Harihar Mohanta vs Tahasildar
2025 Latest Caselaw 11633 Ori

Orissa High Court

Harihar Mohanta vs Tahasildar on 23 December, 2025

           IN THE HIGH COURT OF ORISSA AT CUTTACK
                     RSA Nos.29 of 2002
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)

 Harihar Mohanta                                  ....             Appellant
                                   -versus-
 Tahasildar, Keonjhar & Others                    ....            Respondents

For Appellants - Mr.R.K.Mohanty, Sr.Advocate Ms.S.Mohanty, Advocate

For Respondents - Mr.G.Mohanty, SC (for the State) Mr.D.P.Mohanty, Advocate (for the Respondent Nos.3 and 4)

RSA Nos.30 of 2002

Budhadeva Mohanta (died) and .... Appellants others

-versus-

 State of Odisha & Others                         ....            Respondents

           For Appellants          -       Mr.R.K.Mohanty, Sr.Advocate
                                           Ms.S.Mohanty, Advocate


           For Respondents -               Mr.G.Mohanty, SC (for the State)
                                           Mr.D.P.Mohanty, Advocate (for the
                                           Respondent Nos.2 and 3)


           CORAM:
           MR. JUSTICE A.C.BEHERA

Date of Hearing :17.11.2025:: Date of Judgment :23.12.2025

// 2 //

A.C. Behera, J. Both the Second Appeals have been preferred against the

confirming judgment.

2. Since both these 2nd appeals vide R.S.A. Nos.29 of 2002 and

R.S.A. No.30 of 2002 have arisen out of an analogous judgment and

decree passed in T.A. No.7 of 2000 and T.A. No.8 of 2000 in connection

with the judgments and decrees passed in T.S. No.75 of 1996 and T.S.

No.115 of 1997 in respect of the same suit properties vide Hal Khata

No.48, Plot No.4, Area Ac.14.00 Jalasaya-I in village Upardiha under

Sadar Police Station in the District of Keonjhar, then, both these 2nd

appeals are taken up together analogously for their final disposal through

this common judgment.

3. The Appellant in the 2nd appeal vide R.S.A. No.29 of 2002 i.e.

Harihar Mohanta was the Plaintiff in the suit vide T.S. No.75 of 1996

before the learned trial court and appellant before the learned 1st

Appellate Court in the first appeal vide T.A. No.7 of 2000.

The Respondents in the 2nd appeal vide R.S.A. No.29 of 2002 were

the Defendants before the trial court in the suit vide T.S. No.75 of 1996

and Respondents before the 1st Appellate Court in the first appeal vide

T.A. No.7 of 2000.

// 3 //

4. The Appellants in the Second Appeal vide R.S.A. No.30 of 2002

i.e. Budhadeva Mohanta and seven others were the Plaintiffs before the

trial court in the suit vide T.S. No.115 of 1997 and Appellants before the

1st Appellate Court in the first appeal vide T.A. No.8 of 2000.

The Respondents in this 2nd appeal vide R.S.A. No.30 of 2002

were the Defendants before the trial court in the suit vide T.S. No.115 of

1997 and Respondents before the 1st Appellate Court in the first appeal

vide T.A. No.8 of 2000.

5. Both the suits of the Plaintiffs vide T.S. No.75 of 1996 and T.S.

No.115 of 1997 were the suit for declaration and permanent injunction.

6. The suit properties in both the suits vide T.S. No.75 of 1996 and

T.S. No.115 of 1997 are the same properties vide Plot No.4, Area

Ac.14.00 Jalasaya-I under Hal Khata No.48 in village Upardiha under

Sadar Police Station in the District of Keonjhar.

7. The Plaintiffs in both the suits vide T.S. No.75 of 1996 and T.S.

No.115 of 1997 belong to one family and they are kin relatives of each

other.

8. The case of the Plaintiffs in both the suits vide T.S. No.75 of 1996

and T.S. No.115 of 1997 against the Defendants are identical in nature

and the prayers in both the suits are same.

// 4 //

9. The suit land is a Bandh (Jalasaya) vide Plot No.4, Ac.14.00

Jalasaya-I under Khata No.48 in village Upardiha under Sadar Police

Station in the District of Keonjhar described in the Schedule of the Plaint.

10. As per the case of the Plaintiffs, their ancestors/predecessors had

encroached the suit Bandh (Jalasaya) and they had excavated the said

Bandh (Jalasaya) on the day of Makar Sankaranti in the year 1901 and

since then, their predecessors were in possession over the same and after

the death of their predecessors (Ancestors), they (Plaintiffs) along with

their other family members have been jointly possessing the same and

they are carrying on pisciculture in the same and they are also irrigating

their adjacent cultivable lands from that suit Bandh (Jalasaya). As such,

their predecessors and after them the Plaintiffs along with their family

members are in open, actual, continuous and adverse possession over the

said suit Bandh (Jalasaya) to the knowledge of all concerned including

the Defendants and by virtue of their long and continuous possession over

the suit Bandh (Jalasaya) for more than 30 years, the title of the

Defendants (State and Gram Panchayat) in that suit Bandh (Jalasaya) has

already been extinguished and they (Plaintiffs) along with their family

members have acquired their title in the same by way of adverse

possession.

