[Cites 5, Cited by 0]

Orissa High Court

Mangal Majhi And Others vs Khela Majhi (Dead) And Others on 22 January, 2026

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                        R.S.A. No.173 of 2003
    (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
    Mangal Majhi and Others             ....                             Appellants
                                               -versus-
    Khela Majhi (dead) and others ....                                  Respondents

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

                  For Appellants           -         Mr. P. R. Barik,
                                                     Advocate.

                  For Respondents          -         Mr. R.K. Agarwal,
                                                     Advocate.
                                                     Appearing on behalf of
                                                     Mr. S. Mishra,
                                                     Advocate.

                  CORAM:
                  HON'BLE MR. JUSTICE A.C.BEHERA

Date of Hearing :06.01.2026 :: Date of Judgment :22.01.2026

A.C. Behera, J. This 2nd appeal has been preferred against the

confirming judgment.

2. The appellants in this 2nd appeal were the defendant Nos.1 to 5

before the Trial Court in the suit, vide T.S. No.46 of 1996 and appellants

before the 1st Appellate Court in the 1st Appeal vide T.A. No.52 of 1999.

The respondent Nos.1 & 2 in this 2nd appeal were the plaintiffs

before the Trial Court in the suit vide T.S.46 of 1996 and respondent

Nos.1 & 2 before the 1st Appellate Court in the 1st Appeal vide T.A.

No.52 of 1999.

The respondent Nos.3 to 8 in this 2nd appeal were the defendant

Nos.6 to 11 before the Trial Court in the suit vide T.S.46 of 1996 and

respondent Nos.3 to 8 before the 1st Appellate Court in the 1st Appeal

vide T.A. No.52 of 1999.

3. The suit of the plaintiffs (respondent Nos.1 & 2 in this 2nd appeal)

before the Trial Court vide T.S.46 of 1996 was a suit for declaration,

confirmation of possession, permanent injunction, for correction of names

of the defendant Nos.1 to 5 from the R.o.R. and in alternative recovery of

possession, if they (plaintiffs) are found to be dispossessed from the suit

properties during the pendency of the suit.

4. The properties described in Schedule 'A' of the plaint are the suit

properties.

5. As per the case of the plaintiffs, one Jasmi Majhi was the common

ancestor of the plaintiffs. The said Jasmi Majhi was the wife of Khela

Majhi.

Jasmi Majhi died leaving behind her one daughter and one son i.e.

Suna and Bangi (defendant No.8).

Suna died leaving behind his two sons and three daughters i.e.

Khela (plaintiff No.1), Bhutlang (plaintiff No.2), Jasmi (defendant No.9),

Rabi (defendant No.10) and Budhuni (defendant No.11).

6. In order to have a better appreciation, the family pedigree

(genealogy) of the plaintiffs as given in the plaint is depicted hereunder

for an instant reference:

Genealogy Jasmi

=Khela (Husband)

Suna Bangi (d.8)

Khela (P.1) Bhutlang (P.2) Jasmi (D.9) Rabi (D.10) Budhuni (D.11)

7. The husband of Jasmi i.e. Khela predeceased Jasmi. The plaintiffs

and defendant Nos.9, 10 & 11 have born out of the wedlock of Jasmi and

Khela. After the death of Khela, Jasmi had illicit relationship with one

Singrai of the same village. Jasmi predeceased Singrai. Thereafter,

Singrai married to one Sunia.

The defendant Nos.1 to 7 had born through Sunia (defendant No.5)

and Singrai.

8. In order to have a better appreciation, the genealogy about the

relationship between Sunia, Singrai and defendant Nos.1 to 4, 6 & 7

given in the plaint is also depicted hereunder:

Genealogy Singrai

=Sunia (wife) (D.5)

Mangal (D.1) Fagu (D.2) Charan (D.3) Baiju (D.4) Sambari (D.6) Rui (D.7)

9. The mother of the plaintiffs i.e. Jasmi Majhi was the owner of the

suit properties i.e. the properties described in Schedule 'A' of the plaint

and the said properties were recorded in her name exclusively in the

previous settlements of the years 1913 & 1948 respectively.

