Orissa High Court
Nabab @ Amarnath Mohapatra @ vs Santosh Kumar Biswal &Others on 18 May, 2026
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.222 of 2007
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Nabab @ Amarnath Mohapatra @ .... Appellant
Babu
-versus-
Santosh Kumar Biswal &Others .... Respondents
For Appellant – Mr.Maheswar Mohanty, Advocate
For Respondents – Mr. M.K.Mishra, Sr. Advocate
Ms. J.Sahoo, Adv.
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :08.04.2026:: Date of Judgment :18.05.2026A.C. Behera, J. This Second Appeal has been preferred against the reversing
judgment.
2. The Appellant in this Second Appeal was the Plaintiff before the
learned Trial Court in the suit vide C.S. No.36 of 2004 and Respondent
No.1 before the learned 1st Appellate Court in the first appeal vide R.F.A.
No.21/28 of 2006.
The Respondent Nos.1 and 2 in this 2nd Appeal were the Defendant
Nos.3 and 4 before the learned Trial Court in the suit vide C.S. No.36 of
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2004 and Appellants before the learned 1st Appellate Court in the 1st appeal
vide R.F.A. No.21/28 of 2006.
The Respondent Nos.3 and 4 in this 2nd Appeal were the Defendant
Nos.1 and 2 before the learned Trial Court in the suit vide C.S. No.36 of
2004 and Respondent Nos.2 and 3 before the learned 1st Appellate Court in
the 1st appeal vide R.F.A. No.21/28 of 2006.
3. The suit of the Plaintiff (Appellant in this 2nd Appeal) vide C.S.
No.36 of 2004 was a suit for declaration, recovery of possession and
permanent injunction.
4. The properties described in the Schedule-A of the plaint are the suit
properties.
5. As per the case of the Plaintiff, the suit properties described in
Schedule-A of the plaint under Sabik Khata No.230, Plot No.196/799,
Ac.0.60 dec. was recorded in the name of Jagannath Babu son of
Rathunath Babu and accordingly, Jagannath Babu was the owner of the
suit properties. The said Jagannath Babu died leaving behind his wife
Hemalata, as his successor and as such, after the death of Jagannath Babu,
the suit properties left by Jagannath Babu devolved upon his wife
Hemalata. Hemalata sold Ac.0.45 dec. of land out of Ac.0.60 dec. of land
from suit Sabik Plot No.196/799 to Nirodabala Singh on dated 02.03.1966
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by executing and registering a sale deed. After purchasing the same,
Nirodabala Singh mutated her said purchased properties i.e. Ac.0.45 dec.
of Sabik Plot No.196/799 to her name through Mutation Case No.773 of
1967 and accordingly, in respect of that Ac.0.45 dec. of land, separate
R.o.R. was prepared in the name of Nirodabala Singh. The rest Ac.0.15
dec. of land of suit Sabik Plot No.196/799 remained in the name of
Jagannath Babu and the said Ac.0.15 dec. of land are the Schedule-A suit
properties.
Jagannath Babu had a brother namely Jadunath Babu. Jagannath
Babu and his wife Hemalata died issueless.
The Plaintiff Nabab @ Amarnath Mohapatra @ Babu along with his
brother Akshya are the sons of Jadunath Babu. After the death of
Jagannath Babu and his wife Hemalata, the aforesaid Ac.0.15 dec. of land
from Sabik Plot No.196/799 left by Hemalata devolved upon her nephews
i.e. Plaintiff Nabab @ Amarnath Mohapatra @ Babu and his brother
Akshya, but, through an amicable partition between the Plaintiff and his
brother Akshya, the suit properties fell into the share of Plaintiff Nabab @
Amarnath Mohapatra @ Babu and accordingly, the Plaintiff is the owner
of the Schedule-A suit properties.
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The suit properties are the house and homestead properties. The
original owner thereof i.e. Jagannath Babu had a thatched house on the
same and that was his residential house. After the death of Jagannath Babu,
his wife Hemalata was residing in that house. After the death of Hemalata,
the Plaintiff stayed in the said house up to the year 1980 and then shifted to
Kaptipada.
