Krushna Chandra Patro And vs Varanasi Ananta Rao (Dead)
2025 Latest Caselaw 6492 Ori

Orissa High Court

Krushna Chandra Patro And vs Varanasi Ananta Rao (Dead) on 26 August, 2025

                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                                S.A. No.190 of 1992


                (In the matter of an appeal under Section 100 of the
               Code of Civil Procedure, 1908)



               Krushna Chandra Patro and ....               Appellants
               others
                                 -versus-
               Varanasi Ananta Rao (dead) ....            Respondents
               and others

               Appeared in this case:-
                   For Appellants        :          Mr. G. Kar, Advocate

                   For Respondents       :      Mr. S.S. Rao, Sr. Advocate
                                                      assisted by Mr. B.K.
                                                       Mohanty, Advocate



               CORAM:
               JUSTICE A.C. BEHERA

                                       JUDGMENT

Date of hearing: 29.07.2025 / date of judgment: 26.08.2025

A.C. Behera, J. This 2nd appeal has been preferred against the

reversing judgment.

2. The appellants in this 2nd appeal were the defendants

before the trial court in the suit vide T.S. No.01 of 1986 and respondents before the 1st appellate court in the 1st appeal

vide T.A. No.01 of 1989.

3. The respondent in this 2nd appeal was the plaintiff

before the trial court in the suit vide T.S. No.01 of 1986 and

appellant before the 1st appellate court in the 1st appeal

vide T.A. No.01 of 1989.

4. The suit of the respondent in this 2nd appeal against

the defendants(appellants in this 2nd appeal) vide T.S.

No.01 of 1986 was a suit for declaration of right, title,

interest, for recovery of possession and for removal of

constructions.

The suit land is situated inside a Basti under

Government Khata No.71, Plot No.370 at Medri Sahi,

Bissamcuttack described in the schedule of the plaint.

5. As per the case of the plaintiff, he purchased the suit

land from one Appi Sahu for a consideration of Rs.1000/-

through registered sale deed dated 05.02.1969 and on the

basis of the said sale deed, he(plaintiff) got his right, title,

interest and possession over the suit land. After purchasing

the suit land from Appi Sahu, he (plaintiff) raised pucca

foundation on the same up to ground level, but, due to his

some family trouble, he could not raise further

constructions on the same, but, the defendants

unauthorizedly started construction works on the

foundations raised by the plaintiff on the suit land. When,

the plaintiff got information about the same, he(plaintiff)

went to the spot and protested against the raising of such

illegal constructions on his foundations on the suit land, to

which, the defendants did not pay any heed, but,

they(defendants) proceeded with the construction works.

For which, the plaintiff filed the suit vide T.S. No.01 of 1986

against the defendants praying for declaration of his right,

title and interest over the suit land and to recover the

possession of the same from the defendants directing the

defendants to remove their illegal constructions from the

suit land.

6. Having been noticed from the trial court in the suit

vide T.S. No.01 of 1986, the defendants contested the suit

of the plaintiff filing their joint written statement denying

the averments made by the plaintiff in his plaint taking

their pleas/stands specifically that, the defendant no.2 has

purchased Ac.0.22 cents of land from Penta Suna and

Penta Mandia on 12.06.1960 through registered sale deed

No.278/60 adjacent to Medri Sahi of Bissamcuttack and

since then, he(defendant no.2) has been possessing his said

purchased land as the owner thereof. The defendant no.1

had three cents of land to the Eastern side of the purchased

land of the defendant no.2. The defendant no.2 purchased

the land of the defendant no.1 on dated 10.10.1984

through registered Sale Deed No.495/84 and raised

constructions on the same. They(defendants) have not

raised any foundation upon any foundation raised by the

plaintiff. The specific case of the defendants that, the suit

Plot No.370 is situated in Medri Street and to the East of

Medri Street Plot Nos.371/1 and 371/2 are situated. The

said Plot Nos.371/1 and 371/2 have been recorded in the

name of the defendant no.2 and there is no goli rasta

leading to Medri Street from the main road in the revenue

map. For which, the plaintiff is not entitled for any relief in

the suit including the relief, i.e., declaration of his right,

title and interest over the suit land. Therefore, the suit of

the plaintiff is liable to be dismissed.