After the death of Jasmi, the suit properties left by her (Jasmi)

devolved upon her son Suna Majhi exclusively and Suna possessed the

suit properties being the exclusive owner thereof. Because, Bangi being

the daughter of Jasmi had no right of succession due to the bar of Section

2(2) of the Hindu Succession Act, 1956, as they belong to Scheduled

Tribe Community.

10. It was the specific case of the plaintiffs that, they (plaintiffs) being

Santals, they are guided under old Hindu Law. For which, for the purpose

of inheritance and succession, The Hindu Succession Act, 1956 is not

applicable to them. Therefore, daughters of Suna i.e. sisters of the

plaintiffs i.e. defendant Nos.9 to 11 had/have no right of inheritance to

succeed the suit properties left by Suna. So, the defendant Nos.9 to 11

have also no interest in the suit properties like other defendants.

When, Suna died, the suit properties left by him devolved upon the

plaintiffs only, as the defendant Nos.9, 10 & 11 were debarred to succeed

in view of the bar under Section 2(2) of the Hindu Succession Act, 1956

and as such, the plaintiffs have/had been possessing the suit properties

being the owners thereof, in which, the defendants including defendant

Nos.1 to 5 have no interest. During the Hal settlement operation in the

year 1987, the defendant Nos.1 to 5 mischievously gained over the

Settlement Authorities and managed to record their names in respect of

the suit properties jointly with the plaintiffs illegally and erroneously,

though they (defendant Nos.1 to 5) had no interest in the suit properties.

When, after illegal recording of the names of the defendant Nos.1

to 5 in the suit properties jointly with the plaintiffs in the Hal R.o.R of the

year 1987, the defendant Nos.1 to 7 tried to dispossess the plaintiffs from

the suit properties forcibly and attempted to enter into the same on dated

01.09.1996, to which, plaintiffs objected and without getting any way,

they (plaintiffs) approached the Civil Court by filing the suit vide T.S.

No.46 of 1996 against the defendant Nos.1 to 7 arraying their sisters

(defendant Nos.9 to 11) as performa defendants praying for declaration of

their right, title and interest over the suit properties and to confirm their

possession on the same in alternative recovery of possession, if they

(plaintiffs) are found to be dispossessed forcibly from the suit properties

by the defendant Nos.1 to 7 during the pendency of the suit and also to

declare the recording of the names of the defendant Nos.1 to 5 in the Hal

R.o.R. of the year 1987 in respect of the suit properties jointly with the

plaintiffs as illegal and to pass other reliefs, to which, they (plaintiffs) are

entitled for.

11. Having been noticed from the Trial Court in the suit vide T.S.46 of

1996, out of all the defendants, only defendant Nos.1 to 5 filed their

written statements and contested the suit of the plaintiffs, whereas, other

defendants including the sisters of the plaintiffs i.e. defendant Nos.9, 10

& 11 were set ex-parte.

In the pleadings of the defendant Nos.1 to 5, they (defendant Nos.1

to 5) disputed to the genealogy given by the plaintiffs in their plaint

taking their specific stands that, the plaintiffs have no cause of action for

filing the suit. The suit of the plaintiffs is barred by limitation and the

same is bad for non-joinder and mis-joinder of the parties.

According to them (defendant Nos.1 to 5), Jasmi Majhi had

married to one Chandu Majhi. Through Chandu Majhi and Jasmi, one

son, namely, Singrai and one daughter, namely, Bangi (defendant No.8)

had born. Therefore, Bangi (defendant No.8) is not the daughter of Khela.

One Leke @ Malati is the daughter of Khela.