The Plaintiff being the owner of the suit homestead properties, let
out the same on monthly rent of Rs.100/- to one Thakara @
Chandrasekhara Biswal and accordingly, Thakara @ Chandrasekhara
Biswal paid the rent of the same in each month regularly to the Plaintiff
and he was also paying the holding tax and revenue of the same on behalf
of the Plaintiff and the said amount were deducting from his monthly rent.
During Hal settlement operation, the Plaintiff requested his tenant Thakara
@ Chandrasekhara Biswal to look after the affairs before the settlement
authorities for recording the suit properties in the name of the Plaintiff in
the Hal Settlement, but, taking such advantage, the tenant Thakara @
Chandrasekhara Biswal managed to record the suit properties in his name
under Khata No.17 without the knowledge of the Plaintiff and used to pay
the rent of the same in his name creating a belief in the mind of the
Plaintiff that, he (Thakara @ Chandrasekhara Biswal) is paying rent of the
same regularly on behalf of the Plaintiff, as he (Thakara @
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Chandrasekhara Biswal) was deducting the amount of paid rents from the
monthly rent of the suit house.
After the death of Thakara @ Chandrasekhara Biswal, his wife
Ninimani Biswal managed to mutate the suit properties to her name
through Mutation Case No.210/88 behind the back of the Plaintiff. The
said Ninimani Biswal wife of Thakara @ Chandrasekhara Biswal died
issueless on 14.11.1995.
After the death of Ninimani Biswal, her nephews i.e. the Defendant
Nos.1 and 2 requested Plaintiff to allow them to stay in the said house on
monthly rent like their uncle and aunt i.e. Thakara @ Chandrasekhara
Biswal and Ninimani Biswal.
To which, the Plaintiff agreed and accordingly, the Defendant Nos.1
and 2 stayed in the suit house as tenant under the Plaintiff on monthly rent
of Rs.500/-. The Plaintiff converted the thatched house on the suit
properties to a tiled roof house. As per the request of the Plaintiff, the
Defendant Nos.1 and 2 paid the holding tax as well as land revenue of the
same on behalf of the Plaintiff and the said amount were deducting from
their monthly house rent.
During the stay of the Defendant Nos.1 and 2 in the suit house on
rent, they managed to record the suit land in their names through mutation
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case No.1148/05 illegally as the successors of Ninimani Biswal without the
knowledge of the Plaintiff.
The Defendant Nos.1 and 2 illegally executed and registered a sale
deed vide R.S.D. No.1052 dated 26.05.2000 in respect of the Ac.0.030 dec.
of the suit land in favour of the Defendant Nos.3 and 4 without the
knowledge of the Plaintiff. When, the Defendant Nos.1 and 2 stopped the
payment of monthly rent of the suit house to the Plaintiff, then, the
Plaintiff asked for the same, but, they (Defendant Nos.1 and 2) refused to
pay the same and expressed that, they are the owners of the suit properties.
The Defendant Nos.3 and 4 also expressed that, they have purchased part
of the suit properties from the Defendant Nos.1 and 2 through registered
Sale deed No.1052 dated 26.05.2000. For which, the Plaintiff was
surprised and applied for the certified copy of the said Sale deed No.1052
dated 26.05.2000 and obtained the same on dated 08.12.2003 and came to
know about the illegal recording of the suit land in favour of his tenants i.e.
the Defendants and their predecessors. After obtaining the certified copy of
the R.o.Rs. thereof as well as the orders of the Mutation cases, he
(Plaintiff) came to know that, the predecessor of the Defendants and the
Defendants have managed to record the suit properties in their names
illegally behind his back and without any basis.
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For which, the Plaintiff requested Defendants on 31.12.2003 for
vacation of the suit properties, to which, they (Defendants) refused.
6. As, the Defendants have no manner of right, title, interest and
possession over the suit properties and he (Plaintiff) is the owner of the
same and the R.o.Rs. prepared in favour of the Defendants as well as in
favour of their predecessors are baseless and non-est in the eye of the law,
then, he (Plaintiff) approached the Civil Court by filing the suit vide C.S.
