Orissa High Court
Shri Surya Narayan Barik vs Kainti Thanapati (Dead) & Others on 14 November, 2025
ORISSA HIGH COURT : CUTTACK
R.S.A. No.462 of 2003
In the matter of an appeal under Section 100 C.P.C, 1908.
***
Shri Surya Narayan Barik ... Appellant.
-VERSUS-
Kainti Thanapati (dead) & Others ... Respondents.
Counsel appeared for the parties:
For the Appellant : Mr. P.V. Balakrishna, Advocate.
For the Respondents : Mr. Amit Kumar Nath, Advocate.
P R E S E N T:
HONOURABLE
MR. JUSTICE ANANDA CHANDRA BEHERA
Date of Hearing : 07.11.2025 :: Date of Judgment : 14.11.2025
J UDGMENT
ANANDA CHANDRA BEHERA, J.--
1. This 2nd Appeal has been preferred against the
confirming Judgment.
2. The respondents in this 2nd Appeal were the plaintiffs
before the learned Trial Court in the suit vide T.S. No.69/1990
and respondents before the learned First Appellate Court in
the 1st Appeal vide T.A. No.109/36/6 of 1992-99.
The appellant in this 2nd appeal was the defendant before
the learned Trial Court in the suit vide T.S. No.69/1990 and
appellant before the learned First Appellate Court in the 1 st
Appeal vide T.A. No.109/36/6 of 1992-99.
3. The suit of the plaintiffs (respondents in this 2nd Appeal)
against the defendant (appellant in this 2nd Appeal) vide T.S.
No.69/1990 was a suit for declaration of title, in alternative
partition.
4. The case of the plaintiffs (respondents in this 2nd Appeal)
before the learned Trial Court in their suit vide T.S.
No.69/1990 was that, their father was Kangalu Barik. Their
father Kangalu Barik expired in the year, 1957 leaving behind
his widow Mala Barik and the plaintiffs as his successors.
The properties described in Schedule "A" of the plaint are
the suit properties and the said properties were the properties
of Kangalu Barik. When Kangalu Barik expired in the year
1957 leaving behind his widow wife Mala Barik and his two
daughters i.e. plaintiffs as his successors, then, the suit
properties left by Kangalu Barik devolved upon them (widow
wife Mala Barik and plaintiffs simultaneously). The mother of
the plaintiffs i.e. Mala Barik expired in the year 1962 leaving
behind the plaintiffs as her successors. For which, after the
death of the father and mother of the plaintiffs, the suit
properties devolved upon the plaintiffs and the plaintiffs
became the owners of the suit properties and they possessed
the same.
In the year 1975, the defendant created disturbances in
the possession of the plaintiffs. For which, a proceeding under
Section 145 of the Cr.P.C. was started in respect of the "B"
schedule suit properties, which is the part of the "A" schedule
suit properties. In that 145 Cr.P.C. proceeding, the defendant
took a false plea that, he is the adopted son of their father
Kangalu Barik. In the said proceeding under Section 145
Cr.P.C., the "B" schedule suit properties were attached under
Section 146 of the Cr.P.C. and direction was given to the
parties to establish their title over the suit properties in the
Civil Court.
Subsequent thereto, the defendant applied for mutation
of the suit properties to his name by filing a Mutation Case
vide Mutation Case No.36 of 1985, in which the plaintiffs filed
objection. For which, that Mutation Case filed by the
defendant was dropped. Thereafter, again, without the
knowledge of the plaintiffs, the defendant filed an another
Mutation Case vide Mutation Case No.234/1986 for mutation
of the suit properties to his name and the said mutation case
was allowed in his favour without the knowledge of the
plaintiffs. When the plaintiffs came to know about the same,
then, the plaintiffs filed the suit vide T.S. No.69/1990 against
the defendant praying for declaration of their title in
alternative partition.
The defendant contested the suit of the plaintiffs by filing
his written statement taking his stands therein that, Kangalu
Barik and Mala Barik both had adopted him as their son
when he (defendant) was 21 days old through a valid giving
and taking ceremony and they had brought up him
(defendant) as their son and he (defendant) was accepted by
all concerned as the adopted son of Kangalu Barik and Mala
Barik. After the death of Kangalu Barik, the entire suit
properties left by him was in his possession and in a family
settlement dated 21.10.1958, the plaintiffs were allotted with
the Rayati lands of Kangalu Barik and he (defendant) was
allotted with the Bhogara lands of Kangalu Barik. That apart,
the plaintiffs have not brought other properties of Kangalu
Barik to the common hotspot. For which, the suit filed by the
plaintiffs is not maintainable under law. The suit of the
plaintiffs is also barred by limitation. Therefore, the suit of the
plaintiffs is liable to be dismissed against him (defendant).
