Orissa High Court
State Of Orissa vs Jutika Dei on 31 July, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.188 of 1996
(In the matter of an appeal under Section 100 of the
Code of Civil Procedure, 1908)
State of Orissa, through .... Appellants
Collector, Cuttack and
another
-versus-
Jutika Dei .... Respondent
Appeared in this case:-
For Appellants : Mr. Gyanalok Mohanty,
Learned Standing Counsel
For Respondent : Mr. Sachidananda Sahoo,
Advocate
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing :21.07.2025 / date of judgment :31.07.2025
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.49 of 1985 and
the respondents before the 1st appellate court in the 1st
appeal vide T.A. No.05 of 1987.
3. The respondent in this 2nd appeal was the sole plaintiff
before the trial court in the suit vide T.S. No.49 of 1985 and
the appellant before the 1st appellate court in the 1st appeal
vide T.A. No.05 of 1987.
4. The case of the plaintiff(respondent in this 2nd appeal)
before the trial court in the suit vide T.S. No.49 of 1985
against the defendants, i.e., against the State and the
Tahasildar, Marsaghai as per the averments made in her
plaint in a nutshell was that, the suit properties described
in schedule of the plaint under Khata No.61, Plot No.116
Ac.1.50 decimals in Mouza-Mahakalpada in the district of
Kendrapara were under the ex-intermediary estate of the
ex-landlord called as Burdhwan estate having its status as
Anabadi. The plaintiff in order to meet food problem of her
family applied to the ex-landlord of Burdhwan estate in
order to lease out the suit properties in her favour. After
accepting the request of the plaintiff, the ex-landlord of
Burdhwan estate leased out the suit land in favour of the
plaintiff in the year 1948 after accepting 'salami' from her
and making demarcation of the suit properties through
deputation of Amin. After receiving the suit properties on
lease in the year 1948 from the ex-landlord, the plaintiff
reclaimed the suit properties and made it fit for cultivation
and cultivated the same paying rent to the ex-landlord till
the vesting of the ex-intermediary estate. Even after vesting
of the Burdhwan estate with the Government as per Orissa
Estate Abolition Act, the plaintiff continues her possession
over the suit properties with the knowledge of the State and
the Tahasildar, Marsaghai(defendants). Out of the suit
properties, the plaintiff has been using Ac.0.95 decimals for
cultivation purpose and also using the rest Ac.0.55
decimals for Dalua crop during summer season, as the said
Ac.0.55 decimals out of the suit properties are low land.
After vesting of the ex-intermediary estate with the
Government, the plaintiff requested number of times to the
Tahasildar, Marshaghari(defendant no.2) for recording the
suit properties in her name and to accept the rent from her,
but, instead of recording the suit properties in the name of
the plaintiff, when the defendant no.2 threatened the
plaintiff to disposses her from the same initiating
encroachment proceeding against her(plaintiff) then, she
(plaintiff) applied before the settlement authority for
recording the suit properties in her name, which is pending
for disposal. As such, she(plaintiff) had/has been
possessing the suit properties continuously peacefully
without interruption of anybody with the knowledge of the
ex-intermediary as well as defendants for more than
statutory period. For which, the plaintiff is the settled raiyat
of the suit village in respect of the suit properties and
she(plaintiff) has acquired occupancy right over the suit
properties. When, on dated 25.02.1985, the defendant no.2
(Tahasildar, Marsaghari) threatened her (plaintiff) to evict
her from the suit properties, then, she(plaintiff) filed the
suit vide T.S. No.49 of 1985 against the defendants seeking
leave as per Sub-clause-(2) of Section 80 of the C.P.C., 1908
for filing of the suit without service of notice under Section
80 of the C.P.C. against the defendants praying for the
relief(s), i.e., for a declaration that, she(plaintiff) is an
occupancy raiyat in respect of the suit properties and to
injunct the defendants permanently from dispossessing her
from suit properties along with other relief(s), if any, under
law of equity, to which, she (plaintiff) is entitled for.
5. Having been noticed from the trial court in the suit
vide T.S. No.49 of 1985, the defendants filed their joint
written statement denying the title of the plaintiff over the
suit properties by taking their specific stands in Para No.10
of their written statement that, the suit land under Anabadi
Khata No.61, Plot No.116 is Ac.1.50 decimals in village
Mahakalapada. The plaintiff possessed Ac.0.95 decimals of
land out of the suit Plot No.116, for which, the defendant
no.2 started encroachment case against the plaintiff. The
suit land is Government land and the same is very low land.