Singrai Majhi married to one Sunia Majhi and out of the wed-lock,

Singrai and Sunia, four sons and two daughters i.e. defendant Nos.1 to 4,

6 & 7 had born. After the death of Chandu Majhi, one Khela was working

as Baramasia under Jasmi. The said Khela married to one Rape Majhi and

out of their wed-lock, one son and one daughter i.e. Suna and Leke

respectively had born.

Suna Majhi died leaving behind his two sons i.e. plaintiff Nos.1

and 2 and two daughters, namely, Rabi and Budhuni (defendant Nos.10 &

11).

When, Khela is not the husband of Jasmi and the plaintiffs are not

the successors of Jasmi and Khela, then the plaintiffs have no relationship

with Jasmi and Khela. They (defendant Nos.1 to 5) are the successors of

Jasmi Majhi, but only in order to grab the suit properties from the

defendants, they (plaintiffs) have managed to record their names

erroneously in respect of the suit properties jointly with them (defendant

Nos.1 to 5).

The further case of the defendant Nos.1 to 5 in their pleadings was

that, the suit properties were recorded in the sabik settlement exclusively

in the name of Jasmi and the suit properties were the exclusive properties

of Jasmi Majhi and they (defendant Nos.1 to 5) being the successors of

Jasmi, they (defendant Nos.1 to 5) are the owners of the same.

They (defendant Nos.1 to 5) also admitted partly to the case of the

plaintiffs that, they are guided by old Hindu Law and daughters in their

community have no right of succession and the Hindu Succession Act,

1956 is not applicable to them in the matter of inheritance and succession

due to the bar under Section 2(2) of the said Hindu Succession Act, 1956.

After the death of Jasmi and her husband Singrai, the suit

properties devolved upon them (defendant Nos.1 to 5) and they

(defendant Nos.1 to 5) are the successors of Jasmi and as such, they

(defendant Nos.1 to 5) are in possession over the suit properties being the

owners thereof, but the plaintiffs are neither owner nor in possession over

the same. As the plaintiffs have no right, title, interest and possession in

the suit properties, for which, the suit of the plaintiffs is liable to be

dismissed against them (defendant Nos.1 to 5).

12. Basing upon the aforesaid pleadings and matters in controversies

between the parties, altogether 8 (eight) numbers of issues were framed

by the learned Trial Court in the suit vide T.S. No.46 of 1996 and the said

issues are:-

ISSUES

(i) Have the plaintiffs any cause of action to bring the suit?

(ii) Is the suit maintainable in its present form?

(iii) Is the suit barred by law of limitation, estoppel, waiver and acquiescence?

(iv) Is the suit bad for non-joinder and mis-joinder of the parties?

(v) Whether Khela Majhi was the husband of Jasmi through whom one son namely Suna and one daughter Bangi were born or Chandu Majhi was the husband through whom one son namely Singrai and one daughter Bangi were born?

(vi) Whether the plaintiffs have any right, title or interest over the suit land?

(vii) Whether the plaintiffs are entitled to the relief as claimed for?

(viii) To what other relief or reliefs, the plaintiffs are entitled to?

13. In order to substantiate the aforesaid relief(s) sought for by the

plaintiffs against the defendant Nos.1 to 5 in the suit vide T.S. No.46 of

1996, three witnesses were examined on their behalf including the

plaintiff No.2 as P.W.3 and relied upon series of documents from their

side vide Exts.1 to 4/b.

On the contrary, in order to nullify/defeat the suit of the plaintiffs,

four witnesses were examined on behalf of the contesting defendant

Nos.1 to 5 as D.Ws.1 to 4 including defendant No.1 as D.W.4 and relied

upon series of documents from their side vide Exts.A to B/3.

