Orissa High Court

Shyama Baske(Since Dead) vs The Collector on 26 August, 2025

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                               R.S.A. No.259 of 2002

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



               Shyama Baske(since dead) ....                  Appellants
               through his LRs.
                                 -versus-
               The Collector, Balasore             ....       Respondent

               Appeared in this case:-
                   For Appellants        :     Mr. S.D. Das, Sr. Advocate
                                             assisted by Mr. M. Faradish,
                                                                Advocate,

                   For Respondent        :        Mr. Gyanalok Mohanty,
                                                Learned Standing Counsel

               CORAM:
               JUSTICE A.C. BEHERA

                                         JUDGMENT

Date of hearing :15.07.2025 / date of judgment :26.08.2025

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

confirming judgment.

2. The appellant in this 2nd appeal, i.e., Shyama Baske

was the plaintiff before the trial court in the suit vide T.S.

No.88 of 1995-I and the appellant before the 1st appellate

court in the 1st appeal vide T.A. No.4 of 1999.

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

before the trial court in the suit vide T.S. No.88 of 1995-I

and respondent before the 1st appellate court in the 1st

appeal vide T.A. No.04 of 1999.

4. The suit of the plaintiff vide T.S. No.88 of 1995-I before

the trial court was a suit for declaration and permanent

injunction.

The suit properties are M.S. Khata No.1193(Rakshita),

M.S. Plot No.307 Ac.3.05 decimals in Mouza-Baradiha

under Raibania Police Station in the district of Balasore

corresponds to Sabik Khata No.511 Plot No.243 Ac.4.14

decimals.

According to the plaintiff, the suit properties vide

Sabik Khata No.511 Plot No.244 were originally under the

Zimadary estate of ex-zamindar, i.e. super landlord Bibhuti

Bhusan Basu. Bhagaban Chandra Patra and others were

the ex-intermediaries of the same under the super landlord

Bibhuti Bhusan Basu. The plaintiff(Shyama Baske)

requested ex-landlord-Bibhuti Bhusan Basu in the year,

1950 for providing the suit properties to him for cultivation

purpose, to which, the ex-landlord Bibhuti Bhusan Basu

accepted and issued an Amalnama Patta in respect of the

suit properties in favour of the plaintiff for cultivation

purpose. Then, the plaintiff-Shyama Baske reclaimed the

suit properties and made the same fit for cultivation

purpose and cultivated the same. Accordingly, since the

year 1950, he(plaintiff) had/has been possessing the suit

properties continuously. Before abolition of the ex-

intermediary system, he(plaintiff) was paying rent of the

suit properties in each and every year before the Zamindary

Sirasta of the ex-intermediaries and he(plaintiff) was

obtaining rent receipts. At the time of abolition of the ex-

intermediary system, the ex-intermediaries submitted Ruffa

of the suit properties in the name of the plaintiff. For which,

after vesting of the ex-intermediary system in the year

1956/57, T.L. No.1019 in respect of the suit properties was

opened in the name of the plaintiff. After abolition of the ex-

intermediary system, the plaintiff-Shyama Baske was

paying rent of the suit properties to the Government and

was obtaining rent receipts. So, in view of the long standing

and continuous possession of the plaintiff-Shayama Baske

over the suit properties for more than 40 years, he(plaintiff)

Shyama Baske has acquired occupancy right over the suit

properties and he had/has been possessing the same

peacefully, continuously uninterruptedly with the

knowledge of the defendant. Therefore, his possession over

the suit properties has become adverse against the

defendant.

