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 alsonot 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 vehemently urged that there is no evidence to prove due execution by defendant No. 1. The counsel for the respondents has further urged that the fact that the document was executed in presence of the police authorities, does not rule out duress and intimidation. Since this document, in my opinion. is irrelevant. I do not feel called upon to settle this aspect of the controversy.
9. The other submission of Mr. Mohapatra, however, merits careful consideration. Relying on Endumuru Nagaya Boitharu v. Potaju Raghunath Boitharu ( (1954) 20 Cut LT 586) : (AIR 1955 NUC 715) (Orissa) he has contended that the defendants, having paid rent and obtained receipt in the names of the plaintiffs, have acknowledged the title of the plaintiffs and, as such, their possession is permissive.
The aforesaid holding of Sri S. P. Mohapatra, J. has not been followed by this Court in Arjun Samal's case ( (1974) 40 Cut LT 294). Chief Justice G. K. Misra referring to the said decision observed :
'With great respect, I am unable to agree with this wide proposition. Merely because a party files receipt in support of his case that he made payment in the name of the person in whose name the record stands, it does not follow that the title of the other party has been acknowledged'
and then referring to a number of other decisions observed :
'The aforesaid decisions were cited only to show that the wide conclusion drawn by Mohapatra, J. in Endumuru Nagaya Boitharu v. Potaju Raghunath Boitharu (AIR 1955 NUC 715) (Orissa), cannot be indiscriminately applied to all cases. What inference is to be drawn in a particular case would depend upon the facts and circumstances of that case.' I respectfully concur in the aforesaid opinion of the Hon'ble Chief Justice. If rent is paid by a trespasser ordinarily the receipt would be granted in the name of the person in whose name the 'property stands recorded. Until the name of the recorded owner is changed by mutation or otherwise, the receipt, perforce, would be granted in his name. A trespasser to protect his interest, i. e., to avoid sale of the property on account of non-payment of rent, may be obliged to pay the rent and he cannot obtain a receipt in his name so long as his name has not been mutated in place of the owner and such mutation may be possible only after his adverse possession matures into title by lapse of the period prescribed. In such a situation, it would be incorrect to state that the trespasser by paying rent and obtaining receipt in the name of the recorded owner (Revenue authorities can grant receipt only in the name of the recorded owner) acknowledged the title of the recorded owner. The receipt would be granted in the name of the recorded owner despite his hostile animus.
In my humble opinion, the principle laid down by Mohapatra, J. has been too broadly stated and should be confined to the facts and circumstances of the case of Endumuru (AIR 1955 NUC (Orissa) 715) (supra).
10. The last point urged by Mr. Mohapatra has also no merit. The courts below have rightly found that the plaintiffs have failed to establish that the father of the defendants was permitted to cultivate the land and hence the possession of the defendants was permissive in character. They have also found that the defendants have been able to establish that the suit property was purchased by their father under an oral sale. The question is a dead question of fact and is binding on me since no perversity in the finding is shown.
11. Agreeing with the courts below, I hold that the plaintiffs have no merit. Their suit as well as this appeal deserved dismissal and the appeal is hereby dismissed. In the circumstances, no costs.