Orissa High Court
Tarun Kumar Rout & Ors vs Baishnaba Das & Anr. ... Opp. Parties on 10 November, 2025
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 09 of 2011
(Arising out of reversing Judgment and Decree passed by the learned
District Judge, Balasore-Bhadrak in R.F.A. No. 71 of 2003)
Tarun Kumar Rout & Ors. ... Appellants
.
Mr. K. Rath, Advocate
-versus-
Baishnaba Das & Anr. ... Opp. Parties
.
Mr. S. K. Nayak, Advocate
CORAM:
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 10.11.2025
Chittaranjan Dash, J.
1. Heard learned counsel for both the parties.
2. This Second Appeal, instituted under Section 100 of the
Code of Civil Procedure, is directed against the reversal
Judgment and Decree passed by the learned District Judge,
Balasore-Bhadrak in RFA No. 71 of 2003, which arose from the
Judgment and Decree rendered in Title Suit No. 57 of 1991 by
the learned Civil Judge (Junior Division), Balasore. For the sake
of clarity and consistency, the parties shall continue to be
referred to as 'Plaintiff' and 'Defendant', as they were arrayed
in the original suit.
3. The factual matrix giving rise to the present appeal is that
the Plaintiff, Khetra Mohan Rout (original Respondent No. 1),
instituted the suit seeking a declaration of title over the 'Ga'
schedule land in his favour, along with a further declaration that
the preparation of the settlement khatian and map in respect
thereof is illegal and erroneous. The suit land, described as 'Ga'
schedule land and situated in Mauza Sovarampur, is delineated
as follows:
Khata No. Plot No. Area
M.S.Khata No. 290 376/880 Ac.0.00500 squire links out of Ac.0.007 dec.
(Part of C.S.Plot Nos. 171 and 173)
M.S.Khata No.290 374 Ac.0.01500 squire links out of Ac.0.095 dec.
(Part of C.S.Plot No. 171)
M.S.Khata No.310 372 Ac.0.00500 squire links out of Ac.0.140 dec.
(Part of C.S.Plot No. 171)
In total ... Ac.0.02,500 squire links (Ac.0.02 ½ dec.)
According to the Plaintiff, the 'Ka' schedule land
appertaining to Current Settlement Khata No. 28 stood recorded
in the names of Kanduru Rout and Radhu Rout, both sons of
Kanhu Charan Rout, each having an equal share. The Plaintiff is
the son of Radhu Rout. Kanduru Rout, the Plaintiff's uncle, died
in 1942 leaving behind his wife, Ashamani, and two daughters,
Rukmani and Purnima. After Kanduru's death, his widow and
daughters remained under the care and protection of the
Plaintiff's father. Both daughters were subsequently married and
began residing in the houses of their respective in-laws. In 1954,
Radhu Rout, father of the Plaintiff, passed away; his wife had
predeceased him. Thereafter, the Plaintiff came to possess both
the lands of his father and his uncle. On 21.02.1974, Ashamani,
widow of Kanduru, executed a registered gift deed in favour of
the Plaintiff. Under the said deed, the Plaintiff received eight
annas share out of Ac. 0.42 dec. of Current Settlement Khata No.
28, as well as Ac. 0.02 dec. from the donor's purchased land
under Current Settlement Plot No. 169, thereby receiving a total
of Ac. 0.23 dec. from Khata No. 28. Apart from the said khata,
the Plaintiff also received other lands not connected with the suit
land.
The Plaintiff asserts that, having continued in possession
of the lands gifted by his aunt, he became a six-annas owner, and
the Major Settlement record accordingly reflected his name. The
cause of action arose when the Plaintiff discovered that, in the
Major Settlement Khatian, the 'Ga' schedule land had been
wrongly amalgamated into the khata of the original Defendant
No. 1, Baishnab Das, and original Defendant No. 2, Hiramani
Singh @ Das, wife of Baishnab Das. As Defendant Nos. 1 and 2
allegedly threatened to dispossess him by taking advantage of
the erroneous Major Settlement record-of-rights, the Plaintiff
instituted the present suit. The contesting Defendants Nos. 1 and
2 contended that the Plaintiff was recorded only in respect of the
lands actually in his possession, whereas they were in possession
of the suit land, and the record-of-rights correctly reflected such
possession. They further stated that their homestead land,
existing since the time of their forefathers, adjoins the Plaintiff's
homestead, and forms a single enclosure. According to them, the
Plaintiff, being unable to secure entry of certain lands in his
favour during the Major Settlement operation, filed this belated
suit with an intention to grab their property. They asserted that
Major Settlement Khata No. 310, comprising Ac. 0.140 dec.,
stands recorded in the name of Hiramani Singh, daughter of
Fakira Singh; Radhu Singh is arrayed as Defendant No. 3. Their
principal defence is that the suit is barred by limitation and that
the Plaintiff was never in possession of the suit land.
