Orissa High Court
Procedure vs Narayan Muchu And Others on 17 March, 2026
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.27 of 2008
(In the matter of an appeal under Section 100 of the Code of Civil
Procedure, 1908)
Dhanmati Muchu and others .... Appellants
-versus-
Narayan Muchu and others .... Respondents
Appeared in this case:-
For Appellants : Mr. S. Ghosh, Advocate
For Respondents : Mr. A.K. Nanda, Advocate
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 10.02.2026 / date of judgment : 17.03.2026
A.C. Behera, J. The 2nd appeal has been preferred against the reversing judgment.
2. The appellants in this 2nd appeal were the plaintiffs before the
learned trial court in the suit vide C.S. No.33 of 2002 and the respondent
nos.1 to 6 before the learned 1st appellate court in the 1st appeal vide
RFA No.05/18 of 2006.
The respondent no.1 in this 2nd appeal was the defendant no.1
before the learned 1st appellate court in the suit vide C.S. No.33 of 2002
and the appellant before the learned 1st appellate court in the 1st appeal
vide RFA No.05/18 of 2006.
The respondent nos.2 to 4 in this 2nd appeal were the defendants
nos.2 to 4 in the suit vide C.S. No.33 of 2002 and respondent nos.7 to 9
before the learned 1st appellate court in the 1st appeal vide RFA No.05/18
of 2006.
3. The suit of the plaintiffs(appellants in this 2nd appeal) vide C.S.
No.33 of 2002 was a suit for declaration of title and confirmation of
possession.
As per the case of the plaintiffs, they (plaintiffs) and proforma
defendant nos.2 to 4 are the members of Schedule Tribe community and
they belong to one family and their common ancestor was Dhruba
Muchu. Dhurba Muchu died leaving behind his six sons, i.e., Bairag,
Jhankar, Bariha, Jaysa, Khageswar and Dhanurja.
Bairag died leaving behind his two sons, i.e., Kunja and
Dingara(plaintiff no.2).
Kunja died leaving behind his widow Dhanmati(plaintiff no.1).
The 2nd and 3rd son of Dhurba Muchu, i.e., Jhankar and Bariha
died issueless.
The 4th son of Dhurba Muchu, i.e., Jaysa Muchu died leaving
behind his four sons, i.e., Kubera(defendant no.2), Parikhita(plaintiff
no.3), Rudra(defendant no.3) and Prasad(plaintiff no.4).
Page 2 of 24
The 5th son of Dhurba Muchu, i.e., Khageswar Muchu died
leaving behind his son Mangulu Muchu(defendant no.4)
The 6th son of Dhurba Muchu, i.e., Dhanarja Muchu died leaving
behind his two sons, i.e., Makaradhwaja Muchu(plaintiff no.5) and
Biranchi Muchu(plaintiff no.6).
4. In order to have a better appreciation and so also for an easy
understanding about the family pedigree of the plaintiff and defendants,
their genealogy as stated above, is depicted hereunder for an instant
reference:-
GENEALOGY
Harihar
Dhurba Muchu (1948)
____________________________________________________________
Bairag Jhankar Bariha Jaysa Khageswar Dhanaraj
___________________ ________________________________
Kunja Dingara(P-2) Kubera Parikhita Rudra Prasad
(proforma D-2) (P3) (D-3) (P-4)Dhanmati(P-1)
Mangulu(D-4)__________________
Makardhwaj Biranchi
(P-5) (P-6)Page 3 of 24
5 According to the plaintiffs, defendant no.1 Narayan Samini @
Muchu son of Chandrasekhar Samini@Muchu is in no way related to the
family of the plaintiffs and proforma defendant no.2 to 4. He (defendant
no.1) is a stranger to their family.
The grand-father of the defendant no.1, i.e., Brusabha Samini had
come to their village from an another village and he(Brusabha Samini)
was working as a field servant under their common ancestor Dhurba
Muchu.
Dhurba Muchu was the only son of his father Harihar Muchu. The
said Dhurba Muchu was possessing A.18.10 decimals of land being the
owner thereof and the RoR of the same was published in his name
exclusively in the last Hamid Settlement.
Their common ancestor Dhurba Muchu died in or about 1948
leaving behind his widow and sons as described in the genealogy and
after the death of their common ancestor Dhurba Muchu, his sons had
mutated the properties to their names in the year 1949-50 paying rent to
the Government.