// 5 //

Surprisingly, Gobardhan Gram Panchayat in the year 1983 without

any basis/foundation claimed its right over the suit Bandh (Jalasaya)

stating that, the same has been transferred from the State to the said

Gobardhan Gram Panchayat. For such dispute, a proceeding under

Section 145 Cr.P.C. vide C.M.C. No.80/83 was initiated by the Court of

Executive Magistrate, Keonjhar. In that 145 proceeding, they (Plaintiffs)

along with Fakira Mahanta were the 1st Party and the Sarpanch and the

Secretary of Gobardhan Gram Panchayat were the 2nd Party members. In

that C.M.C. No.80/83 under Section 145 Cr.P.C., the possession of the

Plaintiffs along with their family members were declared. For which, the

2nd Party members thereof preferred a Criminal Revision before the

learned Session Judge, Keonjhar vide Criminal Revision No.33 of 1989,

but, that Criminal Revision No.33 of 1989 was dismissed.

During the pendency of the Criminal Revision No.33 of 1989

before the learned Sessions Judge, Keonjhar, on the basis of the Report of

the Local R.I., Padmapur, an Encroachment Proceeding in respect of the

suit Bandh (Jalasaya) vide Encroachment Case No.35/89-90 was initiated

against the Plaintiffs in order to evict them from the suit Bandh (Jalasaya)

and an order for eviction was passed against them (Plaintiffs) on dated

// 6 //

22.12.1989 in that Encroachment Case No.35/89-90 under O.P.L.E. Act,

1972.

To which, Budhadeva Mohanta (Plaintiff No.1 in T.S. No.115 f

1997) challenged preferring an Encroachment Appeal No.2 of 1990

before the Sub-Collector, Keonjhar. During the pendency of the

Encroachment Appeal No.2 of 1990, the Defendant No.2 along with

Sankiri G.P. filed a Civil suit vide T.S. No.35 of 1992 in respect of the

suit properties in the court of the learned Civil Judge (Sr.Division),

Keonjhar against Budhadeva Mohanta (Plaintiff No.1 in T.S. No.115 of

1997) and his other family members praying for a decree of eviction

against them from the suit Bandh (Jalasaya).

For which, without getting any way, they (Plaintiffs) approached

the Civil Court by filing the suit vide T.S. No.75 of 1996 and T.S. No.115

of 1997 praying for a declaration that, the order of eviction dated

22.12.1989 passed in Encroachment Case No.35/89-90 against them

(Plaintiffs) in respect of the suit Bandh (Jalasaya) is not operative and the

same is not binding upon them (Plaintiffs) and to declare that, the said

eviction order is void, as, some of their family members were not the

Parties in that Encroachment Case No.35/89-90 under O.P.L.E. Act, 1972

and to injunct the Defendants permanently from taking any step against

// 7 //

them (Plaintiffs) for their eviction from the suit Bandh (Jalasaya) and to

restrain them (Defendants) from taking the possession of the suit Bandh

(Jalasaya) from them (Plaintiffs) along with other reliefs, to which, they

(Plaintiffs) are entitled for.

11. Having been noticed from the learned Trial Court in the suits vide

T.S. No.75 of 1996 and T.S. No.115 of 1997, the Tahasildar and State

filed their joint written statement being one set. Whereas, Sarpanch and

Secretary of the Sankiri Gram Panchayat filed their joint written

statement being another set taking their stands identically.

As per the case of the Defendants, after filing of the suit vide T.S.

No.35 of 1992 against Budhadeva Mohanta (Plaintiff No.1 in T.S.

No.115 of 1997) by the Sankiri G.P., the said Budhadeva Mohanta filed

written statement in that suit vide T.S. No.35 of 1992 admitting the

encroachment of the case land by him, but, very cunningly knowing,

everything in detail about the said suit vide T.S. No.35 of 1992 against

them, they (Plaintiffs) filed suits vide T.S. No.75 of 1996 and T.S.

No.115 of 1997 at the instance of Budhadeva Mohanta (Plaintiff No.1 in

T.S. No.115 of 1997) for no other reason, but, only in order to protract

the litigations in respect of the suit Bandh (Jalasaya).

// 8 //

The specific case of the Defendants was that, the suit Bandh

(Jalasaya) corresponds to Sabik Plot Nos.1 and 2 under Sabik Khata

No.17 as per Sabik Settlement. In Sabik Settlement, the same was

recorded in the name of State. In the Hal Khata No.48, the same has also

been recorded in the name of the State. There was/is no note of

possession in the remarks column of the suit plot. After publication of the

Hal R.o.R. of the suit land, Budhadeva Mohanta (Plaintiff No.1 in T.S.

