Afr Sudam Sahukar vs Dasamukhi Appalaswami
2025 Latest Caselaw 10577 Ori

Orissa High Court

Afr Sudam Sahukar vs Dasamukhi Appalaswami on 28 November, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

                IN THE HIGH COURT OF ORISSA AT CUTTACK
                            RSA No.300 of 2011

        [In the matter of an appeal under Section 100 of CPC from
        the judgment and decree dated 12.05.2011 passed in RFA
        No. 23/2009 by the Additional District Judge, Gajapati,
        Parlakhemundi arising out of the judgment and decree dated
        13.10.2009 passed by the Civil Judge (Senior Division),
        Parlakhemundi in Civil Suit No. 3 of 2009]


AFR     Sudam Sahukar                            ....   Appellant

                                   -Versus-

        Dasamukhi Appalaswami                    .... Respondent

        Advocate(s) appeared in this case:


        For the Appellant    :M/s. Biplab Mohanty, T.K. Pattnaik,
                              A. Patnaik, S. Patnaik & R.P. Ray,
                             Advocates.

        For Respondent       :Mr. P.V. Balakrishna, Advocate


        CORAM:
                 JUSTICE SASHIKANTA MISHRA

                                  JUDGMENT

th 28 November, 2025

SASHIKANTA MISHRA, J.

Plaintiff is the appellant against the judgment dated

12.05.2011 followed by decree passed by Learned Additional

District Judge, Parlakhemundi in RFA No.23 of 2009,

whereby the judgment dated 13.10.2009 followed by decree

passed by the learned Civil Judge (Senior Division),

Parlakhemundi in C.S. No.3 of 2009 was reversed.

2. For convenience, the parties are referred to as per

their respective status before the Trial Court.

3. The plaintiff filed the above suit for declaration of his

right, title, interest and permanent injunction. His case,

briefly stated, is that the suit land standing on Plot

No.648/1418 appertaining to Khata No. 142 in Mouza

Padampur was recorded in his name. It was lying vacant. The

defendant made an attempt to construct a house over it by

stating that he had purchased the said land from one Mangal

Bhuyan and Mangal Bhuyan, in turn, had supposedly

purchased the land from one Braja Rout. Both were

scheduled tribes. The plaintiff had a case with the defendant

relating to a piece of land before the Officer on Special Duty

under Regulation II of 1956, Parlakhemundi. The defendant

declared on 05.12.2008 that he had purchased the suit land

and therefore, he was constructing the house. Hence, the

suit.

4. Pursuant to summons, the defendant appeared

and contested the suit by filing a written statement. It was

stated that the case before the Officer on Special Duty being

RMC No. 102 of 1978 under Regulation II of 1956 was

initiated against one Braja Rout. The plaintiff was evicted as

per order passed on 17.11.1978. The plaintiff never

challenged the order of eviction. Therefore, this Court has no

jurisdiction to adjudicate the dispute. The suit land consists

of a dwelling house and a shop room, wherein the defendant

and his brother have been residing. The father of the plaintiff

donated the same properties to the defendant for performing

seva puja of the deity and after his death, the plaintiff

demanded the usufructs of the land from the defendant.

When the defendant refused, the plaintiff filed the suit only to

harass the defendant. It is further stated that the defendant

belongs to 'Mahali' caste which is synonymous to 'Jangam'.

As such, the suit is not maintainable. The suit was also

stated to be not maintainable on the ground of non-joinder of

necessary parties as also was undervalued. The

maintainability of the suit was also questioned on the ground

of limitation.

5. On such rival pleadings the trial court framed the

following issues for determination.

"1. Is the suit maintainable?

