Orissa High Court
Dibakar Naik @ Padhuria (Dead) & Others vs Sri Nuduru @ Prafulla Mohanta & Others on 24 September, 2025
ORISSA HIGH COURT : CUTTACK
In the matters of appeals under Section 100 C.P.C, 1908.
S.A. No.215 of 1987
Dibakar Naik @ Padhuria (dead) & Others
... Appellants.
-VERSUS-
Sri Nuduru @ Prafulla Mohanta & Others
... Respondents.
S.A. No.219 of 1987
Dibakar Naik @ Padhuria (dead) & Others
... Appellants.
-VERSUS-
Sri Nuduru @ Prafulla Mohanta & Others
... Respondents.
Counsel appeared for the parties in both the 2nd Appeals:
For all the Appellants : Mr. S.K. Dey, Advocate.
For the Respondents : Mr. G. Mohanty, Standing Counsel.
For the State-respondents.
None
(for the respondent Nos.1 to 4)
P R E S E N T:
HONOURABLE
MR. JUSTICE ANANDA CHANDRA BEHERA
Date of Hearing : 14.08.2025 :: Date of Judgment : 24.09.2025
J UDGMENT
ANANDA CHANDRA BEHERA, J.--
1. Since both the 2nd Appeals have arisen out of an
analogous Judgment passed in T.A. Nos.5 & 6 of 1986 in
connection with one suit vide T.S. No.15 of 1982-I, then, both
the 2nd Appeals are taken up together analogously for their
final adjudication through this common Judgment.
2. S.A.No.215 of 1987-:
The appellants and respondent Nos.7 to 9 in this 2nd
Appeal were the defendant Nos.3 to 9 before Trial Court in the
suit vide T.S. No.15/1982-I and respondent Nos.3 to 9 before
the 1st Appellate Court in the 1st Appeal vide T.A. No.6/1986.
The respondent Nos.1 to 4 in this 2nd Appeal were the
plaintiffs before the Trial Court in the suit vide T.S.
No.15/1982-I and appellants before the 1st Appellate Court in
the 1st Appeal vide T.A. No.6/1986.
The respondent Nos.5 and 6 in this 2nd Appeal were the
defendant Nos.1 and 2 before the Trial Court in the suit vide
T.S. No.15/1982-I and respondent Nos.1 and 2 before the
First Appellate Court in the 1st Appeal vide T.A. No.6/1986.
S.A.No.219 of 1987-:
The appellants and respondent Nos.7 to 11 in this 2nd
Appeal were the defendant Nos.3 to 9 before the Trial Court in
the suit vide T.S. No.15/1982-I and appellant Nos.1 and 2
along with respondent Nos.7 to 11 before the 1st Appellate
Court in the 1st Appeal vide T.A. No.5/1986.
The respondent Nos.1 to 4 in this 2nd Appeal were the
plaintiffs before the Trial Court in the suit vide T.S.
No.15/1982-I and respondent Nos.1 to 4 before the 1st
Appellate Court in the 1st Appeal vide T.A. No.5/1986.
The respondent Nos.5 and 6 in this 2nd Appeal were the
defendant Nos.1 and 2 before the Trial Court in the suit vide
T.S. No.15/1982-I and respondent Nos.5 and 6 before the 1st
Appellate Court in the 1st Appeal vide T.A. No.5/1986.
3. The suit of the plaintiffs i.e. Nuadru @ Prafulla Chandra
Mohanta, Padma Charan Mohanta, Laxmidhar Mohanta &
Bipati Bewa vide T.S. No.15/1982-I against the defendants
(State of Orissa, S.D.O, Panchpir, Dibakar, Bipin, Niranjan,
Duryadhan, Gouri, Pada and Aiban) was a suit for
declaration, permanent injunction and confirmation of
possession in respect of the suit properties described in the
schedule of the plaint vide T.S. No.15/1982-I.
4. According to plaintiffs case, the suit properties vide Plot
Nos.697 & 698 originally belong to the predecessors of the
defendant Nos.3 to 9, to which, the father of the plaintiff Nos.1
to 3 i.e. Haradhan Mohanta had purchased through
unregistered sale deeds. As such, the father of the plaintiff
Nos.1 to 3 i.e. Haradhan Mohanta was the exclusive owner
and in possession over suit plot Nos.697 and 698.
When Haradhan Mohanta was the exclusive owner and
in possession over suit plot Nos.697 & 698, a Revenue Misc.