No.115 of 1997) encroached the suit bandh (Jalasaya) in the year 1978-

79. For which, the local R.I. Padampur booked an Encroachment Case

vide Encroachment Case No.35/89-90 against him Budhadeva Mohanta

(Plaintiff No.1 in the suit vide T.S. No.115 of 1997) and in that

Encroachment Case No.35/89-90 an order of eviction was passed on

dated 22.12.1989 against him (Budhadeva Mohanta).

Thereafter, in order to legalize his illegal possession, he

(Budhadeva Mohanta) created number of false cases against different

persons including the Gobardhan Gram Panchayat. Because, previously

the said Budhadeva Mohanta (Plaintiff No.1 in T.S. No.115 of 1997) was

the Sarpanch of Gobardhan Gram Panchayat and during his incumbency

as a Sarpanch of Gobardhan Gram Panchayat, he had managed to pass

some illegal orders in his favour in respect of the suit Bandh (Jalasaya)

// 9 //

influencing the local police personnels and authorities behind the back of

the Secretary of the said Gram Panchayat creating some forged and

manipulated documents in his favour. When, Budhadeva Mohanta came

to know that, he cannot succeed in his attempt to grab the suit Bandh

(Jalasaya), then, he managed to file the suit vide T.S. No.75 of 1996

through his cousin brother Harihar Mohanta (Plaintiff) only in order to

linger the proceedings in respect of the suit Bandh (Jalasaya). Then, he

himself i.e. Budhadeva Mohanta and his family members filed T.S.

No.115 of 1997.

After reorganization of the Handibhanga Gram panchayat, the

control and management of the suit Bandh (Jalasaya) was transferred to

Handibhanga G.P. from Gobardhan Gram Panchayat, as the suit village

Upardiha was transferred to Handibhanga G.P.. Subsequent thereto, as

per the order of the Government, the suit village Upardiha was tagged

with Gobardhan G.P. So, the control and management of the suit Bandh

(Jalasaya) again transferred in favour of the Gobardhan G.P from

Handibhanga G.P..

Again there was reorganization of the Gram panchayats in

Keonjhar District, wherein, some new Gram panchayats were

formed/created and a new Gram panchayat namely Sankiri G.P. was

// 10 //

formed along with other Gram Panchayats and the suit village upardiha

was included into the said Sankiri G.P.. For which, the suit Bandh

(Jalasaya) remained under the control and management of Sankiri G.P. as

per the letter No.4207 dated 24.12.1985 of the B.D.O., Sadar, Keonjhar

and at present the suit Bandh (Jalasaya) is under Sankiri G.P.

The suit Bandh (Jalasaya) had/has been putting to auction by the

G.P. for pisciculture purposes. While, the suit Bandh (Jalasaya) was

under Gobardhan G.P., Budhadeva Mohanta (Plaintiff No.1 in the suit

vide T.S. No.115 of 1997) had taken the suit Bandh (Jalasaya) on lease in

the year 1964-65 for Rs.50/- for pisciculture purpose. But, after final

publication of the Hal R.o.R. of the suit Bandh (Jalasaya) in the name of

the State, Budhadeva Mohanta (Plaintiff No.1 in the suit vide T.S. No.115

of 1997), his nephew and others claimed their independent title over the

suit Bandh (Jalasaya), although, they had no title and possession over the

same.

Likewise, one Kailash Chandra Mohanta of village upardiha had

also taken the suit Bandh (Jalasaya) on lease for Rs.40/- from Gobardhan

G.P. for the purpose of Pisciculture. The said Gobardhan G.P. had also

institutionally done pisciculture in the suit Bandh (Jalasaya) in the year

1976. In the year 1978, Budhadeva Mohanta and his family members

// 11 //

including the Plaintiff in the suit vide T.S. No.75 of 1996 created

disturbances for the first time in the smooth management of the suit

Bandh (Jalasaya). For which, the then, Sarpanch of Gobardhan G.P.

reported the matter at the police station. Therefore, a case was initiated.

As such, the Plaintiffs and their family members are not in actual

possession over the suit Bandh (Jalasaya) and they have no title in the

same. The villagers of Upardiha along with general public had/have been

using the water of the suit Bandh (Jalasaya) for their bathing and other

purposes and the said suit Bandh (Jalasaya) is under the control and

management of Sankiri G.P. and the same is the property of the State. In

which, the Plaintiffs and their family members had/have no interest.

Therefore, the suit of the Plaintiffs are liable to be dismissed.

12. Basing upon the aforesaid pleadings and matters in controversies

between the parties, separate issues were framed by the learned Trial

Court in both the suits vide T.S. No.75 of 1996 and T.S. No.115 of 1997

respectively.