No.26 of 2004 against the Defendants praying for declaration of his right,
title and interest over the Schedule-A suit properties and to direct the
Defendants to deliver the possession of the same to him (Plaintiff) and also
to declare that, the sale deed No.1052 dated 26.05.2000 executed by the
Defendant Nos.1 and 2 in favour of the Defendant Nos.3 and 4 is not
binding upon him (Plaintiff) and to restrain them (Defendants)
permanently from possessing the suit properties and to pass such other
reliefs, to which, he (Plaintiff) is entitled for.
7. Having been noticed from the learned Trial Court in the suit vide
C.S. No.36 of 2004 filed by the Plaintiff, the Defendant Nos.1 and 2 were
set ex-parte without filing any written statement, but, the Defendant Nos.3
and 4 contested the suit of the Plaintiff by filing their joint written
statement taking their stands inter alia therein that,
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The suit of the Plaintiff is not maintainable. The Plaintiff has no
locus standi to file the suit. The Plaintiff has no cause of action for filing
the suit. The suit of the Plaintiff is barred by law of limitation. The suit
land had never been fallen in the share of the Plaintiff. There was no
thatched house on the suit plot at any point of time. Thakara @
Chandrasekhara Biswal had not taken the suit house on monthly rent from
the Plaintiff. As such, Thakara @ Chandrasekhara Biswal was not a tenant
of the suit house under the Plaintiff. He (Plaintiff) was/is a permanent
resident of Kaptipada. Kaptipada is situated at a distance of 8 K.M. away
from the suit house. The Plaintiff had not stayed at any point of time at
Udala. All the pleas taken by the Plaintiff in his plaint were denied by the
Defendant Nos.3 and 4 in their written statement. The Settlement
Authorities had rightly and legally recorded the suit properties in favour of
the predecessors of the Defendant Nos.1 and 2 i.e. in the name of Thakara
@ Chandrasekhara Biswal, thereafter, in the name of Ninimani Biswal.
When, Ninimani Biswal died in the year 1995, then, the suit properties
were rightly recorded in the name of the Defendant Nos.1 and 2 through
orders passed in mutation case. They (Defendant Nos.3 and 4) were never
asked by the Plaintiff on dated 31.12.2003 to vacate the suit house. So, the
cause of action indicated in the suit of the Plaintiff is a false one. The
Plaintiff is not the rightful owner of the suit properties. The recording of
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the suit properties in the name of Thakara @ Chandrasekhara Biswal and
his successors cannot be treated as illegal.
8. The specific case/plea of the Defendant Nos.3 and 4 in their written
statement was that, Thakara @ Chandrasekhara Biswal was the recorded
owner of the suit properties. After the death of Thakara @ Chandrasekhara
Biswal in the year 1985, his widow Ninimani Biswal became the owner of
the same being the successor of Thakara @ Chandrasekhara Biswal. After
the death of Ninimani Biswal in the year 1995, all the Defendants being
her successors became the owner of the suit properties. The Defendant
Nos.1 and 2 sold their interest in the suit properties through R.S.D.
No.1052 dated 26.05.2000 in favour of the Defendant Nos.3 and 4. For
which, they (Defendant Nos.3 and 4) are the owners over the suit
properties.
Therefore, the Plaintiff has no right, title, interest and possession
over the suit properties. For which, the suit of the Plaintiff is liable to be
dismissed.
9. Basing upon the aforesaid pleadings and matters in controversies
between the parties, altogether seven numbers of issues were framed by the
learned Trial Court in the suit vide C.S. No.36 of 2004 and the said issues
are:-
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Issues
1. Is the suit maintainable?
2. Has the Plaintiff, right, title and interest over the suit
land?
3. Whether, Plaintiff is entitled for the recovery of the
suit properties?
4. Whether, the Plaintiff is entitled to the relief of
permanent injunction ?
5. Whether, the Defendants have got right, title, interest
and/or possession over the suit land?
6. Is the R.S.D. No.1052 dated 26.05.2000 executed by
Defendant Nos.1 and 2 in favour of the Defendant Nos.3 and
4 is binding on Plaintiff?