7. Basing upon the aforesaid pleadings and matters in

controversies between the parties, altogether nine numbers

of issues were framed by the learned trial court in the suit

vide T.S. No.01 of 1986 and the said issues are:-

I S S U ES

(i) Whether the plaintiff has purchased the suit land from one Appi Sahu?

(ii) Whether the plaintiff was in possession over the suit land?

(iii) Whether the plaintiff has raised foundation over the suit land?

(iv) Whether the defendants have constructed house over the suit site?

(v) Whether the defendants have constructed house over the Plot Nos.371/1 and 371/2?

(vi) Whether the suit site and plot nos.371/1 and 371/2 are different?

(vii) Whether the suit is barred by limitation?

(viii) Whether there is any cause of action?

(ix) To what relief, if any, the plaintiff is entitled for?

8. In order to substantiate the aforesaid relief(s) sought

for by the plaintiff against the defendants in his plaint, the

plaintiff examined three numbers of witnesses from his side

including him as P.W.2 and relied upon the documents vide

Exts.1 to 6.

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

the plaintiff, the defendants examined six numbers of

witnesses on their behalf including the defendant no.1 as

D.W.6 and exhibited several of documents from their side

vide Exts.A to F.

9. 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 against the

plaintiff except issue no.7 as the said issue no.7 was not

pressed by the parties and basing upon the findings and

observations made by the trial court in all the issues except

issue no.7 against the plaintiff, the learned trial court

dismissed the suit of the plaintiff vide T.S. No.01 of 1986 on

contest against the defendants as per its judgment and

decree dated 07.01.1989 and dated 11.01.1989 respectively

assigning the reasons that,

"the suit land is a Government land. The plaintiff has

got no title purchasing the same from Appi Sahu, as Appi

Sahu had no title over the suit land and the plaintiff has not

been able to establish his possession over the suit land. The

plaintiff has also not been able to establish raising of any

foundation/construction on suit land. The suit land vide Plot

No.370 under Khata No.71 of Bissamcuttack mouza stands

recorded under Rakshita Anabadi Khata in the name of the

Government. Plot No.370 and 371/1 and 371/2 are different

and separate plots. As the plaintiff failed to establish his

right, title, interest and possession over the suit land, he

(plaintiff) is not entitled to get any relief in the suit."

10. On being dissatisfied with the aforesaid judgment and

decree of the dismissal of the suit of the plaintiff vide T.S.

No.01 of 1986 passed by the learned trial court, he(plaintiff)

challenged the same preferring the 1st appeal vide T.A.

No.01 of 1989 being the appellant against the defendants

arraying them(defendants) as respondents.

11. After hearing from both the sides, the learned 1st

appellate court allowed that 1st appeal vide T.A. No.1 of

1989 filed by the plaintiff against the defendants and set

aside the judgment and decree dated 07.01.1989 and

11.01.1989 respectively passed in T.S. No.01 of 1986 by

the learned trial court and declared the possessory title of

the plaintiff over the suit land entitling him(plaintiff) to

recover the possession of the suit land from the defendants

as per its judgment and decree dated 30.06.1992 and

08.07.1992 respectively passed in T.A. No.01 of 1989

assigning the reasons that,

"even though, the plaintiff has not been able to prove

his title over the suit land, as the suit land is a Government

land, but, he(plaintiff) has been able to establish his

possessory title over the suit land on the basis of the report

of the Commissioner vide Ext.5, even if, Commissioner has

not been examined during trial of the suit, but, it is

established from his report vide Ext.5 that, the defendants

have raised constructions on the suit land, knowing that, the

suit land was under the possession of the plaintiff. For

which, the possessory title of the plaintiff over the suit land

is declared and he(plaintiff) is entitled to recover the

possession of the suit land from the defendants."

