RAHASBEHARI SAHU Vs. UMAKANTA SAHU AND ORS.

JUDGEMENT

(1.) THE dispute in this case relates to one decimal of land with a house standing thereon comprised in plot No. 332 of C.S. Khata No. 380 standing in the name of Chandanadar Samanta Radha Prasanna Das. One Mahant Karunakar Das was the sikmi tenant in respect of the entire Khata. Defendant No. 1 was inducted into the disputed house as tenant by Mahant Karunakar Das. The Mahant had mortgaged the disputed plot 332 with Gobinda Sahu and Gangadhar Sahu. After the death of the Mahant in 1933, the mortgagees filed Mortgage Suit No. 301 of 1934, against one Ram Ram Das alleged to be the Chela of Mahant Karunakar Das and obtained a decree and in execution thereof plot No. 332 was sold in Court auction and purchased by Gangadhar Sahu on 18 -6 -1938. Gangadhar took possession of the disputed plot on 10 -8 -1938. It is alleged that after this purchase, Defendant No. 1 who was occupying the house as a tenant under the Mahant attorney in favour of Gangadhar. On 9 -10 -1950, Gangadhar's widow Defendant No. 4 transferred her right in the disputed plot No. 332 in favour of Defendant No. 3. That IS how Defendant No. 3 claims title to the disputed property.

(2.) THE Plaintiff claims title to the disputed property in the following circumstances:

(3.) TWO rent receipts exhibits A/2 and A/2 -a dated 11 -7 -1943 and 9 -3 -1945 respectively had been produced by Defendant No. 3 and it was argued in the second appeal that these receipts would establish that Radha Prasanna had recognised Defendant No. 3 as a tenant prior to the grant of lease under Ext. 6. As Defendant No. 3 did not set up such a case in the written statement, it was held that he cannot be permitted to canvass it now. The appeal was remanded as the lower appellate Court did not record a finding as to whether Defendant No. 5 was given actual delivery of possession under Ext. 1/a dated 19 -8 -1950 or it was a mere paper transaction. If the actual delivery of possession was given to Defendant No. 5, then the title having been found in favour of the Plaintiff, the Plaintiff's suit is bound to succeed unless it is held that the husband of Defendant No. 4 and after him his successor -in -interest, that is, Defendant No. 4 was in long continuous possession from 10 -8 -1938 till 19.8.1950 so as to acquire a title by adverse possession. If, on the other hand, it was a mere paper transaction, possession from 19 -8 -1950 till the date of institution of the suit would also be taken into consideration. The lower appellate Court was also directed to consider whether by payment of rent under Exhibits A -2 and A -/2a, Gangadhar, the husband of Defendant No. 4 recognised the title of the landlord and whether in such a case adverse possession can at all be set up, and if set up, from which date it started.