When, the Hal Settlement Operation in the area of the

plaintiff was going on, the plaintiff applied before the

Settlement Authorities for preparation of the separate

record of right of the suit properties in his name. The

settlement authorities after conducting enquiry assured

him(plaintiff) for recording the suit properties in his name,

but, subsequently, on dated 17.06.1994, the plaintiff came

to know from the local R.I. that, the suit properties have

been erroneously recorded under Rakshita Khata in the

name of the Government and the local R.I. did not receive

the rent of the suit properties from him(plaintiff). For which,

after obtaining the certified copy of the Hal RoR of the suit

properties vide Khata No.1193, Plot No.307, Ac.3.05

decimals on dated 17.11.1994, he(plaintiff) came to know

that, the suit properties have been recorded erroneously in

the name of the Government instead of his name and in its

remarks column of the RoR of suit Hal Plot No.307, his

name has been mentioned as illegal possessor with the

reservation of the same for Smasana. The above preparation

of the Hal RoR of the suit properties in the name of the

Government is totally illegal and baseless. So, the said Hal

RoR of the suit properties has neither created any title of

the suit properties in favour of the defendant nor has

extinguished the title of the plaintiff from the same. When,

taking the advantage of the above wrong and erroneous Hal

Khata No.1193, Plot No.307 of the suit properties in the

name of the Government, the defendant through its staffs

tried to demolish the residential house of the plaintiff

situated on a part of the suit properties, then, after serving

statutory notice under Section 80 of the CPC on the

defendant, he(plaintiff) filed the suit vide T.S. No.88 of

1995-I against the defendant praying for a declaration that,

the Hal RoR(MS RoR) under Khata No.1193 of the suit

properties in the name of State/Government is erroneous

and illegal and to declare that, the recordings in column-

2(remarks column) of the Hal RoR of M.S. Khata No.1193 is

baseless and to injunct/restrain the defendant permanently

from interfering into his possession in the suit properties

along with other reliefs, to which, he(plaintiff) is entitled for.

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

vide T.S. No.88 of 1995-I filed by the plaintiff, the defendant

contested the suit of the plaintiff without filing written

statement only cross examining the witnesses of the

plaintiff on the point of law.

6. Following issues were framed by the learned trial court

in the suit vide T.S. No.88 of 1995-I filed by the plaintiff for

the adjudication of the suit and the said issues are :-

Issues

(i) Is the suit maintainable in its present form?

(ii) Has the plaintiff any cause of action to bring this suit?

(iii) Has the plaintiff perfected his title on the suit land by adverse possession?

(iv) Has the plaintiff otherwise right, title and interest in the suit property?

(v) What relief, if any, is the plaintiff entitled to?

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

for by the plaintiff in the suit vide T.S. No.88 of 1995-I

against the defendant in respect of the suit properties, he

(plaintiff) examined three witnesses from his side including

him(plaintiff) as P.W.1 and exhibited series of documents on

his behalf vide Exts.1 to 8. Though the defendant cross-

examined the witnesses of the plaintiff, but, neither

examined any witness on its behalf nor proved any

document from its side.

8. After conclusion of hearing and on perusal of the

materials and evidence available in the record, the trial

court answered all the issues against the plaintiff and

basing upon the findings and observations made by the

learned trial court in the issues against the plaintiff, the

learned trial court dismissed the suit of the plaintiff vide

T.S. No.88 of 1995-I on contest against the defendant as per

its judgment and decree dated 30.11.1998 and 10.12.1998

respectively assigning the reasons that,

"the plaintiff has not been able to establish about the

leasing out of the suit properties by the ex-landlord Bibhuti

Bhusan Basu in his favour through any Amalnama Patta and

the so-called Amalnama Patta relied by the plaintiff vide

Ext.8 is not free from doubt and suspicion and the

nexus/connection of the said Ext.8 with the suit properties

has not been properly established by the plaintiff. No

document has been filed or proved on behalf of the plaintiff

concerning the submission of Ruffa by the ex-intermediaries

in respect of the suit properties in the name of the plaintiff at

the time of abolition of the ex-intermediary system. The

plaintiff has also not been able to prove about the payment of

rent of the suit properties to the Government after abolition of

ex-intermediary system. The plaintiff has been failed to

establish his adverse possession over the suit properties. For

which, the plaintiff is not entitled to get any relief sought for

by him(plaintiff) in his plaint."