The plaintiff had filed petition before him (defendant no.2)
for realization of rent in respect of Ac.0.95 decimals of land
out of the suit properties, but, the said petition of the
plaintiff was rejected.
The suit properties were never leased out by the ex-
landlord of Burdhwan estate in favour of the plaintiff in the
year 1948 and the plaintiff has not reclaimed the suit
properties and she has not used and possessed Ac.0.95
decimals out of the suit properties for cultivation purpose
and she(plaintiff) has also not used and possessed the rest
land for cultivation of Dalua crop. The plaintiff had never
requested defendant no.2 for recording the suit land in her
name and she(plaintiff) had not applied before the
settlement authorities for recording the suit land in her
name. The plaintiff is not possessing the suit properties
continuously, peacefully without interruption with the
knowledge of the defendants. The plaintiff is not a settled
raiyat of the suit village. She (plaintiff) has no occupancy
raiyati right over the suit properties. The allegations alleged
by the plaintiff that, the defendant no.2 had threatened
her(plaintiff) on 25.02.1985 to evict her from the suit land is
false. As such, the plaintiff has no right, title, interest and
possession over the suit properties. For which, the suit of
the plaintiff is liable to be dismissed against the defendants.
6. Basing upon the aforesaid pleadings and matters in
controversies between the parties, altogether five numbers
of issues were framed by the trial court in the suit vide T.S.
No.49 of 1985 and the said issues are:-
Issues
(i) Is the suit maintainable?
(ii) Has the plaintiff got right, title, interest or possession over
the suit land?
(iii) Has the plaintiff any cause of action?
(iv) Is the suit barred by Section 80 C.P.C. notice?
(v) What other relief, the plaintiff is entitled to?
7. In order to substantiate the aforesaid relief(s) sought
for by the plaintiff against the defendants, she(plaintiff)
examined three witnesses from her side including
her(plaintiff) as P.W.3 and relied upon the two rent receipts
vide Ext.1 and Ext.1(a). But whereas, the defendants
neither examined any witness on their behalf nor proved
any document from their side.
8. After conclusion of hearing of the suit vide T.S. No.49
of 1985 and on perusal of the materials and evidence
available in the record, the trial court answered all the
issues against the plaintiff and in favour of the defendants
and basing upon the findings and observations made by the
trial court in the issues against the plaintiff and in favour of
the defendants, the trial court dismissed the suit of the
plaintiff vide T.S. No.49 of 1985 on contest against the
defendants as per its judgment and decree dated
19.12.1986 and 13.01.1987 respectively assigning the
reasons that, the plaintiff has failed to establish that, the
suit properties were leased out to her by the ex-
intermediary of Burdhwan estate and also has failed to
prove that, she (plaintiff) is an occupancy raiyat of the suit
properties, as the State has not accepted any rent from the
plaintiff in respect of the suit properties after the abolition
of the ex-intermediary estate of Burdhwan estate, for which,
the plaintiff has no cause of action for filing the suit against
defendants. Therefore, the suit of the plaintiff against the
defendants is not maintainable under law.
9. On being dissatisfied with the aforesaid dismissal of
the suit of the plaintiff by the trial court as per its judgment
and decree dated 19.12.1986 and 13.01.1987 respectively
passed in T.S. No.49 of 1985, she(plaintiff) challenged the
same by preferring the 1st appeal vide T.A. No.05 of 1987
being the appellant against the defendants arraying the
defendants as respondents.
10. After hearing from both the sides, learned 1st appellate
court set aside the judgment and decree of the dismissal of
the suit of the plaintiff vide T.S. No.49 of 1985 passed by
the learned trial court as per its judgment and decree dated
28.02.1996 and 15.03.1996 respectively assigning the
reasons that, when the possession of the plaintiff has been
admitted by the defendants stating that, the plaintiff was an
encroacher and encroachment case was initiated against
her, for which, the possession of the plaintiff over the suit
properties has been established immediately before and
after the date of vesting of the estate in the Government.
Therefore, she(plaintiff) is deemed to be a tenant in respect
of the suit properties under the State(defendant no.1) as per
Section 8(1) of the Orissa Estate Abolition Act and the said
possession of the plaintiff/appellant can be considered
towards the creation of occupancy right of the plaintiff in
the suit properties. Accordingly, after setting aside the
judgment and decree of the dismissal of the suit of the
plaintiff vide T.S. No.49 of 1985 passed by the trial court,
the learned 1st appellate court decreed that suit vide T.S.
