eight decimals of his homestead towards the south-west of the said plot, being instigated by the enemies' of the plaintiff created trouble in the possession of the plaintiff for which a proceeding under Section 145 Cr. P. C. was started in which the plaintiff was the first party and the defendant was the second party. In the said proceeding the possession of the defendant having been declared on 17-9-56, the plaintiff has filed the present suit for the aforesaid reliefs.

3. The defence case was that Ext. 1 was a fabricated and anti-dated document and the plaintiff was never in possession of the suit-land at any time and the entire plot was leased out to the defendant verbally more than twenty years back. After the death of the landlord, the plaintiff obtained a collusive document from the agent of the landlord with a view to harass the defendant.

4. The trial Court dismissed the plaintiff's suit holding that the plaintiff had failed to prove his possession and title. He also doubted the genuineness of Ext. 1.

5. The appellate Court reversed the findings of the trial Court and found the plaintiff had title and possession He held Ext. 1 to be a genuine document and accordingly gave a decree to the plaintiff.

6. Mr. Patnaik, learned Counsel for the appellant, contended that Ext. 1 being a lease of immovable property and it having been reduced to writing, was compulsorily registrable under Section 17(1)(d) of the Registration Act and since it had not been so registered, it is not admissible in evidence Under Section 49 of the said Act in proof of title.

In support of this contention, he relied upon a case reported in AIR 1924 Pat 641, Janki Kuer v. Brij Bhikhan Ojha, where it was held that where the lease or grant is in the form of a document, then the only evidence admissible in proof of the terms of the document is the document itself, and unless it is registered the document itself cannot be admitted in evidence as proof of any transaction affecting the property. In the said decision, however, their Lordships held that though such a document is inadmissible for the purposes mentioned in Section 49, it may nevertheless be admissible for collateral purposes to prove possession or the nature of possession. In that case however, their Lordships expressly stated that where a written document Is defective as avalid and finally concluded agreement, such defect may be supplied by the subsequent, actings and conduct of the parties as where subsequent act of parties themselves disclose a state of affairs consistent only with the existence of an agreement mutually recognised and acted upon as it the instrument was binding.

This decision along with some other decisions on the point were noticed in a later case of the same High Court reported in AIR 1946 Pat 407, Bishambar Narain v. Ajodhya Ram. In that case, the plaintiff took settlement of some plots from the landlord by some unregistered Hukumnama. Subsequently he entered into possession and the landlord accepted rent from him. In such circumstances their Lordships held that it is open to a landlord to create a tenancy by giving possession and accepting rent and clearly therefore such a tenancy can be proved by evidence other than the production of the Hukumnama by which the tenant took settlement of the agricultural land from the landlord. In other words, the mere existence of the Hukumnama (in the present case the patta Ex. 1) would not debar the plaintiff to prove his tenancy by his possession and acceptance of rent by the landlord. Though the plaintiff bases his claim on an unregistered lease-deed which is inadmissible for want of registration yet when the landlord acknowledges -him to be his tenant and acknowledges his possession as such, the plaintiff's title as a lessee cannot be doubted and he is entitled to maintain a suit in ejectment; (Vide also Padmanabha Gountia v. Dalganjan Patel, 25 Cut LT 147. There is no doubt in the position, that the lease deea being an unregistered document, cannot confer any leasehold right on the lessee, but clearly enough the lease was for agricultural purposes and under Section 117 of the Transfer of Property Act, a lease can be created orally and by delivery of possession and in order to confer any lease-hold right, a registered document is not essential this being the settled position of law, it is unnecessary to examine any further authority on this point.

7. In the present case, the landlord's agent has been examined on behalf of the plaintiff and has proved his possession as a tenant. The plaintiff also filed the rent receipts (Ext. 2 series) for the years 1945, 1947, 1951 and1954, and the learned appellate Court held:

'The genuineness of the rent receipts were not challenged and not a word has been said by the defendant suggesting that these rent-receipts are not genuine. The acceptance of the rent by the landlord clearly establishes the relationship of the landlord and the tenant.'

8. It was contended that Section 91 of the Evidence Act is a bar to prove the terms of the agreement. Thatmay be so, but it is no bar to prove the very existenceof the lease itself. In view of the finding of the appellateCourt in the present case, the position of the defendant sofar as the suit property is concerned, is nothing more thanthat of a trespasser. It is well settled that the possessionis prima facie proof of title so as to eject a trespasserunless the latter shows a better title. A distinction must,however, be drawn between proving the terms of the leaseand the existence of the lease itself. It is unnecessary for theplaintiff suing as against a trespasser to prove the term of thelease. It is enough if he proved the factum of his lease or ofhis tenancy. The appellate Court has clearly found that theplaintiff was inducted upon the suit-land by the landlordwho accepted the rent from him and the plaintiff had beenin possession of the suit land. In view of this finding, andthe position of law as stated above, the plaintiff's suitmust succeed.

In the result, there is no merit in this appeal whichis dismissed with costs.


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