4. The learned Trial Court, having regard to the divergent
pleadings of the parties, framed five issues for determination. It
answered Issue Nos. 2, 3 and 4 in favour of the Plaintiff,
declaring his right, title and interest over the suit land, and
further holding that the Major Settlement map and record-of-
rights had been erroneously prepared, and that the Defendants
had no right over the said land.
The learned First Appellate Court, upon re-appreciating
the evidence adduced before the Trial Court and after hearing
the submissions advanced, took the view that the Plaintiff's
claim, though couched as one for declaration, was in substance
a claim seeking correction of the entries in the record-of-rights
and the corresponding map, thereby falling squarely within the
ambit of Section 42 of the Orissa Survey and Settlement Act.
According to the Appellate Court, the Trial Court had been
misled by the fact that in the 1927 Settlement the land stood
recorded in the name of the Plaintiff's family, while ignoring the
ground reality that, by 1986, much water had flowed in the river
Mahanadi and the possession and physical features of the land
had undergone substantial change. Taking a practical view, the
settlement staff had conducted a fresh survey, prepared the
record-of-rights, and issued draft copies to the parties inviting
objections.
The Appellate Court further observed that a party who
remains inactive during settlement operations is afforded a
statutory period of three years under Section 42 of the Survey
and Settlement Act to seek correction; a person who fails to avail
such remedy within the prescribed period "misses the train for
life." It held that correcting the record-of-rights and the map
pursuant to a court decree passed in 2010 would create a "topsy-
turvy" situation, which is impermissible, and that it would
amount to a travesty of justice to deprive a recorded owner of a
right he had been enjoying since 1926.
In view of the legal position and the practical
considerations involved, the learned First Appellate Court set
aside the findings of the Trial Court as erroneous, reversed the
impugned judgment, and dismissed the suit while allowing the
Appeal.
5. Mr. D. P. Mohanty, learned counsel for the Appellant,
contended that the substantial question of law framed by this
Court - whether the suit is barred by Section 42 of the Orissa
Survey and Settlement Act, has been erroneously answered by
the First Appellate Court. It was submitted that the Trial Court
had correctly declared the Plaintiff's right, title and interest over
the suit land after appreciating the evidence adduced by both
sides, and that the Plaintiff's possession from the time of his
predecessors stood admitted by the Defendants themselves.
According to learned counsel, the title of the parties was never
in dispute at any stage of the litigation, and the suit was founded
not for declaration of title but for correction of the map wherein
the 'Ga' schedule land had been wrongly amalgamated during
the Major Settlement operation.
Mr. Mohanty argued that the finding of the First
Appellate Court that the suit should have been presented under
Section 42 of the Survey and Settlement Act is misconceived, as
the Plaintiff had not sought correction of the record-of-rights but
only of the map, in which the error had occurred. Once the title
and possession of the Plaintiff were admitted, the question of
invoking Section 42 did not arise. The First Appellate Court, it
was urged, misdirected itself in treating a limited prayer relating
to the map as a challenge to the entire settlement record, thereby
attracting the bar of limitation. It was further contended that the
Appellate Court's observation that the Plaintiff approached the
Civil Court after an inordinate delay is contrary to the materials
available on record. The Court failed to consider the specific
admissions of the Defendants acknowledging the Plaintiff's
possession over the suit land, and the finding that the Plaintiff
was not in possession is wholly unsupported by evidence and
based merely on conjectures. Learned counsel submitted that, in
view of the admitted title and possession of the Plaintiff, the
present suit could not be rejected on the technical ground of
alleged delay under Section 42.