The issues in T.S. No.75 of 1996 were as follows:-

Issues

1. Whether the suit is maintainable?

2. Whether there is any cause of action for filing the suit?

// 12 //

3. Whether the suit is barred by limitation?

4. Whether the Plaintiff was a party to encroachment case No.35 of 89-90 and whether the order passed therein is binding on the plaintiff?

5. To what relief, if any, the plaintiff is entitled for?

6. Has the plaintiff and his ancestors perfected their title over the suit land by adverse possession?

The Issues in T.S. No.115 of 1997 were as follows:-

Issues

1. is the suit is maintainable?

2. Whether there is any cause of action for the suit?

3. Is the suit barred by law of limitation?

4. Is the suit bad for non-joinder of necessary Parties and proper parties?

5. Is the suit undervalued?

6. Is the suit bad for indefiniteness?

7. Whether the plaintiffs have right, title, interest and possession over the suit tank (i.e. B Schedule land)?

8. Whether the order dated 17.07.1997 passed in Encroachment Rev. No.1 of 1997 by the A.D.M. Keonjhar confirming the order in Encroachment Appeal No.2 of 1990 and order of eviction dated 22.12.1989 in Exn. Case No.35/89-90 are void?

9. To what relief, the Plaintiffs are entitled?

13. In order to substantiate the aforesaid reliefs sought for by the

Plaintiff Harihar Mohanta in T.S. No.75 of 1996 against the Defendants,

the Plaintiff examined three numbers of witnesses including him and his

brother Budhadeva Mohanta (Plaintiff No.1 in T.S. No.115 of 1997) as

// 13 //

P.Ws.1 and 2 and relied upon several documents vide Exts.1 to 12 on

their behalf.

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

vide T.S. No.75 of 1996, the Defendants examined six numbers of

witnesses from their side as D.Ws.1 to 6 without proving any document

on their behalf.

14. In order to substantiate the reliefs sought for by the Plaintiffs in

T.S. No.115 of 1997 against the Defendants, the Plaintiffs examined two

numbers of witnesses from their side including Budhadeva Mohanta

(Plaintiff No.1) as P.Ws.1 and relied upon several documents vide Exts.1

to 20 on their behalf.

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

vide T.S. No.115 of 1997, the Defendants examined six number of

witnesses from their side as D.Ws.1 to 6 and relied upon several

documents vide Exts.A to Ext.S on their behalf.

15. 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 Plaintiffs in both the suits vide T.S.

No.75 of 1996 and T.S. No.115 of 1997 and in favour of the Defendants.

// 14 //

16. On the basis of the findings and observations made in the issues

against the Plaintiffs, the learned trial court dismissed both the suits of the

plaintiffs vide T.S. No.75 of 1996 and T.S. No.115 of 1997 as per its

judgment and decree dated 13.01.2000 and 27.01.2000 respectively

assigning the same reasons in both the judgments and decrees that,

the Hal R.o.R. of the suit Bandh (Jalasaya) was finally published in the year 1977 in the name of the State, which was much prior to the filing of the suits by the Plaintiffs and no suit was filed by the Plaintiffs within 12 years from the date of final publication of the Hal R.o.R. For which, the suit of the plaintiffs is barred by limitation. The Plaintiffs have totally failed to establish their plea of adverse possession over the suit Bandh (Jalasaya) fulfilling the essentials of adverse possession and there is no material in the record to establish that, the possession of the Plaintiffs over the suit properties was adverse against the true owner i.e. State and the order of eviction passed in the encroachment proceeding vide encroachment case No.35/89-90 against the Plaintiffs in respect of the suit Bandh (Jalasaya) is valid and lawful. For which, the Plaintiffs are not entitled for any relief in the suits and on the basis of the said observations, the learned Trial Court dismissed both the suits of the Plaintiffs vide T.S. No.75 of 1996 and T.S. No.115 of 1997 respectively on contest against the Defendants.

17. On being dissatisfied with the aforesaid judgment and decree

passed by the learned Trial Court in the suit vide T.S. No.75 of 1996, the

Plaintiff thereof challenged the same preferring an appeal vide T.A. No.7

// 15 //

of 2000 being the Appellant against the Defendants arraying the

Defendants as Respondents.

Likewise on being dissatisfied with the judgment and decree of the

dismissal of the suit vide T.S. No.115 of 1997 of the Plaintiffs passed by

the learned Trial Court, the Plaintiffs thereof challenged the same

preferring the 1st Appeal vide T.A. No.8 of 2000 being the Appellants

against the Defendants arraying the Defendants as Respondents.

18. As, both the 1st Appeals vide T.A. Nos.7 of 2000 and T.A. No.8 of

2000 had arisen out of the same subject matter, then the learned 1st

Appellate Court passed an analogous judgment and decree in both the 1st

appeals vide T.A. Nos.7 of 2000 and T.A. No.8 of 2000 and dismissed

both the 1st appeals vide T.A. No.7 of 2000 and T.A. No.8 of 2000 of the

Plaintiffs as per its judgment and decree dated 29.04.2002 and 10.05.2002

respectively confirming/concurring the findings and observations made

by the leaned Trial Court against the Plaintiffs.

