Ushamani Dei and Others vs Gandharba Barik and Another

N.K. Das, J.—Plaintiffs are Appellants against a judgment of confirmation. Late Banshidhar Chowdhury @ Patnaik, husband of Plaintiff No. 1 and father of other Plaintiffs, originally filed the suit for declaration of title, confirmation of possession and mandatory injunction for removal of a shed along with a claim for damages. After his death, he has been substituted by the present Appellants.

Plaintiffs'' case is that Parikshit Barik, father of Defendant No. 1, was the owner of the suit properties. He sold those properties on 27-11-1938 to Banshidhar by Ext. 3. After such purchase, Banshidhar and, after him, the Plaintiffs are in continued possession of the suit properties. Banshidhar had a Pan Baraja (betel-leaf garden) over the suit land. In Daleighai flood of 1955, this Pan Baraja was washed away. A part of their house was also damaged and all the title deeds and papers were destroyed. Thereafter, they grew Bid and other crops on the suit land. Some of the villagers of the suit village interfered with possession of the Plaintiffs and ultimately the Defendants cut a palm tree worth Rs. 60/- from the suit land and created a shed thereon. Hence, the suit.

The case of the Defendants is that the sale deed in favour of Banshidhar was a sham and nominal deed. Parikshit executed the said document in order to save the suit land from the clutches of his creditors. This document was in favour of Banshidhar as he happened to be a Surjya Bandhu of Parikshit. It is further alleged that Parikshit never parted with custody of the document and possession of the land, but rent was paid in the name of Banshidhar. They had their ancestral residential house on plot No. 1342 and Parikshit had also raised a pan Baraja on a portion of the suit land. The house, the Pan Baraja and also the impugned sale deed and other documents were washed away in Daleighai flood of 1955. Therefore, Defendants constructed their present residential house on a portion of plot No. 1343 and are using the rest of the suit land as Bari. They have also taken a plea of acquisition of title by adverse possession;

The trial Court accepted the defence case and dismissed the suit. This was also confirmed by the first appellate Court. The first appellate Court held that the document in favour of Banshidhar was genuine, but there was no passing of consideration and the document was never acted upon. As there was no passing of consideration, there was no delivery of possession and the Defendants continued to remain in possession of the suit land. It was also held by the appellate Court that, in the alternate, even if any title passed to Banshidhar, Defendants have perfected their title by adverse possession.

Both the Courts below have concurrently held that Defendants have failed to establish any motive for having a sham document in favour of Banshidhar nor it has been established that the document was created to save the property from the clutches of creditors. Defendants have also not been able to establish the so-called relationship of Surjya Bandhu between Banshidhar and Parikshit. The lower appellate Court in para 9 of his judgment has found that the inference should be that the Defendants proved the custody of the impugned sale deed with them. Possession has also been found in favour of the Defendants.

Mr. R.N. Sinha, the learned Counsel for the Appellants, contends that though the lower appellate Court has placed the onus on the Defendants for establishing the allegation that the document Ext. 3 was a sham and nominal transaction, or that it was a Benami one, has misdirected himself in not considering the materials on record in its proper perspective and has failed to take notice of the legal position in this respect. The lower appellate court has come to the conclusion that there was no motive for such a document, nor there was any close relationship between Parikshit and Banshidhar, so that such a document would be created in favour of Banshidhar. It has also been found that the materials on record do not support the contention of the Defendants that Parikshit tried to save the suit properties from the clutches of any creditor. Having held, as stated above, the lower appellate Court has come to the conclusion that there was no passing of consideration and, consequently, there was no delivery of possession. It is contended that u/s 32(3) of the Evidence Act, there should be a presumption of passing of consideration. Parikshit is admittedly dead. In the document Ext. 3, he has stated that he has received the consideration. Reliance is placed on the case of Gulam Ali Saha v. Sultan Kkan ILR 1969 Cutt 571. wherein it has been held that the recital of payment of, consideration which is a statement made by a deceased person is binding against the interests of his successors ab the same is against the pecuniary and proprietary interest of the vendor u/s 32(3) of the Evidence Act. This principle has also been confirmed in Lakshmidhar Sahu v. Kanhei Sahu 1973 (2) C.W.R. 1759. On the principle enunciated in the aforesaid two decisions, the statement of a dead person against his pecuniary interest is a good evidence in support of passing of consideration. This should have been taken notice of while considering the question of passing of consideration. Undisputedly, this aspect of the case has not been noticed by the Courts below. It is, therefore, necessary that this aspect of the matter should be considered along with other evidence on that point.

It is the admitted case of both sides that the original of Ext. 3 is no longer in existence as the same was washed away during the high flood of 1955 and there was a breach at Daleighai. The lower appellate Court has arrived at a conclusion that the custody of the document should be presumed to be with Defendant No. 1. He has relied on the evidence of a single witness who is a party to the suit and has disbelieved the version of the Plaintiffs on the ground that Plaintiff No. 1 has not been examined. After going through the evidence, I find that custody of the document has not been established by any of the parties. Argument has been advanced on behalf of the Appellants that when there was mutation and the name of the vendee appears in the Yadust and rent has also been collected by Government in the name of Banshidhar, the Courts below should have held that the document was in custody of Banshidhar. As I am inclined to remand the case to the lower appellate Court for reasons to be stated hereinafter, it is necessary that this aspect of the case should be considered along with other evidence on record.

