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Parbati Sham Achary Vs. Smt. Manasi Devi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 223 of 1974
Judge
Reported inAIR1977Ori139
ActsEvidence Act, 1872 - Sections 45; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 9; Transfer of Property Act, 1882 - Sections 106; Limitation Act, 1963 - Schedule - Articles 64 and 65
AppellantParbati Sham Achary
RespondentSmt. Manasi Devi
Appellant AdvocateR.K. Mohapatra and ;R.C. Ram, Advs.
Respondent AdvocateS.C. Mohapatra and ;Laxmidhar Rath, Advs.
DispositionAppeal dismissed
Cases Referred(Saqlain Ahmad v. Emperor
Excerpt:
.....he had purchased the suit house from sk. the position of law is now well settled that a person in possession of land without title has an interest in the property which is heritable and good against all the world excepting the true owner. but the fact that the house belonged to the plaintiff is clearly mentioned in the body of the notice. it is also clearly mentioned therein that the plaintiff's husband had been entrusted with the management of the house and had authority to let out the same to tenants and to realise rents from them. 'this will not however make him incompetent as an expert in handwriting but he is undoubtedly not possessed of an advantage which one well familiar with the urdu characters has in comparing two writings in their general style and characteristics. provides..........arising out of a suit for declaration of title to and ejectment of thedefendant from the suit house, for recovery of arrear of rent of rs. 150/- and compensation of rs. 625/- with pendente lite and further interest.2. plot no. 1828 measuring an area of 0.08 acre under khata no. 788 in athgarh town is recorded as 'rasta' in the settlement record of rights, but in the remarks column thereof there is an entry to the effect that one sk. amir all is in forcible possession of the same by constructing a house thereon since 1938. the plaintiff's case was that he purchased the house of 2 bakharas standing on a portion of that plot from sk. amir all by means of a registered sale deed dated 18-9-68 (ext. 4) and took delivery of possession of the same. the defendant was a monthly tenant in.....
Judgment:

P.K. Mohanti, J.

1. This second appeal by the defendant, is against a decree of affirmance arising out of a suit for declaration of title to and ejectment of thedefendant from the suit house, for recovery of arrear of rent of Rs. 150/- and compensation of Rs. 625/- with pendente lite and further interest.

2. Plot No. 1828 measuring an area of 0.08 acre under khata No. 788 in Athgarh town is recorded as 'rasta' in the settlement record of rights, but in the remarks column thereof there is an entry to the effect that one Sk. Amir All is in forcible possession of the same by constructing a house thereon since 1938. The plaintiff's case was that he purchased the house of 2 bakharas standing on a portion of that plot from Sk. Amir All by means of a registered sale deed dated 18-9-68 (Ext. 4) and took delivery of possession of the same. The defendant was a monthly tenant in respect of the house under the said Sk. Amir All and after execution of the sale deed (Ext. 4) he attorned to the plaintiff. On 10-10-68 he paid a sum of Rs. 10 as arrear rent to the plaintiff and executed an agreement (Ext. 5) in her favour agreeing to pay rent at the rate of Rs. 30 per month. But he did not pay the rent for the month of October, 1968 as per the terms of the agreement. As the plaintiff's husband wanted to open a medicine shop in the house in question he sent a notice (Ext. 13) to the defendant demanding arrears of rent from October, 1968 to February, 1969 and requiring him to deliver vacant possession of the house to the plaintiff, but the defendant refused to accept the 'notice. So the plaintiff filed the suit for the aforesaid reliefs.

3. The defence contention was that the suit plot belongs to the Government and that Sk. Amir Ali had no title to the same. It was alleged that the plaintiff did not acquire any title to the suit land by virtue of her sale deed (Ext. 4) and that the defendant has been in possession of the same since 1956 after constructing a house thereon. He denied the allegations of attornment and execution of the agreement. He also alleged that the notice Ext. 13 was never tendered to him and that the State Government who was the real owner of the suit property having not been impleaded the suit was liable to be dismissed for non-joinder of parties.