19. On being aggrieved with the aforesaid analogous judgment and

decree passed by the learned 1st Appellate Court in the 1st Appeals vide

T.A. Nos.7 of 2000 and T.A. No.8 of 2000, the Appellants (Plaintiffs)

thereof challenged the same preferring two separate appeals vide R.S.A.

Nos.29 of 2002 and 30 of 2002.

// 16 //

20. The 2nd appeal vide R.S.A. No.29 of 2000 was preferred by the

Plaintiff-Appellant Harihar Mohanta against the judgment and decree

passed in the first appeal vide T.A. No.7 of 2000 arising out of the suit

T.S. No.75 of 1996.

The 2nd appeal vide R.S.A. No.30 of 2000 was filed by the

Plaintiffs-Appellants against the judgment and decree passed in the 1st

Appeal vide T.A. No.8 of 2000 arising out of the suit vide T.S. No.115 of

1997.

21. When, during the pendency of the 2nd Appeal, the

Appellant/Plaintiff No.1 in the 2nd Appeal vide R.S.A. No.30 of 2002

expired, then, in his place, his LRs have been substituted.

22. I have already heard from the learned Sr. Counsel for the

Appellants in both the 2nd Appeals, the learned SC for the State and the

learned counsel for the Sarpanch and Secretary of Sankiri G.P.

23. Both the 2nd appeals vide R.S.A. Nos.29 of 2002 and 30 of 2002 were admitted on formulation of the similar substantial questions of law and the said questions of law are :-

i. Whether the admission of the respondents in the plaint vide Ext.11 (in T.S. No.35 of 1992) regarding long possession of Raidas over the suit tank would operate as resjudicata/estopel in so far as the present defence of the respondents?

// 17 //

ii. Whether the non-consideration of the order U/s.145 o Cr.P.C. in C.M.C. No.80/83 vide Ext.2 by both the Courts below would render the impugned judgments as illegal and invalid?

iii. Whether, Findings of the Courts below relating to adverse possession of the plaintiffs suffers from non-consideration of material evidence and misinterpretation of vital documents, for which, both the judgments are perverse in the eye of law?

iv. Whether, the orders passed in the encroachment case prior to the filing of T.S. No.35/1992 as against one co-sharer can be said to be legal and valid to establish the claim of the respondents?

24. As per the findings and observations made by the learned Trial

Court and learned 1st Appellate Court on the basis of the pleadings and

evidence of the Parties, the aforesaid four formulated substantial

questions of law are interlinked having ample nexus with each other, for

which, the aforesaid four substantial questions of law are taken up

together analogously for their discussions hereunder:-

The Appellants (Plaintiffs) in both the 2nd appeals had filed suits

vide T.S. No.75 of 1996 and T.S. No.115 of 1997 praying for declaration

of their title over the suit Bandh (Jalasaya) vide Hal Khata No.48, Plot

No.4 in village Upardiha under Sadar Police Station in the District of

Keonjhar through adverse possession on the ground of their continuous

// 18 //

possession over the said suit Bandh (Jalasaya) since the year 1901 i.e.

since the time of their predecessors.

To which, the Defendants (State and Gram Panchayat) are

seriously disputing stating in their pleadings that, the suit Bandh

(Jalasaya) was in the name of the State/Government in Sabik Settlement

and the same is also in the name of the State/Government in the Hal

Settlement. The suit Bandh (Jalasaya) had/has been leasing out in each

and every year by the G.P. The Plaintiff No.1 in T.S. No.115 of 1997 had

also taken to the suit Bandh (Jalasaya) on lease in the year 1964-65 for

Rs.50/- through auction from the G.P. for pisciculture. The Plaintiffs

were/are never in possession over the suit Bandh (Jalasaya).

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

Plaintiff or Plaintiffs over the suit properties like this present suit at hand

through an adverse possession is an indirect admission of the title of the

Defendants over the suit properties by the Plaintiff or Plaintiffs.

Because, without admitting the title of the Defendants, the

Plaintiffs cannot claim title over the suit properties through adverse

possession.

On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:-

// 19 //

(i) In a case between Dagadabai (dead) by LRs Vrs. Abbas @ Gulab Rustum Pinjari reported in 2017(1) CLR (SC) 1094 that, Who raises a plea of title through adverse possession, the said person cannot take such plea without admitting the title (ownership) of the opponent over the suit properties.

(ii) In a case between N.Chandrasekaran and others Vrs. Arulmighu Thiruvatteeswarar Thirukkoil reported in 2020 (1) CCC 340 (Madras) that,

Before claiming adverse possession, the party has to accept the title and ownership of its opponent.