No.49 of 1985 of the plaintiff and declared the occupancy
right of the plaintiff over the suit properties and injuncted
the defendants permanently from interfering with the
possession of the plaintiff in respect of the suit properties.
11. On being aggrieved with the aforesaid judgment and
decree dated 28.02.1996 and 15.03.1996 respectively
passed in T.A. No.05 of 1987 in favour of the plaintiff and
against the defendants by the 1st appellate court,
they(defendants) challenged the same preferring this 2nd
appeal being the appellants against the plaintiff arraying
her(plaintiff) as respondent.
12. This 2nd appeal was admitted on formulation of the
following substantial questions of law, i.e., :-
(i) Whether the findings and observations made by
the 1st appellate court in T.A. No.05 of 1987 in setting
aside the judgment and decree of the dismissal of the suit
vide T.S. No.49 of 1985 passed by the trial court
accepting the rent receipts vide Exts.1 and 1(a) paid
during the time of ex-intermediary are genuine can be
sustainable under law?
(ii) Whether the judgment and decree passed by the
1 appellate court in T.A. No.05 of 1987 decreeing the
st
suit vide T.S. No.49 of 1985 of the plaintiff(respondent)
declaring that, she(plaintiff) is the occupancy raiyat over
the suit properties and injuncting appellants/defendants
permanently is sustainable under law?
13. I have already heard from the learned Standing
Counsel for the appellants(defendants) and the learned
counsel for the respondent(plaintiff).
14. When, both the above formulated substantial
questions of law are interlinked according to the pleadings
of the parties and judgments and decrees of the trial court
and 1st appellate court, then, both the above formulated
substantial questions of law are taken up together
analogously for their discussions hereunder :-
It is the admitted case of both the sides that, no rent
receipts has been filed or proved on behalf of the
plaintiff(respondent in this 2nd appeal) showing the payment
of any rent in respect of the suit properties to the
Government/State after abolition of the ex-intermediary
estate, i.e., Burdhwan estate.
The plaintiff has neither pleaded in her pleadings nor
has stated in her evidence about the payment of any rent in
respect of the suit properties to the Government after
vesting of the Burdhwan estate in the State.
15. On this aspect, the propositions of law has already
been clarified in the ratio of the following judgments :-
(i) In a case between Krushna Chandra Biswal vrs.
State of Orissa : reported in (2017) 1 OJR-393--
When, after vesting of the estate in the State, the ex-
intermediary had not submitted ekpadia in favour of the
father of the plaintiff. The so-called Hatpatta was not
produced before the settlement or consolidation
authorities. The plaintiff rose from deep slumber and
filed the suit after a half century of the year of issuance
of the alleged Hatpatta to grab Government properties.
The suit of the plaintiff must fail.
(ii) In a case between Premananda Das vrs.
Tahasildar Sadar, Cuttack and others : reported in
2008(I) CLR-57--Recognition of Tenant by
Hatpatta(Para-7)--The petitioner has not been able to
prove the fact that, the said intermediary inducted the
petitioner as a tenant in the year 1944 and accepted
rent from him by adducing any convincing evidence. The
so-called induction of the petitioner as tenant in respect
of the suit land fails.
(iii) In a case between Bibhuti Bhusan Misra vrs.
Raghaba Jena and others : reported in 95(2003) CLT-
85(Para-14)--That, rent receipts do not indicate plot
numbers and in absence of plot numbers, it is difficult
to accept such documents as rent receipts in respect of
the lands in dispute.