6. The 1st son of Bairag Muchu sold some acres of land out of
A.18.10 decimals properties to different persons executing different sale
deeds as reflected in Para No.4 of the plaint.
Page 4 of 24
7. In the last major settlement, A.10.09 decimals land were recorded
in the names of the plaintiffs and proforma defendant nos.2 to 4, in
respect of which they are paying rents.
8. They(plaintiffs and proforma defendant nos.2 to 4) are illiterate
and Adibasies, neither they have any knowledge in mathematic nor they
have any idea of survey. They were under impression that, out of their
A.18.10 decimals ancestral properties, after sales made by Bairag
Muchu, their rest properties might have been recorded in their names and
with such impression, they were possessing their ancestral properties
including the suit properties under Hal Khata No.11 for an area of A.4.19
decimals described in schedule of the plaint.
9. That, in the month of Baishakha of the year 2001, they(plaintiffs)
and proforma defendant nos.2 to 4 wanted to cut a tree from the suit
properties under Khata No.11 in Mouza-Kansar, to which, the defendant
no.1 objected and claimed that, the suit properties is his property and
disclosed that, the said suit properties have been recorded in his name
exclusively in the last Hal settlement of the year 1977 and he(defendant
no.1) has been paying rents for the same.
10. When, they(plaintiffs) came to know from the mouth of the
defendant no.1 that, the suit properties have been recorded in his name,
then, they(plaintiffs) verified the settlement record in respect of the same
Page 5 of 24
and came to know that, the father of the defendant no.1, i.e.,
Chandrasekhar Muchu has managed to record the suit properties in his
name erroneously taking the staffs of the settlement authorities into his
confidence and also came to know that, the said recording has been made
erroneously in his name as per the consent of their predecessors, but, in
fact, their predecessors had not given consent for recording the suit
properties in the major settlement in the name of the father of the
defendant no.1. As per law, neither the father of the defendant no.1 nor
defendant had/has any right, title, interest and possession over the suit
properties. Because, the defendant no.1 is a stranger to their family. The
suit properties are their ancestral properties.
Therefore, without getting any way, they(plaintiffs) approached
the civil court by filing the suit vide C.S. No.33 of 2002 against the
defendant no.1 praying for declaration of their right, title, interest and
possession jointly with the proforma defendant no.2 to 4 over the suit
properties and to confirm their possession on the same and to direct the
defendant no.1 to deliver the possession of the same, if they(plaintiffs)
are found to be dispossessed from the suit properties during the
pendency of the suit arraying their co-sharers as proforma defendant
nos.2 to 4 and some others.
Page 6 of 24
11. Having been noticed from the learned trial court, the defendant
no.1 filed his written statement challenging the suit of the plaintiffs
denying the averments made by the plaintiffs in their plaint along with
genealogy of the plaintiffs, taking his specific stands that, Harihar
Muchu had two sons, i.e., Dhruba Muchu and Brushabha Muchu. The
Surname of Brushabha is not Samini, but, Muchu. Brushabha Muchu is
the full blood brother of Dhruba Muchu. They both had born from same
parent.
Dhruba Muchu and Brushabha Muchu were residing under a
common courtyard and they were possessing their ancestral properties
separately. Brushabha Muchu died leaving behind his only son
Chandrasekhar Muchu. Chandrasekhar Muchu died leaving behind
Narayan Muchu(defendant no.1), as his only son and successor. So,
he(defendant no.1), plaintiffs and proforma defendant no.2 to 4 and
defendant nos.5 and 6 are all agnatic brothers and they perform funeral
rites of the members of their family, marriages according to the rites,
customs and rituals. So, Dhruba Muchu was not the only son of Harihar
Muchu, but, Dhruba Muchu and Brushabha Muchu were the two sons of
Harihar Muchu. The said Dhruba Muchu and Brushabha Muchu were
possessing all their joint ancestral properties left by Harihar Muchu in
eight villages. Subsequently, Brushabha Muchu possessed the suit
Page 7 of 24
properties exclusively as his own right, title and interest. Accordingly, in
the last major settlement of the year 1977, the suit properties were
exclusively recorded in the name of his father Chandrasekhar Muchu.
