Orissa High Court

Bhaktaram Barik (Dead) & Others vs Uttam Panchali (Dead) & Others on 26 August, 2025

                 ORISSA HIGH COURT : CUTTACK

                      S.A. No.91 of 1992



  In the matter of an appeal under Section 100 C.P.C, 1908.

                            ***

Bhaktaram Barik (dead) & Others ... Appellants.

-VERSUS-

Uttam Panchali (dead) & Others ... Respondents.

Counsel appeared for the parties:

For the Appellants : Mr. A.K. Mohakud, Advocate.

For the Respondents       : None.



P R E S E N T:
                         HONOURABLE
             MR. JUSTICE ANANDA CHANDRA BEHERA

Date of Hearing : 28.07.2025 :: Date of Judgment : 26.08.2025

J UDGMENT

ANANDA CHANDRA BEHERA, J.--

1. This 2nd Appeal has been preferred against the reversing

Judgment.

2. The appellant in this 2nd Appeal was the plaintiff before

the Trial Court in the suit vide T.S. No.11 of 1986 and

respondent before the 1st Appellate Court in the 1st Appeal

vide T.A. No.50/2 of 1988/89.

The respondent in this 2nd Appeal was the defendant

before the Trial Court in the suit vide T.S. No.11 of 1986 and

appellant before the 1st Appellate Court in the 1st Appeal vide

T.A. No.50/2 of 1988/89.

3. The suit of the plaintiff (appellant) vide T.S. No.11 of

1986 was a suit for declaration of title and eviction against the

defendant (respondent).

4. The case of the plaintiff before the Trial Court against the

defendant as per the averments made in his plaint was that,

the properties described in Schedule "A" of the plaint

measuring an area of Ac.3.65 decimals was Government waste

land, to which, he (plaintiff) was possessing since 1951. For

which, an encroachment case vide Encroachment Case

Nos.66/63 of 63/64 was initiated against him (plaintiff), but

the said Schedule "A" properties were settled in the name of

the plaintiff as per order passed in Lease Case No.114 of 1971

by the Tahasildar after receiving Rs.288/- as Salami from him

(plaintiff) and the possession of that Schedule "A" properties

was delivered to him (plaintiff) through the revenue inspector

formally in the year 1972. Accordingly, the plaintiff was in

peaceful possession over the properties described in Schedule

"A" of the plaint.

The schedule "B" properties being the part of Schedule

"A" properties are the disputed properties in the suit.

Therefore, Schedule "B" properties are the suit properties. In

October, 1982, the defendant forcibly trespassed into the "B"

schedule suit properties. For which, a case under Section 145

of the Cr.P.C., 1973 vide Criminal Misc. Case No.41/1982 was

initiated in the Court of S.D.M, Kuchinda between him

(plaintiff) and defendant. In that criminal Misc. Case No.41 of

1982, the S.D.M, Kuchinda wrongfully declared the

possession of the defendant over the "B" schedule suit

properties on dated 18.10.1985. Therefore, the plaintiff

approached the Civil Court by filing the suit vide T.S. No.11 of

1986 against the defendant praying for declaration of his

right, title and interest over the "B" schedule suit properties

and to recover the possession of the suit properties from the

defendant evicting the defendant from the same.

5. Having been noticed from the Trial Court in the suit vide

T.S. No.11 of 1986, the defendant contested the same filing

his written statement denying the allegations alleged by the

plaintiff against him (defendant) taking his stands specifically

therein that, the plaintiff was/is not in possession over the "B"