9. On being dissatisfied with the aforesaid dismissal of

the suit of the plaintiff vide T.S. No.88 of 1995-I passed by

the learned trial court as per its judgment and decree dated

30.11.1998 and 10.12.1998 respectively, he(plaintiff)

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

No.04 of 1999 being the appellant against the defendant

arraying the defendant as respondent.

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

appellate court dismissed that 1st appeal vide T.A. No.04 of

1999 of the plaintiff as per its judgment and decree dated

13.08.2002 and 23.08.2002 respectively concurring

/confirming the findings and observations made by the

learned trial court clarifying that,

Ext.8 (so-called Amalnama Patta) relied by the plaintiff showing the issuance of the same by the ex-landlord Bibhuti Bhusan Basu is not established. Because, the contents, thereof are showing that, the same was issued by one Abani Bhusan Basu and others being minors represented by their guardian. There is also no date in the said Ext.8 regarding the date of its issuance.

Though it is the case of the plaintiff that, the so-called Amalnama Patta vide Ext.8 was issued in the year 1950, but, it appears therefrom that Ext.8 that, the same was issued in the year 1943.

It is the evidence of the plaintiff(P.W.1) that, the so-called Amalnama Patta vide Ext.8 was written by one Bishnu Moharir, but, whereas the contents thereof is going to show that, the same has been written by one Srikrushna Gopal Das. Neither Bishnu Moharir nor Srikrushna Gopal Das has been examined by the plaintiff to prove the contents of the so-called Ext.8. For which, the issuance of Amalnama Patta vide Ext.8 in respect of the suit properties in favour of the plaintiff as claimed by the plaintiff is disbelieved.

Likewise, the plaintiff has not proved any Raffanama submitted by Zamindar in respect of the suit properties in his favour. The claim of the plaintiff concerning the opening of T.L. of the suit properties in his name after abolition of the ex-intermediary system has not been proved by the plaintiff, but, the extract of the information collected from the original register was proved. So, without proving the original register of the tenancy ledger and without explaining about the non- proving of the original register of the T.L., the claim of the plaintiff regarding opening of the T.L. of the suit properties in his name after abolition of ex-intermediary system has not been duly established. The so-called rent receipt vide Ext.3 relied by the plaintiff stating about the issuance of the same by the ex-intermediary in respect of the suit properties in his name before vesting are not showing any connection/nexus with the suit plot.

11. Though the plaintiff has claimed his title over the suit properties by way of adverse possession, but, the essentials of adverse possession has not been pleaded or proved by the plaintiff. The plaintiff has failed to establish the correspondences/nexus between

the suit Hal Plot No.307 under Hal Khata No.1193 with C.S. Plot No.243 under C.S. Khata No.511. For which, the plaintiff has not been able to establish his case in order to get the reliefs prayed for by him in the suit. Therefore, the dismissal of the suit of the plaintiff by the learned trial court cannot be held as erroneous.

12. On being aggrieved with the aforesaid judgment and

decree of the dismissal of the 1st appeal vide in T.A. No.04 of

1999 by the learned 1st appellate court, he(plaintiff)

challenged the same preferring this 2nd appeal being the

appellant against the defendant arraying the defendant as

respondent.

When, during the 2nd appeal, the appellant(plaintiff)

Shyam Baske expired, then his son has been substituted in

his place.

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

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

(i) Whether the trial court was right in not giving finding and not discussing each issue on its own merit?

(ii) Whether Ext.2, which is an extract of the tenancy ledger, the same can be accepted as a proof of title and possession in respect of the suit properties in favour of the plaintiff?

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

appellant and learned Standing Counsel for the State.

15. When, on the basis of the concurrent findings and

observations made by the learned trial court and learned 1st

appellant court, the aforesaid both the formulated

substantial questions of law are interlinked, then, the above

both the formulated substantial questions of law are taken

up together analogously for their discussions hereunder :-

Both the courts, i.e., the learned trial court as well as

the learned 1st appellate court have disbelieved to the

genuineness of the so-called Amalnama Patta vide Ext.8

relied by the plaintiff/appellant in respect of the suit

properties.

