Orissa High Court
(From The Judgment And Decree Dated ... vs Ranjan Kumar Rout (Dead) on 21 February, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.6 of 2010
(From the judgment and decree dated 9.9.2009 and
6.10.2009 passed by learned Addl. District Judge, F.T.C.,
Dhenkanal in R.F.A. No.5/2005/26/2007 partly reversing the
judgment dtd.16.3.2009 and decree dated 23.3.2009 in C.S.
No.22/2006)
Premalata Bhutia and others
... Appellants
-versus-
Ranjan Kumar Rout (Dead)
Renubala Rout and others ... Respondents
Advocates appeared in the case through hybrid mode:
For Appellants : Mr.R.K.Mohanty,
Sr.Advocate
-versus-
For Respondents
: Mr. D.P.Mohanty, Advocate.
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
21.2.2025.
Sashikanta Mishra,J. The legal heirs of Defendant No.1
before the trial Court are the appellants herein against a
confirming judgment. The judgment passed by the learned
Addl. District Judge, F.T.C., Dhenkanal on 09.9.2009
followed by decree in R.F.A. No.5/2005/26/2007 is under
challenge whereby, the judgment passed by the learned
Addl. Civil Judge (Sr. Division), Dhenkanal on 17.1.2005
followed by decree in T.S. No.22/1999 was confirmed.
2. For convenience, the parties are referred to as per
their respective status in the trial Court.
3. The suit was filed by the plaintiffs for declaration of
title, confirmation of possession, alternatively for recovery
of possession as well as correction of R.O.R. and
permanent injunction against the defendants.
4. The plaintiffs' case, briefly stated, is that one Bhobani
Champati Singh @ Mahakud is the common ancestor of
the Plaintiff, who died leaving behind six sons. The
Plaintiffs and proforma Defendant Nos.3 to 21 are his
successors. Balabhadra being the eldest son of Bhobani
(grandfather of Plaintiff Nos.1 to 4), was the Karta of the
family. The original defendant No.1 Anam Bhutia was the
son of one Damodar Santara. He having died during
pendency of the suit was substituted by Defendant Nos.1(a)
and 1(b). Defendant No.2 is the son of Anam Bhutia.
Damodar's father Ratan Bhutia and Balabhadra's father
Bhobani Champati Singh @ Mahakud had some property
recorded jointly in their names in Sabik Khata Nos.6, 10
and 12 of Revision Settlement of the year 1923-24.
Damodar having died was succeeded by his son Anam
Bhutia (Defendant No.1). The members of the joint family
of Balabhadra mutually partitioned the land recorded in
the aforementioned Sabik Khatas between themselves and
Anam Bhutia. Two separate mutation sheets and village
maps were prepared showing their separate lands. Anam
continued to possess his half share of the land under the
aforesaid Khatas while Balabhadra along with his 5
brothers jointly possessed the remaining half share. In
Mutation Case No.305/579/106/16 of the year 1940-41,
separate mutation sheets were prepared.
Subsequently, in the year 1951-52, there was a partition
among Balabhadra and his 5 brothers in respect of their
share of land whereby each of the co-shares was allotted
with one share vide Mutation Case No.262/2/255/1551/
339 of 1951-52 and mutation sheet was prepared. The co-
sharers and successors thereafter dealt with their
respective shares of the suit property independently.
During Hal settlement operation, plaintiffs came to know
that some plots, in all measuring Ac.1.32 decs, belonging
to the plaintiffs and proforma Defendant Nos.3 to 21, had
been wrongly recorded in the name of Anam (Defendant
No.1) in Hal Khata No.6. Similarly, the lands described in
Schedule 'B' of the plaint, in all measuring Ac.0.85 decs.,
was wrongly recorded in the name of Defendant No.1, and
land measuring 0.37 decs. had been recorded in the name
of Amarendra Bhutia, Defendant No.2 and son of
Defendant No.1. This wrong recording was challenged in
Rent Case No.1368/1984/226/153 before the Settlement
Officer, but the same was dismissed against which
Settlement Appeal No.116/1984 was filed. Said appeal
being dismissed, the plaintiffs filed Revision being
No.1702/1985. During pendency of the Revision, final
R.O.R. was published for which the plaintiffs filed another
revision under Section 15 of the Odisha Survey and
Settlement Act being Revision Case No.706/1992. Though
detailed inquiry reports were submitted by Settlement
Officer, Dhenkanal, the Revisional Authority ignored the
same and dismissed the revision by order dtd.28.8.1998
rejecting thereby the prayer of the plaintiffs for correction
of R.O.Rs. Hence, the suit.