(iii) In a case between Sultan and others Vrs. Kasturi and others reported in IV (2005) Civ.L.T 378 (P and H) that, the Plea of adverse possession is an indirect admission of ownership of person against whom such plea is advanced.

(iv) In a case between Jagat Singh and others Vrs. Srikishan Dass and others reported in 2008 (3) CCC 173 (P. & H.) that, Once a plea of adverse possession is raised by the Defendant, it pre-supposes the title of the Plaintiff over the suit land.

(v) In a case between Gurbax Singh (dead) by LRs. Vrs. Karnail Singh reported in 2008 (4) CCC 239 (P & H) that, The plea of adverse possession necessarily implies the admission of the title of the other side.

(vi) In a case between Pappayammal Vrs. Palanisamy and others reported in 2005 (3) CCC 167 (Mad.) that, A party can plead adverse possession, only when, he admits that, another party has got title.

26. In view of the principles of law enunciated in the ratio of the

aforesaid decisions, when the Plaintiffs have claimed their title over the

suit Bandh (Jalasaya) through adverse possession against the

Defendant/State, then, as per law, the Plaintiffs have admitted the

ownership/title of the Defendant/State over the suit properties.

// 20 //

27. Now it will be seen, whether the Plaintiffs are able to fulfil the

essentials of Articles 64 and 65 and Section 27 of the Indian Limitation

Act, 1963 for establishing their claim of title over the suit properties

through adverse possession.

The prime essential of adverse possession is hostile possession of

the claimant over the suit properties, but, not the continuous or long

possession.

On this aspect, the propositions of law has already been clarified in the ratio of the following decision:-

(i) In a case between Shri Uttam Chand (D) through LRs Vrs. Nathu Ram (D) Through LRs and others reported in 2020 (1) CLR (SC) 656 that,

When defendants are claiming to be in continuous possession, such plea is not sufficient for establishing title through adverse possession.

Because, there is no requirement of continuous possession, but, there is requirement of hostile possession for more than 12 years denying the title of the true owners with an intention to establish their title on the same through possession. When the claimant has not established hostile possession, then, the plea of adverse possession fails.

28. Here, in these suits/appeals at hand, the Appellants/Plaintiffs

have neither pleaded nor proved their hostile possession over the suit

Bandh (Jalasaya) stating that, they are possessing the same denying

the title of the Defendants in the same in order to establish their title

on the same through possession.

// 21 //

So, due to the absence of the aforesaid prime essential i.e.

hostile possession in the pleadings and evidence of the Plaintiffs, their

claim of title over the suit Bandh (Jalasaya) through adverse

possession has been failed to be established.

That apart, there is also the requirements under law to plead and

prove by the Plaintiffs about the date of commencement of their hostile

possession repudiating/denying the title of the Defendants in the suit

properties and the date of maturity of their hostile possession to title on

the same for establishing their claim of title over the suit properties

through adverse possession.

On this aspect the propositions of law has already been clarified in the ratio of the following decisions:-

(i) In a case between T.Ravi and another Vrs. B.Chinna Narasimha and others reported in (2017) 7 SCC 342 in Para No.50 that,

Merely a bald statement that, there was adverse possession is not enough to set up a plea of adverse possession. It has to be clearly set out from which date it commenced and became hostile when there was repudiation of title.

(ii) In a case between Dharampal (Dead) Thr. LRs. Vrs. Punjab Wakf Board and others reported in 2017 (3) CCC 509 (SC) in Para Nos.39 and 40 that,

Only averment that, defendant was in possession through his father since 1953, that itself did not constitute plea of adverse possession, because, date, from which possession became adverse to plaintiff not pleaded likewise date of ripening of adverse possession also not pleaded.

// 22 //

(iii) In a case between Khajan Singh and others Vrs. Ravinder Singh and others reported in 2017 (4) Civ.CC 595 (Himachal Pradesh) in Para No.24 that,

Burden is on the claimant to prove as to what point on time his possession became hostile to the plaintiff and what point of time it matured into title by way of adverse possession after the lapse of period of 12 years.

(iv) In a case between Ruga s/o Hira (deceased) through LRs and others Vrs. State of M.P. and another reported in 2024 (4) Civ.LJ 34 MP that,

in Plea of adverse possession, it is required at least to show when possession becomes adverse, so that, the starting point of limitation against the party affected can be found. Possession as trespasser is not adverse nor long possession is synonym with adverse possession.

(v) In a case between Dasarath Sharma and others Vrs. State of Odisha reported in 2021(1) OJR 903 that,

Mere pleadings of open continuous and long possession or enjoyment of land without a specific assertion as to when, the plaintiffs entered into the possession and when same become adverse to the true owner, will not by itself be sufficient to claim title by adverse possession. The edifice of claim of title by adverse possession cannot stand on the foundation of denying the title of the true owner.