7. To what other relief, if any, the Plaintiff is entitled?
10. In order to substantiate the aforesaid relief sought for by the Plaintiff
against the Defendants, he (Plaintiff) examined four witnesses on his
behalf including him as P.W.4 and relied upon the documents vide Exts.1
to 17.
On the contrary, in order to defeat/nullify the suit of the Plaintiff, the
Defendant Nos.3 and 4 examined four numbers of witnesses from their
side including Defendant No.3 as D.W.1 and exhibited several documents
on their behalf vide Exts.A to L.
11. After conclusion of hearing and on perusal of the materials,
evidence and documents available in the record, the learned Trial Court
answered all the issues in favour of the Plaintiff and against the
Defendants and basing upon the findings and observations made by the
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learned Trial Court in all the issues in favour of the Plaintiff and against
the Defendants, the learned Trial Court decreed the suit of the Plaintiff
vide C.S. No.36 of 2004 on contest against the Defendant Nos.3 and 4 and
ex-Parte against the Defendant Nos.1 and 2 and declared the right, title
and interest of the plaintiff over the Schedule-A suit properties and
directed the Defendant Nos.3 and 4 to deliver the possession of the suit
properties to him (Plaintiff) and also declared the R.S.D. No.1052 dated
26.05.2000 executed by the Defendant Nos.1 and 2 in favour of the
Defendant Nos.3 and 4 in respect of the suit properties is not binding upon
the Plaintiff and restrained the Defendants as well as their LRs
permanently from coming over the suit properties assigning the reasons
that,
the suit properties originally belong to Jagannath
Babu and after the death of Jagannath Babu and his wife
Hemalata, the same devolved upon the Plaintiff and there is
no nexus/relation of Thakara @ Chandrasekhara Biswal
with Jagannath Babu in any manner for recording of the
suit properties in his name in the settlement. For which, the
recording of the suit land in the Hal R.o.R. in the name of
Thakara @ Chandrasekhara Biswal was baseless and
likewise, the subsequent R.o.R. prepared on the basis of the
order passed in mutation cases in respect of the suit
properties in the name of the wife of Thakara @
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Chandrasekhara Biswal i.e. Ninimani Biswal and the
Defendants are baseless and as such, there is no material or
document in the record to show about the devolution of the
suit properties to Thakara @ Chandrasekhara Biswal from
Jagannath Babu and Ninimani Biswal.
Rather, the Plaintiff being the successor of the original
owner Jagannath Babu, he is the real owner of the suit
properties. For which, he (Plaintiff) is entitled to get the
decree of declaration of right, title and interest over the suit
properties in his favour. As, the Defendants have no interest
in the suit properties, for which, they (Defendants) are to
deliver the possession of the suit properties in favour of the
Plaintiff. The sale deed executed by the Defendant Nos.1
and 2 vide sale deed No.1052 dated 26.05.2000 in respect of
the part of the suit properties in favour of the Defendant
Nos.3 and 4 is not binding upon the Plaintiff and the pleas
taken by the Defendant Nos.3 and 4 are not acceptable and
sustainable under law.
12. On being dissatisfied with the aforesaid judgment and decree dated
29.04.2006 and 12.05.2006 respectively passed by the learned Trial Court
in the suit vide C.S. No. 36 of 2004 in favour of the Plaintiff and against
the Defendants, the Defendant Nos.3 and 4 challenged the same preferring
the 1st Appeal vide R.F.A. No.21/28 of 2006 being the Appellants against
the Plaintiff arraying him (Plaintiff) as Respondent No.1 and also arraying
the Defendant Nos.1 and 2 as proforma Respondent Nos.2 and 3.
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13. After hearing from both the sides, the learned 1 st Appellate Court
allowed that first appeal vide R.F.A. No.21/28 of 2006 of the Defendant
Nos.3 and 4 and dismissed the suit of the Plaintiff vide C.S. No.36 of 2004
and set aside the judgment and decree passed by the learned Trial Court in
favour of the Plaintiff as per its judgment and decree dated 26.03.2007 and
11.04.2007 respectively assigning the reasons that,
when, the Plaintiff filed the suit for possession basing on
title beyond the period of 12 years and when, possession of
Defendants became adverse to him (Plaintiff), as Thakara @
Chandrasekhara Biswal was in possession over the suit
properties since the year 1980, then, the suit of the Plaintiff is
barred by law of limitation. For which, the suit of the Plaintiff is
not maintainable.