5. The legal heirs of Defendants 1 and 2 contested the
suit by filing a joint written statement. The genealogy and
relationship between the parties was admitted. The
partition by metes and bounds between Balabhadra and
Anam was also admitted. It was however, stated that
partition was affected mutually according to possession but
the mutation sheets prepared as per the sketch map was
not according to possession of the parties. At that stage
some defects had kept into the record, but the parties
continued to be in possession of their respective shares
irrespective of the wrong recording of some plots. It was
also pleaded that in the Hal Settlement operation, land to
the extent of Ac.18.54 decs. falling to the share of
Balabhadra branch had been properly recorded. The half
share of late Anam measuring Ac.16.15 decs. was also
recorded properly after repeated inquiry during settlement.
Regarding allegation of wrong recording of some land of
Balabhadra from the mutation sheet in the name of Anam,
it was pleaded that mutation sheet was prepared as per
sketch map but not according to physical possession of
the parties. After thorough inquiry and as per consent
given by Gokulananda Mahakud, Plaintiff No.5, who was
looking after the settlement operation on behalf of the
Balabhadra branch, Hal R.O.R. was prepared according to
the possession of the respective parties on their consent.
Therefore, the plaintiffs are estopped from challenging the
correctness of the Hal R.O.R. The preparation of R.O.R.,
according to the Defendants 1 and 2, was correct and so
also the findings of the Revisional Court. Besides, the suit
is barred by limitation under Article 65 of the Limitation
Act and also under Section 42 of the OSS Act.
6. Basing on the rival pleadings, the trial Court framed
the following issues for determination;
(1)Whether the suit in present form is
maintainable ?
(2)Whether there is any cause of action
for the plaintiffs to institute this suit ?
(3)Whether suit is barred under law of
limitation hit under Section 42 of Orissa
Survey and Settlement Act ?
(4)To what other relief or reliefs the
parties are entitled to ?
(5) Whether the Plaintiff No.5 is estopped
to challenge the correctness of current
R.O.R. ?
7. Issue Nos.3 and 5 being important were taken up for
consideration together at the outset. Looking at the dispute
between the parties and the contentions raised, the trial
Court first tried to determine whether there was any
previous partition and whether the Hal record of right was
correctly prepared. After referring to the oral and
documentary evidence in detail, the trial Court held that
there was previous partition but the recording of Hal
R.O.R. is wrong. With regard to the plea of estoppel raised
by Defendant Nos.1 and 2, the trial Court did not place
much emphasis on the sole entry in Ext.5 showing the
consent given by Plaintiff No.5 for recording of land as per
their possession in spite of partition of land on the ground
that the said statement was not made on oath nor signed
under such recording and was challenged from the very
beginning. It was therefore, held that plaintiff No.5 is not
estopped to challenge the recording of the Hal R.O.R. It
was also held that the suit was not barred by law of
limitation having been filed after dismissal of the revision
nor under Section 42 of the OSS Act. On a thorough
examination of the judgments passed in the settlement
proceedings upto the stage of revision, the trial Court held
that the map of the suit lands had not been prepared as
per possession and the said lands belonging to Plaintiff
No.5 were wrongly recorded in the name of Defendant
Nos.1 and 2. On such findings, the suit was decreed by
declaring right, title, interest of plaintiffs and proforma
Defendant Nos.3 to 21 over 'A' schedule land, of Defendant
Nos.22 to 24, (a), (b) and (c) over 'B' Schedule land, their
possession over the respective lands was confirmed and the
contesting defendants were permanently injuncted from
alienating the suit land or interfering with it.
