Afr Sk. Idrish vs Sk. Khoda Box And Others
2026 Latest Caselaw 1301 Ori

Orissa High Court

Afr Sk. Idrish vs Sk. Khoda Box And Others on 12 February, 2026

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

              IN THE HIGH COURT OF ORISSA AT CUTTACK
                          SA No.46 of 2000

      [In the matter of an appeal under Section 100 of CPC from
      Judgment dated 28.10.1999 followed by decree dated
      02.11.1999 passed by the learned Addl. District Judge,
      Bhadrak in Title Appeal No.32 of 1997 arising out of the
      judgment dated 22.04.1997 followed by decree dated
      07.05.1997 passed by learned Civil Judge (Jr. Division)
      Bhadrak in T.S. No.337 of 1990]


AFR   Sk. Idrish                              ....    Appellant

                               -Versus-

      Sk. Khoda Box and others                .... Respondents



      Advocate(s) appeared in this case:
      For the Appellant   :M/s. Maheswar Mohanty, S. Mohanty, &
                           J.K. Biswal, Advocates


      For Respondents     : Mr. S.P. Mishra, Sr. Advocate
                            with Mr. R.K. Agarwal, Advocate
                           [For R. 1, 2, 3, & 4(Ka)

                          Mrs. Jyotsnamayee Sahoo,
                          Addl. Standing Counsel [ For R-5]


      CORAM:
               JUSTICE SASHIKANTA MISHRA




                                                         Page 1 of 19
                                 JUDGMENT

th 12 February, 2026

SASHIKANTA MISHRA, J.

This is a defendant's appeal against a reversing

judgment. The judgment passed by learned Civil Judge (Jr.

Division) Bhadrak in Title Suit No.337 of 1990-I on

22.04.1997 followed by decree dismissing the suit of the

plaintiffs was reversed by judgment passed by learned Addl.

District Judge, Bhadrak on 28.10.1999 followed by decree in

Title Appeal No.32 of 1997.

2. For convenience, the parties are referred to as

per their respective status before the Trial Court.

3. The plaintiffs filed the suit for declaration of

right, title and interest over the suit land and for declaration

that defendants have no manner of right, title, interest over

the same, confirmation of possession, recovery of possession,

if found dispossessed, and for declaration that the Tenant

Ledger (TL) and MS ROR as wrong and for declaration that

the suo motu case and mutation case in respect of the suit

land is illegal, void and not acted upon along with permanent

injunction.

4. Briefly stated, the case of the plaintiffs is that

the suit Khata being CS Khata No.56 was recorded in the

name of Jagannath Mahaprabhu and Hemayat Alli Sa with

Gajendra Naik, Pranakrushna Naik and Mahendra Nayak as

marfartdars. Both Hemayat Alli and Jagannath Mahaprabhu

had half share each. In an amicable partition, the suit land

fell to the share of Hemayat Alli and while possessing the

same, he transferred C.S. Plot No. 1086 measuring Ac.0.01

decs. along with other disputed lands to Gulfat Bibi and

deceased plaintiff No.4 on 08.08.1931 by a registered

permanent lease deed and delivered possession. On

06.08.1931, Hemayat Alli also transferred CS Plot No. 1085

measuring Ac.0.05 dec. along with other disputed lands to

the father of plaintiff No.2 and delivered possession. Plaintiff

No.4 had got half share in CS Plot No.1086. Gulfat Bibi gifted

away her half share of CS Plot No. 1086 along with other

disputed land to plaintiff No.1 by a registered gift deed dated

26.02.1965 and delivered possession. One Sk. Reheman was

possessing CS Plot No.1085 and after him, plaintiff No.2

being his son, possessed the same. The deceased plaintiff

No.4, Sk. Rehaman and Gulfat Bibi constructed a house over

the suit land and paid rent to the ex-landlord, which was

subsequently demolished. The daughters of Hemayat Alli are

paradanashin ladies and Sk. Rehaman was an illiterate man.