5. Basing upon the aforesaid pleadings and matters in
controversies between the parties, altogether 4 numbers of
issues were framed by the learned Trial Court in the suit vide
T.S. No.69 of 1990 and the said issues are:
ISSUES
1. Whether the defendant is the adopted son of late Kangalu
Barik?
2. Whether the plaintiff have title over the suit properties and
the defendant has no title with the same?
3. Whether the suit is barred by limitation?
4. To what relief, the plaintiffs are entitled to?
6. In order to substantiate the aforesaid relief sought for by
the plaintiffs against the defendant, the plaintiffs examined 4
witnesses from their side including the plaintiff No.2 as P.W.1
and relied upon the documents vide Exts.1 to 4.
On the contrary, in order to nullify/defeat the suit of the
plaintiffs, the defendant examined 4 numbers of witnesses on
his behalf including him as D.W.1 and relied upon the
documents vide Exts.A to G.
7. After conclusion of hearing and on perusal of the
materials, documents and evidence available in the record, the
learned Trial Court answered all the issues in favour of the
plaintiffs and against the defendant and basing upon the
findings and observations made by the learned Trial Court in
all the issues in favour of the plaintiffs and against the
defendant, the learned Trial Court decreed the suit of the
plaintiffs against the defendant and declared the title of the
plaintiffs over the entire "A" schedule properties including "B"
schedule suit properties as per its Judgment and Decree
dated 21.10.1992 and 05.11.1992 respectively assigning the
reasons that,
"in the evidence of the witnesses of the defendant
including the defendant, it is elicited that, the defendant had
taken admission in Sevashram School, where he started his
schooling first, then, he was admitted in Naryanpur U.P. School
and thereafter in M.E. School and then, he had admitted in
Narayanpur High School wherein he (defendant) completed his
matriculation. In all the school admission register up to his
matriculation, his natural father's name was reflected i.e.
Meghanad Barik as his father, not Kangalu Barik. For which,
the claim of the defendant that, he is the adopted son of
Kangalu Barik is not accepted. That apart, the essential
requirements of adoption relating to giving and taking ceremony
has also not been proved, whereas it is established that, the
plaintiffs are the two daughters of Kangalu Barik and Mala
Barik and they (plaintiffs) are the successors of Kangalu Barik
and Mala Barik. Therefore, after the death of Kangalu Barik
and Mala Barik, the suit properties left by them (Kangalu Barik
and Mala Barik) have devolved upon the plaintiffs but not on
the defendant.
8. On being dissatisfied with the aforesaid Judgment and
Decree passed by the learned Trial Court in T.S. No.69 of
1990 in favour of the plaintiffs and against the defendant, the
defendant challenged the same preferring the 1st Appeal vide
T.A. No.109/36/6 of 1992-99 against the plaintiffs arraying
them(plaintiffs) as respondents.
After hearing from both sides, the learned First Appellate
Court dismissed that 1st Appeal vide T.A. No.109/36/6 of
1992-99 of the defendant concurring/accepting the findings
and observations made by the learned Trial Court as per its
Judgment and Decree dated 22.04.2003 and 02.05.2003
respectively.
9. On being aggrieved with the aforesaid Judgment and
Decree of the dismissal of the First Appeal vide T.A.
No.109/36/6 of 1992-99 of the defendant, he (defendant)
challenged the same preferring this 2nd Appeal being the
appellant against the plaintiffs arraying them (plaintiffs) as
respondents.
When during the pendency of this 2nd Appeal, the
respondents (plaintiffs) expired, then, their LRs have been
substituted in their place as respondents.
10. This 2nd Appeal was admitted on formulation of the
following substantial question of law i.e.
I. When there was mutation by a
Court of competent jurisdiction in favour of
the defendant in respect of the "A" schedule
suit properties, then, whether in such
circumstances, the Civil Court can set at
naught an order of mutation without any
prayer in this behalf in the plaint?