6. Upon a careful consideration of the rival submissions,
this Court proceeds to examine the substantial question of law.
It is well settled that interference in Second Appeal is warranted
only when the findings of the courts below suffer from
perversity, misapplication of statutory provisions, or disregard
of material evidence. It is in that perspective that the impugned
Judgment of the First Appellate Court, as well as the reasoning
of the Trial Court, are required to be scrutinised. In the present
Second Appeal, the following substantial question of law arises
for determination:
"Whether the learned First Appellate Court was
justified in holding that the suit, in its present form, is barred
under Section 42 of the Orissa Survey and Settlement Act,
1958, and consequently in reversing the decree passed by the
learned Trial Court?"
7. Mr. Nayak, learned counsel for the Respondents, on the
other hand, placed reliance upon the decision of the Coordinate
Bench in Latika Kar & Others vs. State of Odisha & Others,
passed in RSA No. 88 of 2013. Drawing attention to the said
judgment, he submitted that the Coordinate Bench had expressly
considered and distinguished the very decisions relied upon by
the Appellant, including Basanti @ Basantirani Jena vs. State
of Odisha, reported in 2016 (Supp.-1) OLR 529. He contended
that the Court in Latika Kar did not accept the ratio relied upon
by the Appellant and clearly held as follows:
"This Court is, however, unable to accept the
contention of learned Senior Counsel in this regard for
the reason that the ratio of the cited case would apply
only when the person concerned is actually the title-
holder notwithstanding the wrong recording of the
ROR. Here, it has been specifically contended that the
plaintiffs are not claiming title over the suit property
but their prayer is for correction of the record-of-
rights simpliciter along with declaration of right of
user."
Relying on the above reasoning, Mr. Nayak argued that
the Plaintiff's prayer in the present case, though styled as
declaratory, is in substance nothing but a request for correction
of the settlement record and map, and therefore squarely attracts
the bar under Section 42 of the Orissa Survey and Settlement
Act. He submitted that the Plaintiff cannot circumvent the
statutory limitations period by giving the relief a declaratory
form, when its essence is a challenge to the entries in the
settlement proceedings.
8. Upon a careful examination of the impugned judgment,
it becomes evident that the principal foundation upon which the
learned First Appellate Court reversed the well-reasoned
findings of the Trial Court was its conclusion that the Plaintiff,
though admittedly aware that the suit land had not been recorded
in his favour in the last publication of the record-of-rights, failed
to challenge such recording within the statutory period
prescribed under Section 42 of the Orissa Survey and Settlement
Act. The learned First Appellate Court held that the suit, having
been instituted after a lapse of four years, nine months and eight
days, stood squarely barred by limitation and therefore was not
maintainable in law. For arriving at such a conclusion, the First
Appellate Court placed reliance on the settled legal position
governing the maintainability of civil suits in matters relating to
entries in the record-of-rights, as expounded in a series of
decisions including Panu Behera vs. Jitendriya Das & Others,
reported in 54 (1982) CLT 393; Bhagabat Jena & Others vs.
Gobardhan Patnaik & Others, reported in 54 (1982) CLT 30;
and Narasingh Garabadu vs. Kedarnath Panda, reported in
1972 (1) CWR 615.
It further invoked the statutory presumption contained in
Section 13 of the Act, to the effect that every entry in the finally
published record-of-rights shall be presumed to be correct unless
proved otherwise. On this premise, the Appellate Court reasoned
that, if the Plaintiff's land had indeed been amalgamated with
that of the Defendants, the Plaintiff could not possibly have
remained in possession of the disputed 'Ga' Schedule land; the
measurements reflected in the settlement record were therefore
presumed to correctly depict actual possession. The settlement
authorities, who are statutorily bound to record possession
unless found otherwise, would not have entered the Defendants'
names had they not been in possession. It was further observed
that possession allegedly exercised in 1927 could not be
presumed to have automatically continued in 1986; it was
incumbent upon the Plaintiff to establish such continuity by
cogent evidence. The First Appellate Court also took note of the
fact that the Plaintiff's remaining lands had been duly recorded
in his favour and, consequently, his claim over only the suit
patches was perceived as misconceived.