4. The learned Munsif on a consideration of the oral and documentary evidence led by the parties came to the findings that Sk. Amir Ali had mere possessory right over the suit land which he transferred to the plaintiff under the sale deed Ext. 4; that the defendant had failed to establish that he had purchased the suit house from Sk. Amir Ali; that the State Government was not a necessary party to the suit; that the notice Ext. 13 was valid and that it was duly served on the defendant; that the deed of agreement Ext. 5 was genuine and that the defendant was a monthly tenant under the plaintiff and was liable to eviction after termination of the tenancy. Accordingly he decreed the plaintiff's suit for eviction and for realisation of the arrears of house rent from 1-10-68 but rejected the claim of compensation.

5. On appeal, the learned Subordinate Judge concurred in the above findings. He however held that a tenancy had been created by the Government in favour of Sk. Amir Ali in respect of the suit plot by acceptance of rent under the rent receipt Ext. 3 and that Sk. Amir Ali had acquired valid title to the suit plot which he conveyed to the plaintiff under the sale deed Ext. 4.

The above findings are assailed in this appeal as being contrary to facts and law.

6. It appears that the rent receipt dated 16-10-68 (Ext. 3) was granted in favour of Sk. Amir Ali in respect of khata No. 786 whereas the suit plot appertains to khata No. 788. The learned Munsif noticed this discrepancy and on a discussion of the evidence came to hold in para 8 of his judgment that Sk. Amir Ali did not acquire sthitiban right over the suit property. This aspect of the finding was overlooked by the appellate court and it was wrongly held that Sk. Amir Ali was admitted to tenancy by the State Government by acceptance of rent under Ext. 3. The lower appellate court also relied on a certified copy of the order of the S.D.O. which has not been exhibited in the case. The plaintiffs sale deed is dated 18-9-68 and the rent receipt (Ext. 3) appears to have been granted on 10-10-68. There was no averment in the plaint that subsequent to the plaintiff's purchase Sk. Amir Ali had been conferred with tenancy rights by the State Government in respect of the suit plot. In the absence of any material on record the lower appellate court erred in holding that Sk. Amir Ali had acquired a valid title to the suit plot and he conveyed the same to the plaintiff under the sale deed (Ext. 4).

7. Both the courts below have concurrently found that Sk. Amir Ali had possessory title to the suit land which he transferred in favour of the plaintiff. The possessory title is transferable and heritable. In the case of Gadadhar Sahu v. Karsanbasta Patel, ILR (1963) Cut 4S2 this Court held as follows:

'The position of law is now well settled that a person in possession of land without title has an interest in the property which is heritable and good against all the world excepting the true owner. This interest, unless the true owner interferes, is transferable.'

This view was reiterated in a subsequent decision reported in (19,67) 33 Cut LT 601 (Banshidhar Mohapatra v. Souri Samal). I am in respectful agreement with the decisions cited above and would hold that the sale, deed (Ext. 4) executed by Amir Ali in favour of the plaintiff is unassailable.

8. It was next contended that possessory title arises out of only actual possession and admittedly the defendant being in actual possession of the house and Amir Ali not being in actual possession, he had no possessory title which could be transferred to the plaintiff under the sale deed Ext. 4. This contention is equally without any force. It has been found as a fact that defendant was a tenant under Amir Ali before the plaintiff's purchase. Thus Amir Ali was in effective possession of the Land through a tenant when he transferred the possessory title in favour of the plaintiff. In this connection it will be pertinent to refer to the observations of their Lordships of the Supreme Court in AIR 1967 SC 174 (Satyanarayana Raju v. Josyula Hanumayamma) which are as follows:--

'As both parties were relying on possessory title, it was necessary that they should prove effective possession over the property in order to succeed on the basis of possessory title. By effective possession we mean either actual possession or possession through a tenant who must have paid rent voluntarily or under a decree to the person claiming possessory title.'

The findings of fact are that the defendant was a monthly tenant under Amir Ali, that after plaintiff's purchase he attorned to the plaintiff and executed the document Ext. 5 agreeing to pay the monthly rent to the plaintiff. It is therefore idle to contend that Amir Ali had no possessory title to the land which he could transfer in favour of the plaintiff.