Case vide Revenue Misc. Case No.87/1976 was initiated
against him by the defendant No.2 (S.D.O Panchpir) in respect
of suit plot Nos.697 & 698 illegally and arbitrarily. An order of
eviction was also passed in that Revenue Misc. Case
No.87/1976 by the defendant No.2 (S.D.O Panchpir) on dated
28.11.1979 for eviction of the father of the plaintiff Nos.1 to 3
(Haradhan Mohanta) from the suit plot Nos.697 & 698 and
the father of the plaintiff Nos.1 to 3 was directed to pay
penalty of Rs.115/- to defendant Nos.3 to 9 for his
unauthorized occupation of the suit plot Nos.697 & 698 in
contravention to the provisions of Section 3(1) of the
Regulation 2 of 1956, because, the defendant Nos.3 to 9
belong to Schedule Tribe Community, but the father of the
plaintiffs as well as the plaintiffs belong to General Caste
Community.
The father of the plaintiff Nos.1 to 3 (Haradhan Mohanta)
challenged to the said order dated 28.11.1979 for eviction
passed in Revenue Misc. Case No.87/1976 preferring an
appeal being the appellant before the A.D.M, Baripada. That
appeal was not admitted.
Subsequent, thereto, the father of the plaintiff Nos.1 to 3
(Haradhan Mohanta) died leaving behind the plaintiffs as his
successors.
As, the plaintiffs have been possessing the suit
properties for more than the statutory period, for which, they
(plaintiffs) have perfected their title over the suit properties
through adverse possession. Therefore, the proceedings under
Regulation-2 of 1956, those were initiated against their father
Haradhan Mohanta in respect of suit plot Nos.697 & 698 are
illegal, void and inoperative. For which, they (plaintiffs) are not
liable to be evicted from the suit properties. Because, the
defendant No.2 i.e. S.D.O. Panchpir had initiated Proceedings
under Regulation 2 of 1956 against their father Haradhan
Mohanta arbitrarily having no jurisdiction to initiate the same.
As the defendant Nos.3 to 9 had/have no right, title and
interest in the suit properties and the defendants are not in
possession over the same, for which, they (plaintiffs)
approached the Civil Court by filing the suit vide T.S.
No.15/1982-I being the plaintiffs against the defendants
praying for declaration that, the proceedings, those were
initiated against their father Haradhan Mohanta under
Regulation2 of 1956 in respect of the suit properties are
illegal, void and inoperative and to injunct the defendants for
interfering into the peaceful possession of the plaintiffs over
the suit properties and to declare that, they (plaintiffs) have
right, title and interest over the suit properties and to confirm
their possession on the same along with other reliefs, to
which, they (plaintiffs) are entitled for as per law and equity.
5. The defendant Nos.1,2,7 to 9 did not contest the suit
vide T.S. No.15/1982-I filed by the plaintiffs, for which, they
(defendant Nos.1,2,7 to 9) were set ex-parte.
Whereas, the defendant Nos.3 to 6 contested the suit of
the plaintiffs taking their stands in their written statement
that, they are possessing the suit properties since the time of
their predecessors. The suit properties were never sold to the
father of the plaintiff Nos.1 to 3 (Haradhan Mohanta) by their
predecessors at any point of time. Neither the father of
plaintiff Nos.1 to 3 (Haradhan Mohanta) nor the plaintiffs
had/have possessed the suit properties in any manner at any
point of time. The suit of the plaintiffs against them
(defendants) is not maintainable under law. The same is
barred by limitation. The Civil Court has no jurisdiction to
decide the suit. For which, the suit of the plaintiffs is liable to
be dismissed.
6. Basing upon the aforesaid pleadings and matters in
controversies between the parties, altogether 6 numbers of
issues were framed by the learned Trial Court in the suit vide
T.S. No.15 of 1982-I and the said issues are:
ISSUES
1. Is there any cause of action?
2. Is the suit maintainable?
3. Is the suit barred by law of resjudicata?
4. Whether Anadi and Goura sold suit plots 697 and 698 to
the father of the plaintiffs for consideration and legal necessity?
5. Whether the alleged sale by Anadi and Goura to the father
of the plaintiffs are valid and binding on the defendants?
6. Whether the plaintiffs acquired a right title or interest over
the plot Nos.697 and 698 by way of purchase of adverse possession?
7. In order to substantiate the aforesaid reliefs sought for
by the plaintiffs against the defendants, the plaintiffs
examined 6 numbers of witnesses from their side including
the plaintiff No.1 as P.W.6 and relied upon series of
documents vide Exts.1 to 12.
