RAJA RAJENDRA NARAYAN BHUNJ DEO Vs. NILAMANI BEHERA

JUDGEMENT

(1.) The plaintiff-respondent in 1912 purchased an occupancy holding situated in the permanently settled zamindari of the appellant-defendant. He took no steps to have this purchase mutated in the defendant's sherista. In 1926, in the current survey, the original tenant's name was recorded in respect of the holding with a note that the holding had been sold to the present plaintiff. The appellant took out certificate proceedings against the original tenant to recover arrears of rent and in execution purchased the holding and obtained delivery of possession. The respondent thereupon instituted the present suit for a declaration of his status as an occupancy raiyat of the holding and for recovery of possession. The trial Court held that the respondent had been in possession of the holding from 1912 until 1932 when the appellant obtained delivery of possession in execution of his certificate. The trial Court held however that the marfatdari receipts which had come into existence between the date of the plaintiff's purchase and his dispossession could not be accepted as evidence that the landlord had knowledge of the purchase. Hence he held that the plaintiff's possession was not to the knowledge of the landlord and that he had acquired no tenancy rights in the holding. In appeal to the learned District Judge, the finding that the respondent has been in possession for 20 years has been confirmed: But the learned District Judge held that it was immaterial whether the landlord had knowledge of the plaintiff's purchase or not and that accordingly the respondent had by adverse possession acquired occupancy rights in the disputed holding. In appeal by the landlord, reference was made to the decision of a Single Bench of this Court reported in Nalinikanta Mukherji V/s. Gobinda Ramanuja Das, AIR 1934 Pat 458 in which the learned Judge said: How can there be an assertion of title to operate against the landlord unless it is made to his knowledge, and how can a purchaser who only pays rent in the name of his vendor be said to assert his own title as a tenant?

(2.) That was a case in which the landlord was suing for recovery of the registration fee to which he was entitled on transfer of an occupancy holding by reason of the provisions of Section 31, Orissa Tenancy Act, and the defence appears to have been that the defendant, by reason of his possession, was entitled to retain the holding without payment of the fee. The facts are there, fore different from those in the present case. On behalf of the respondent reference was made to a Division Bench of the Calcutta High Court in Probbabati Dasi V/s. Taibatunnessa Chowdhurani, AIR 1914 Cal 196. That was a suit by the landlord auction, purchaser to recover possession of land which was in the possession of the transferee from the original tenant. Referring to the evidential value of the marfatdari receipts and the effect of them in relation to the question of the landlord's knowledge of the transfer, the learned Chief Justice, Sir Lawrence Jenkins, expressed his opinion that in such cases it was a mistake to pay too much attention to mere words but that what is essential is to take into consideration all the facts and circumstances for the purpose of determining whether the relationship of landlord and tenant exists between the zamindar and the transferee. That case, however, was not eventually decided on that ground, so that it is not of much assistance for the determination of the present appeal. It is argued by the learned advocate for the appellant that possession without the knowledge of the landlord is insufficient to establish the right which the respondent claimed. In other words, however long the transferee may have been in possession, and however openly his possession may be, if the landlord in fact had not knowledge of it, it is insufficient for the purpose of enabling the transferee of a holding to establish as against him tenancy rights in the holding. Now this question of necessity for knowledge of an assertion of a hostile title was dealt with by their Lordships of the Privy Council in Secy. of State V/s. Devendra Lal Khan, where their Lordships said with regard to this question that: The classical requirement is that the possession should be nec vi nec clam nec precario. Mr. Dunne for the Grown appeared to desiderata that the adverse possession should be shown to have been brought to the knowledge of the Grown, but in their Lordships opinion there is no authority for this requirement. It is sufficient that the possession be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening.

(3.) The existence of marfatdari receipts is not necessarily evidence of an intention to conceal from the landlord the real state of affairs, for while in some oases that is the object of paying rent in the name of the original tenant, in other cases the reason for the existence of such receipts is that the landlord knows the real facts but is not willing to give to the transferee a receipt which may be an effective recognition of the transfer. In my opinion, therefore, the existence of the marfatdari receipts did not by themselves evidence an intention to conceal a transfer from the landlord. I have, therefore, in this case the fact which cannot now be disputed that over a period of 20 years the respondent has been in possession of this holding within the estate of the defendant-appellant, and in my view, by that possession which is not proved to have been concealed from the defendant, he has acquired occupancy rights in the disputed holding. I would, therefore, confirm the decision of the learned District Judge and dismiss this appeal with costs.