On the other hand, Gulam Nabi and defendant No.1- Sk.

Idrish are clever persons and after death of Hemayat Alli and

abolition of estate, Gulam Nabi managed to prepare Tenant

Ledger (TL) and also paid rent. According to plaintiffs, no

enquiry was conducted as per law before preparation of TL.

Gulam Nabi could not have acquired title by virtue of TL.

Further, no enquiry was made before preparation of MS ROR

for which Gulam Nabi and defendant No.1 managed to record

their names in respect of CS Plot No. 1085 by influencing the

authorities while CS Plot No. 1086 was recorded as

'Abadajogya Anabadi'. Since defendant No.1 created

disturbance over the suit land by disclosing that TL and MS

ROR had been prepared in his name, a proceeding under

Section 145 of Cr.P.C. was initiated. In course of such

proceeding, defendant No.1 disclosed about a suo motu case

bearing No. 21/1 of 1983 being initiated by Tahasildar,

Chandbali and Mutation Case No.21/87 whereby, the suit

land had been recorded in his name which, according to the

plaintiff, is void as no notice was ever served on them nor

any spot enquiry was made. The sale deed executed in favour

of defendant No.1 is void and never acted upon. In the

proceeding under Section 145 Cr.P.C., both the parties were

restrained to come over the suit land. On such facts, the suit

was filed claiming the reliefs as already stated hereinbefore.

5. Defendant No.1 contested the suit by filing

written statement denying all the plaint averments. It is his

case that his father and Gulam Nabi are two brothers.

Gajendra Nayak and others, being the marfatdars of

Jagannath Mahaprabhu have 12 annas and 8 pahi interest

over the suit land and Gulam Nabi and father of defendant

No.1 were tenants with rent being fixed in their favour about

60 years back. The suit land was leased out for agricultural

purposes but Gulam Nabi and his father reclaimed the same

and constructed their dwelling house over it by paying rent to

the ex-landlord. Since Gulam Nabi was the eldest brother,

ekpadia was given by the ex-landlord to his name and

according to their possession, MS Plot No. 729 corresponding

to CS Plot No.1085 was recorded in the name of Gulam Nabi

and MS Plot No. 1086 was recorded in the name of

Government and they have been paying rent to Government.

It is the further case of the defendant No.1 that his lands and

that of Gulam Nabi had been partitioned, whereby the suit

land fell to his share and his dwelling house stands over the

same and he has been possessing it within one enclosure.

6. Defendant No.2 being the State of Odisha did not

file any written statement but contested the suit.

7. Basing on the rival pleadings, the trial Court

framed the following issues for determination:

1. Have the plaintiffs any cause of action?

2. Is the suit barred by law of limitation?

3. Have the plaintiffs acquired any right, title, interest over the suit land?

4. Is the M.S entry in respect of the suit land wrong and liable to be set aside.

5. Is the deed of gift dt. 26.06.65 in favour of the plaintiffs genuine, valid and acted upon?

6. Are the registered permanent lease deeds 06.08.31 and 08.08.31 in favour of the plaintiffs valid and acted upon?

7. Have Gulam Nabi and Sk. Kala acquired occupancy right in the suit property.

8. Is the plaintiffs possession is true?

9. Whether the defendant no.1 has got right, title, interest over the suit land?

10. Is the property valued and court fees properly paid?

11. What other reliefs, the plaintiffs are entitled?"

8. Issue Nos.3, 5, 6, 7 and 9 were taken up

together for consideration by the trial Court at the outset.

After going through the oral and documentary evidence on

record such as, Exts-19, 6 and 7, the trial Court found that

both Hemayat Alli and Jagannath Mahaprabhu were owners

of the suit Khata and the suit land but it was held that there

was no document from either side regarding amicable

partition between the ex-landlords and the so-called

allotment of shares. Referring to Ext-19, the trial Court found

that Jagannath Mahaprabhu has 12 Annas and 8 Pahi share

while Hemayat Alli had only 3 Annas and 2 Pahi share over

the suit land and therefore, it was doubtful as to how

Hemayat Alli could transfer the entire suit land in favour of

his two daughters when the plea of partition is not proved.