On the contrary, in order to defeat/nullify the suit of the
plaintiffs, the contesting defendant Nos.3 to 6 examined 1
witness on their behalf i.e. defendant No.3 as D.W.1 and
exhibited one document i.e. the certified copy of the order
dated 28.11.1979 passed in R.M.C. No.87 of 1976 from their
side as Ext.A.
8. After conclusion of hearing and on perusal of the
materials, documents and evidence available in the record, the
learned Trial Court answered issue Nos.1,2 & 3 in full in
favour of the plaintiffs and against the defendants and
answered issue Nos.4,5 & 6 in part in favour of the plaintiffs.
Basing upon the findings and observations made in the
issues, the learned Trial Court passed the Judgment & Decree
in the suit vide T.S. No.15-1982-I on dated 25.02.1986 and
04.03.1986 respectively and decreed the suit of the plaintiffs
vide T.S. No.15 of 1982-I in part on contest against defendant
Nos.3 to 6 and ex parte against other defendants and directed
the plaintiffs to take possession of suit plot No.697 from the
defendant Nos.3 and 4 and confirmed the possession of the
plaintiffs over the suit plot No.697 assigning the reasons that,
"the father of the plaintiffs i.e. Haradhan Mohanta has
purchased suit plot No.697 from the father of the defendant
Nos.3 to 6 i.e. from Anadi and Goura and plaintiffs are in
continuous possession over the suit plot No.697, for which, they
have become the lawful owners of suit plot No.697. The
initiation of the proceedings under Regulation 2 of 1956 by the
defendant No.2 (S.D.O Panchpir) against the father of the
plaintiffs in respect of suit plot No.697 was illegal. For which,
the Civil Court has jurisdiction to entertain the suit of the
plaintiff and to declare the title of the plaintiffs over suit plot
No.697 and also to declare that, the initiation of the
proceedings vide RMC No.87/1976 under Regulation 2 of 1956
against the father of the plaintiffs in respect of suit plot No.697
was unfair, capricious and arbitrary and the order passed in
the proceedings under Regulation 2 of 1956 against the father
of the plaintiffs i.e. Haradhan Mohanta in respect of suit plot
No.697 is illegal and contrary to law."
9. On being dissatisfied with the aforesaid Part Judgment
and Decree passed by the learned Trial Court in T.S.
No.15/1982-I in favour of the plaintiffs in respect of the plot
No.697, the defendant Nos.3 and 4 challenged the same
preferring the 1st Appeal vide T.A. No.5 of 1986 being the
appellants against the plaintiffs arraying them (plaintiffs) as
respondent Nos.1 to 4 and also arraying the defendant
Nos.1,2, 5 to 9 as respondent Nos.5 to 11.
The plaintiffs being dissatisfied with the aforesaid part
Judgment & Decree passed by the learned Trial Court
concerning the refusal of their title over suit plot No.698, they
(plaintiffs) also challenged the said part Judgment & Decree of
the learned Trial Court preferring 1st Appeal vide T.A.
No.6/1986 being the appellants against the defendants
arraying defendants as respondents.
10. As both the 1st Appeal vide T.A. Nos.5 & 6 of 1986 filed
by the defendants and plaintiffs had arisen out of the same
Judgment & Decree passed by the learned Trial Court in the
suit vide T.S. No.15/1982-I, then, the learned First Appellate
Court passed the Judgment of both the 1st Appeals vide T.A.
Nos.5 & 6 of 1986 analogously after hearing from both the
sides and as per the analogous Judgment and Decree passed
by the learned First Appellate Court in T.A. Nos.5 & 6/1986
on dated 27.06.1987 and 13.07.1987 respectively, the learned
1st Appellate Court allowed the 1st Appeal vide T.A. No.6 of
1986 of the plaintiffs and disallowed the 1st Appeal vide T.A.
No.5 of 1986 of the defendant Nos.3 and 4 on contest as per
its Judgment & Decree dated 27.06.1987 and 13.07.1987
respectively and declared the right, title and interest of the
plaintiffs over both the suit plots vide plot Nos.697 & 698
entitling them (plaintiffs) to recover possession of suit plot
Nos.697 & 698 from the defendant Nos.3 to 6 assigning the
reasons that,
"the plaintiffs have perfected their title over both the suit
plots vide suit plot Nos.697 and 698 through their continuous
possession for more than 12 years and the order passed by the
S.D.O. Panchpir (defendant No.2) in RMC No.87/1976 under
Regulation 2 of 1956 for restoration of the suit properties to the
defendant Nos.3 to 9 on the ground that, no permission was
taken for purchasing the suit properties by the father of the
plaintiffs being a man of general caste community from the
schedule tribe members i.e. from the predecessors of the
defendant Nos.3 to 6 i.e. from Goura and Anadi is void, as the
same was not in accordance with the law. For which, the Civil
Court has jurisdiction to entertain the suit. Therefore, the
plaintiffs are entitled to get the decree of declaration of their
right, title and interest over both the suit plots vide suit plot
Nos.697 & 698 and they (plaintiffs) are entitled to recover
possession of suit plot Nos.697 & 698 from the defendants."