7.. The lower appellate Court has come to a conclusion that Parikshit did not deliver possession of the suit properties and he and after him the Defendants have been in possession thereof. No finding has been given by the Courts below on the point of adverse possession. Onus lies on the Defendants to establish that they have perfected their title by adverse possession. Though in para 16 of the judgment the lower appellate Court has held that Defendants have perfected their title by adverse possession, he has not given any finding if Defendants have established the ingredients required for acquisition of title by adverse possession. The onus is on the Defendants to plead and prove that they have acquired title by adverse possession. They have taken such a plea in the written statement. Article 65 of the Limitation Act. 1963 proves that any suit for possession of immovable property or any interest therein based on title will be filed within twelve years when the possession of the Defendant becomes adverse to the Plaintiff. In the present case, Plaintiffs have claimed title on the basis of Ext. 3. This document has been found to be a genuine one and only the question of passing of consideration has been found against the Plaintiffs. I have already held that this finding requires reconsideration keeping in view the provisions of Section 32(3) of the Evidence Act. If passing of consideration is found in favour of the Plaintiffs, then Plaintiffs would be deemed to have acquired title by virtue of the document, provided Defendants have not perfected their title by adverse possession and if Plaintiffs establish their title, they are entitled to recover possession. Reliance has been placed on Gobinda Pradhan v. Chatrubhuja Parida 1974 (1) C.W.R 46, in respect of the aforesaid contention. It is further argued that even the Defendants are found to be in possession of the suit properties, such possession should not amount to adverse possession. In Kulwantrai Goel v. Johan Christian 1972 (1) C.W.R 102, it has been held that until the Defendant establishes loss of Plaintiffs'' title on account of the Defendant being in adverse possession for more than the statutory period, the Plaintiffs are entitled to succeed on the basis of antecedent title. When the burden lies on the Defendant and when the burden of proof is sought to be discharged by oral evidence, the evidence has to be scrupulously examined. It is further contended that the learned Courts below have misdirected themselves in not taking into consideration that the Parcha stands in the name of the Plaintiffs and they should have held that this being a public document, there is presumption of possession in favour of the Plaintiffs. But the Courts below have lost sight of this position of law In Banshidhar Mohapatra v. Souri Samal ILR 1967 Cutt 163, it has been held that the parcha slips mean draft record-of-rights. They are issued by public officers in due discharge of duties in accordance with the instruction prescribed under the Survey and settlement Manual and are admissible u/s 35 of the evidence Act. Doubtless, they have not the presumptive value of correctness of the finally published record-of-rights as referred to in Section 117(3) of the Orissa Tenancy Act, but they are admissible in proof of the fact that at the time when the draft records-of-rights were prepared, the tenant to whom the parcha slip was issued was found to be in possession by public servants in due discharge of their duties. Also in Jai Parida v. Srimati Bhaba 1973 (1) C.W.R. 794, the case of Bansidhar Mohapatra (supra) has been reiterated. Undoubtedly the Court below has not considered the question of possession from this standpoint.

Admittedly, rent was being raid in the name of Banshidhar. It is contended by the Defendants that Parikshit was paying rent in the name of Banshidhar. It has been held in Endumurn Nagaya Boitharu Vs. Potaju Raghunath Boitharu and Another, , that when the Defendant who is in possession takes the house-tax receipts in the name of the Plaintiff, this clearly indicates that the Defendant acknowledged the title of the Plaintiff and as such the possession of the Defendant is permissive. It has also been held in that decision that when plain tiff set up a tenancy between, him and the Defendant and the same is not proved, the Plaintiff is entitled to succeed on his anterior title against a trespasser. The lower appellate Court has discussed the evidence as to rent receipt Ext. 2 series, but he has not taken notice of this aspect of the matter along with other facts and circumstances found by him.

It is contended by the Appellants that the standard for assessment of evidence as has been done in case of witnesses for the Defendants has not been made applicable to the evidence of witnesses on behalf of the Plaintiffs and on flimsy grounds the evidence of witnesses for the Plaintiffs has been discarded and onus has not been properly placed on the respective parties according to law. As I am remanding the case for re-assessment of evidence, this matter is open to be considered by the lower appellate Court while considering the materials on record.

It is also not disputed that while considering the question of adverse possession, the Defendants will not only rely on the positive evidence adduced from their side, but they can also rely on evidence of witnesses for the Plaintiffs and the materials brought out from that by way of cross-examination.

In view of the aforesaid findings, reappraisal of evidence is necessary and this has to be done by the final Court of facts. It is not desirable that this Court would reappraise and reassess the evidence. Accordingly, the lower appellate Court has to consider the evidence afresh and, while assessing evidence, he should keep in view the observations made above. It is also made clear that the lower appellate Court should not be influenced by the findings already made in the previous judgment of the lower appellate Court. He should reassess and reconsider the entire evidence.

It is also made dear that if the lower appellate Court comes to the ''conclusion that Plaintiffs have perfected their title and Defendants have failed to establish their title by adverse possession, Plaintiffs would be entitled to a decree.

In the result, the appeal is allowed. The judgment and decree of the Court below are set aside. The suit is remanded to the lower appellate Court for disposal according to law keeping in view the observations made above. In the circumstances of the case, there will be no order as to costs of this Court.

Appeal allowed.