On the admissibility of the lease deed dated 06.08.1931 (Ext-

20), the trial Court, relying upon the judgment passed by this

Court in Bhaskar Sahu vs. Anama Swara and others1 held

that Ext-20 being a certified copy, is not admissible in

evidence as the plaintiffs had not laid foundation for leading

secondary evidence. The Trial Court also found that the land

as per CS ROR being not correct, the gift deed executed by

Gulfat Bibi is also not correct. The Trial Court also negatived

the plea of possession of the plaintiffs. On the other hand, it

found that the defendant No.1 had a valid base to claim title

such as TL, rent receipts, MS ROR etc. as the same was

effected on the basis of suo motu case and mutation case.

The trial Court thus, disbelieved that the CS Plot No.1086

was sold to defendant No.1 by Gulam Nabi and that his

possession was confirmed by the Amin's report as well as the

AIR 1987 ORISSA 138

order of the Tahasildar. The relevant entry in the Jamabandi

register (Ext-H) was also relied upon to hold that tenancy

right was created in favour of Gulam Nabi thereby as the ex-

landlord had accepted rent for him. The Trial Court did not

find any proof that the marfatdars of Jagannath Mahaprabhu

delivered possession to Gulam Nabi and the father of

defendant No.1. It was thus, held that the suit land belonged

to Jagannath Mahaprabhu, which was leased out the same

in favour of Gulam Nabi and father of defendant No.1, which

is under their possession for more than 40 years, having a

house standing thereon. Considering the evidence as a

whole, the Trial Court held that the plaintiffs had not been

able to establish their right, title and interest as well as

possession, rather the defendant No.1 has right, title,

interest and possession over the suit land.

9. The remaining issues were also answered

against the plaintiffs and the suit was dismissed.

10. Being aggrieved, the plaintiffs carried appeal,

which was heard by learned Addl. District Judge, Bhadrak.

After reappreciating the evidence on record, the First

Appellate Court was of the view that as per the settled

principle of law, no oral lease can be made in respect of

property belonging to the deity and therefore, finding to the

contrary of the Trial Court is illegal. It was held that the

documents marked Exts.4 and 18 are old documents

belonging to the year 1931 and therefore, genuineness

cannot be doubted on flimsy ground. With regard to Ext.20

also, the First Appellate Court held that the judgment of this

Court relied upon by the trial Court is not applicable to the

facts of the case as the documents in question had been

admitted into evidence with objection raised from the side of

the defendants. The First Appellate Court therefore, believed

the lease deeds marked Exts-4 and 20, the rent receipts

marked Ext- 5 series and the gift deed marked Ext-8 to hold

that the ex-landlords had executed the lease deeds as proved

by the plaintiffs. As regards the TL, it was held that a person

cannot acquire title on such basis alone. Referring to the

order passed by the Tahsildar in suo motu case No. 21/1987,

the First Appellate Court held that the case was closed on

08.09.1987 and thereafter, the Tahasildar directed defendant

No.1 to file a Misc. Case for correction and on 16.09.1987,

the land was settled in his name, which is illegal. Notice as

contemplated in the proviso to Section 8-A(2) being a

mandatory provision was not complied with in the suo motu

case and therefore, the procedure adopted was illegal. Thus,

on such findings it was held that the plaintiffs have acquired

right, title, interest and possession over the suit land on the

strength of registered lease deeds vide Exts-4, 18 and 20. The

appeal was thus, allowed by reversing the judgment of the

trial Court and by granting the reliefs claimed by the

plaintiffs.