After the death of Brushabha Muchu, Chandrasekhar Muchu was the
sole successor as well as the owner and in possession over the suit
properties like his father Brushabha Muchu. The said Hal settlement
record of right of the suit properties under Hal Khata No.11 in the name
of Chandrasekhar Muchu published in the year 1977 was well within the
knowledge of the plaintiffs, proforma defendant nos.2 to 4. So, the
plaintiffs and defendant nos.2 to 4 have no right, title, interest and
possession over the suit properties under Hal Khata No.11, as the suit
properties had fallen in the share of Brushabha Muchu on the basis of
partition between Dhruba Muchu and Brushabha Muchu and Brushabha
Muchu was possessing the suit properties exclusively. While Brushabha
Muchu was in possession over the suit properties, he died leaving behind
his son Chandrasekhar Muchu, then, the suit properties left by
Brushabha Muchu devolved upon his son Chandrasekhar Muchu. On the
basis of the ownership and possession of Chandrasekhar Muchu, the suit
properties were recorded in his name exclusively in the Hal settlement of
the year 1977. After the death of Chandrasekhar Muchu, the suit
properties devolved upon him(defendant no.1). Accordingly,
he(defendant no.1) had/has been possessing the suit properties being the
Page 8 of 24
exclusive owner thereof, in which, the plaintiffs, defendant nos.2 to 4
have no right, title, interest and possession. For which, the suit of the
plaintiffs for declaration of their title and confirmation of their
possession is liable to be dismissed against him(defendant no.1), as
he(defendant no.1) had/has been paying rent of the suit properties in his
name continuously being the owner and in possession thereof.
12. The proforma defendant nos.2 to 4 filed their written statement in
support of the above pleas of the defendant no.1 stating specifically in
their written statement that, the genealogy given by the plaintiffs is not
fully correct. The surname of Brushabha Muchu was not Samini, but,
Muchu. Brushabha was the own brother of Dhruba Muchu. Dhruba
Muchu and Brushabha Muchu were residing in the houses adjoining to
each other having common courtyard and were possessing their ancestral
properties separately. The defendant no.1 is the agnatic brother of
defendant nos.2 to 6. They used to perform funerals and marriages
together. Dhruba Muchu and Brushabha Muchu were sons of Harihar
Muchu. Dhruba Muchu and Brushabha Muchu were two brothers being
the two sons of Harihar Muchu. Brushabha Muchu was possessing some
land out of Khata No.8 in Mouza-Kansar of Hamid Settlement. First
Harihar Muchu died and four months after his death, Dhruba Muchu
died. After the death of Brushabha Muchu, his son Chandrasekhar
Page 9 of 24
possessed the land, to which, Brushabha Muchu was possessing. In the
last major settlement of the year 1977, the suit properties have been
recorded in the name of Chandrasekhar Muchu. As the suit properties
were recorded in the name of Chandrasekhar Muchu in the Hal
settlement of the year 1977, for which, he(Chandrasekhar Muchu)
received the RoR of the same. The plaintiffs and the proforma
defendants including the husband of the plaintiff no.1 had never
possessed the suit properties. The plaintiffs were well aware about the
recording of the suit properties in the Hal settlement in the name of
Chandrasekhar Muchu (father of the defendant no.1) on the consent of
Kunja Muchu, Dingra Muchu, Khageswar Muchu, Dhanu Muchu.
Therefore, the defendant no.1 is the exclusive owner and in possession
over the suit properties. Neither the plaintiffs, nor they(proforma
defendant nos.2 to 4) are the owners of the suit properties. For which, the
suit of the plaintiffs is liable to dismissed.
13. On the basis of the aforesaid pleadings and matters in
controversies between the parties, altogether four numbers of issues were
framed by the learned trial court in the suit vide C.S. No.33 of 2002 and
the said issues are:-
ISSUES
(i). Whether the plaintiffs have right, title, interest and
possession over the suit land?
Page 10 of 24
(ii). Whether the suit is maintainable?
(iii). Whether there is any cause of action to file the suit?
(iv). To what relief, if any, the plaintiffs are entitled to?
14. In order to substantiate the aforesaid reliefs sought for by the
plaintiffs in their plaint against the defendant no.1, they(plaintiffs)
examined one witness on their behalf, i.e., to the plaintiff no.1 as P.W.1
and relied upon the documents vide Exts.1 to 7.
On the contrary, in order to defeat/nullify the suit of the plaintiffs,
the defendant no.1 examined two witnesses on his behalf including
him(defendant no.1) as D.W.1 and exhibited some documents from his
side as Exts.A to D.