11. On being aggrieved with the aforesaid analogous
Judgment and Decree dated 27.06.1987 and 13.07.1987
respectively passed by the learned First Appellate Court in
T.A. No.6/1986 and 5/1986 respectively, the defendant Nos.3
to 9 challenged the same preferring two separate 2nd Appeals
vide T.A. No.215 and 219 of 1987 being the appellants against
the plaintiffs arraying them (plaintiffs) as respondent Nos.1 to
4 and also arraying the defendant Nos.1 & 2 (State of Orissa
and S.D.O. Panchpir) as other respondents.
12. Both these 2nd Appeals were admitted on formulation of
the following substantial questions of law i.e.:
I. Whether the Judgments & Decrees
passed by the learned Trial Court and
learned First Appellate Court concerning the
declaration of the title of the plaintiffs over
the suit plot Nos.697 & 698 through adverse
possession is sustainable under law?
2. Whether the plaintiffs being the
persons of general caste community are
entitled under law to claim title over the suit
properties against the schedule tribe persons
i.e. against the defendant Nos.3 to 9 through
adverse possession?
3. Whether the Civil Court has
jurisdiction to make a declaration that, the
final orders passed in the proceedings in
respect of the suit properties in RMC
No.87/1976 under Regulation 2 of 1956 by
the competent authorities i.e. S.D.O
Panchpir (defendant No.2) for restoration of
the suit properties in favour of the schedule
tribe persons i.e. defendant Nos.3 to 9 on the
ground of illegal purchase of the same from
the father of the defendant Nos.3 to 6 as
illegal and without jurisdiction?
13. I have already heard only from the learned counsel for
the appellants (defendant Nos.3 to 9) in both the appeals, and
the learned Standing Counsel for the Respondent Nos.5 and 6,
as none appeared from the side of the respondent Nos.1 to 4
(plaintiffs) for participating in the hearing of these 2nd Appeals.
14. As per the findings and observations made by the
learned Trial Court and learned First Appellate Court on the
basis of the pleadings and evidence of the parties, the above 3
formulated substantial questions of law are interlinked having
ample nexus with each other and one among the same cannot
be decided effectively leaving the other, for which, in order to
have the just decision in both the 2nd Appeals, all the
formulated substantial questions of law are taken up together
analogously for their discussions hereunder:
In order to answer the aforesaid 3 formulated substantial
questions of law, I thought it proper to place it on record to
the clarified propositions of law on this aspect in the ratio of
the following decisions:
I. In a case between Smt. Champabati Devi Vs. Duryodhan Swain
(dead) and After him Ashok Kumar Swain and others reported in
2006 (I) OLR 588 that, if under the Act i.e. The Orissa Schedule
Areas of transfer of immovable property (by Schedule Tribes)
Regulation 1956, statutory tribunal is created to decide disputes
coming within the purview of the said Regulation 2 1956, then, the
jurisdiction of the Civil Court is expressly barred and the suit will
not lie in the Civil Court to challenge the decision passed by the
special tribunal. (Para No.13)
II. In a case between Amrendra Pratap Singh Vs. Tej Bahadur
Prajapati & Others reported in 2004 (II) OLR (SC) 117 that, a
non-tribal can neither prescribe nor acquire title by adverse
possession over the property belonging to a tribal, as the same
is specifically prohibited by a special law promulgated by the
State legislature. (Para No.27)
III. In a case between Nityananda Nayak Vs. Biswanath
Kalo (dead) & Others reported in 2021 (II) CLR 187
that, when an eviction order has been passed under the
Regulation 2 of 1956 and possession is given/restored,
then, Civil Suit filed in the Civil Court challenging the
order passed by the tribunals constituted under the
Regulation 2 1956 for declaration of title and
confirmation of possession, the said Civil Suit is barred
and such Civil Suit is not maintainable to challenge the
orders passed by the tribunals for eviction and restoration
of possession in the proceedings under Regulation 2 of
1956.
