DHANAPATI DAS AND ORS. Vs. MAHADEVLAL AGARWALA

JUDGEMENT

(1.) THIS is Plaintiffs' appeal against the appellate judgment of the Subordinate Judge of Sambalpur reversing the judgment of the Munsif of Bargarh and dismissing the Plaintiff's suit for eviction.

(2.) THE Plaintiffs are the muafidars (a class of proprietors) of Bargarh town in the district of Sambalpur. The disputed plot is 4 cents in area situate in the basti portion of Bargarh town, bearing Hamid's Settlement plot No. 607/1. The Plaintiffs' case was that when the proprietary interest of Bargarh was under the Court of Wards, one Haradhan Pujari purchased a house situated on the disputed plot from its previous owner Janardan Panda on 21.9.1908 by a registered sale deed. He then obtained the consent of the proprietor (the Court of Wards) to the transfer by paying the usual Nazarana on 2 -1 -1909 -. The Defendant who is a Marwari business -man of Bargarh town, purchased the disputed plat together with the building standing thereon from the said Haradhan Pujari by a sal deed dated 5 -6.42, but he did not care to obtain the consent of the Plaintiffs to the transfer. Hence the suit was brought on the ground that the transfer by Haradhan in favour of the Defendant without the consent of the landlord would not bind the latter and that he was entitled to treat the holding as abandoned and take possession of the same. It was also specifically alleged in the plaint that in Bargarh town no person, whether a tenant or a Sukbasi, could validly transfer any basti site without the consent of the proprietors.

(3.) THE trial Court held that basti site in Bargarh town was not alienable without the consent of the proprietors and therefore decreed the Plaintiffs' suit. The lower appellate Court, however, held that the Plaintiffs failed to establish their case of non -transferability without the consent of the proprietors. He also held that the Defendant also failed to establish his case of free transfer ability of basti sites in Bargarh town without the consent of the landlord - Having thus disbelieved the pleas put forward by both parties, he carefully examined the evidence regarding the conditions under which the predecessors -in -interest of the Defendant were in occupation of the disputed plot and held that apart from an isolated instance of obtaining consent by Haradhan during the regime of the Court of Wards in 1909 successive transfers had taken place from 1871 without obtaining the consent of the proprietors. He further held that the disputed plot was in the occupation of the Doras and the Tiars prior to 1871 long before the then Government recognised the status of the Plaintiffs' ancestors as muafidars -proprietors of the village Hence, according to the lower appellate Court, the proprietary right of the Plaintiff' family was subject to the right already acquired on the disputed plot by the Doras and the Tiars prior to 1871, and that therefore consent of Plaintiffs was not necessary for the transfer of the disputed site.