15. After conclusion of hearing and on perusal of the materials and
documents available in the record, the learned trial court answered all the
issues in favour of the plaintiffs and proforma defendant nos.2 to 4 and
against the defendant no.1 and on the basis of the findings and
observations made by the learned trial court in the issues, the learned
trial court decreed the suit of the plaintiffs vide C.S. No.33 of 2002 on
contest against the defendant no.1 as per its judgment and decree dated
17.01.2006 and 31.01.2006 respectively and declared the right, title and
interest of the plaintiffs and proforma defendant nos.2 to 4 over the suit
Page 11 of 24
properties entitling them to possess the suit properties under Khata
No.11(Ext.1) assigning the reasons that,
“the defendant no.1 failed to establish that, Dhruba Muchu and
Brushabha Muchu were two brothers. Because, the evidence of D.W.1
and D.W.2, i.e., (defendant no.1 and 2) did not appear that, they had
specific knowledge as regards to the relationship between Harihar
Muchu and Dhruba Muchu. For which, relation between Dhruba Muchu
and Brushabha Muchu as per the plea of the defendant no.1 has been
failed to be established as per Section 50 of the Indian Evidence Act,
1872. Therefore, it is held that, Brushabha Muchu was a stranger to the
family of the plaintiffs and proforma defendant nos.2 to 4. When the suit
properties have been recorded in favour of the son of Brushabha Muchu,
i.e., Chandrasekhar Muchu(father of the defendant no.1) in the Hal
settlement of the year 1977 as per Ext.1 and Ext.A, then, the said
recording of the suit properties in favour of the father of the defendant
no.1 is erroneous. Therefore, the defendant no.1 has no right, title,
interest and possession over the suit properties.”
16. On being dissatisfied with the aforesaid judgment and decree
passed by the learned trial court in the suit vide C.S. No.33 of 2002 in
favour of the plaintiffs and proforma defendant nos.2 to 4 and against the
defendant no.1, he(defendant no.1) challenged the same preferring the 1st
appeal vide RFA No.05/18 of 2006 being the appellant before the
learned 1st appellate court against the plaintiffs and defendant nos.2 to 6
arraying them as respondents.
Page 12 of 24
17. After hearing from the learned counsels of both the sides, the
learned 1st appellate court allowed that 1st appeal vide RFA No.05/18 of
2006 and set aside the impugned judgment and decree passed by the
learned trial court in the suit vide C.S. No.33 of 2002 as per its judgment
and decree dated 08.10.2007 and 08.11.2007 respectively assigning the
reasons that,
“on the basis of the un-assailed testimonies of D.W.1, un-
challenged RoR of the suit properties vide Exts.1 and B in the name of
the father of the defendant no.1, i.e., Chandrasekhar Muchu since the
year 1977, the payment of the rent of the same through rent receipts on
behalf of the defendant no.1 and the pleadings of the parties, it is held
that, Dhurba Muchu and Brushabha Muchu were two brothers.
Brushabha Muchu was the family members of the plaintiffs and the
proforma defendant nos.2 to 4. The suit properties were under the
exclusive possession of the grand-father of the defendant no.1 on the
basis of the partition between Dhurba Muchu and Brushabha Muchu.
The documents vide Exts.A to D are corroborating the exclusive
possession of the defendant no.1 and his predecessors over the suit
properties. As such, defendant no.1 is the owner and in possession over
the suit properties. For which, the plaintiffs are not entitled to get the
decree of declaration of title and confirmation of possession in respect of
the suit properties. Therefore, the suit of the plaintiffs against the
defendant no.1 is liable to be dismissed.
Accordingly, the learned 1st appellate court set aside the
impugned judgment and decree passed by the learned trial court and
dismissed to the suit of the plaintiffs vide C.S. No.33 of 2002.”
Page 13 of 24
18. On being aggrieved with the aforesaid judgment and decree
passed by the learned Adhoc Additional District Judge, Fast Track
Court, Padampur in RFA No.05/18 of 2006 against the plaintiffs,
they(plaintiffs) challenged the same preferring this 2nd appeal being the
appellants against the defendant no.1 arraying him(defendant no.1) as
respondent no.1 and other defendants as other respondents.
19. This 2nd appeal was admitted on formulation of the following
substantial questions of law and the said substantial questions of law
are:-
(i) Whether the findings of the learned lower appellate
court that, presumption of title in favour of the
defendant no.1 flows from Ext.1/Ext.A is legally
correct?