9. It was contended on behalf of the appellant that the notice of termination of the tenancy (Ext. 13) was invalid because it was not signed by the plaintiff but by her husband and because the heading of the notice does not state that the plaintiff's husband was giving notice on behalf of the plaintiff. This contention is without any force. In this connection reference may be made to Section 106 of T. P. Act which provides, inter alia, that every notice under this section must be in writing, signed by or on behalf of the person giving it. The test to determine the authority for giving notice is whether the notice is such that the tenant may act upon it with safety or in other words, that it is a notice which is binding on the landlord. In order to appreciate the contention raised on behalf of the appellant it is necessary to state that the heading of the notice does not mention that the husband of the plaintiff signed the notice on behalf of the plaintiff or under her instructions. But the fact that the house belonged to the plaintiff is clearly mentioned in the body of the notice. It is also clearly mentioned therein that the plaintiff's husband had been entrusted with the management of the house and had authority to let out the same to tenants and to realise rents from them. It was further mentioned in the notice that the defendant had taken the house on rent by executing an agreement in favour of the plaintiff's husband. The deed of agreement (Ext. 5) shows that it was executed by the defendant in favour of the plaintiff's husband though the plaintiff was described as the owner of the house. In the facts and circumstances proved in the case it is clear that actual management of the house was done by the plaintiff's husband. In AIR 1965 SC 271 (Kanakarathanammal v. V. S. Loganatha Mudaliar) it was observed that if the property belongs to the wife and the husband manages the property on her behalf, it would be idle to contend that the management by the husband of the properties is inconsistent with the title of his wife to the said properties. It is significant to note that in para 4 of the plaint the plaintiff asserted that the notice had been issued by her husband on her behalf. The allegation about the authority of the plaintiff's husband to serve the notice was not challenged in the written statement. In consideration of all the above facts and circumstances the defendant must be taken,to be aware of the fact that the husband of the plaintiff was duly authorised to serve the notice and that the defendant had accepted the authority of the plaintiff's husband. The courts below were therefore 'justified in holding that the notice of termination of tenancy was valid.

10. With regard to the findings of the courts below regarding the genuineness of the deed of agreement Ext. 5 it is urged on behalf of the appellant that no value should be attached to the opinion of the handwriting expert as he is not acquainted with the Telugu language in which the disputed signature of the defendant has been written on Ext. 5. The expert (P.W. 11) admitted in cross-examination that he cannot read, write or speak Telugul But he gave cogent reasons for his opinion that the disputed signature and the admitted signature were written by one and the same person. The opinion of the expert is admissible under Section 45 of the Indian Evidence Act. What value is to be attached to that opinion in a given case is, however, an entirely different matter. It has been repeatedly held that expert's opinion with respect to handwriting must always be received with care and caution. In AIR 1936 All 165 (Saqlain Ahmad v. Emperor) one Mr. Stott was the handwriting expert who examined some documents written in Urdu language. He admitted that he was not acquainted with the Urdu characters. The court held: 'This will not however make him incompetent as an expert in handwriting but he is undoubtedly not possessed of an advantage which one well familiar with the Urdu characters has in comparing two writings in their general style and characteristics.' In the instant case, the opinion of the expert is confirmed by the direct evidence of witnesses who have borne testimony to the fact that the defendant gave his signature on Ext. 5 in their presence. Where the expert's opinion is confirmed by the direct evidence of persons who had actually seen the signing of the document, there is no reason to entertain any doubt about the same. P.W. 5 is the scribe of the document. P.Ws. 6 and 7 are the attestors. P.W. 19 is the plaintiff's husband in whose favour the document was executed. All these witnesses swear on oath that the signature of the defendant was written in their presence. P.W. 8 is a relation of the defendant and he is a Telugu knowing man. He Identified the disputed signature on Ext. 5 as belonging to the defendant. The findings of the Courts below is based upon the evidence of those witnesses and also upon the opinion of the expert. I see no reason why the finding about the genuineness of the document Ext 5 should be set aside.

11. The learned counsel for the appellant contended that the suit was not maintainable as the Government was not made a party to the suit. There is no merit in this contention as Order 1, Rule 9, C.P.C. provides that 'No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.' In the present case the defendant did not vacate the house after termination of the tenancy and the relief was sought against him. There is nothing' on the record to show that the Government interfered with the possession of the plaintiff at any time. No relief could therefore be sought against the Government. This is not a fit case where it can be said that in the absence of the State Government as a party to the suit the question involved therein cannot be effectively adjudicated upon.

12. All the contentions raised on behalf of the appellant having been negatived, the appeal fails and is dismissed with costs.


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