11. This 2nd Appeal has arisen out of a suit vide T.S. No.69
of 1990.
The said suit vide T.S. No.69/1990 was filed by the
plaintiffs (respondents in this 2nd Appeal) against the
defendant (appellant in this 2nd Appeal) praying for declaration
of their title over the suit properties described in Schedule "A"
of the plaint, which includes the "B" schedule suit properties.
The value and legal effect of a mutation order has
already been clarified by the Apex Court and Hon'ble Courts
in the ratio of the following decisions:
I. In a case between Suraj Bhan & Others Vs. Financial
Commissioner & Others reported in (2007) 6 SCC 186 that, title of
the property can only be decided by a Civil Court not by the
Tahasildar in a Mutation Case.
II. In a case between Jitendra Singh Vs. The State of M.P. & Others
reported in 2021 SCC Online (SC) 802, in a case between Suman
Verma v. Union of India reported in (2004) 12 SCC 58, in a case
between Faqruddin v. Tajuddin reported in (2008) 8 SCC 12, in
case between Rajinder Singh v. State of J&K reported in (2008) 9
SCC 368, in a case between Municipal Corporation, Aurangabad
v. State of Maharashtra reported in (2015) 16 SCC 689, in a case
between T. Ravi v. B. Chinna Narasimha reported in (2017) 7
SCC 342, in a case between Bhimabai Mahadeo Kambekar v.
Arthur Import & Export Co. reported in (2019) 3 SCC 191, in a
case between Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC
259 and in a case between Ajit Kaur v. Darshan Singh reported in
(2019) 13 SCC 70 that, title of the property can only be decided by
a competent Civil Court not by a Revenue Authority in a Mutation
Case.
III. In a case between Adesh Kumar Sharma Vs. Vinod Singh Rawat
and Others reported in 2025 (4) Civil Court Cases 70 (Utk.) (Para
Nos.2 & 6) that, the question of title cannot be decided in a
mutation proceeding. Remedy for resolving the title dispute is to
file regular suit in a competent Court, because, mutation of name in
revenue record is made for fiscal purposes i.e. for collection of land
revenue as mutation neither creates title nor extinguishes title.
12. In view of the propositions of law enunciated by the Apex
Court and Hon'ble Courts in the ratio of the aforesaid
decisions, the Civil Court is the competent authority under
law to declare the title of the plaintiffs over the suit properties
inspite of the R.o.R of the said properties in the name of the
defendant through an order of Mutation Case vide Mutation
Case No.234 of 1986 even without any prayer of the plaintiffs
for setting aside the said order for mutation passed in favour
of the defendant. Because, order passed in Mutation Case and
the R.o.R prepared on the basis of an order passed in a
mutation case has no significance in deciding the title of a
party on the suit properties on the basis of
inheritance/succession or on the basis of document.
Here in this matter at hand, learned Trial Court as well
as learned First Appellate Court both have declared the title of
the plaintiffs over the suit properties on the basis of their
inheritance/succession as the daughters of Kangalau Barik
and Mala Barik.
For which, in view of the principles of law enunciated in
the ratio of the above decisions, even in absence of any prayer
of the plaintiffs for cancellation of the order of Mutation
passed in favour of the defendant or even in absence of any
prayer of the plaintiffs for cancellation of the R.o.R of the suit
properties in the name of the defendant, the findings of the
learned Trial Court and learned First Appellate Court i.e. the
declaration of the title of the plaintiffs over the suit properties
cannot be held as illegal.
13. When it is held that, the Judgments & Decrees passed by
the learned Trial Court and learned First Appellate Court are
not illegal, then, at this juncture, the question of interfering
with the same through this 2nd Appeal filed by the defendant
does not arise.
14. Therefore, there is no merit in the 2nd Appeal filed by the
appellant (defendant). The same must fail.
15. In result, the 2nd Appeal filed by the appellant
(defendant) is dismissed on contest but without cost.
16. The Judgments and Decrees passed by the learned Trial
Court and learned First Appellate Court in T.S. No.69 of 1990
and T.A. No.109/36/6 of 1992-99 respectively are confirmed.
(ANANDA CHANDRA BEHERA)
JUDGE
High Court of Orissa, Cuttack
The 14 .11. 2025// Rati Ranjan Nayak
Sr. Stenographer
Location: High Court of Orissa, Cuttack, India.