(ii) Whether the findings of the learned 1st appellate court
that, Dhruba and Brushava are two brothers is
perverse and based on no material?
20. I have already heard from the learned counsel for the
appellants(plaintiffs) and the learned counsel for the respondent no.1
(defendant no.1).
21. When, as per the findings and observations made by the learned
trial court and the learned 1st appellate court in their respective
judgments and decrees basing upon the pleadings of the parties,
materials and documents available in the record, the above both the
formulated substantial questions of law are inter-linked having ample
Page 14 of 24
nexus with each other, then the aforesaid both the formulated substantial
questions of law are taken up together analogously for their discussions
hereunder:-
22. In this suit/appeal at hand, as per the pleadings of the plaintiffs,
defendant no.1 and defendant nos.2 to 4, there is serious dispute in
respect of the genealogy described in Para No.1 of the plaint of the
plaintiffs.
Because, in the said genealogy, they(plaintiffs) have specifically
stated that, Dhruba Muchu was the only son of Harihar Muchu and
they(plaintiffs)and defendant nos.2 to 4 are the successors of Dhruba
Muchu. The defendant no.1 is the stranger to their family.
To which, defendant no.1 as well as proforma defendant nos.2 to 4
have seriously disputed/denied in their pleadings stating in their written
statements that, Harihar Muchu had two sons, i.e., Dhruba Muchu and
Brushabha Muchu. The plaintiffs and proforma defendant nos.2 to 4 are
the successors of Dhruba Muchu. The defendant no.1 is the successor of
Brushabha Muchu. Because, the father of the defendant no.1, i.e.,
Chandrasekhar Muchu was the only son of Brushabha Muchu. As such,
there was serious dispute between the parties to the delineated genealogy
in the plaint of the Plaintiffs.
Page 15 of 24
23. As per law, mere delineation of the genealogy in the plaint is not
sufficient to hold that, the genealogy given in the plaint is correct, when
there is dispute to the same by the defendants like this suit/appeal at
hand. In that situation, burden to prove the genealogy lies upon the party,
who has delineated the same and there should be evidence in support of
the same.
On this aspect, the propositions of law has already been clarified
by the Hon’ble Courts and the Apex Court in the ratio of following
decisions:-
(i) In a case between State of Bihar vrs. Radha Krishns and
others: reported in AIR 1983 (S.C.)-684 and in a case between R.
Pannerselvam vrs. A Subranian and another : reported in 2009(3)
Civil Law Times-441(Madras) that,Indian Evidence Act, 1872, Section 101--Genealogy–Burden of
proof–Mere delineation of genealogy is not sufficient. But, there
should be evidence in support of the same.(Paras 23 and 24)
24. Here in this matter at hand, when the plaintiffs have delineated
genealogy in their plaint and when the defendant no.1 as well as the
proforma defendant nos.2 to 4 have seriously disputed to the same, then
at this juncture, in view of the principles of law enunciated in the ratio of
the aforesaid decisions, burden to prove the genealogy given in the plaint
of the plaintiffs lies upon the plaintiffs.
Page 16 of 24
25. Now, it will be seen, how far, the plaintiffs have become able to
establish the genealogy given in their plaint as correct.
26. The plaintiffs have sought for declaration of their right, title and
interest jointly with the defendant nos.2 to 4 over the suit properties on
the basis of their delineated genealogy in the plaint.
According to them(plaintiffs), Dhruba Muchu was the only son of
Harihar Muchu, but, the defendant no.1 as well as defendant nos.2 to 4
have specifically stated in their pleadings denying/disputing to the
genealogy of the plaintiffs that, Dhruba Muchu and Brushabha Muchu
were two brothers being the two sons of Harihar Muchu. Brushabha
Muchu died leaving behind his son Chandrasekhar Muchu.
Chandrasekhar Muchu died leaving behind defendant no.1 as his son and
successor. As such, according to the defendant no.1 and defendant nos.2
to 4, the defendant no.1 is the agnatic brother of the plaintiffs and
defendant nos.2 to 4. So, the defendant no.1 is not a stranger to the
family of the plaintiffs and proforma defendants.
27. The aforesaid admission of the proforma defendant nos.2 to 4 in
their pleadings to the case of the defendant no.1 is going to establish that,
the genealogy set out by the plaintiffs in their plaint is not correct, as the
defendant no.1 is the family member of the plaintiffs and the defendants.