schedule properties at any point of time. According to him, he

(defendant) had reclaimed the "B" schedule suit properties

and he is in possession over the same since last 30 to 35

years. He (defendant) had applied before the Tahasildar for

leasing out the "B" Schedule suit properties in his favour and

on the basis of his application, a lease case vide Lease Case

No.114 of 1971 was initiated in respect of that "B" schedule

suit properties and an enquiry was conducted. In the

meantime, Major Settlement Operation started, for which, the

Tahasildar submitted the records of Lease Case No.114 of

1971 before the Settlement Authorities, but the Settlement

Authorities subsequently returned back the said case to the

Tahasildar giving observations that, the matter is within the

competency of the Tahasildar but not the Settlement

Authorities. After return of the Lease Case No.114 of 1971 to

the Tahasildar, Tahasildar without issuing any notice of

proclamation and without hearing any objection, the

Tahasildar, illegally issued Patta in respect of "B" schedule

suit properties in favour of the plaintiff. After knowing about

the same, the defendant objected before the Tahasildar

against the issuance of Patta in respect of the suit properties

in favour of the plaintiff and on the basis of the said objection

of the defendant, a case vide Lease Case No.114 of 1973 was

started, for which, the plaintiff falsely initiated a case against

the defendant alleging theft of paddy crops from the suit

properties, but the learned S.D.J.M., Kuchinda acquitted him

(defendant) from the said case stating that, he (defendant) is

in continuous possession over the "B" schedule suit properties

since last 30 to 35 years. So, the plaintiff filed the suit against

him (defendant) for no other reason, but only in order to

harass him (defendant). For which, the plaintiff is not entitled

for any relief in the suit as prayed for by him. So, the suit of

the plaintiff is liable to be dismissed against him (defendant).

6. Basing upon the aforesaid pleadings and matters in

controversies between the parties, altogether 7 numbers of

issues were framed by the learned Trial Court in the suit vide

T.S. No.11 of 1986 and the said issues are:

ISSUES

1. Is there any cause of action for the suit?

2. Is the suit under-valued?

3. Is the plaintiff was in possession of "A" shcdule Government land and the same was leased out to him in Lease Case No.114 of 1971 on 23.03.1971?

4. Is the defendant in October, 1982 forcibly treasspassed to Schedule "B" land of plaintiff, for which Criminal Misc. Case No.41/82 was started?

5. Is the plaintiff was wrongly dispossessed from the suit land by defndnat on the order of S.D.O, Kuchinda?

6. Is the plaintiff is entitled to the reliefs claimed in this suit?

7. To what reliefs the plaintiff is entitled to?

7. In order to substantiate the aforesaid reliefs sought for

by the plaintiff against the defendant, the plaintiff examined 5

witnesses from his side including him as P.W.1 and relied

upon the documents vide Ext.1 to 7 on his behalf.

On the contrary, in order to nullify/defeat the suit of the

plaintiff, the defendant examined 4 witnesses on his behalf

including him as D.W.1 and exhibited several documents vide

Ext.A to E from his side.

8. After conclusion of hearing and on perusal of the

materials, documents and evidence available in the record, the

Trial Court answered all the issues in favour of the plaintiff

and against the defendant and basing upon the findings and

observations made by the Trial Court in the issues, the Trial

Court decreed the suit of the plaintiff vide T.S. No.11 of 1986

on contest against the defendant as per its Judgment and

Decree dated 30.09.1988 and 07.10.1988 respectively and

declared the right, title and interest of the plaintiff over the "B"

schedule suit properties entitling him (plaintiff) to get the

decree of recovery of possession of the "B" schedule suit

properties from the defendant through Court and directed the

defendant to deliver the possession of the "B" schedule suit

properties to the plaintiff assigning the reasons that,

"when the "B" schedule suit properties have been settled in favour of the plaintiff as per Order dated 23.03.1971 passed in Lease Case No.114

of 1971 by the Tahasildar, for which, the plaintiff is the title holder of the suit properties and when the defendant has forcibly dispossessed him (plaintiff) from the suit properties, then, the plaintiff is entitled to get the decree of declaration and recovery of possession in respect of the suit properties against the defendant."

9. On being dissatisfied with the aforesaid Judgment and

Decree dated 30.09.1988 and 07.10.1988 respectively passed

in T.S. No.11 of 1986 by the learned Trial Court against the

defendant, he (defendant) challenged the same preferring the

1st Appeal vide T.A. No.50/2 of 1988-89 being the appellant

against the plaintiff arraying him (plaintiff) as respondent.