(vi) In a case between Chinnappa @ Kumarappa Since dead by his LRs and others Vrs. Chinnappa Akkayamma Akkayamma Since deceased by his LRs and another reported in 2017 (3) CCC 232 (Karnataka) that,

Party, who claims right by adverse possession has to specifically plead date on which his possession became adverse to that of his adversary.

(vii) In a case between Ishwarchand Vrs. Board of Revenue and others reported in 2020 (1) Civ.C.C. 840 (Allahabad) in Para No.22 that,

No specific date, on which possession become adverse possession, alleged in plaint to succeed in a claim based on adverse possession. The suit failed

// 23 //

29. Here, in this matter at hand, there is no pleadings and evidence in

the record on behalf of the Plaintiffs to show the date of starting of their

hostile possession on the suit Bandh (Jalasaya) denying the title of the

Defendant (State/Government) on the same and the date of maturity of

their hostile possession to title.

For which, in view of the propositions of law enunciated in the

ratio of the aforesaid decisions, the claim of title of the Plaintiffs over the

suit Bandh (Jalasaya) through adverse possession has also been failed to

be established.

30. It is very fundamental in law that, even long possession cannot

culminate to adverse possession unless the essentials of adverse

possession are proved.

On this aspect the propositions of law has already been clarified in the ratio of the following decisions:-

(i) In a case between Ravinder Kaur Grewal Vrs. Manjir Kaur reported in 2019 (4) Civ.C.C. (SC) 1 in Para No.57 that,

Trespasser's long possession is not synonym with adverse possession. Trespasser's possession is construed to be on behalf of the owner. The casual user does not constitute adverse possession. The owner can take possession from the trespasser at any point of time.

(ii) In a case between Legal Heirs of Ratilal Tribhovandas Mistri and others Vrs. Navnitlal Rambhai Panchal and others reported in 2024(2) CCC 123 Gujarat that,

// 24 //

Merely long possession will not create any right by way of adverse possession. There should be element of definite refusal of right of ownership or title as well as hostile possession.

31. Here, in this suit/appeal at hand, when, the essentials of adverse

possession have not been pleaded and proved by the Plaintiffs for the

reasons assigned above, then at this juncture, in view of the

propositions of law enunciated in the ratio of the aforesaid decisions,

even, long possession of the Plaintiffs over the suit Bandh (Jalasaya)

cannot established their title on the same through adverse possession.

32. When, in Encroachment Case No.35/89-90, an order for

eviction from the suit properties has already been passed against the

Plaintiffs and the said order of eviction passed in Encroachment Case

No.35/89-90 against the Plaintiffs have not been varied/altered or set

aside till yet by any competent Court of law, then at this juncture, the

title through adverse possession claimed by the Plaintiffs over the suit

properties cannot be established.

On this aspect the propositions of law has already been clarified in the ratio of the following decision:-

(i) In a case between (Sri) Dibakar Patnayak Vrs. State of Orissa and another reported in 2018 (2) CLR 191 Para No.12 that,

The plaintiff is a rank trespasser, for which, the Government started encroachment case against him. So, plea of adverse possession raised by the plaintiff negativated properly.

// 25 //

33. It is very fundamental in law that, permissive possession cannot

culminate to adverse possession at any point of time.

It has been established and proved by the Defendants that, one

of the plaintiffs i.e. Budhadeva Mohanta (Plaintiff No.1 in T.S.

No.115 of 1997) had taken the suit Bandh on lease in the year 1964-

65 from the G.P. through an auction for pisciculture purposes.

When, one of the Plaintiffs i.e. Budhadeva Mohanta had taken

the suit Bandh (Jalasaya) from the G.P. on lease admitting the

ownership of the Government over the Suit Bandh (Jalasaya), then at

this juncture, the possession, if any, of the Plaintiffs over the suit

properties is permissive one and the same cannot culminate to adverse

possession.

On this aspect the propositions of law has already been clarified in the ratio of the following decisions:-

(i) In a case between Shri Sarbeswar Mohanty Vrs. Chintamani Sahu reported in 88 (1999) CLT 433 (SC) that,

Possession of a lessee, even if, the lease is void is permissive and not adverse.

(ii) In a case between Richard Wheeler Vrs. State of Uttarakhand and others reported in 2021(1) Civ.C.C. 291 (Uttarakhand) in Para No.10 that,

// 26 //

A permissive possession can never be turned to hostile, unless the person, who came into permissive possession returns back the possession to real owner of its property.

(iii) In a case between Thakur Kishan Singh (dead) Vrs. Arvind Kumar reported in AIR 1995 (SC) 73 in Para No.5 that,

Person initially was in permissive possession of land. Heavy burden lies on him to establish that, it became adverse. Mere possession for long time does not convert permissive possession into adverse.

(iv) In a case between Madhusudan Mohanta and others (since dead through his LRs) Vrs. State of Orissa and another reported in 2019 (II) CLR 1001 in Para No.14 that,

Permissive possession can never become adverse, unless hostile animus is expressed at a particular time to the knowledge of the actual owner.