Page 17 of 24
When there is admission of a party or parties like the defendant
nos.2 to 4 to the case of the defendant no.1 in their pleadings, the same
are the best evidence and the same does not require any corroboration.
28. On this aspect, the propositions of law has already been clarified
in the ratio of the following decisions:-
(i) In a case between Ahmedsaheb(D) L.Rs. and others vrs. Sayed
Ismail and others : reported in 2012(4) M.P. Law Journal-571 that,As per Sections 17, 18 and 58 of the Indian Evidence Act, 1872,
admission of a party in a proceeding either through the pleadings or
through oral is best evidence and same does not require corroboration.
(ii) In a case between Hem Raj vrs. Maan Singh : reported in
2025(4) Civil Court Cases-284(Himachal Pradesh) that,Admissions are substantive evidence under Sections 17 and 21 of the
Indian Evidence Act, though not conclusive.(Para-9)
(iii) In a case between Bharat Singh vrs. Bhagirathi : reported in
AIR 1966 S.C.-405 that,The admission is substantive evidence of the fact. Weight to be attached
to an admission made by a party.
29. The above admissions of the defendant nos.2 to 4(those are the
family members of the plaintiffs) in their pleadings to the case of the
defendant no.1 is going to corroborate and support the findings of the
learned 1st appellate court that, Dhruba Muchu and Brushabha Muchu
Page 18 of 24
are two brothers. The said findings of the learned 1st appellate court are
in no way perverse or erroneous.
30. As per the discussions made above, when it is held that, the grand-
father of the defendant no.1, i.e., Brushabha Muchu was the brother of
Dhruba Muchu and he(defendant no.1) is not a stranger to the family of
the plaintiffs and other defendants and when, the RoR of the suit
properties has been continuing in the name of the father of the defendant
no.1 under Khata No.11 as per Ext.1 and Ext.A since the year 1977, i. e.,
since the date of final publication of the RoR and when, the said RoR
had remained unchallenged for a period of twenty-five years by the
plaintiffs, i.e., till the filing of the suit in the year 2002, and when the
defendant no.1 had/has been paying rent of the same through valid rent
receipts vide Exts.B to B/14 and when the un-assailed testimonies of
DWs.1 and 2 are going to show that, the defendant no.1 had/has been
possessing suit properties, then at this juncture, it is held that, the suit
properties are under the possession of the defendant no.1 on the basis of
the RoR of the same vide Ext.1 in his favour since the year 1977.
Because, as per the law, the RoR provides a good evidence of possession
in whose favour it stands or proved.
31. On this aspect, the propositions of law has already been clarified
in the ratio of the following decisions :-
Page 19 of 24
(i) In a case between Cuttack Municipality vrs. Sk. Khairati(and
after him) Jaitan Bibi ad others. : reported in 1988(II) OLR-475 that,R.o.R. is a good evidence of possession, in whose favour it
stands. (Para No.5)
(ii) In a case between Biswanath Chowdhury vrs. Shyam Sundar
Chowdhury : reported in 1993(1) OLR-249 that,Though the settlement entry does not confer title, but, importance is
attached, where it is allowed to stand for a long time without being
questioned.
(iii) In a case between Gangamma etc. vrs. G. Nagarathnamma and
others etc. : reported in 2009(3) CCC-210(S.C.) that,The person in whose name a property is recorded would be in absence
of any evidence to contrary, full owner of the same. (Para-14)
32. Here in this matter at hand, when the documentary evidence, i.e.,
RoR vide Exts.1 and Ext.A, rent receipts vide Exts.B to B/14 coupled
with the un-assailed testimonies of D.Ws.1 and 2 corroborating the
pleadings of the defendant no.1 and defendant nos.2 to 4 are going to
establish that, the defendant no.1 had/has been possessing the suit
properties, then at this juncture, by applying the principles of law
enunciated in the ratio of the foresaid decisions to this suit/appeal at
hand, it is held that, the suit properties described in schedule of the plaint
of the plaintiffs, i.e., Khata No.11 is under the possession of the
defendant no.1, to which, the plaintiffs and the defendant nos.2 to 4 are
not possessing.
Page 20 of 24
33. The plaintiffs had filed the suit vide C.S. No.33 of 2002 against
the defendant no.1 praying for declaration of their title and confirmation
of their possession along with defendant nos.2 to 4.