9. However, while scrutinising the reasoning of the learned
First Appellate Court in the light of the pleadings, evidence, and
the applicable law, this Court finds that the approach adopted by
the First Appellate Court rests on an erroneous appreciation both
of the factual substratum and the legal principles governing the
field. A close reading of the decision of the Co-ordinate Bench
in Latika Kar & Others vs. State of Odisha & Others, passed in
RSA No. 88 of 2013, which has been relied upon by the
Respondents reveals that the issues adjudicated therein pertained
principally to the nature of lease and licence and more
importantly, the title of the parties was directly in dispute. The
said decision, therefore, does not render any assistance to the
present controversy. Indeed, the very judgment in Basanti @
Basantirani Jena vs. State of Odisha, reported in 2016 (Supp-
1) OLR 529, which had been cited by the Appellant and which
the First Appellate Court cursorily distinguished, unequivocally
holds that even when a suit is brought beyond the statutory
period, the nature of the relief sought and the issues relating to
title cannot be ousted solely on the ground of limitation under
Section 42 of the Survey and Settlement Act if the suit is, in
substance, one asserting independent civil remedies.
10. Significantly, in Latika Kar (supra) itself, the Co-
ordinate Bench clarified that the ratio of Basanti Jena (supra)
would apply where the person concerned is the actual title holder
notwithstanding any erroneous recording in the record-of-rights.
The distinguishing factor in Latika Kar (supra) was that the
plaintiffs therein did not claim title at all; they sought merely a
correction of the record-of-rights simpliciter along with a
declaration of the right of user. The present case stands on an
entirely different footing. Here, the Plaintiff has asserted an
existing title over the suit land and challenged the alleged
wrongful settlement entries only as a consequence of such
assertion of title. The bar under Section 42, therefore, cannot be
stretched to eclipse an adjudication on civil rights which fall
squarely within the jurisdiction of the Civil Court.
11. This Court further notes that the learned First Appellate
Court appears to have been swayed predominantly by the issue
of limitation under Section 42, and in doing so, failed to
undertake a comprehensive evaluation of the evidence both
documentary and oral laid by the parties before the Trial Court.
The Trial Court had meticulously examined the materials and
rendered findings on possession, title, and the alleged
amalgamation of land. The First Appellate Court, instead of re-
appreciating such evidence as mandated under Section 96 CPC,
chose to dispose of the appeal almost exclusively on the premise
that the suit was time-barred. Such an approach, overlooking the
substantial factual findings recorded by the Trial Court, is
contrary to established judicial principles.
As observed by the Co-ordinate Bench while setting
aside a similar erroneous approach in RSA No.88 of 2013, the
First Appellate Court cannot reverse the findings of the Trial
Court solely on the basis that the suit was filed beyond the
limitation prescribed under Section 42 without duly appreciating
the evidence regarding title and possession. When the Trial
Court's findings rest on a detailed appreciation of evidence and
when the bar of limitation is not absolute in suits where title is
directly asserted, the First Appellate Court's refusal to examine
the matter on merits amounts to a misdirection in law. Therefore,
the reasoning of the Appellate Court, being inconsistent with the
factual matrix and the governing legal principles, cannot be
sustained.
12. In view of the above discussion, this Court is of the
considered opinion that the learned First Appellate Court
committed an error in treating the suit as one barred under
Section 42 of the Orissa Survey and Settlement Act, without
duly appreciating the nature of the reliefs sought, or the evidence
adduced before the Trial Court. The reversal of the well-
reasoned findings of the learned Civil Judge (Junior Division),
Balasore, in Title Suit No. 57 of 1991, solely on the premise of
limitation and statutory bar, is unsustainable both on facts and in
law.
13. As a result, this Second Appeal challenging the Judgment
and Decree passed by the learned District Judge, Balasore-
Bhadrak in RFA No. 71 of 2003, merits interference. The
impugned Judgment and Decree are hereby set aside, and the
Judgment and Decree of the learned Trial Court is hence
restored.
14. Accordingly, the RSA is allowed.
(Chittaranjan Dash)
Judge
Bijay
Designation: Junior Stenographer
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Nov-2025 19:14:09
