Magu Sahu vs Bhramarbara Behera and Others

N.K. Das, J.—Plaintiff is the Appellant against a confirming decision in a suit for permanent injunction. Plaintiff�s case was that plot No. 909 having an area of 0.18 acre and plot No. 970 having an area of 0.24 acre appertaining to Khata No. 210/12 were Anabadi lands of the ex-landlords, namely Khemendranath Tagore, Hemendranath Tagore and the Raja of Kanika. In 1941, the Plaintiff took permanent lease of these two plots from the ex-landlords and since then he has been in exclusive possession of the same on payment of rent. After abolition of estates, the Plaintiff has been recognised as a tenant in respect of the suit plots by the State Government and he has also been paying rent. The Defendants threatened to interfere with the possession of the Plaintiff over the suit plots and hence he filed the suit for injunction.

In a joint written statement filed by the Defendants, except Defendant No. 6, Plaintiff�s title and possession over the suit Plots were denied and it was contended that since time immemorial the Defendants along with other villagers have been using the suit plots for communal purposes, such as, right of passage, throwing of carcasses of, animals, throwing of ash and earthen pots during funeral ceremony and also using the tanks standing on those plots for funeral purposes. It was further contended that Defendant No. 1 has been in possession of 0.06 acre of land appertaining to plot No. 909 since the time of his ancestors.

Both the Courts below have concurrently held that Plaintiff has failed to establish his tenancy and possession in respect of the suit property.

The trial Court as well as the appellate Court have discussed the materials available on record and have come to a definite conclusion that Plaintiff has failed to establish his possession over the suit property. This being a finding of fact, cannot be interfered with in Second Appeal. Nothing has been placed before me to reject this finding has been placed before me to reject this finding. When Plaintiff has failed to establish his possession, a pure suit for injunction is not maintainable. The injunction prayed for in the suit is that the Defendants be restrained from interfering with the possession of the Plaintiff.

It has been held in Dayalu Narayan Swamy Vs. Kanika Ramaswamy Dora and Others, , by a Division Bench of this Court, that the relief of injunction is available only to a person who is in actual physical possession. This principle has also been re-affirmed by another Division Bench of this Court in Jemma alias Jamuna Maharana v. Raghu alias Raghunath Maharana 1976 (2) C.W.R. 655. Relying on a Full Bench decision of the Lahore High Court and two other decisions of the Madras and Allahabad High Courts, it has been held that a Plaintiff not in possession is not entitled to the relief of injunction without claiming recovery of possession. In view of the aforesaid decisions, the present suit simply for permanent injunction is not maintainable when Plaintiff has failed to establish that he has been in possession of the property in question.

Even apart from the aforesaid circumstances, both the Courts below have held that Plaintiff has failed to establish that the suit property was settled with him by the Plaintiff. No rent receipt was also produced for payment of premium granted by the ex-proprietors. During examination in Court, Plaintiff has given contradictory statements. At one stage he states that he got three settlement deeds on different dates and on the following day he again says that he approached the Gumastas and they have granted the rent receipts. From the evidence of the Plaintiff, it appears that he approached different persons for settlement of the land. Again he also says that one Gajendra Bastia was the common Gumasta of all the three landlords. Besides this, the oral evidence adduced on behalf of the Plaintiff does not support the fact of Plaintiff getting settlement of the land from the ex-landlords or possessing the same. No rent receipt granted by any of the ex-proprietors, or their Gumastas has been produced. The plea taken by the Plaintiff is that during the flood of 1955, all these papers were destroyed. No witness has been examined who witnessed payment of rent by the Plaintiff either to the landlords or to their Gumastas. Exts. 3/e are rent receipts for the period from 1959 to 1967 granted by the Tahasildar after abolition of the estates. These receipts are the endorsement "without Prejudice". It is now well settled that such rent receipts do not confer any right, nor prove settlement of property. In Umesh Jha v. The State AIR 1956 Pat. 425, it was held that the words "without prejudice" import in to any transaction that the parties have agreed that as between themselves the receipt of money by one and its payment by the other shall not by themselves have any legal effect on the rights of the parties, but they shall be open to settlement by legal controversy as if the money had not been paid. This decision has been followed by a Division Bench of this Court in The Collector, Cuttack v. Shri Atul Chandra Das 1972 (2) C.W.R. 1104, wherein it has also been held that acceptance of rent under such lent receipts cannot confer any tenancy interest.