8. Being aggrieved, the contesting defendants carried the
matter in appeal. The First Appellate Court took up the
question of limitation and held that the cause of action in
the instant case could be said to have accrued on the date
of dismissal of the revision petition filed by the plaintiffs on
26.9.1998. The suit was filed on 22.2.1999 and therefore,
within time. The First Appellate Court also held that the
suit was not barred under Section 42 of the OSS Act. The
First Appellate Court thereafter took up the main ground
urged by the defendant-appellants that Defendant No.5
had admitted and given consent for preparation of the Hal
R.O.R. acting on behalf of the other co-sharers. Therefore,
they are estopped from challenging the same. In this
respect, the First Appellate Court went through the
Yaddast, Exts.A, B, C, H and J, prepared during the
Settlement and found that the Plaintiff No.5 had filed
Objection Case No.1368/1984. The order dtd.5.6.1984
passed by Settlement Officer in the objection case was
referred to by the First Appellate Court wherein it was
observed that the Yaddast was prepared on mutual
consent. However, the First Appellate Court noted that
barring this observation of the Settlement Officer, no other
document had been filed to show that the Plaintiff No.5
had consented for correction of the record in deviation of
the mutation sheet prepared in 1940-41 and that such
consent was on behalf of all the co-sharers. It was also
observed that the Plaintiff No.5 had submitted objection
before the Settlement Officer that in the year 1971, the
consent given by him was not proper and that the lands
were recorded in his name. Thus, it was found that the so-
called consent given by the plaintiff No.5 had subsequently
been withdrawn by him. Moreover, it was not a proper
admission. The other ground raised was that the plaintiffs
had lost before all the revenue Courts and failed to
discharge the burden cast upon them as to how the R.O.R.
was wrong in view of the statutory presumption of
correctness attached to it. The First Appellate Court
however, went through the judgment passed in Settlement
Appeal and found that during settlement operation, the
field staff had observed that A and B Schedule lands were
part of the mutation sheets prepared in the name of
Balabhadra, but R.O.R. was wrongly prepared in the
names of Defendant Nos.1 and 2. The litigations before the
revenue Courts were disposed of on technical grounds
such as non-joinder of parties. Thus, the First Appellate
Court accepted the contentions of the plaintiffs that the
Hal R.O.R. was wrongly prepared thereby accepting the
findings of the trial Court. Basically on the above findings,
the First Appeal was dismissed.
9. Being further aggrieved, the L.Rs. of Defendant No.1
have filed this Second Appeal, which has been admitted on
the following substantial questions of law;
(1) Whether the learned courts below have acted
contrary to law in holding that previously there
was a completed partition of the suit property
and the disputed property fell to the share of
the plaintiff no.5 in spite of the fact that P.W.5
through admitted that there was a document in
which the partition was effected, but the said
document was not produced and the learned
courts below should have drawn an adverse
inference under Section 114(g) of the Evidence
Act ?
(2) Whether the plaintiffs' suit is barred by law
of limitation as prescribed under Section 58 of
the Indian Limitation Act?
10. Heard Mr.R.K.Mohanty, learned Senior Advocate with
Ms. Sumitra Mohanty, learned counsel, for the Defendant-
Appellants and Mr. D.P.Mohanty, learned counsel for the
Plaintiff-Respondents.