11. Being further aggrieved, defendant No.1 has filed

the instant appeal, which was admitted on the following

substantial questions of law:

a) As to whether the legality and propriety of an order passed by a statutory authority under the O.E.A. Act can be examined by the Civil Court. Even though it is expressly barred under section 39 of O.E.A. Act.

(b) As to whether the marfatdars of the deity Lord Jagannath who is a recorded tenant in respect of the suit property can induct a lease for agricultural purpose by accepting the rent in an oral lease."

12. Heard Mr. Maheswar Mohanty, learned counsel

for the defendant No.1-appelalnt and Mr. R.K. Agarwal,

learned counsel appearing for the plaintiff-respondents. Also

heard Mrs. J. Sahoo, learned Addl. Standing Counsel

appearing for the State.

13. Mr. Mohanty would argue that the trial Court

relying upon Ext-17 rightly held that public notice was

issued but no objection was received during the relevant

period. Accordingly, the Tahasildar passed order under Ext-

14. This aspect has not been considered by the First

Appellate Court. Mr. Mohanty further argues that it is settled

law that if any procedural illegality or irregularity is shown,

the Civil Court can interfere, but in the instant case no such

contingency arises. It is also argued that defendant No.1

proved the TL (Ext-B) and rent receipts issued by the ex-

landlords (Ext-G series) and relevant entry in the Jamindar

hand register (Ext-H), which proved that Sk. Gulam Nabi was

inducted as a lessee for agricultural purposes. Ext-L being a

registered partition deed dated 11.08.1987 shows that the

land was partitioned between Gulam Nabi and defendant

No.1 and the Amin Report (Ext-13) proved that Gulam Nabi

had sold the suit land to defendant No.1, whose possession

was also reported. Referring to the documents admitted as

additional evidence during pendency of the Second Appeal,

Mr. Mohanty shows that the suit land has been recorded not

only in the major settlement in favour of Defendant No.1 but

also in the consolidation ROR.

14. Per contra, Mr. R.K. Agarwal would argue that

defendant No.1 not being an ex-landlord or a tenant, the suit

land is not liable to be settled in his name under Section 6, 7

or 8 of the OEA Act. Therefore, the order of the OEA

authority must be held to be without jurisdiction. The tenant

can only claim recognition as such and not settlement of the

land. In the absence of ekpadia, the TL loses its significance

and, on such basis alone, no right can be said to have been

acquired in respect of the property. Mr. Agarwal further

argues that the mandatory provision under the proviso to

Section 8A (2) regarding public notice and proclamation was

not complied with for which settlement of land in favour of

Defendant No.1 is illegal. Further, as rightly held by the First

Appellate Court, no oral lease can be made in respect of

deity's property. Exts- 4, 8 and 20 clearly show that the suit

land fell to the share of Hemayat Alli in an amicable partition

and was leased out to the plaintiffs. The Trial Court wrongly

disbelieved the old documents even though the same could

have been admitted as secondary evidence. As regards the

documents admitted as additional evidence, Mr. Agarwal

would argue that preparation of consolidation ROR after

denotification under Section 5 of the OCH & PFL Act on

06.09.2012 will not create any right in favour of defendant

No.1 and will also not create a bar for the Civil Court (this

Court) to adjudicate the appeal on its merit. In any case, the

consolidation ROR having been prepared ignoring the

judgment and decree passed by the First Appellate Court, is

not binding.

15. As to the first substantial question of law, it is

trite law that Section 39 of the OEA Act places a bar on the

Civil Court in respect of an order passed by the statutory

authority under such Act but then, it is equally well settled

that if there is any procedural illegality or irregularity in the

OEA proceeding, the Civil Court can interfere. Reference in

this regard may be had to the judgment of the Supreme

Court in the case of 1973 (2) CWR 1285.