10. After hearing from both the sides, the learned First

Appellate Court set aside the Judgment and Decree dated

30.09.1988 and 7.10.1988 respectively passed in T.S. No.11

of 1986 by the learned Trial Court and dismissed the suit vide

T.S. No.11 of 1986 of the plaintiff as per its Judgment and

Decree dated 08.01.1992 and 24.01.1992 respectively

assigning the reasons that,

"from the pleadings and evidence of the parties, it is established that, the settlement of the land in favour of the plaintiff by the Tahasildar in Lease

Case No.114 of 1971 was reopened on the basis of the objection filed by the defendant and Lease Case No.114 of 1973 was started and as per Order dated 23.05.1973 passed in Lease Case No.114 of 1973, it was held by the Tahasildar that, the suit properties were settled illegally in favour of the plaintiff on lease principle and in fact he (plaintiff) was/is not in possession over the "B" schedule suit properties and submitted the said case to the Collector, Sambalpur for cancellation of the lease of the plaintiff in respect of the suit properties and in the proceedings under Section 145 of the Cr.P.C. in respect of the suit properties between the parties vide Criminal Misc. Case No.41 of 1982, it was been observed by the learned S.D.J.M, Kuchinda that, the plaintiff was not in possession over the suit properties at any point of time, but the defendant was/is in possession over the same, for which, the learned S.D.J.M, Kuchinda had declared the possession of the defendant over the suit properties. Therefore, the plaintiff has failed to establish his right, title and interest over the suit properties through any legally admissible materials and as such, when the plaintiff has failed to establish his right, title and interest over the "B" schedule suit properties, then, he (plaintiff) is not entitled for any relief sought for by him (plaintiff) in

respect of the suit properties. So, the learned First Appellate Court set aside the Judgment and Decree passed by the learned Trial Court in the suit vide in in T.S. No.11 of 1986 and dismissed that suit of the plaintiff."

11. On being aggrieved with the aforesaid Judgment and

Decree passed by the learned 1st Appellate Court in T.A.

No.50/2 of 1988-1989 in dismissing the suit of the plaintiff,

he (plaintiff) challenged the same by filing the 2nd Appeal being

the appellant against the defendant arraying him (defendant)

as respondent.

When, during the pendency of this 2nd Appeal, the

appellant (plaintiff) expired, then, in his place, his LRs have

been substituted.

Likewise, when, during the pendency of this 2nd Appeal,

the respondent (defendant) expired, then, in his place, his LRs

have also been substituted.

12. This 2nd Appeal was admitted on formulation of the

following substantial questions of law i.e.

I. When the validity of the lease in question in respect of the suit land in favour of the plaintiff has not been challenged by the defendant, then, whether the Civil Court has

jurisdiction to entertain such plea in view of Section 16 of the OPLE Act?

2. Whether the findings and observations made by the learned First Appellate Court holding that, the plaintiff has no title and possession over the suit properties is correct under law?

13. I have already heard from the learned counsel for the

appellant (plaintiff) only, as none participated from the side of

the respondent (defendant) for the hearing of this 2nd Appeal.

14. During the course of hearing, in order to assail the

impugned Judgment and Decree passed by the learned 1st

Appellate Court, the appellant (plaintiff) has relied upon the

following decisions:

(I) 1996(I) OLR 460:State of Orissa Vs. Bhanu Mali

(dead), Nurpa Bewa.

(II) (1999) 3 Supreme Court Cases 422:Babu

Verghese & Others.

15. When, according to the findings and observations made

by the learned Trial Court and learned First Appellate Court in

their respective Judgments and Decrees on the basis of the

pleadings and evidence of the parties, the above both the

formulated substantial questions of law are interlinked having

ample nexus with each other, then, both the aforesaid

formulated substantial questions of law are taken up together

analogously for their discussions hereunder:

16. The plaintiff (appellant in this 2nd Appeal) has prayed for

declaration of his right, title and interest over the "B" schedule

suit properties along with recovery of possession of the suit

properties from the defendant.

It is the settled propositions of law that, when a plaintiff

prays for declaration of his right, title and interest over the

suit properties, in that case, onus for proving title of the

plaintiff over the suit properties lies solely upon the plaintiff

and he (plaintiff) shall prove his title over the suit properties

independently without depending upon the defendant's failure

to prove its title on the same.

On this aspect, the propositions of law has already been

clarified in the ratio of the following decisions:

(I) In a case between City Municipal Council Bhalki by its Chief Officer Vs. Gurappa (D) by LRs & Another reported in 2016 (2) SCC 200 that, in a suit for declaration of title and possession, the onus is upon the plaintiff to prove his title independently without depending upon defendant's failure to prove his title.

(II) In a case between Jagdish Prasad Patel (D) through Lrs. Vs. Shivnath reported in 2019 (6) SCC 82 that, in a suit for declaration of title, plaintiff is required to discharge his burden independent of case of defendant. Passing of declaratory decree, when plaintiff did not lead evidence to establish his title, reiterated and impermissible.