16. Here, in this matter at hand, when, the plaintiff has
specifically pleaded in her pleadings that, ex-intermediary
had leased out the suit properties to her(plaintiff) in the
year 1948 for cultivation purpose and she(plaintiff) had paid
rent in respect of the suit land to the ex-intermediary
through rent receipt vide Ext.1 and Ext.1(a), but, when the
plaintiff has not filed or proved any document concerning
the leasing out of the suit properties in her favour in the
year 1948 and when, she(plaintiff) has not proved any
Ekpadia submitted by the ex-landlord in her favour in
respect of the suit properties at the time of vesting of the ex-
intermediary estate with the State stating that, the plaintiff
was inducted by him(ex-intermediary) in respect of the suit
properties and when, the rent receipts vide Exts.1 and 1(a)
relied by the plaintiff are not showing the issuance of the
same in respect of the suit plot and when, after the
abolition of ex-intermediary estate, no Jamabandi has been
opened in respect of the suit properties in the name of the
plaintiff and when more than 30 years after the abolition of
ex-intermediary estate with continuance of the RoR of the
suit properties in the name of the Government/State, the
plaintiff has filed the suit in the year 1985 praying for the
aforesaid reliefs in her favour in respect of the suit
properties, then at this juncture, by applying the principles
of law enunciated in the ratio of the aforesaid decisions, it
cannot be declared to the plaintiff as the occupancy raiyat
over the suit properties. For which, the prayer of the
plaintiff to declare her as an occupancy raiyat in respect of
the suit properties must fail. Therefore, the above part of
the decree passed by the learned 1st appellate court
declaring the plaintiff as occupancy raiyat in respect of the
suit properties is liable to be set aside.
17. So far as the relief, i.e., permanent injuction sought for
by the plaintiff against the defendants praying for
injuncting/restraining the defendants permanently from
dispossessing her(plaintiff) from the suit properties is
concerned.
It is the observations of the learned trial court in Para
No.7 of its judgment that,
"even though the plaintiff is admitted to be in possession
of the suit land, but, she(plaintiff) is an encroacher of the
same."
The learned 1st appellate court has observed in Para
No.5 of the judgment passed in T.A. No.05 of 1987 that,
"the defendants have admitted the possession of the
plaintiff over the suit properties stating that, she(plaintiff)
is an encroacher and for her such encroachment, an
encroachment case has been initiated against her."
As such, it is the concurrent findings of the trial court
and 1st appellate court that, the plaintiff is in possession
over the suit properties.
As per the observations made above in the forging
Para No.16, when the plaintiff is not entitled to get the
decree of declaration that, she(plaintiff) as an occupancy
raiyat of the suit properties, then at this juncture, whether,
she(plaintiff) is entitled to get the decree, i.e., injunction
against the defendants on the basis of her possession.
18. On this aspect, the propositions of law has already
been clarified in the ratio of the following decisions :-
(i) In a case between Midnapur Zamidary Co. Ltd.
vrs. Kumar Naresh Narayan Roy : reported in AIR
1929 (Privy Council)-144 (at Para No.9) that, In India
persons are not permitted to take forcible possession,
they must obtain such possession, as they are entitled
to through a court.
(ii) In a case between Lallu Yeshwant Singh (dead)
by his legal representative vrs. V. Rao Jagdish
Singh and others : reported in AIR 1968(S.C.)-620--
That, in India, persons are not permitted to take forcible
possession' they must obtain such possession as they
are entitled to through a Court.
(iii) In a case between Tarsem Singh and others vrs.
State of Haryana and others : reported in 2006(I)
CCC-101(P&H) That, plaintiff's suit is for declaration of
the title and permanent injunction--Though, plaintiff is
not entitled for declaration of title over the suit
properties, but, when it is found that, plaintiff is in
possession over the suit property, the
Government(defendant) could not be permitted to evict
the plaintiff otherwise in due course of law. In such a
situation, the plaintiff is entitled to injunct the
State(defendant) not to dispossess the plaintiff otherwise
in due process of law.
(iv) In a case between Yar Muhammad and another
vrs. Lakshmi Das and others (F.B.) : reported in AIR
1959 (Allahabad)-1--Law respect possession--Even
if, there is no title to support it, it will not permit any
person to take the law into his own hands and to
dispossess a person in actual possession without having
recourse to a court. No person can be allowed to become
a Judge of his own cause.
(v) In a case between Ram Rattan and others vrs.
State of Uttar Pradesh(D.B.) : reported in AIR 1977
(S.C.)-619--A true owner has every right to dispossess
or throw out a trespasser, while the trespasser is in the
act or process of trespassing and has not accomplished
his possession, but this right is not available to the true
owner, if the trespasser has been successful in
accomplishing his possession to the knowledge of the
true owner. In such circumstances, the law requires
that, the true owner should dispossess the trespasser
by taking recourse to the remedies available under the
law.
(vi) In a case between Theni Allinagaram
Municipality(Commissioner), Theni and another vrs.
Rajeshwari : reported in 4(2005) Civil Law Times-317
(Madras) (D.B.)--Landlord(Municipality) has no right to
take forcible possession of property or put lock on same
except by due process of law.