15. Here in these matters at hand, when the authorities
under Regulation 2 of 1956 i.e. S.D.O, Panchpir (defendant
No.2) passed the final order in RMC No.87 of 1976 on dated
28.11.1979 for eviction of the plaintiffs from the plot No.697 &
698 and to restore the possession thereof in favour of the
Schedule Tribes person i.e. defendant Nos.3 to 9 and when on
implementation of the said final order passed in RMC No.87 of
1976, the possession of both the suit plots vide plot Nos.697
& 698 was restored to the defendant Nos.3 to 9 evicting the
plaintiffs therefrom and when the order passed in RMC
No.87/1976under Regulation 2 of 1956 by the S.D.O.
Panchpir (defendant No.2) has already been confirmed by the
appellate authority i.e. A.D.M., Baripada due to non-
admission of appeal of the appellants against the order passed
in R.MC. No.87 of 1976 by the S.D.O. Panchpir (defendant
No.2) as per the own pleadings of the plaintiffs, then, at this
juncture, by applying the principles of law enunciated in the
ratio of the aforesaid decisions to these matters at hand, it is
held that, the orders passed in the Proceedings under
Regulation 2 of 1956 in respect of the suit properties against
the plaintiffs by the competent authorities under law for the
same were neither illegal nor arbitrary. For which, the suit of
the plaintiffs to declare that, the defendant No.2 (S.D.O.,
Panchpir) had no jurisdiction to initiate the proceeding
against them (plaintiffs) under Regulation 2 of 1956 is not
entertainable under law.
Likewise, in view of the propositions of law as clarified
above by the Apex Court in the ratio of the decision between
Amrendra Pratap Singh Vs. Tej Bahadur Prajapati &
Others reported in 2004 (II) OLR (SC) 117, the plaintiffs
being the members of general caste community, they
(plaintiffs) are precluded/estopped under law to file the suit
vide T.S. No.15 of 1982-I against the schedule tribes persons
i.e. against the defendant Nos.3 to 9 praying for declaration of
their title through adverse possession over the suit properties.
Because, as per the ratio of the above decision of the
Apex Court, the plaintiffs being non-tribal can neither perfect
nor acquire their title by adverse possession over the
properties belonging to the tribals like the defendant Nos.3 to
9 in the suit. Such plea of the plaintiffs is prohibited by
Special Law i.e. Regulation 2 of 1956 promulgated by the
State being a special nature of statute of the State.
16. As per the discussions and observations made above, it
is held that, the suit of the plaintiffs vide T.S. No.15 of 1982-I
against the defendants is not maintainable under law. For
which, the plaintiffs are not entitled to get any relief in the
suit vide T.S. No.15-1982-I against the defendants.
Therefore, the Judgment and Decree passed by the
learned trial court in the suit vide T.S. No.15 of 1982-I
declaring the title of the plaintiffs over the suit plot No.697 is
not sustainable under law.
Likewise, the Judgment and Decree passed by the
learned First Appellate court in allowing the first appeal of the
plaintiffs vide T.A. No.6 of 1986 and disallowing the 1st Appeal
vide T.A. No.5/1986 of the defendant Nos.3 and 4 cannot be
sustainable under law.
For which, there is justification under law for making
interference with the Judgments and Decrees passed by the
learned Trial Court in T.S. No.15 of 1982-I and 1st Appellate
Court in T.A. No.5 of 1986 and T.A. No.6 of 1986.
17. Therefore, there is merit in both the 2nd Appeals filed by
the appellants (defendant Nos.3 to 9). The same must
succeed.
18. In result, both the 2nd Appeals filed by the appellants
(defendant Nos.3 to 9) against the respondent Nos.1 to 4
(plaintiffs) are allowed on merit.
19. The part Judgment and Decree passed by the learned
Trial Court in the suit vide T.S. No.15 of 1982-I in favour of
the plaintiffs as well as the Judgments and Decrees passed by
the learned First Appellate Court in T.A. No.5 of 1986 & in
T.A. No.6 of 1986 are set aside.
20. The suit be and the same vide T.S. No.15-1982-I filed by
the plaintiffs (respondent Nos.1 to 4) is dismissed on contest
against the defendant Nos.3 to 6 and ex parte against
defendant Nos.1,2 & 7 to 9, but without cost.
(ANANDA CHANDRA BEHERA)
JUDGE
High Court of Orissa, Cuttack
24 .09. 2025// Rati Ranjan Nayak
Sr. Stenographer
Location: High Court of Orissa,