2. Is the suit under-valued?

3. Is the suit bad for non-joinder of necessary parties?

4. Is there any cause of action for the suit?

5. Is the plaintiff having right, title, interest and possession over the suit land?

6. Is the plaintiff entitled to the relief sought for?"

6. Taking up issue No.5 at the outset, the trial Court,

after analyzing the oral and documentary evidence found that

a case was initiated on the recommendation of the Welfare

Extension Officer with regard to alienation of the land,

wherein it was held that the petitioner of the said case was a

member of the scheduled tribe while the respondent was a

member of non-scheduled tribe. As such, the order of eviction

was passed. However, the trial Court found that the said

order does not indicate that the proceeding was in respect of

the suit plot. The dispute was in respect of Ac.0.40 decimals

of land under Parlakhemundi Tahasil, which is not related to

the suit land in any manner. The order passed by the Officer

on Special Duty for restoration of the land also does not

indicate the Khata number and plot number of the land. The

report of the Amin with regard to delivery of possession also

does not contain the plot number in respect of which

possession was delivered. It was found that Sudam Sahukar

had purchased Ac.0.40 decimals of land from Braja Rout

without obtaining prior permission from the competent

authority. As such the case was initiated suo motu but the

application of Braja Rout as also the recommendation for

restoration does not contain the Khata number and plot

number of the land in question. The trial court further held

that even if all the documents are to be accepted then it

would be evident that Ac.0.40 decimals of land had only been

restored to Braja Rout. But the plaintiff had filed the suit in

respect of Ac.0.160 decimals of land. The defendant could not

establish his right, title and interest in respect of the rest

area of the suit land. So, in the absence of the schedule of the

land it was not proper to say that such land was part and

parcel of the suit land. Further analysing the documentary

evidence, the trial court found that the suit Plot No.648/1418

was recorded as 'Padar'. The defendant did not state as to

when the house was constructed nor adduced any evidence.

Thus, the trial court was of the opinion that the defendant

has no title over the suit land. The settlement ROR and the

rent receipts relied upon by the plaintiff together with the oral

evidence clearly established that the plaintiff has right, title,

interest and possession over the suit land. The issue was

answered accordingly. On the remaining issues, the trial

court found that the order passed in RMC No.102 of 1978 will

not make the suit incompetent and since the order does not

correspond to the suit land, the suit is not barred by

limitation. As regards the plea of under valuation, the trial

court found that the defendant did not produce any

document or material to indicate the value of the suit land.

The suit land had been recorded as 'Padar' in the settlement

ROR. The area being Ac.0.160, the trial court was of the view

that the valuation of the suit land given by the plaintiff in the

plaint is correct. On the plea of non-joinder of necessary

parties, the trial court held that Braja Rout was not a

necessary party in the case. Thus, the suit was decreed on

the above findings.

7. The defendant carried appeal to the District Court.

The First Appellate Court after examining the rival

contentions framed the following points for determination.

"1. Whether the appellant is a Schedule Tribe person?

2. Whether the property decided by the competent authority under the Orissa Regulation-II of 1956 vide R.M.C. 102/1978 (Ext.A) is the same property as described in the plaint as suit property?

3. Whether the finding of the learned lower court in issue No.1 is correct?

4. Whether the finding of the learned lower court in issue No.5 is correct?

5. Whether the finding of the learned lower court in issue No.6 is correct?"

8. On point No.1, the First Appellate Court was of the

view that defendant is not a scheduled tribe person but since

the plaintiff had instituted a case against the defendant

under Regulation II of 1956, a natural inference can be drawn

that the defendant is a scheduled tribe person. The plaintiff

had contradicted his own stand. However, the caste

certificate granted by the Tahasildar, Rayagada showed that

he is a schedule tribe person.

9. On point No.2, the First Appellate Court was of the

view that the order under Regulation-II was passed on

17.11.1978. The Plot number and Khata number of the

disputed land had not been mentioned, but the first

settlement operation in the suit locality took place in the year

1978 and so by the time of disposal of the said case under

Regulation-II, there could not have been any Plot number and

Khata number for which the parties had not referred to the

same in the case but had described the suit land giving the

boundaries. Therefore, the finding of the trial court was held

to be incorrect.

10. The First Appellate Court then took up Point No.3

and noted the boundary description of the suit land as

mentioned in the order passed under Regulation II of 1956.

Since the matter was already decided by the competent

authority under the Regulation II, the Civil Court has no

jurisdiction and therefore, the suit was not maintainable.

11. On Point No.4, the First Appellate Court taking

note of his findings on the other points held that the plaintiff

had no right, title, interest and possession over the land

which is the property of a scheduled tribe person. The other

contentions of the plaintiff were negatived. The ROR and rent

receipts were not accepted as valid proof of title by the first

appellate authority on the ground that ROR does not create

or extinguish title though there is a presumption of

correctness in the absence of contrary evidence yet in the

instant case, contrary evidence was available in the form of

the order passed by the competent authority under

Regulation II that the property belongs to a scheduled tribe

person for which the plaintiff was prohibited to enter into the

suit land and he was also penalized. Thus, there was no basis

for publication of the settlement ROR and so presumption of

correctness is not available. On such findings, the appeal was

allowed and the judgment and decree of the trial court was

set aside.