Therefore, the suit of the Plaintiff is liable to be
dismissed.
14. On being aggrieved with the aforesaid judgment and decree dated
26.03.2007 and 11.04.2007 respectively passed by the learned 1st Appellate
Court in R.F.A. No.21/28 of 2006 against the Plaintiff in dismissing his
suit vide C.S. No.36 of 2004 after setting aside the judgment and decree
passed in that suit by the learned Trial Court in his favour and against the
Defendants, he (Plaintiff) challenged the same preferring this 2nd appeal
being the Appellant against the Defendants arraying them (Defendants) as
Respondents.
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15. This 2nd Appeal was admitted on formulation of the following
substantial question of law i.e.:-
Whether, the lower appellate Court is justified in
applying the Article 64 of the Limitation Act to hold that,
the suit to be not maintainable, when, the same has no
application to the instant suit?
16. I have already heard from the learned counsels of both the sides.
17. During the course of hearing, in order to assail the impugned
judgment and decree passed by the learned 1 st Appellate Court in R.F.A.
No.21/28 of 2006 and in support of the judgment and decree passed by the
learned Trial Court, the learned counsel for the Appellant (Plaintiff) relied
upon the following decisions i.e.:-
(i) In a case between Jagabandhu Badapanda Vrs. Lokanath Meswa
and another reported in 2024 (II) ILR-CUT-361.
(ii) In a case between Graftek Pvt. Ltd. and others Vrs. Lingaraj
Mahapravu Bije, Bhubaneswar and others reported in 88(1999) C.L.T.
290.
On the contrary, in support of the impugned judgment and decree
passed by the learned 1st Appellate Court, the learned counsel for the
Respondent Nos.1 and 2 (Defendant Nos.3 and 4) relied upon the
following decision i.e.:-
In a case between Partap Singh (dead) through Legal
Representatives and others Vrs. Shiv Ram (dead) through Legal
representative and others reported in (2020) 11 SCC 242.
Page 14 of 25
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18. The duly proved sabik R.o.R. under Khata No.230 Plot No.196/799
corresponding the suit land is establishing that, the suit properties
originally belong to Jagannath Babu.
The Plaintiff is claiming the suit properties, as the successor of the
said original recorded tenant of the suit properties i.e. Jagannath Babu.
To which, the Defendants Nos.3 and 4 are objecting/denying and
they (Defendant Nos.3 and 4) are claiming that, the suit properties belong
to them, as the said suit properties were recorded in the Hal settlement in
the name of their predecessor i.e. Thakara @ Chandrasekhara Biswal and
then, in the name of his wife Ninimani Biswal and after the death of
Ninimani Biswal, the same was recorded in their names through orders
passed in mutation cases and the Defendant Nos.1 and 2 have sold their
share in the suit properties to the Defendant Nos.3 and 4 through R.S.D.
No.1052 dated 26.05.2000.
19. It is the undisputed case of the Parties that, neither the Defendants
nor their predecessors are any way related/connected with the original
tenant of the suit properties i.e. Jagannath Babu, in whose name, the suit
Plot No.230 was recorded in the Sabik R.o.R..
20. It is the settled propositions of law that,
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title in respect of a particular land can be
transferred/created in favour of a person either through
inheritance or succession or through the deed of
conveyance or through adverse possession.
21. Here in this suit/appeal at hand, in the pleadings of the Defendant
Nos.3 and 4, they have not claimed their title in the suit properties through
adverse possession, but, they (Defendant Nos.3 and 4) have claimed their
title in the suit properties on the basis of the recording of the same in the
last Hal settlement in the name of their predecessors i.e. Thakara @
Chandrasekhara Biswal, though, in the Sabik R.o.R., the suit properties
were in the name of Jagannath Babu and the Defendants are in no way
related with Jagannath Babu and his wife. Undisputedly, the Defendants
are not the successors of Jagannath Babu.