It appears from the Ext.8(so-called Amalnama Patta)

that, the same was issued by two minors, i.e., Abani

Bhusan Basu and Fani Bhusan Basu through their

respective guardians in respect of the properties covered

under C.S. Khata No.85/511, Plot No.243, Ac.4.14

decimals, but whereas, it is the case of the plaintiff that, the

said so-called Amalnama Patta vide Ext.8 was issued by

Bibhuti Bhusan Basu in respect of the suit properties, i.e.,

Ac.3.05 decimals under Sabik Khata No.511, Plot No.243. It

appears from the Ext.8 that, the same was issued in respect

of the Sabik Khata No.85/511, but, not in respect of suit

Khata No.511.

The same was issued for Ac.4.44 decimals, but not, for

Ac.3.05 decimals.

Rent receipt relied by the plaintiff vide Ext.3 series

said to have been issued by the Zamindar in respect of the

suit properties do not contain any plot number. For which,

any nexus/connection between so-called Amalnama Patta

vide Ext.8 and Ext.3 series(so-called rent receipts) is not

established.

16. According to the plaintiff, Hal Plot No.307, Ac.3.05

decimals under Hal Khata No.1193 corresponds to C.S. Plot

No.243 under C.S. Khata No.511 and for such,

correspondences, the plaintiff has relied upon Ext.7.

It appears from the Ext.7 that, suit Hal Khata No.1193

Plot No.307 corresponds to Sabik Khata No.98, but, not to

Sabik suit Khata No.511. For which, correspondences of

suit Hal Khata No.1193 with suit Sabik Khata No.511 has

not been established.

The plaintiff has deposed in his evidence, as P.W.1

that, the so-called Amalnama Patta vide Ext.8 in respect of

the suit properties was written by one Bishnu Mahurir, but,

it appears from Ext.8 that, the same has been written by

Srikrushna Gopal Das. Neither Bishnu Mahurir nor

Srikrushna Gopal Das has been examined on behalf of the

plaintiff to prove the contents of Ext.8 and there is no

explanation on behalf of the plaintiff about the cause of

their non-examination as witnesses during trial.

17. The plaintiff has not filed or proved any Ruffa as

stated by him concerning its submission by the ex-landlord

Bibhuti Bhusan Basu at the time of abolition of ex-

intermediary system for opening of the tenancy ledger in

respect of the suit properties in his name.

Though the plaintiff has relied upon Ext.2 for

establishing the opening of the tenancy ledger in respect of

the suit properties in his name after abolition of the ex-

intermediary system and payment of rent by him (plaintiff)

for the same up to the year 1987-88, but, the said Ext.2 is

only an information collected from the original tenancy

The original tenancy register has neither been filed nor

proved on behalf of the plaintiff and no explanation has

been offered regarding the cause of non-production of the

original tenancy register during the trial of the suit by

calling for the same from the local R.I. Office.

So, for the reasons assigned above, it is held that, the

plaintiff has not been able to establish the issuance of

Amalnama Patta by the ex-landlord in his favour in the year

1950 in respect of the suit properties and acceptance of

rent of the suit properties from him(plaintiff) by the ex-

landlord before vesting of the estate in the State and

opening of any tenancy ledger in respect of the suit

properties in his name after vesting of the suit properties in

the State and acceptance of rent of the suit properties by

the State from him(plaintiff) after its vesting in the State.

As per law, due to abolition of the ex-intermediary

system, the suit properties vested in the State free from all

encumbrances. For which, suit properties have been

lawfully recorded in the name of the State. Therefore, the

plaintiff is not entitled to get the decree of declaration that,

the MS RoR of the suit properties vide M.S. Khata No.1193

prepared in the name of the State as illegal and the notings

made in the remarks column of the suit plot is baseless.