When, it is held that, plaintiffs and defendant nos.2 to 4 were/are
not in possession over the suit properties described in the schedule of the
plaint and defendant nos.2 to 4 themselves have stated in their pleadings
that, they have no possession over the suit properties, but, the defendant
no.1 is in possession over the same, then at this juncture, the suit for
declaration and confirmation of possession filed by the plaintiffs in
absence of the prayer for recovery of possession is not entertainable
under law.
On this aspect, the propositions of law has already been clarified
in the ratio of the following decisions:-
(i) In a case between Late Sheo Nandan Prasad vrs. Mahadevi @
Matia Devi : reported in 2018(3) Civil Court Cases-256(Patna) that,In a suit for declaration and confirmation of possession filed by the
plaintiff, when the plaintiff is not in possession over the suit land on the
date of institution of suit, then, the suit of the plaintiffs is not
maintainable in absence of specific prayer for recovery of possession as
required under Section 34 of the Act.
(ii) In a case between Prabhoo Singh vrs. Bani Singh : reported in
2018(1) Civil Court Cases-108(Allahabad) that,Page 21 of 24
In a suit for declaration, when further relief of possession, which should
have been prayed, but, not prayed. Held, the suit is barred by Section 34
of the Specific Relief Act, 1963.
(iii) In a case between Ram Pal Shukla vrs. Anadi Bai : reported in
2017(2) Civil Court Cases-838(Chhatisgarh) that,a suit for declaration of title is not maintainable by virtue of proviso to
Section 34 of the Specific Relief Act, 1963, if Plaintiff is not in
possession of the suit land. (Para-8)
(iv) In a case between Executive Officer, Arul Migu Chokkanatha
Swamy Koli Trust Virudhunagar vrs. Chandran : reported in 2017(2)
Civil Court Cases-48(S.C.) that,Suit for declaration of ownership, plaintiff not in possession, suit is not
maintainable without seeking relief of recovery of possession.
(v) In a case between Siri Chand and others vrs. Ram Gopal and
others : reported in 2023(4) Civil Court Cases-527(P&H) that,Suit for declaration–Without seeking relief of possession–Not
maintainable, as the suit property was in possession of defendants at the
time of filing suit.(Para-13)
(vi) In a case between Vasantha(dead) through LR vrs.
Rajalakshmi alias Rajam(dead) through LRs. : reported in 2024(3)
Civil Law Judgments(S.C.)-20 that,
When, the plaintiff was not in possession over the suit property, without
seeking relief of possession, the suit for declaration is not maintainable
in view of the proviso to Section 34 of the Specific Relief Act.
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34. Here in this suit/appeal at hand, when it is held above that, the
defendant has been possessing the suit properties since the time of his
predecessors and when, the plaintiffs and the defendant nos.2 to 4
were/are not in possession over the same and when, the suit properties
were the ancestral properties of the defendant no.1, then at this juncture,
in view of the propositions of law enunciated in the ratio of the aforesaid
decisions, the suit of the plaintiffs for declaration of their title along with
the title of the defendant nos.2 to 4 was not maintainable under law.
35. As per the discussions and observations made above, when there
is presumption of title and possession in respect of the suit properties in
favour of the defendant no.1 on the basis of the documents vide Exts.1
and A to D and when, the said presumption in favour of the defendant
no.1 has not been rebutted by the plaintiffs, rather that presumption in
favour of the defendant no.1 has been corroborated/supported through
the pleadings of the defendant nos.2 to 4, then at this juncture, the
findings and observations made by the learned 1st appellate court in its
judgment and decree in setting aside the judgment and decree passed by
the learned trial court in the suit vide C.S. No.33 of 2002 in dismissing
the suit of the plaintiffs cannot be held as erroneous.
Therefore, the question of interfering with the same through this
2nd appeal filed by the appellants/ plaintiffs does not arise.
Page 23 of 24
36. As such, there is no merit in this 2nd appeal filed by the
appellants/plaintiffs. The same must fail.
37. In result, this 2nd appeal filed by the appellants/plaintiffs is dismissed
on contest.
The judgment and decree passed by the learned 1 st appellate court in
RFA No.5/18 of 2006 is confirmed.
( A.C. Behera )
Judge
Orissa High Court, Cuttack
The 17th of March, 2026/ Jagabandhu, P.A.
Signature Not Verified
Digitally Signed
Signed by: JAGABANDHU BEHERA
Designation: Personal Assistant
Reason: Authentication
Location: OHC, CUTTACK
Date: 18-Mar-2026 17:56:03
Page 24 of 24