There is no document on behalf of the Defendants to show about the
transfer of ownership of the suit properties from Jagannath Babu to the
predecessors of the Defendants i.e. Thakara @ Chandrasekhara Biswal.
22. It is the settled propositions of law that,
In order to transfer the ownership of a land like the
suit land from one person to another person, a deed of
conveyance is required. Because, immovable property
may be legally or lawfully transferred/convened only by
the registered deed of conveyance.
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The recording of any property either by the settlement
authority or by the revenue authority changing the R.o.R.
from the name of one person to the name of another
person, there should be a basis for the same i.e.
inheritance or succession or the deed of conveyance. So,
the recording of any land changing the same from the
name of one person to the name of another person, the
basis for the same is required.
On this aspect, the propositions of law has already been clarified by
the Hon’ble Courts and Apex Court in the ratio of the following
decisions:-
(I) In a case between Smt. Damayanti Panda (since dead)
Smt. Chandrashree Panigrahi Vs. Bijoy Tanti & Others
reported in 2019 (1) OLR 93 that,
to transfer ownership, a document is required.
(II) In a case between Mahnoor Fatima Imran & Others Vs.
M/s. Visweswara Infrastructure Pvt. Ltd & Others reported
in 2025 (3) CCC 48 (SC) that,
immovable property can be legally and lawfully
transferred/conveyed only by a registered deed of conveyance.
(Para No.16)
(III) In a case between Sm. Pankajini Debi & Others Vs.
Sudhir Dutta& Others reported in AIR 1956 Cal. 669 that,
title or title to land does not pass by admission when the
statute requires a deed of transfer.
(IV) In a case between Absalam Paik & Others Vs.
Collector and District Magistrate, Gajapati & Others reported
in 2011 (I) CLR (SC) 937 that,
in the absence of any valid document establishing the title of
the “D” over the case land, the entry in the R.o.R is of no help.
(Para No.10)
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(V) In a case between Prabhagiya Van AdhikariAwadh Van
Prabhag Vs. Arun Kumar Bharadwaj (dead) through LRs &
Others reported in 2021 (II) OLR (SC) 904 that,
R.o.R or Revenue Record, prepared without any order or
without any supporting document, shall not create any right in
favour of the recorded person. (Para Nos.27 & 28)
(VI) In a case between Mohammad Maqbool Vs. State of
J, K & L & Others reported in 2025 (2) Civ.C.C. 229 that,
preparation of the revenue record in violation of law of
succession, cannot be sustainable under law. (Para No.10).
(VII) In a case between Pabani Barik Vs. Bhubaneswar
Development Authority represented through Its Secretary
& Another reported in 2001 (II) OLR 221 that,
there is no document to show that, the petitioner has legal
right on the property, an order of mutation to the name of the
petitioner by the Tahasildar is not based on any document, the
said order for recording the same in the name of the petitioner,
shall be deemed as non-est in the eye of law. (Para Nos.6 & 7)
(VIII) In a case between Govinda Naik Vs. Sankar Patro &
Others reported in 1961 CLT Note-45 that,
if the very foundation of the entry in the Khatian does not
exist, then, the presumption in favour of its correctness losses
its value altogether.
23. When, the Defendants are not the successors of the original recorded
owner of the suit properties i.e. Jagannath Babu and when, there is no deed
of conveyance/transfer in respect of the suit properties either from
Jagannath Babu or from any of his successor in favour of the Defendants,
then, in view of the propositions of law enunciated in the ratio of the
aforesaid decisions, the recording of the suit properties in the Hal
settlement under Khata No.17 (vide Ext.G) in the name of Thakara @
Chandrasekhara Biswal is baseless and non-est in the eye of law.
Page 18 of 25
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24. When, the recording of the suit properties in the name of the
predecessor of the Defendants i.e. Thakara @ Chandrasekhara Biswal by
the Settlement Authorities in the Hal Settlement is baseless, then, the
subsequent R.o.Rs through mutation in favour of his wife of the Thakara
@ Chandrasekhara Biswal i.e. Ninimani Biswal as well as in favour of the
Defendants vide Khata No.68/01 (Ext.11) and 68/31 (Ext.12) and the sale
deed executed by the Defendant Nos.1 and 2 in respect of the part of the
suit properties in favour of the Defendant Nos.3 and 4 vide R.S.D.