(III) In a case between Ram Das vs Salim Ahmed And Anr. reported in 1998 (9) SCC 719 that, plaintiff not entitled to get declaration of title, if such title could not be established by him by leading convincing evidence. Because, weakness in defendant's claim for title to the property cannot establish plaintiff's title.

17. Here in this matter at hand, after appreciating the oral

and documentary evidence of the parties, the learned First

Appellate Court has held in its Judgment and Decree that,

though, there was lease of the "B" schedule suit properties in

favour of the plaintiff by the Tahasildar in Lease Case No.114

of 1971, but subsequent thereto, the said lease of the suit

properties was reopened on the basis of the objection filed by

the defendant and an another lease case for the same vide

Lease Case No.114 of 1973 was started for cancellation of the

lease of the suit properties and the Tahasildar in its order

dated 23.05.1973 passed in Lease Case No.114 of 1973 held

that, the plaintiff was/is not in possession over the "B"

schedule suit properties at any point of time and possession of

the suit properties was not delivered to the plaintiff by the

revenue inspector at any point of time and the Tahasildar

submitted that case to the Collector, Sambalpur for

cancellation of the lease of the suit properties stating that, the

plaintiff was/is not in possession over the suit properties and

the granting of lease of the suit properties in favour of the

plaintiff is illegal and the said order of the Tahasildar

regarding the absence of possession of the plaintiff over the

suit properties is corroborated by the order passed by the

learned S.D.M., Kuchinda in Criminal Misc. Case No.41 of

1982 as well as by the order passed by the S.D.J.M, Kuchinda

in a case under Section 379 of the IPC initiated against the

defendant at the instance of the plaintiff, for which, on the

basis of the aforesaid materials, it was held by the learned

First Appellate Court that, the plaintiff has failed to establish

his title and possession over "B" schedule suit properties and

he (plaintiff) is not entitled to get the decree of declaration of

right, title, interest over the suit properties and he (plaintiff) is

also not entitled to get the decree of recovery of possession of

the suit properties from the defendant.

18. The above findings on facts made by the learned First

Appellate Court after appreciating the oral and documentary

evidence of the parties are neither perverse nor unreasonable.

The scope of interference of the High Court in a 2nd

Appeal like this 2nd Appellate Court has already been clarified

in the ratio of the following decisions:

(I) In a case between Vudumala Radha and Others Vs. Narusupalli Venkata Appala Ravi Kumar reported in 2025 (2) SCC 155 AP that, High Court cannot interfere with the findings of facts arrived at by the First Appellate Court which is the final Court of facts.

(II) In a case between Kondiba Dagadu Kadam Vs. Savitkibai Sopan Gujar & Others reported in AIR 1999 SC 2213 that, the High Court cannot substitute its opinion on the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable to the settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence.

(III) In a case between R. Ramachandran Ayyar Vs. Ramalingam Chettiar reported in 1963 AIR 302 that, High Court cannot interfere with the conclusions of fact recorded by the lower appellate Court, however erroneous the said conclusions may

appear to be to the High Court, as the Privy Council observed, however gross or inexcusable the error may seem to be, there is no jurisdiction under section 100 to correct that error.

(IV) In a case between D. Selvaraj Vrs. Palaniswami & Another reported in AIR 2019 (Mad.) 3 that, High Court has no jurisdiction to interfere with the finding of fact given by the First Appellate Court based upon appreciation of relevant evidence. (V) In a case between Mahaveer & Others Vs. Omprakash reported in 20223 (3) Civ.C.C 653 (Raj) that, finding of fact recorded by the First Appellate Court after appreciation of evidence not to be interfered with the findings in the 2nd Appeal.

19. As per the discussions and observations made above,

when the findings of facts arrived by the learned First

Appellate Court on appreciation of the pleadings and evidence

of the parties are neither perverse nor unreasonable, then at

this juncture, the question of interfering with the same

through this 2nd Appeal filed by the appellant (plaintiff) does

not arise. For which, the decisions relied by the learned

counsel for the appellant (plaintiff) indicated in Para No.14 of

this Judgment have become inapplicable to this 2nd Appeal on

facts and law as discussed above.

20. Therefore, there is no merit in this 2nd Appeal filed by the

appellant (plaintiff). The same must fail.