34. Here, in this matter at hand, when one of the Plaintiffs i.e.

Budhadeva Mohanta (Plaintiff No.1 in T.S. No.115 of 1997) had

taken the suit Bandh (Jalasaya) on lease through an auction from the

G.P. for pisciculture purpose, then, the possession of the Plaintiffs, if

any, over the suit Bandh (Jalasaya) as a lessee was permissive in

nature and such permissive possession can never be culminated to

adverse possession.

35. It is established from the materials in the record that, the suit

Bandh (Jalasaya) had/has been using by the public at large including

the villagers of Upardiha for their bathing and other purposes and the

same has been dedicated by the state to the public for public use. For

// 27 //

which, the claim of adverse possession raised by the Plaintiffs over

the suit Bandh (Jalasaya) cannot be sustainable under law.

On this aspect the propositions of law has already been clarified in the ratio of the following decision:-

(i) In a case between Jagat Prasad Tiwary Vrs. State of Jharkhand and others reported in 2021 (1) Civ.C.C. 508 (Jharkhand) in Para No.8 that,

Land in question is being used by public at large and it is dedicated to public use, plaintiff is not entitled to claim the suit land on the ground of adverse possession.

36. The materials in the record are also going to show that, the suit

Bandh (Jalasaya) has been transferred by the Govt. to G.P. and the

said suit bandh (Jalasaya) had/has been putting to auction for

pisciculture purposes. One of the Plaintiffs i.e. Budhadeva Mohanta

(Plaintiff No.1 in T.S. No.115 of 1997) had participated in the auction

made by the G.P and had taken the suit Bandh (Jalasaya) on lease for

pisciculture purpose in the year 1964-65. For which, the claim of the

Plaintiffs regarding the acquisition of their title on the same through

adverse possession cannot be acceptable under law.

On this aspect the propositions of law has already been clarified in the ratio of the following decision:-

(i) In a case between Dukhabandhu Mohanta and others Vrs. State of Orissa and others reported in 2018 (1) CLR 912 in Para No.12 that,

// 28 //

Suit land is a tank originally belonged to State of Orissa. The same was transferred to Grama Panchayat. The Tank was put to auction for Pisciculture. Plaintiff No.5 had participated in the auction. Suit for declaration of title or acquiring title by adverse possession fails.

37. Undisputedly, the Sabik and Hal R.o.R. of the suit Bandh

(Jalasaya) has been published in the name of the State. The Hal R.o.R.

of the suit Bandh (Jalasaya) was published in the name of the State in

the year 1977, But, the suit vide T.S. No.75 of 1996 was filed by the

plaintiff claiming title on the same through adverse possession more

than 12 years after the publication of the Hal R.o.R. For which, the

suit of the Plaintiff is barred by limitation, because, the Plaintiffs have

claimed their title over the suit properties on the basis of the

possession of their predecessors since in the year 1901, but, they have

filed the suit in the year 1996.

On this aspect the propositions of law has already been clarified in the ratio of the following decision:-

(i) In a case between S.Raju Vrs. Venkatesh Kaveri Gowda reported in 2025 (4) Civ.LJ 438 (Karnataka) that,

Title of plaintiffs over the suit properties was disputed by the defendant 12 years prior to the institution of the present suit. The suit was completely barred by limitation.

38. As per the discussions and observations made above, the claim of

title of the plaintiffs over the suit Bandh (Jalasaya) through adverse

possession has been failed to be established for various reasons as

// 29 //

assigned above. For which, the dismissal of the suits of the plaintiffs vide

T.S. Nos.75 of 1996 and 115 of 1997 by the learned Trial Court and the

confirmation of the same by the learned 1st Appellate Court vide T.A.

Nos.7 of 2000 and T.A. No.8 of 2000 cannot be held as erroneous under

law.

Therefore, there is no justification under law for making

interference with the same through these 2nd appeals filed by the

Appellants (Plaintiffs).

As such, there is no merit in these 2nd appeals filed by the

Appellants (Plaintiffs). The same must fail.

39. In result, both the 2nd appeals vide R.S.A. Nos.29 and R.S.A. No.30

of 2002 filed by the Appellants are dismissed on contest against the

respondents (defendants), but, without cost.

40. The judgments and decrees passed by the learned Trial Court in the

suits vide T.S. Nos.75 of 1996 and T.S. No.115 of 1997 and confirmation

of the same by the learned 1st Appellate Court in the 1st appeal vide T.A.

Nos.7 of 2000 and T.A. No.8 of 2000 respectively are confirmed.

Judge

SAHOO High Court, Cuttack 23rd of December, 2025/ Binayak Sahoo// Reason: Authentication Location: High CourtJunior of Orissa, Cuttack Stenographer Date: 26-Dec-2025 13:51:14