11. Mr. Mohanty, learned Senior counsel, would argue
that Plaintiff No.5 consented to the recording of the land as
per the earlier partition and not as per the allotment
sheets at the Yaddast stage (Exts.A and G). Accordingly,
records were corrected. The Plaintiffs challenged such
recording before every available forum but lost in their
attempt. Hence, they are estopped from taking the same
stand. This admission ought to have been utilized against
the plaintiff in view of the statutory presumption of
correctness attached to R.O.R. as per Section 13 of the
O.S.S. Act. Mr. Mohanty argues that both the Courts below
committed gross error of law in not applying the principle
of estoppel. He further argues that even otherwise, the
plaintiffs having relied upon the allotment sheets failed to
produce the same in support of their claim for which both
the Courts below ought to have drawn adverse inference
against them in terms of Section 114(g) of the Evidence
Act. Mr. Mohanty also argues that one of the reliefs
claimed being correction of R.O.R, the suit ought to have
been filed within three years of the date of publication of
R.O.R. as per Section 42 of the OSS Act. Both the Courts
below however, committed error in extending the period of
limitation to the date of disposal of the cases before the
revenue courts. That apart, the suit is also barred by
limitation under Article 58 of the Limitation Act since the
cause of action arose in 1986 when the R.O.R. was
prepared, but the plaintiffs filed the suit on imaginary
cause of action only because they lost in all revenue
courts.
12. Mr. D.P.Mohanty, on the other hand, would argue
that admittedly there was partition in the family of the
predecessors of the parties wherein two separate mutation
sheets (kachha farda) were prepared wherein the suit
properties fell to the share of Balabhadra. A mutation case
being filed, such properties were recorded separately.
These properties were again subject to partition amongst
the plaintiffs and their co-sharers in 1950-51. But in the
Hal settlement R.O.R., the properties came to be wrongly
recorded in the names of Defendant Nos.1 and 2, which
was challenged before the Revenue Courts. Since the
plaintiffs lost in all forums, the dispute started and the suit
was filed. With regard to the ground that adverse inference
ought to have been drawn against the plaintiffs for non-
production of the Kachha Farda, Mr. D.P.Mohanty would
argue that from the written statement filed by the
Defendant Nos.1 and 2 it would be evident that the fact of
preparation of two mutation sheets, initiation of mutation
proceeding in the year 1940-41, preparation of C.S. R.O.R.
in accordance with mutual partition and subsequent
mutation proceeding in 1951-52 as pleaded in the plaint
were admitted by Defendant Nos.1 and 2. Therefore, there
was no necessity of proving the same again by the
plaintiffs. Mr. D.P.Mohanty further argues that the
contesting defendants failed to discharge the onus of
proving that the recording of land was made with reference
to the map and not to the actual possession. With regard
to the plea of limitation, Mr. D.P.Mohanty would argue that
the suit being filed substantially for the relief of declaration
of title with the relief of correction of R.O.R. being a
consequential and secondary relief, Section 42 of the OSS
Act can have no application.
13. Before proceeding to specifically answer the
substantial questions of law framed in this appeal, this
Court taking note of the rival contentions finds that the
fact that there was prior partition between Balabhadra and
Anam is admitted. It is also admitted that in the said
partition, lands were allotted as per two allotment sheets.
The dispute arose during Hal settlement operations
wherein, purportedly acting on the consent of Plaintiff
No.5-Gokulananda Mahakud, some lands belonging to
Balabhadra branch were wrongly recorded in the names of
Defendant Nos.1 and 2. It is not disputed that such
recording was done contrary to the allotment sheets. So it
becomes imperative to determine as to what would be the
effect of the so-called admission/consent of one of the co-
sharers during settlement operations and particularly at
the Yaddast stage. The First Appellate Court has taken
pain to go through the orders passed by Settlement Officer
in Objection Case No.1368/1984. The Settlement Officer
observed that in view of mutual consent the Yaddast was
prepared, but as rightly held by the First Appellate Court
barring this observation there is nothing on record to show
that he had consented for correction of record contrary to
the mutation sheets and that such consent, if at all, was
on behalf of all the co-sharers. Significantly, it was found
that the Settlement Officer had also observed that said
Gokulananda Mahakud had again objected in 1971 that
the earlier consent was not proper. Thus, Gokulananda
Mahakud appears to have resiled from his earlier consent.