14. 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 except issue No.4 in favour of the plaintiffs and

against the defendant Nos.1 to 5, as issue No.4 was not pressed by the

parties and basing upon the findings and observations made by the

learned Trial Court in issue Nos.1 to 3 and 5 to 8, the learned Trial Court

decreed the suit of the plaintiffs as per its judgment and decree dated

11.10.1999 and 02.11.1999 respectively on contest against the defendant

Nos.1 to 5 and ex-parte against other defendants and declared the right,

title and interest of the plaintiffs over the suit properties and confirmed

their possession on the same and restrained the defendants permanently

from making interference with the possession of the plaintiffs in the suit

properties assigning the reasons that,

"The plaintiffs are the sons of Suna Majhi and Suna was the son of Jasmi Majhi. The father of the plaintiffs i.e. Suna had born out of the wed-lock of Jasmi and Khela. The reflected status of Jasmi, as the wife of Khela as well as the status of the father of the plaintiffs as the son of Khela in the undisputed/unchallenged three R.o.Rs of the suit properties made in the year 1913, 1948 and 1987 vide Exts.1, 2 & 3 as well as the oral and documentary evidence of the parties are corroborating to the case of the plaintiffs that, they (plaintiffs) are the successors of Jasmi and Jasmi was the wife of Khela, but the defendants are in no way connected/related with Jasmi and Khela. For which, they (defendant Nos.1 to 5) are not entitled to succeed/inherit the suit properties left by Jasmi."

15. On being dissatisfied with the aforesaid judgment and decree dated

11.10.1999 and 02.11.1999 respectively passed by the learned Trial

Court in the suit vide T.S. No.46 of 1996 in favour of the plaintiffs and

against defendants, the defendant Nos.1 to 5 challenged the same

preferring the 1st Appeal vide T.A. No.52 of 1999 being the appellants

against the plaintiffs and other defendants arraying them as respondents.

16. After hearing from both the sides, the learned 1st Appellate Court

dismissed to that 1st Appeal vide T.A. No.52 of 1999 of the defendant

Nos.1 to 5 on contest as per its judgment and decree dated 31.08.2002

and 09.09.2002 respectively concurring/confirming the findings and

observations made by the learned Trial Court in the judgment and decree

passed in T.S. No.46 of 1996.

17. On being aggrieved with the aforesaid judgment and decree of the

dismissal of the 1st Appeal vide T.A. No.52 of 1999 of the defendant

Nos.1 to 5, they (defendant Nos.1 to 5) challenged the same preferring

this 2nd appeal being the appellants against the plaintiffs and other

defendants arraying them as respondents.

18. This 2nd Appeal was admitted on formulation of the following

substantial question of law i.e.:-

Whether the concurrent findings and observations made by the learned Trial Court as well as learned 1st Appellate Court concerning status of Jasmi Majhi have been made inconformity with the provisions of Section 50 of the Indian Evidence Act, 1872 for making the said observations sustainable under law?

19. I have already heard from the learned counsel for the appellants

(defendant Nos.1 to 5) and learned counsel for the respondent Nos.1 & 2

(plaintiff Nos.1 & 2).

20. In order to assail the judgments and decrees passed by the learned

Trial Court and learned 1st Appellate Court, the learned counsel for the

appellants (defendant Nos.1 to 5) relied upon the following decisions i.e.

(i) 87 (1999) CLT 737; Sanatan Das and Ors Vrs.

Ahalya Dei and Ors.

(ii) (2002) 10 SCC 315; Karewwa & Ors. Vrs. Hussensab Khansaheb Wajantri and Ors.

(iii) (2020) 11 SCC 242; Pratap Singh & Ors. Vrs. Shiv Ram (dead) through LRs.

(iv) Civil Appeal No.2165 of 2009; C. Doddanarayana Reddy (Dead) by LRs & Ors Vrs. C. Jayaram Reddy (Dead) by LRs.

21. It is the undisputed case of the parties that,

"the suit properties were recorded exclusively in the name of Jasmi Majhi in the R.o.Rs of the years 1913 and 1948 vide Exts.1 & 2."

22. It is also the undisputed case of the parties that,

"the suit properties originally belong to Jasmi Majhi. The R.o.Rs of the suit properties prepared in the year 1913 and 1948 exclusively in the name of Jasmi Majhi have been marked as Exts 1 & 2 without any objection.