12. Being aggrieved, the plaintiff has filed this second

appeal, which was admitted on the following substantial

questions of law.

"1. Whether the lower appellate court has committed an error of law and procedure by recording a speculative finding that "as the Settlement operation in the suit

locality had taken place for the first time in the year 1978 as evident from Ext. 1 and therefore, by the time of disposal of R.M.C. No. 102/1978, there could not be availability of plot number and Khata number and that was the reason as to why both parties would not refer any plot number and khața number before the competent authority and they described the disputed land by giving the boundary, although there is absolutely no evidence available on record to justify the aforesaid finding of the lower appellate court and as such, the judgment and decree passed by the lower appellate Court reversing the judgment and decree of the trial court are based on perverse finding and therefore, the same are liable to set aside?

2. Whether the lower appellate court has. committed an error of law in recording a finding that as the land in dispute is also the subject matter of dispute in a proceeding under Regulation-II of 1956, the civil suit is not maintainable in respect of such land in view of the provision under Section 7 (A) of the said Regulation?

3. Whether the lower appellate has committed an error of law by recording a finding that "it is admitted position one Braja Rout is a Scheduled Tribe", although the plaintiff nowhere admitted either in his pleading or his evidence that the vendor of the defendant belong to a S.T. community and the alleged transfer is hit by the provisions under Regulation II of 1956?

13. Heard Ms. Soma Pattnaik, learned counsel for the

plaintiff-appellant and Mr. P.V. Balakrishna, learned counsel

appearing for the defendant-respondent.

14. Ms. Pattnaik would assail the impugned judgment

by submitting that the same is based on perverse findings.

She submits that the conclusion reached by the First

Appellate Court that the land mentioned in the Regulation-II

case is the same land involved in the suit is entirely without

any evidence. The further finding that since the settlement

operation in the suit locality was conducted for the first time

in 1978, therefore, the Plot number and Khata number was

not available is entirely erroneous because even though the

Hal settlement records were not available but the Sabik

Khata number and Plot number were always available at that

time. Therefore, the finding given to justify the non-

availability of Khata number and Plot number cannot be

accepted. Ms. Pattnaik further argues that the trial court had

arrived at a definite finding by referring to all the documents

available on record to show that the land involved in the

Regulation case is entirely different from the suit land. Said

finding being based on evidence, could not have been

overturned only on speculation. The defendant did not

adduce any evidence with regard to construction of the house

despite which the First Appellate Court held that he being a

scheduled tribe person and there being an order passed by

the authority under the Regulation-II, the plaintiff has no

title, is completely without evidence.

15. Mr. Balakrishna, on the other hand, would argue

that once the provisions of Regulation-II has been invoked

and an order passed in a proceeding initiated thereunder, the

Civil Court has no jurisdiction. The trial Court must

therefore, be held to have committed gross illegality which

was rectified by the First Appellate Court. Moreover, the

defendant filed a caste certificate issued by the Tahasildar on

18.08.2009 which shows that he was a schedule tribe person

but the plaintiff suppressed such fact for which the suit is

barred under Section 6 of Specific Relief Act. As regards

identity of the suit land, Mr. Balakrishna would argue that

Ext-A, which is the order dated 17.11.1978 passed in the

Regulation Case, corresponds to the land covered under Ext-

1 and even though there is absence of Plot number or Khata

number, the boundaries would prevail which have not been

disputed by the plaintiff. Since the plaintiff had purchased

the land from a scheduled tribe person without obtaining

permission, it was rightly held by the authority under the

Regulation II that he has no title over the suit land.