No.1052 dated 26.05.2000 vide Ext.13 are also held to be baseless and
non-est in the eye of law.
25. So far as, the reasons assigned by the learned 1 st Appellate Court in
para No.11 of its judgment in setting aside the judgment and decree passed
by the learned Trial Court i.e.
The possession of the Defendants has become adverse on
the suit properties and the suit of the Plaintiff is barred by
law of limitation and the same is not maintainable is
concerned;
absolutely, there is no pleadings on behalf of the Defendant Nos.3
and 4 relating to their any claim over the suit properties through adverse
possession.
Page 19 of 25
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Because, their claim on the suit properties is only on the basis of the
Hal R.o.R. vide Khata No.17 (Ext.G) in the name of their predecessor i.e.
Thakara @ Chandrasekhara Biswal.
26. When, there is no averment in the written statement of the Defendant
Nos.3 and 4 about their claim over the suit properties through adverse
possession and when, no issue was framed relating to the same and when,
there is no findings or observations by the learned Trial Court relating to
the any claim of adverse possession of the Defendants over the suit
properties, as there was no pleadings relating to the same by the Defendants
before the learned Trial Court, then at this juncture, the learned 1st
Appellate Court should not have created a third case stating about the claim
of adverse possession of the Defendants, when, the same was not the case
of any party to the suit.
27. It is the settled propositions of law that,
In order to establish a claim through adverse
possession, foundation in respect of the plea of adverse
possession must be led in the pleadings and then, an issue
must be framed and tried.
Because, when, a plea relating to adverse possession
not properly raised in the pleadings or in issue at the
stage of trial, the Parties would not be permitted to raise
the same for the first time before the 1st Appellate Court.
Page 20 of 25
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On this aspect, the propositions of law has already been clarified by
the Hon’ble Courts and Apex Court in the ratio of the following
decisions:-
(i) In a case between Ganda Singh and others Vrs. Ram
Narain Singh reported in ILR (1959) (1) (P and H) 385 that,
Foundation for plea of adverse possession must be led in
the pleadings and then, an issue must be framed and tried.
Because, when, a plea relating to adverse possession not
properly raised in the pleadings or in the issues at the stage of
trial, the Parties would not be permitted to raise the same for
first time at the stage of first appeal under Section 96 of C.P.C.
(ii) In a case between Kishundeo Rout and others Vrs. Govind
Rao and others reported in 2025 (3) CCC 210 (SC) that,
A plea of adverse possession is not always a legal plea. It
is always based on facts, which must be asserted and proved.
Unless the plea of adverse possession has been
specifically raised in the pleadings, put in issue and then cogent
and convincing evidence led on a multitude of points and
opportunity to refute case made out by plaintiff, availed of by
defendant, plea of adverse possession cannot be allowed to be
flung as a surprise, on an unsuspecting defendant, for first time
in appeal.
28. Here in this suit/appeal at hand, when, there was no claim on behalf
of the Defendants in their pleadings (written statement) over the suit
properties through adverse possession and when, no issue was framed
relating to the claim of adverse possession by the learned Trial Court and
when, no evidence was adduced relating to the so-called plea of adverse
possession before the learned Trial Court, then at this juncture, the
findings and observations made by the learned 1st Appellate Court in Para
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//22//
No.11 of the judgment for setting aside the judgment and decree passed by
the learned Trial Court holding that, the Defendants have been able to
establish their title over the suit properties through adverse possession
cannot be sustainable under law.