16. In the case at hand, it is the case of the plaintiffs

that no public notice or proclamation was issued as

contemplated by the proviso to Sub-Section (2) of Secction 8-

A of the Act. Ext-14 is the order passed by the Tahasildar in

Misc. Case No. 21 of 1987. Ext.14 to 17 shows that objection

was invited from the public and the order was passed and no

objection was received during the relevant period. It has not

been demonstrated as to how this finding of the trial Court is

wrong or perverse etc. There is no dispute with regard to the

proposition of law as laid in the full bench judgment of this

Court in Basanti Kumar Sahoo vs. State of Odisha2 that

where an authority usurps jurisdiction not vested in it, its

decision is available to be annulled by a superior Court. But

on facts, this Court, as already stated, has found that the

Trial Court, relying upon Ext-17 held that public notice was

1992 (1) OLR 41

served and therefore, negatived the plea of the plaintiffs

regarding adoption of illegal procedure by the OEA authority.

The First Appellate Court has not considered the above

documents while finding fault with the judgment of the Trial

Court and therefore, its finding cannot be sustained. The

substantial question of law No.1 is answered accordingly.

17. As regards, substantial question No.2, it is not

disputed that the title cannot be claimed by a person only on

the basis of TL or rent receipts but then the cumulative effect

of all documents relied upon by the party and their

comparative worth with that of the evidence adduced by the

other party have to be considered. In this respect, the trial

Court has raised a doubt and, according to this Court validly

so, that when the ex-landlords Jagannath Mahaprabhu and

Hemayat Alli had 12 annas 8 pahi and 3 annas 2 pahi share

respectively of the suit property as evident from Ext-19, how

could Hemayat Alli be accepted to have transferred the entire

suit land in favour of his two daughters more so, when the

claim of partition between the ex-landlords was not proved.

These aspects, which go to the root of the matter have not

been considered at all by the First Appellate Court rendering

his judgment vulnerable.

18. Another important aspect is the finding of the

First Appellate Court regarding admissibility of certified copy

of the lease deed marked, Ext-20. It is settled law that

certified copy of a document being in the nature of secondary

evidence is admissible in evidence provided the foundation

has been laid by the concerned party seeking its admission.

The provision under Section 65 of the Evidence Act is

mandatory. Law is too well settled in this regard for any

judgment to be cited. The First Appellate Court on the other

hand, has brushed aside the objection raised on the ground

that the certified copy of the registered document is a public

document as per Section 74(2) of the Registration Act and

when the same is marked without objection no one can

object at a later stage. Firstly, this contradicts his own

finding in paragraph-12 of the judgment that objection was

raised from the side of the defendants and the certified copy,

which is a public document, was marked as such. The

conditions necessary to adduce secondary evidence as

contemplated under Section 65 of the Indian Evidence Act

have not been considered at all.

19. Coming to the comparative worth of the

documentary evidence adduced by the parties, this Court

finds that the trial Court relied upon the TL and rent receipts

issued by the ex-landlord and the entry in the hand register

to hold that Sk. Gulam Nabi was inducted as lessee for

agricultural purpose. Further, Ext-A being the registered

partition deed dated 11.08.1987 disclosed partition between

Sk. Gulam Nabi and defendant No.1. The fact of sale of land

by Gulam Nabi to defendant No.1 and of the latter's

possession is proved from the Amin's report vide Ext-13. As

against the overwhelming evidence as above, the First

Appellate Court has simply brushed aside the evidence

adduced by the defendant No.1 by generally holding that title

cannot be claimed on the basis of TL. From what has been

narrated before, this Court is unable to persuade itself to

accept the reasoning adopted by the First Appellate Court as

correct. The substantial question of law No.2 is answered

accordingly.

20. From a conspectus of analysis of facts, law and

the contentions raised, this Court is of the considered view

that the impugned judgment cannot be sustained in the eye

of law warranting interference.

21. In the result, the appeal is allowed. The

impugned judgment of the First Appellate Court and the

decree passed are set aside. The judgment and decree passed

by the Trial Court are hereby confirmed.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack The 12th February, 2026/ A.K. Rana, P.A.

Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2026 16:23:29