18. The claim of the plaintiff over the suit properties for

title through adverse possession has also not been

established. Because, it is the settled propositions of law

that, the claim of title of the plaintiff over the suit properties

through adverse possession against the defendant/State is

an indirect admission of the title of State over the suit

properties by the plaintiff.

19. Here, in this matter at hand, the plaintiff has sought

for title over the suit properties, through documents, i.e., on

the basis of Amalnama Patta, Ruffa, T.L. and rent receipt,

but, at the same time, he (plaintiff) has also claimed his title

over the suit properties against the defendant/State

through adverse possession.

20. It is the settled propositions of law that, claim of title

over the suit properties through documents and the claim

of title over the suit properties through adverse possession

simultaneously by the plaintiff are mutually inconsistent

and destructive with each other.

Because, the claim of title through adverse possession

over the suit properties shall not begin to operate, unless

the plea of title on the same through documents is

renounced.

21. On this aspect the proposition of law has already been

clarified in the ratio of the following decisions:-

(i) In a case between Sultan and others vrs.

Kasturi and others : reported in 2005(4) Civil Law Times-378(P&H)--Plea of adverse possession is an indirect admission of ownership of the plaintiff against whom the same claim is advanced.

(ii) In a case between Gafoor Khan vrs. Sultan Jehan through LRs. and others : reported 2006(3) CCC-234(Madhya Pradesh)--Plea of title and adverse possession are mutually inconsistent and latter does not begin to operate till former is renounced.

22. The notings made in the Hal RoR, i.e., in the remarks

column of the suit plot show that, the plaintiff is in illegal

possession over the same and the suit plot has been kept

reserved for Smasana which establish that, the plaintiff is

an encroacher of the suit properties, rather than owner on

the same through adverse possession, as his plea of adverse

possession over the suit properties has already been

discarded for the reasons assigned above.

23. On this aspect the propositions of law has already

been clarified in the ratio of the following decision:-

(i) In a case between Ambaram(deceased) through LRs. and others vrs. Ganga Bai and others : reported IV(2007) Civil Law Times-606(Madhya Pradesh) (Paras-6&7)--That, due to the failure of the plea of adverse possession of the plaintiff over the suit land, it is held that, plaintiff is an encroacher on the suit land rather than owner of the same on the strength of adverse possession.

24. It is very fundamental in law that, the law does intent

to confer any premium on the wrong doer.

When, it is evident from the RoR vide Ext.5 that, the

plaintiff is in wrongful/illegal possession over the suit

properties, the same cannot provide any benefit to the

plaintiff for establishing his title on the same or to get an

injunction against its true owner, i.e., State.

25. It is the own case of the plaintiff in Para-5 of his plaint

that, he(plaintiff) has acquired occupancy right over the suit

properties, but, at the same time, he(plaintiff) has claimed

title over the suit properties through adverse possession.

26. As per law, the claim of title on the suit property as

occupancy raiyat as well as claim of title on the same

through adverse possession are contrary to each other.

When, above both the pleas will have been taken

simultaneously, none among them will survive.

27. On this aspect the proposition of law has already been

clarified in the ratio of the following decision :-

(i) In a case between State of Orissa and another vrs. Dukishyama Behera and others : reported 2018(2) CLR-207--Claim of title to the property as occupancy raiyats or by way of adverse possession are contrary to each other.

28. When, the plaintiff has neither pleaded nor proved the

essentials of adverse possession and when, he(plaintiff) has

failed to establish his title and lawful possession over the

suit properties as per the discussions and observations

made above, then at this juncture, the judgments and

decrees passed by the learned trial court and the learned 1st

appellate court in dismissing the suit of the plaintiff

(appellant) vide T.S. No.88 of 1995-I cannot be held as

illegal. For which, the question of interfering with the same

through this 2nd appeal field by the plaintiff(appellant) does

not arise.

29. Therefore, there is no merit in this 2nd appeal filed by