It has been reflected in the said R.o.Rs of the suit properties prepared in the year 1913 and 1948 vide Exts.1 and 2 that, Jasmi

Majhi is the wife of Khela and their caste is Santal, which is Scheduled Tribe.

It has also been reflected in the Hal R.o.R. of the suit properties vide Ext.3 prepared in the year 1987 that, the plaintiffs are the sons of Suna Majhi. But, the defendants are the sons of Singrai Majhi and their caste is also Santal."

23. The aforesaid unchallenged R.o.Rs vide Exts.1, 2 & 3 of the years

1913, 1948 & 1987 are showing the relationship between Jasmi, Khela

and Suna, but the entries in the said undisputed R.o.Rs vide Exts1 & 2 are

not showing any relationship of the defendant Nos.1 to 5 with Jasmi and

Khela. Because, in the R.o.Rs vide Exts.1 & 2, it has been reflected that,

Jasmi Majhi is the wife of Khela. In the R.o.R. vide Ext.3, it has been

reflected that, the plaintiffs are the sons of Suna Majhi.

24. P.W.1, who is the neighbour of the plaintiffs and defendants and

who is an old man of 70 years, he (P.W.1) has deposed in his evidence

during trial that,

"Jasmi Majhi is the married wife of Khela and Jasmi Majhi and Khela were living as wife and husband."

P.W.2, who is also an old man like P.W.1 and neighbour of the

plaintiffs and defendants, he (P.W.2) has deposed in Para No.3 in his

deposition during trial that,

"his grandfather Khanda and Khela (husband of Jasmi) were two brothers."

P.W.3 (plaintiff No.2) has deposed in his evidence by stating that,

"his father Suna Majhi was the son of Jasmi and Khela."

D.W.1 (witness of the defendant Nos.1 to 5) has deposed in his

evidence during trial of the suit answering to the questions of the learned

counsel for the plaintiffs that,

"the plaintiffs are the sons of Suna and they are the grandsons of Khela through Jasmi. Khela and Jasmi were living as husband and wife and the plaintiffs are the successors of Jasmi."

After taking the aforesaid evidence of P.Ws1 to 3 and D.W.1 as

well as the entries in the undisputed/unchallenged R.o.Rs vide Exts1 to 3

relating to the status of the Jasmi, Khela and Suna, the learned Trial Court

as well as learned 1st Appellate Court, both have concurrently held that,

the plaintiffs are the successors of Khela and Jasmi, but the defendants

are not the successors of Jasmi and Khela. For which, recording of the

suit properties jointly in the names of the defendant Nos.1 to 5 with the

plaintiffs in the R.o.R. of the year 1987 is erroneous and they (defendant

Nos.1 to 5) have no right, title, interest and possession over the suit

properties.

25. Now it will be seen,

Whether the aforesaid concurrent findings and observations made by learned Trial Court and learned 1st Appellate Court are sustainable under law?

26. In this suit/appeal at hand, the status of Jasmi Majhi has been

reflected in the two undisputed documents i.e. R.o.Rs vide Exts.1 & 2

prepared in the year 1913 & 1948 indicating/reflecting that, Jasmi Majhi

is the wife of Khela Majhi.

It is the case of the contesting defendant Nos.1 to 5 that, Jasmi

Majhi is not the wife of Khela Majhi, but she is the wife of Chandu

Majhi.

27. Now it will be seen about the relevancy and admissibility of the

status of Jasmi Majhi as the wife of Khela Majhi on the basis of

reflection/indication made in the two undisputed/unchallenged R.o.Rs of

the year 1913 & 1948 vide Exts.1 & 2 respectively.

On this aspect, the propositions of law has already been clarified in

the ratio of the following decisions:-

(i) In a case between Sanatan Das and Ors. Vrs. Ahalya Dei and Ors reported in 87 (1999) CLT 737 that, Record of Rights may not create or extinguish title, the entries in the Record of Rights raise a presumption relating to the relationship.