Reliance has also been placed on the rent rolls said to have been submitted by the ex-proprietors after abolition of the estates. P. w. 4 who claims to have worked as an Assistant Naib in the Estate of Kanika has been examined to prove these rent rolls. He has stated in his cross-examination that he could not say who scribed the Ekpadia Books and that he simply heard from Gajendra that he (Gajendra) had filed the Ekpadia Books. These rent rolls are Ext. 2 series. It appears that each of the co-sharer landlords has given Ekpadia In respect of 0.42 acre of land which is the entire extent of land. Admittedly, each of the co-sharer had 1/3rd interest. The entries in Ext. 2 series show that Khata No. 210 has been sub-divided into different Khatas and in each of the Khatas, so sub-divided, the full extent of land (even though each one had 1/3rd interest) is said to have been leased out. There is no explanation how could this be done. Khata No. 210/12 is found to be relating to Raja of Kanika. The rent receipts Ext. 3 series granted by the Tahasildar, after abolition of the estates, relate to Khata No. 210/12. This would show that there is no convincing evidence on behalf of the Plaintiff to show that the three ex-proprietors have leased out the land in his favour. All these appear to be incorrect documents.

A feeble attempt has been made on behalf of the Plaintiff that Gajendra Bastia was the Gumasta of all the three landlords and he has settled the land on behalf of the landlords in favour of the Plaintiff. This contention on behalf of the Plaintiff is contrary to what has been stated by the Plaintiff in Court. There is no such contention in his plaint. This appears to be a subsequent attempt made by the Plaintiff. Even assuming that Gajendra Bastia settled the land in favour of the Plaintiff, in absence of any proof or authority in favour of Gajendra Bastia by all the ex-proprietors to lease out the land, no interest can be created in favour of the Plaintiff in the suit land.

In Mahant Biseshwar Dass v. Sashinath Jha AIR 1963 Pat. 289, a Division Bench has held that a patwari or even a gomasta, unless he is specially authorised to do so by his proprietor has no right to inflict a new tenancy on the landlord by recognition or by acceptance of rent. In absence of any special authority, such a right cannot accrue. This decision has also been re-affirmed in Subhan v. Madhorao Hareinrao Ghatate AIR 1952 Nag. 398, by a Division Bench wherein it has been held that the mere fact that an agent accepts rents is not sufficient to establish a tenancy against the landlord unless the agent was specially authorised to grant leases in addition to recover rents. There is no material whatsoever on record to show that Gajendra was specifically authorised by the ex-proprietors to settle lands in favour of the tenants. In absence of such evidence, no right can be found in favour of the Plaintiff on the strength of any settlement made by Gajendra.

In view of the aforesaid circumstances, I also agree with the finding of the Courts below that Plaintiff has failed to establish his right in respect of the suit property.

It has been contended by Mr. Mohanty, the learned Counsel for the Appellant, that the lower appellate Court rejected the petition for amendment and, as such, Plaintiff has been prejudiced. It was, therefore, submitted that the amendment sought should be allowed. The amendment sought in the lower appellate Court was the description of Khata No. 210/-12 as mentioned in the original plaint should be amended as Khata No. 210 only. In my opinion, even if this amendment would have been allowed, Plaintiff is not entitled to succeed in view of the findings made above. Therefore, the Plaintiff has not been prejudiced by rejection of his petition for amendment, nor there is any reasonable ground for allowing the amendment. Even if the amendment is allowed, Plaintiff is not entitled to a decree, as has been observed above.

A petition for additional evidence has been filed in this Court and prayer has been made to admit into evidence certain rent receipts said to have been executed by Gajendra Bastia in 1953. An affidavit by Gajendra Bastia has been filed to the effect that he was ill and was a patient in hospital at the time of recording of evidence in the suit and a discharge certificate of Gajendra Bastia from the hospital has also been filed. As regards rent receipt, it may be said that it does not relate to payment of Salami for settlement of the land. Plaintiff has clearly stated that all his documents have been destroyed in the flood of the year 1955. It does not lie in the mouth of the Plaintiff at this stage that after search he has been able to find out this document. The provision for admitting additional evidence clearly pre-supposes that there was due diligence on the part of the party at the time of trial and in spite of such diligence he could not get the document. But there is no such material on record to support the fact that the Plaintiff, after due diligence, could not be able to find out this document. Rather, the contents of this petition are contrary to what has been stated by the Plaintiff on oath. In absence of any authority in favour of Gajendra Bastia, his examination cannot make any improvement. Moreover, Plaintiff has stated that he heard from the son of Gajendra that the latter was ill. This shows that no reasonable attempt was made on behalf of the Plaintiff for examining Gajendra Bastia. There is no material on record to show that Gajendra Bastia was not able to dispose at the time of bearing of the suit. It was open to the Plaintiff to examine Gajendra on commission, if really he was a patient at Cuttack and when the suit was being heard at Cuttack. As I have already held, in absence of any document to show specific authority in favour of Gajendra to lease out lands of the ex-proprietors, his evidence will not be of any avail for conferring a right on the Plaintiff in respect of the suit property. It is not a case that without this document, or without his evidence. Court cannot come to a decision. The provision for additional evidence does not envisage filling of lacuna at a late stage due to deliberate negligence on the part of a party. Therefore, I hold that there is no reasonable ground to admit additional evidence as prayed for.

In the result, the appeal has no merit and is, accordingly, dismissed. In the circumstances of the case, there will be no order as to costs of this Court.

Appeal dismissed.