16. After considering the rival submissions, the first

point that falls for consideration is, whether the finding of the

First Appellate Court that the suit land is the same as the

one involved in the Regulation-II case is correct or not. In this

regard, after going through the findings of the First Appellate

Court, this Court finds that there is no clear-cut evidence

adduced by the parties in this regard. Nevertheless, it is

borne out from the evidence on record that the Regulation-II

case was in respect of land measuring Ac.0.40 dec., whereas

the suit land measures Ac.0.160 decimals. Now, the order

passed by the competent authority in the Regulation

proceeding does not mention any plot number. Though it was

no one's case, yet the First Appellate Court appears to have

made out a third case to justify absence of Plot numbers and

Khata numbers in the said order by stating that the

settlement operations had not been conducted by that time.

But then, as argued by Ms. Patnaik, learned counsel for the

plaintiff, even though Hal settlement operations had not been

conducted, but the Sabik records were in existence and

therefore, the plot could have been described with reference

to the Sabik entries. Nevertheless, it is not disputed that the

suit plot is plot No. 648/1418 appertaining to Khata No.42 of

Mouza Padampur. The First Appellate Court has referred to

the boundary mentioned in order under Ext-A. According to

the First Appellate Court, the boundary is the same as the

boundary of the suit land, which was admitted by the plaintiff

in his cross-examination. Ordinarily, in the absence of plot

numbers, the boundary description would be enough to

identify the suit land. But in this case, it would not be so for

the reason that there is absence of clear-cut evidence as to

the exact land which was involved in the Regulation

proceeding and the suit. There is no clear-cut finding given by

the First Appellate Court that it was the same land.

Therefore, this finding appears to be more speculative in

nature than being based on any evidence on record.

17. The First Appellate Court has placed much

emphasis on the fact that the defendant is a scheduled tribe

person which is an admitted fact. Nothing has been placed

before this Court to show as to where the plaintiff had

admitted such fact. An order was passed by the Regulation II

authority to evict the plaintiff in 1978. This, according to the

First Appellate Court proves that the defendant being a

scheduled tribe person and the plaintiff being evicted from

the land implies that he has no title over the land but then

for the above finding to subsist, the identity between the land

covered under the Regulation II and the one covered by the

suit has to be established at the first instance. Unless that is

established, all other findings would be rendered

unsustainable. While it is true that the dispute covered by

the Regulation II bars the jurisdiction of the civil Court, but

then the fact that the suit land was involved in the Regulation

II proceeding has never been established to satisfaction. In

the absence of such evidence, it will be difficult to accept the

finding that the suit was barred. The trial court has relied

upon all the documents to hold that Ac.0.40 decimals of land

had been restored to Braja Rout. But the plaintiff filed the

suit in respect of Ac.0.160 decimals of land, which already

stood recorded in his name. The First Appellate Court has

held that the statutory presumption of correctness of the

entries made in the ROR stood rebutted by contrary stand of

the plaintiff does not hold much water for the reason that

except for the finding that the defendant was a schedule tribe

person, there is no other evidence to show as to how the

recording in the Hal ROR was wrong. As already stated,

without the foundational fact that the land involved in the

suit was also involved in the Regulation-II proceeding being

proved to satisfaction, the entries in the Hal ROR cannot be

automatically nullified. The First Appellate Court appears to

have proceeded on an erroneous notion by placing much

emphasis on the fact that the defendant is supposedly a

scheduled tribe person. Even if he is a scheduled tribe

person, unless he establishes by concrete evidence that he

has a valid interest over the land and as to how the same

came to him, his claim cannot be accepted and on the same

analogy, the claim of the plaintiff of title over the land cannot

be nullified. The First Appellate Court has committed

manifest error in holding otherwise.

18. Reading of the judgment passed by the trial Court,

reveals that all the documentary evidence as well as oral

evidence has been scanned meticulously and right conclusion

has been reached that the defendant could not establish any

manner of right or title and even possession over the suit

land. In view of what has been stated before, this Court finds

nothing wrong in the said findings so as to justify the order of

reversal by the First Appellate Court.

19. Thus, from a conspectus of the facts and analysis

made, this Court is of the view that the judgment of the trial

court was well-reasoned and based on evidence on record. On

the contrary, the First Appellate Court reversed the findings

by proceeding from an erroneous perspective. The impugned

judgment cannot therefore be sustained. The substantial

questions of law are answered accordingly.

20. In the result, the appeal is allowed, the impugned

judgment is set aside. The judgment and decree passed by

the trial Court is hereby confirmed.

..............................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack The 28th November, 2025/ A.K. Rana, P.A.

Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2025 12:59:01