(ii) In a case between Mayadhar Hota and Ors. Vrs.

Krushna Chandra Hota (dead) and Ors reported in 2025 (3) Civ.C.C. 334 (Orissa) that, Record of Rights may not create or extinguish title, but entries in Record of Rights raise presumption relating to relationship. (Para 22)

28. When, the status and relationship of Jasmi Majhi with Khela Majhi

as husband and wife was reflected in the undisputed/unchallenged R.o.Rs

of the suit properties prepared in the year 1913 & 1948

indicating/reflecting that, Jasmi Majhi is the wife of Khela Majhi, then at

this juncture, in view of the principles of law enunciated in the ratio of

the above decisions, the case of the plaintiffs that, Jasmi Majhi is the wife

of Khela Majhi has become probable/believable.

Likewise, the unchallenged R.o.R. of the year 1987 vide Ext.3 is

also going to show that, the plaintiffs are the sons of Suna Majhi.

Therefore, after taking the relationship and status of the predecessors of

the plaintiffs indicated in the Exts.1 to 3, learned Trial Court as well as

learned 1st Appellate Court both have given their findings concurrently

that, the plaintiffs are the successors of Jasmi Majhi and Khela Majhi, but

the defendant Nos.1 to 5 are in no way related to Jasmi Majhi and Khela

Majhi.

So, by applying the principles of law enunciated in the ratio of the

aforesaid decisions to the above relationships indicated in the

unchallenged R.o.Rs vide Exts.1 to 3, it cannot be held that, the findings

and observations made by the learned Trial Court and learned 1st

Appellate Court that, the plaintiffs are the successors of Jasmi Majhi and

Khela Majhi and the defendant Nos.1 to 5 are not their successors cannot

be held as erroneous.

29. The unassailed testimonies of two neighbours of the parties i.e.

P.Ws1 & 2 are going to show that, Jasmi Majhi was the wife of Khela

Majhi and the father of the plaintiffs was the son of Jasmi Majhi through

Khela Majhi.

Their evidence relating to the aforesaid relationship between Jasmi

Majhi and Khela Majhi being the neighbours of the parties cannot be

inadmissible under law.

On this aspect, the propositions of law has already been clarified in

the ratio of the following decisions:-

(i) In a case between Basanta Kumar Sahu Vrs. Bhikari Charan Sahu and Ors reported in 1995 (I) OLR 516 that, Evidence of the conduct of relations, friends, and neighbours will be relevant. (Para No.5)

(ii) In a case between Gurubari Debi and another Vrs. Sukuri Debi and another reported in ILR 1966 Cuttack 193 and in a case between Jagabandhu Senapati and Ors. Vrs. Bhagu Senapati and Ors. reported in 1973 (1) C.W.R. 809 that, The person deposing must also testify that, he had special means of knowledge about the existence of the relationship either as a member of the family or otherwise.

The witnesses as to relationship in this case were no doubt co- villagers and they might have otherwise special means of knowledge about the relationship.

These facts they must clarify in their evidence and also must say as to how they knew of the relationship as being expressed by conduct.

(iii) In a case between Chandramohan Ramchandra Patil and Ors. Vrs. Bapu Koyappa Patil (dead) through LRs and Ors. reported in I (2003) Civ.L.T. 299 (SC) that, opinion as to relationship--Three pedigrees of different periods were before Court to conclude Ext.71. Not open to defendants to raise ground on correctness of finding of fact on issue of relationship. (Para Nos.4 & 5)

(iv) In a case between Nath Singh Vrs. Smt. Keshar Kaur reported in 1995 (2) Civil Court Cases 60 (P & H) that, proof of relationship as per Section 50 of the Indian Evidence Act 1872--provision does not make the evidence of a person inadmissible merely because he does not happen to be related to the party claiming to prove that relationship. Only the provision requires that, the person appearing as a witness has special means of knowledge on the subject and that knowledge may arise from being a member of family or otherwise.