(vii) In a case between Kasukurthi Karthik vrs.
Kasukurthi Hanumantha Rao(Died) and others :
reported in 2023(1) CCC-297(Telengana)--A person in
possession cannot be dispossessed even by owner of
property except by recourse to law.
(viii) In a case between Rame Gowda(dead) by LRs.
vrs. M. Varadappa Naidu(dead) by LRs and another :
reported in (2004) 1 SCC-769--A person, who is in
possession, is entitled to a limited injunction restraining
the defendant from interfering with his possession
except by due process of law.
(ix) In a case between State of Orissa and another
vrs. Pitambar Maikap and others(Orissa) (decided on
31.01.2025 in S.A. No.148 of 1996) (at Para No.21) that,
when plaintiffs are in possession over the suit
properties, but, if they(plaintiffs) failed to get the decree
of declaration of title, still then, they are entitled to
limited injunction restraining the defendant(State) from
interfering into their possession over the suit properties,
unless they(plaintiffs) are dispossessed therefrom by
due process of law.
19. In the suit at hand vide T.S. No.49 of 1985, the
plaintiff(respondent) had approached the learned trial court
seeking two relief(s), i.e.,:-
(i) to declare her(plaintiff) as an occupancy raiyat in
respect of the suit land, and
(ii) to restrain/injunct the defendants(State and
Tahasildar, Marsaghai) permanently from dispossessing
her(Plaintiff) from the suit properties.
20. As per the discussions and observations made in Para
No.16 of this judgment, the plaintiff has not been entitled to
get the decree of declaration that, she is an occupancy
raiyat of the suit properties. Because, due to the abolition of
ex-intermediary estate, the suit properties vested with the
State free from encumbrances, for which, it has been held
that, the suit properties are the properties of the
State(defendant no.1), but, whereas as per the concurrent
findings of the trial court and 1st appellate court, it has
been established that, the plaintiff is in possession over the
suit properties.
21. As such, when the plaintiff is not entitled to get the
decree for a declaration that, she(plaintiff) is an occupancy
raiyat of the suit properties and when, it is established that,
the plaintiff is in possession over the suit properties(which
are the properties of the Government), then at this juncture,
in view of the propositions of law enunciated in the ratio of
the decisions indicated in Para No.18 of this judgment,
she(plaintiff) has been entitled to the limited injunction
restraining the defendants from interfering into her
possession over the suit properties, unless she(plaintiff) is
dispossessed therefrom by due process of law.
22. As per the discussions and observations made above,
though the plaintiff is not entitled to get the decree that,
she(plaintiff) is an occupancy raiyat of the suit properties,
but, she(plaintiff) is entitled to a limited injunction against
defendants(appellants) in order to restrain the defendants
from interfering into her possession over the suit properties,
unless she(plaintiff/respondent) is dispossessed therefrom
by due process of law.
When, the 1st appellate court has decreed the suit of
the plaintiff entitling her(plaintiff) to get both the aforesaid
reliefs sought for by her(plaintiff) and when, as per the
findings made above in Para No.21, the plaintiff is entitled
for a limited injunction only in order to restrain the
defendants from interfering into her possession over the
suit properties, unless she(plaintiff) is dispossessed
therefrom by due process of law, then at this juncture, this
2nd appeal filed by the appellants(defendants) is to be
allowed in part.
23. In result, this 2nd appeal filed by the appellants
(defendants) is allowed in part on contest against the
respondent(plaintiff), but, without cost.
24. The judgment and decree passed by the learned 1st
appellate court in T.A. No.05 of 1987 is set aside in part
and modified as follows :-
(i) the suit be and the same vide T.S. No.49 of 1985,
filed by the plaintiff(respondent in this 2nd appeal) is
decreed in part on contest against the
defendants(appellants in this 2 appeal), but without
nd
cost.
(ii) the prayer of the plaintiff(respondent in this 2nd
appeal) to declare her as an occupancy raiyat of the suit
properties is refused.
(iii) the defendants(appellants in this 2nd appeal) are
restrained from interfering into the possession of the
plaintiff(respondent in this 2nd appeal) over the suit
properties till she(plaintiff) is evicted therefrom by due
process of law.
( A.C. Behera )
Judge
Orissa High Court, Cuttack
The 31st of July, 2025/ Jagabandhu, P.A.
Designation: Personal Assistant