In view of such prevarication on the part of Gokulananda
Mahakud, it cannot be conclusively held that he had given
his consent. Therefore, as rightly held by the First
Appellate Court, it cannot be treated as a consent in the
true sense. Despite such withdrawal of the so-called
consent by Gokulananda Mahakud, the Settlement Officer
dismissed the Objection Case on technical grounds.
14. It is well settled that consent or admission by a party
has to be clear, unambiguous and unequivocal in nature
so as to bind him and his co-sharers. When admittedly,
two allotment sheets had been prepared during partition of
the properties. There is no reason to make a departure
therefrom as the allotment sheet by itself signifies the
intention of the parties to be allotted with specific portions
of land. Therefore, unless compelling reasons are put
forth, the lands ought to be recorded as per the allotment
sheets. As already held, the so-called consent given by
Gokulananda Mahakud is inconclusive. The trial Court has
disbelieved the same by referring to the entry made in the
Yaddast (Ext.B) as such consent was not made on oath
nor contained signature of the consentor and in any case,
the consentor had challenged the same before final
publication.
15. In view of the above narration, there can be no
manner of doubt that both the Courts committed no error
whatsoever in disbelieving the plea of the contesting
defendants regarding consent being given by Gokulananda
Mahakud. Once this is held, it automatically proves that
the Hal R.O.R., not having been prepared strictly in terms
of the allotment sheets prepared during mutual partition,
has to be treated as wrong.
16. This takes the Court to the plea advanced by the
contesting defendants that having lost in all revenue
forums, the plaintiffs are estopped from raising the plea
again before the Civil Court. This Court is not impressed
with the argument for the reason that once it is held that
the Hal R.O.R. was not in consonance with the terms of the
partition effected way back in 1941 as reflected in the
allotment sheets, the plaintiffs cannot be non-suited from
asserting their title solely on the ground that they had lost
in all the revenue forums. Even otherwise, as held by both
the Courts below, the revenue authorities have proceeded
on the erroneous premise of consent being given by one of
the co-sharers purportedly acting on behalf of the other co-
sharers for such recording. The contesting defendants have
not been able to successfully discharge the burden of
proving the contrary.
17. Now, coming to the substantial question of law No.1,
this Court after carefully considering the rival contentions
and on perusal of the plaint averments under Paragraph-3
as answered by the contesting defendants under
Paragraph-7 of their written statement, finds that all the
basic facts such as preparation of two mutation sheets
during partition, mutation proceedings in 1940-41,
preparation of C.S. R.O.R. in terms of such partition and
subsequent mutation proceedings in 1951-52 have clearly
been admitted. It is trite that facts admitted need not be
proved. It is not the case of the contesting defendant that
there were no allotment sheets prepared or that the
allotment sheets showed different allotments than what
was claimed by the plaintiffs. Their consistent plea is that
recording was done as per map and not as per actual
possession. This Court is therefore, not persuaded to
accept the contention that non-production of allotment
sheets could be a ground to draw adverse inference against
the plaintiffs.
18. Coming to the other substantial question of law i.e.
the ground of limitation, the First Appellate Court held that
the revision was dismissed on 26.9.1998. This Court has
already held that filing of cases before the revenue forum in
the peculiar facts and circumstances of the case cannot be
a ground to non-suit the plaintiffs. The plaintiffs attempted
to get the R.O.R. corrected by approaching the appropriate
forum but failed. Therefore, there is no bar in law for them
to approach the civil Court to assert their title. Under such
circumstances, dismissal of the revision petition can be
said to be the date on which the cause of action first
accrued as held by the First Appellate Court. This Court is
also of the same view. The suit having been filed on
22.2.1999 is therefore, in time.
19. From a conspectus of the analysis of facts, evidence,
position of law and the contentions advanced by the
parties, this Court finds no reason to interfere with the
findings of the Courts below. The substantial questions of
law framed are answered accordingly against the
defendants-appellants.
20. In the result, the appeal, being devoid of merit is
dismissed, but in the circumstances, without any cost.
..................................
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Location: High Court of Orissa, Cuttack