30. When, the unassailed testimonies of two old neighbours of the

parties i.e. P.Ws1 & 2 are going to show that, they have their special

knowledge about the relationship between Jasmi Majhi and Khela Majhi

being the immediate neighbours of the parties that, Jasmi Majhi had

married Khela Majhi and out of their wed-lock Suna Majhi had born and

the plaintiffs are the sons of Suna Majhi, then at this juncture, on the basis

of their aforesaid special knowledge regarding the relationship of Jasmi

Majhi with Khela Majhi as husband and wife, it is held by applying the

principles of law enunciated in the ratio of the aforesaid decisions that,

the concurrent findings and observations made by the learned Trial Court

and learned 1st Appellate Court relating to the relationship between Jasmi

Majhi and Khela Majhi as husband and wife are not unreasonable.

31. The own witness of the defendant Nos.1 to 5 i.e. D.W.1 has

admitted to the case of the plaintiffs regarding the relationship between

Jasmi Majhi and Khela Majhi as husband and wife answering to the

questions of the learned counsel of the plaintiffs during cross-

examination that,

"the plaintiffs are the sons of Suna Majhi and they are the grandsons of Khela Majhi through Jasmi Majhi. Khela Majhi and Jasmi Majhi were living as husband and wife and plaintiffs are the successors of Jasmi Majhi."

32. The aforesaid admission of D.W.1 (witness of the defendant Nos. 1

to 5) to the case of the plaintiffs about the relationship between Jasmi

Majhi and Khela Majhi as husband and wife and the plaintiffs are the

successors of Jasmi Majhi is ultimately probabilising to the case of the

plaintiffs. Because, as per law, a fact admitted by a witness in cross-

examination is to be held as established. No further or other proof is

required to establish such fact.

On this aspect, the propositions of law has already been clarified in

the ratio of the following decision:-

In a case between Jolina Vrs Pratik Dhiraj Champaneri reported in 2025 (3) Civil Court Cases 730 (Gujarat) that, a fact admitted to cross-examination. No further and other proof thereof is required. (Para 24)

So, by applying to the principles of law enunciated in the ratio of

the aforesaid decision to the aforesaid admission of D.W.1 to the case of

the plaintiffs, it is established that, the plaintiffs are the sons of Suna

Majhi. Suna Majhi was the son of Jasmi Majhi through Khela Majhi. The

plaintiffs are the successors of Jasmi Majhi.

33. It is very fundamental in law that, issues of civil matters are to be

decided on a balance of probabilities.

On this aspect, the propositions of law has already been clarified in

the ratio of the following decision:-

(i) In a case between Sona Bala Bora and Ors. Vrs. Jyotirindra Bhatacharjee reported in 100 (2005) CLT 147(SC) that, In a civil matter, the issues have to be decided on a balance of probabilities.

(ii) In a case between Mayadhar Hota and Ors. Vrs. Krushna Chandra Hota (dead) and Ors reported in 2025 (3) Civ.C.C. 334 (Orissa) that, In a civil suit, issues of civil matters are to be decided on balance of probabilities that means case of which side is more probable, same is acceptable under law. (Para 21)

34. As per the discussions and observations made above, when it is

held that, the case of the plaintiffs is probable, but the case of the

defendants is improbable and when, in the concurrent findings and

observations made by the learned Trial Court and learned 1 st Appellate

Court, both the Courts have accepted to the case of the plaintiffs as

probable holding that, the pleas of the defendant Nos.1 to 5 are

improbable and on the basis of such findings, both the Courts i.e. the

learned Trial Court and the learned 1st Appellate Court have declared the

right, title and interest of the plaintiffs over the suit properties confirming

their possession on the same and both the Courts have injuncted the

defendants permanently from making any interference in the possession

of the plaintiffs over the suit properties, then at this juncture, the question