12. On being aggrieved with the aforesaid judgment and

decree dated 30.06.1992 and 08.07.1992 respectively

passed by the learned 1st appellate court in T.A. No.01 of

1989 reversing the judgment and decree of the dismissal of

the suit vide T.S. No.01 of 1986 of the plaintiff passed by

the learned trial court, they(defendants) challenged the

same preferring this 2nd appeal vide S.A. No.190 of 1992

being the appellants against the plaintiff arraying

him(plaintiff) as respondent.

When, during the pendency of this 2nd appeal, both

the defendants(appellants) expired, then their legal heirs

have been substituted in their places as appellants.

Likewise, when during the pendency of this 2nd

appeal, the plaintiff(respondent) expired, then, his legal

heirs have been substituted in his place as respondents.

13. This 2nd appeal was admitted on formulation of the

following substantial question of law, i.e., :-

Whether, the judgment and decree passed by the learned 1st appellate court, reversing the findings and observations made by the learned trial court without considering the oral evidence concerning the possession of the suit land is sustainable under law?

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

appellants/defendants and the learned counsel for the

respondent/plaintiff.

15. In the plaint of the plaintiff, he(plaintiff) has prayed for

declaration of his right, title and interest over the suit land

along with recovery of possession and removal of

constructions against the defendants.

It is the own case of the plaintiff that, the suit land is a Government land. The same has been recorded under Rakshita Anabadi khata in the name of the Government. The plaintiff has not impleaded(arrayed) the Government(who is undisputed owner of the suit land), as a party in the suit.

When, the plaintiff has prayed for declaration of his

right, title and interest over the Government land(which is

the suit land), then, as per law, the State(Government) is a

necessary party to the suit concerning the prayer of the

plaintiff, i.e., declaration of his right, title and interest over

the suit land.

16. On this aspect, the propositions of law has already

been clarified in the ratio of the following decisions, i.e.,:-

(i) In a case between Kalyan Kumar Bera vrs.

Millan Kumar Khuntia and others : reported in 2023(1) CCC-93(Kolkata) that, whether a person is necessary party, is a question of fact, depending upon relief claim in suit. But, once it is established that, the person is a necessary party to the suit, it becomes a question of law and the same can be raised for the first time in an appeal.

Non-joinder of a necessary party is a ground to dismiss a suit.

(ii) In a case between Raj Chandra Bhowmick vrs. K. Habibulla and others : reported in AIR 1930 Calcutta-693(D.B.)--Absence of necessary party is a good cause to refuse declaration.

(iii) In a case between Ch.Puspa Machilipatnam Krisna and others vrs. Medical SPNTD Machilipatnam Krishna : reported in 2025(3) Civil Court Cases-228(Andhra Pradesh)(Para-14) that, when the State is owner of the suit property, then, in a suit for declaration and permanent injunction, State is a necessary party represented by District Collector. In

absence of the State, the suit is bad for non-joinder of necessary party.

(iv) In a case between District Collector, Srikakulam and others vrs. Bhagathi Krishana Rao and others : reported in 2010(2) CLR(S.C.)-98-- In a suit for declaration of title over forest land, the State Government has not been impleaded as a party. Suit is not maintainable for non-joinder of necessary party, i.e., State.

(v) In a case between Subal Chandra Jena and others vrs. Gopal Mohapara and others : reported in 2018(1) CLR-225--Suit for recovery of possession and permanent injunction over Government land-- State is not impleaded--Suit is misconceived.

(vi) In a case between Ashim Ranjan Das(D) By Lrs. vrs. Shibu Bodhak and others : reported in 2018(2) CCC(S.C.)-2--In a suit for declaration of title, such suit is bad for non-joinder of necessary party without impleading the party, in whose name Patta has been prepared.

(vii) Ch. Surat Singh(dead) and others vrs. Manohar Lal and others : reported in AIR 1971(S.C.)-240 that, property of a person cannot be dealt with behind his back in a suit for declaration.

17. Here, in this 2nd appeal at hand, when it is the own

case of the plaintiff that, the suit land is a Government

land, then at this juncture, in view of the principles of law

enunciated in the ratio of the aforesaid decisions, the State

was the necessary party in the suit vide T.S. No.01 of 1986

filed by the plaintiff in respect of his relief, i.e., the

declaration of his right, title and interest over the suit land.