29. So far as, the findings of the learned 1st Appellate Court that, the suit
of the Plaintiff for declaration and recovery of possession is barred by law
of limitation is concerned;
as per the discussions and observations made above, when, it has
already been held that, the Defendants are claiming their title over the suit
properties on the basis of the recording of the suit properties in the Hal
Settlement in the name of their predecessor Thakara @ Chandrasekhara
Biswal and when, the said R.o.R. prepared by the Settlement Authority in
the Hal Settlement in respect of the suit properties in the name of Thakara
@ Chandrasekhara Biswal as well as the subsequent R.o.Rs thereof
through mutation in favour of the Defendants and the sale deed No.1052
dated 26.05.2000 has been held as baseless and when, it is established that,
the Plaintiff is the successor of the original recorded owner i.e. Jagannath
Babu and when, the right, title and interest of the Plaintiff over the suit
properties is continuing, then at this juncture, the suit of the Plaintiff for
Page 22 of 25
//23//
declaration of title and recovery of possession cannot be held as barred by
law of limitation.
On this aspect, the propositions of law has already been clarified by
the Apex Court in the ratio of the following decision:-
(i) In a case between C.Mohammed Yunus Vrs. Syed Unissa
and others reported in AIR 1961 (SC) 808 that,
In a suit for declaration with a further relief, the
limitation would be governed by the Article governing the
suit for such further relief.
In fact, a suit for a declaration of title to immovable
property would not be barred, so long as such the right to
such a property continued and subsist.
When, such right continues to subsist, the relief for
declaration would be a continuing right and there would be
no limitation for such a suit.
30. Here, in this suit/Appeal at hand, as per the discussions and
observations made above, when it is held that, the right, title and interest of
the Plaintiff over the suit properties has been continuing/subsisting,
because, there is no document to show relating to the transfer of his
interest/right in the suit properties from him to anybody including the
Defendants, then at this juncture, in view of the principles of law
enunciated in the ratio of the aforesaid decisions, it cannot be held that, the
suit of the plaintiff was barred by law of limitation.
Page 23 of 25
//24//
31. It is the settled propositions of law that, Khatian entry (R.o.R. entry)
does not confer title upon any person. Any person claiming title by virtue
of Khatiyan Entry (R.o.R. entry) must prove title independently.
On this aspect, the propositions of law has already been clarified in
the ratio of the following decision:-
In a case between Suresh Kumar Shukla and others Vrs.
Uma Devi and others reported in 2026 (1) CCC 305
(Patna) that,
in a title suit, Khatian entry (R.o.R. entry) does not
confer title upon any person. Any person claiming title by
virtue of Khatiyan Entry (R.o.R. entry) must prove his
title independently.
32. Here in this suit/appeal at hand, when, the Defendants are claiming
their title over the suit properties only on the basis of the entry made in the
R.o.Rs. vide Exts.11 and 12 and when, the said R.o.Rs. have been held as
baseless and when, R.o.R. entry does not confer any title in whose favour
the same is recorded and when, the person claiming title by virtue of
Khatiyan Entry must prove his title independently and when the
Defendants have failed to prove their title over the suit properties either
through inheritance/succession or through a deed of conveyance, then at
this juncture, the judgment and decree passed by the learned 1st Appellate
Court in R.F.A. No.21/28 of 2006 in setting aside the judgment and
decree of the learned Trial Court passed in C.S. No.36 of 2004 cannot be
sustainable under law.
Page 24 of 25
//25//
33. For which, the decisions relied by the learned counsels of both the
Parties indicated in Para No.17 of this judgment have become inapplicable
to this appeal at hand on facts.
34. When, it is held that, the judgment and decree passed by the learned
1st Appellate Court is not sustainable under law, then at this juncture, there
is justification under law for making interference with the same through
this 2nd appeal filed by the Appellant/Plaintiff.
As such, there is merit in this 2nd Appeal filed by the Appellant
(Plaintiff). The same must succeed.
35. In result, the 2nd appeal filed by the Appellant (Plaintiff) is allowed
on contest, but without cost.
The judgment and decree dated 26.03.2007 and 11.04.2007
respectively passed by the learned 1st Appellate Court in R.F.A. No.21/28
of 2006 is set aside.
The judgment and decree passed by the learned Trial Court in the
suit vide C.S. No.36 of 2004 is confirmed.
(A.C. Behera),
Judge
Orissa High Court, Cuttack
18th of May 2026/ Binayak Sahoo//
Junior Stenographer
Signature Not Verified
Digitally Signed
Signed by: BINAYAK SAHOO
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 21-May-2026 11:21:46
Page 25 of 25