For which, the suit of the plaintiff should have been

dismissed by the learned 1st appellate court confirming the

judgment and decree of the dismissal of the same passed

by the learned trial court on the ground that, the suit of the

plaintiff is bad for non-joinder of the necessary party(State),

but, the leaned 1st appellate court has not done so. For

which, the impugned judgment and decree passed by the

learned 1st appellate court cannot be sustainable under

law.

18. So far as the declaration of possessory title of the

plaintiff over the suit land by the learned 1st appellate court

in absence of the undisputed owner of the suit land, i.e.,

State is concerned.

It is the settled propositions of law that, mere

possession does not ripen to possessory title until the

possessor holds the property adverse to the title of the true

owner for the said purpose.

19. On this aspect, propositions of law has already been

clarified in the ratio of the following decisions :-

(i) In a case between Kasinath Panda, after him Manorama Patra and another vrs. Silla Satyabadi Patra, after him Silla Sundari Patra and others :

reported in 106(2008) CLT-663 (Para-15)--Possession simplicitor without proof of hostile animus does not mature to possessory title.

(ii) In a case between Chatti Kanti Rao and others vrs. Palle Venkat Suba Rao : reported in 2010(4) Civil Law Times-428(S.C.)(Para-15) and reported in 2011(1) OJR(S.C.)-60--Mere possession does not ripen into the possessory title, until the possessor holds property adverse to the title of the true owner for the said purpose,

(iii) In a case between Annakili vrs. A. Vedanayagam and others : reported in (2007) 14 SCC-308 that, mere possession of the land would not ripen into a possessory title for the said purpose. The possessor must have animus possidendi and to hold the land adverse to the title of the true owner.

Moreover, he must continue in that capacity for the period prescribed under the limitation Act.(Para-24)

20. When, as per law, the possessory title of a party in

respect of the property can only be declared against the

true owner of the land and when the plaintiff has not

arrayed the true owner of the suit land, i.e., State as a

party in the suit and when in the plaint of the plaintiff, he

has not stated that, he has been possessing the suit land

having hostile animus with the true owner, i.e., State, then

at this juncture by applying the principles of law

enunciated in the ratio of the aforesaid decisions to this

suit/appeal at hand, it is held that, the possessory title of

the plaintiff over the suit land declared by the learned 1 st

appellate court in T.A. No.01 of 1989 cannot be sustainable

under law.

21. That apart, the evidence adduced by the parties are

not establishing possession of the plaintiff over the suit

land. For which, the findings made by the learned 1st

appellate court about the possession of the plaintiff over

the suit land on the basis of the report of the Commissioner

vide Ext.5 without the examination of the said

Commissioner as a witness during the trial of the suit is

not acceptable under law. Because, as per law, the so-

called report of the Commissioner vide Ext.5 in respect of

the possession of the parties over the suit land is hearsay

in nature.

Therefore, the findings and observations made by the

learned 1st appellate court concerning the possession of the

suit land in favour of the plaintiff disregarding the findings

of the learned trial court cannot be sustainable under law.

22. When, as per the discussions and observations made

above, the findings and observations made by the learned

1st appellate court are not legally sustainable under law,

then at this juncture, there is justification under law for

making interference with the judgment and decree passed

by the learned 1st appellate court in T.A. No.01 of 1989

through this 2nd appeal filed by the defendants(appellants).

23. Therefore, there is merit in this 2nd appeal filed by the

defendants(appellants). The same must succeed.

24. In result, this 2nd appeal filed by the

defendants(appellants) is allowed on contest against the

respondent(plaintiff), but, without cost.

The judgment and decree passed by the learned 1st

appellate court in T.A. No.01 of 1989 is set aside and the

judgment and decree passed in T.S. No.01 of 1986 by the

learned trial court in dismissing the suit vide T.S. No.01 of

1986 of the plaintiff is confirmed.

( A.C. Behera ) Judge Orissa High Court, Cuttack The 26th of August, 2025/ Jagabandhu, P.A.

Designation: Personal Assistant