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IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.190 of 1992 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Krushna Chandra Patro and others …. Appellants -versus- Varanasi Ananta Rao (dead) and others …. Respondents Appeared in this case:- For Appellants For Respondents : : Mr. G. Kar, Advocate Mr. S.S. Rao, Sr. Advocate assisted by Mr. B.K. Mohanty, Advocate CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing: 29.07.2025 / date of judgment: 26.08.2025 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment. 2. The appellants in this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.01 of 1986 and respondents before the 1st appellate court in the 1st appeal vide T.A. No.01 of 1989. 3.
Legal Reasoning
The respondent in this 2nd appeal was the plaintiff before the trial court in the suit vide T.S. No.01 of 1986 and appellant before the 1st appellate court in the 1st appeal vide T.A. No.01 of 1989. 4. The suit of the respondent in this 2nd appeal against the defendants(appellants in this 2nd appeal) vide T.S. No.01 of 1986 was a suit for declaration of right, title, interest, for recovery of possession and for removal of constructions. The suit land is situated inside a Basti under Government Khata No.71, Plot No.370 at Medri Sahi, Bissamcuttack described in the schedule of the plaint. 5. As per the case of the plaintiff, he purchased the suit land from one Appi Sahu for a consideration of Rs.1000/- through registered sale deed dated 05.02.1969 and on the basis of the said sale deed, he(plaintiff) got his right, title, interest and possession over the suit land. After purchasing the suit land from Appi Sahu, he (plaintiff) raised pucca foundation on the same up to ground level, but, due to his Page 2 of 15 some family trouble, he could not raise further constructions on the same, but, the defendants unauthorizedly started construction works on the foundations raised by the plaintiff on the suit land. When, the plaintiff got information about the same, he(plaintiff) went to the spot and protested against the raising of such illegal constructions on his foundations on the suit land, to which, the defendants did not pay any heed, but, they(defendants) proceeded with the construction works. For which, the plaintiff filed the suit vide T.S. No.01 of 1986 against the defendants praying for declaration of his right, title and interest over the suit land and to recover the possession of the same from the defendants directing the defendants to remove their illegal constructions from the suit land. 6. Having been noticed from the trial court in the suit vide T.S. No.01 of 1986, the defendants contested the suit of the plaintiff filing their joint written statement denying the averments made by the plaintiff in his plaint taking their pleas/stands specifically that, the defendant no.2 has purchased Ac.0.22 cents of land from Penta Suna and Page 3 of 15 Penta Mandia on 12.06.1960 through registered sale deed No.278/60 adjacent to Medri Sahi of Bissamcuttack and since then, he(defendant no.2) has been possessing his said purchased land as the owner thereof. The defendant no.1 had three cents of land to the Eastern side of the purchased land of the defendant no.2. The defendant no.2 purchased the land of the defendant no.1 on dated 10.10.1984 through registered Sale Deed No.495/84 and raised constructions on the same. They(defendants) have not raised any foundation upon any foundation raised by the plaintiff. The specific case of the defendants that, the suit Plot No.370 is situated in Medri Street and to the East of Medri Street Plot Nos.371/1 and 371/2 are situated. The said Plot Nos.371/1 and 371/2 have been recorded in the name of the defendant no.2 and there is no goli rasta leading to Medri Street from the main road in the revenue map. For which, the plaintiff is not entitled for any relief in the suit including the relief, i.e., declaration of his right, title and interest over the suit land. Therefore, the suit of the plaintiff is liable to be dismissed. Page 4 of 15 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether nine numbers of issues were framed by the learned trial court in the suit vide T.S. No.01 of 1986 and the said issues are:- I S S U ES (i) Whether the plaintiff has purchased the suit land from one Appi Sahu? (ii) Whether the plaintiff was in possession over the suit land? (iii) Whether the plaintiff has raised foundation over the suit land? (iv) Whether the defendants have constructed house over the suit site? (v) Whether the defendants have constructed house over the Plot Nos.371/1 and 371/2? (vi) Whether the suit site and plot nos.371/1 and 371/2 are different? (vii) Whether the suit is barred by limitation? (viii) Whether there is any cause of action? (ix) To what relief, if any, the plaintiff is entitled for? 8. In order to substantiate the aforesaid relief(s) sought for by the plaintiff against the defendants in his plaint, the plaintiff examined three numbers of witnesses from his side including him as P.W.2 and relied upon the documents vide Exts.1 to 6. On the contrary, in order to defeat/nullify the suit of the plaintiff, the defendants examined six numbers of Page 5 of 15 witnesses on their behalf including the defendant no.1 as D.W.6 and exhibited several of documents from their side vide Exts.A to F. 9. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the learned trial court answered all the issues against the plaintiff except issue no.7 as the said issue no.7 was not pressed by the parties and basing upon the findings and observations made by the trial court in all the issues except issue no.7 against the plaintiff, the learned trial court dismissed the suit of the plaintiff vide T.S. No.01 of 1986 on contest against the defendants as per its judgment and decree dated 07.01.1989 and dated 11.01.1989 respectively assigning the reasons that, “the suit land is a Government land. The plaintiff has got no title purchasing the same from Appi Sahu, as Appi Sahu had no title over the suit land and the plaintiff has not been able to establish his possession over the suit land. The plaintiff has also not been able to establish raising of any foundation/construction on suit land. The suit land vide Plot No.370 under Khata No.71 of Bissamcuttack mouza stands Page 6 of 15 recorded under Rakshita Anabadi Khata in the name of the Government. Plot No.370 and 371/1 and 371/2 are different and separate plots. As the plaintiff failed to establish his right, title, interest and possession over the suit land, he (plaintiff) is not entitled to get any relief in the suit.” 10. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.01 of 1986 passed by the learned trial court, he(plaintiff) challenged the same preferring the 1st appeal vide T.A. No.01 of 1989 being the appellant against the defendants arraying them(defendants) as respondents. 11. After hearing from both the sides, the learned 1st appellate court allowed that 1st appeal vide T.A. No.1 of 1989 filed by the plaintiff against the defendants and set aside the judgment and decree dated 07.01.1989 and 11.01.1989 respectively passed in T.S. No.01 of 1986 by the learned trial court and declared the possessory title of the plaintiff over the suit land entitling him(plaintiff) to recover the possession of the suit land from the defendants as per its judgment and decree dated 30.06.1992 and Page 7 of 15 08.07.1992 respectively passed in T.A. No.01 of 1989 assigning the reasons that, “even though, the plaintiff has not been able to prove his title over the suit land, as the suit land is a Government land, but, he(plaintiff) has been able to establish his possessory title over the suit land on the basis of the report of the Commissioner vide Ext.5, even if, Commissioner has not been examined during trial of the suit, but, it is established from his report vide Ext.5 that, the defendants have raised constructions on the suit land, knowing that, the suit land was under the possession of the plaintiff. For which, the possessory title of the plaintiff over the suit land is declared and he(plaintiff) is entitled to recover the possession of the suit land from the defendants.” 12. On being aggrieved with the aforesaid judgment and decree dated 30.06.1992 and 08.07.1992 respectively passed by the learned 1st appellate court in T.A. No.01 of 1989 reversing the judgment and decree of the dismissal of the suit vide T.S. No.01 of 1986 of the plaintiff passed by the learned trial court, they(defendants) challenged the same preferring this 2nd appeal vide S.A. No.190 of 1992 Page 8 of 15 being the appellants against the plaintiff arraying him(plaintiff) as respondent. When, during the pendency of this 2nd appeal, both the defendants(appellants) expired, then their legal heirs have been substituted in their places as appellants. Likewise, when during the pendency of this 2nd appeal, the plaintiff(respondent) expired, then, his legal heirs have been substituted in his place as respondents. 13. This 2nd appeal was admitted on formulation of the following substantial question of law, i.e., :- Whether, the judgment and decree passed by the learned 1st appellate court, reversing the findings and observations made by the learned trial court without considering the oral evidence concerning the possession of the suit land is sustainable under law? 14.
Legal Reasoning
I have already heard from the learned counsel for the appellants/defendants and the learned counsel for the respondent/plaintiff. 15. In the plaint of the plaintiff, he(plaintiff) has prayed for declaration of his right, title and interest over the suit land along with recovery of possession and removal of constructions against the defendants. Page 9 of 15 It is the own case of the plaintiff that, the suit land is a Government land. The same has been recorded under Rakshita Anabadi khata in the name of the Government. The plaintiff has not impleaded(arrayed) the Government(who is undisputed owner of the suit land), as a party in the suit. When, the plaintiff has prayed for declaration of his right, title and interest over the Government land(which is the suit land), then, as per law, the State(Government) is a necessary party to the suit concerning the prayer of the plaintiff, i.e., declaration of his right, title and interest over the suit land. 16. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions, i.e.,:- (i) In a case between Kalyan Kumar Bera vrs. Millan Kumar Khuntia and others : reported in 2023(1) CCC-93(Kolkata) that, whether a person is necessary party, is a question of fact, depending upon relief claim in suit. But, once it is established that, the person is a necessary party to the suit, it becomes a question of law and the same can be raised for the first time in an appeal. Non-joinder of a necessary party is a ground to dismiss a suit. (ii) In a case between Raj Chandra Bhowmick vrs. K. Habibulla and others : reported in AIR 1930 Calcutta-693(D.B.)—Absence of necessary party is a good cause to refuse declaration. and others In a case between Ch.Puspa Machilipatnam (iii) Krisna vrs. Medical SPNTD Machilipatnam Krishna : reported in 2025(3) Civil Court Cases-228(Andhra Pradesh)(Para-14) that, when the State is owner of the suit property, then, in a suit for declaration and permanent injunction, State is a necessary party represented by District Collector. In Page 10 of 15 absence of the State, the suit is bad for non-joinder of necessary party. In a case between District Collector, (iv) Srikakulam and others vrs. Bhagathi Krishana Rao and others : reported in 2010(2) CLR(S.C.)-98— In a suit for declaration of title over forest land, the State Government has not been impleaded as a party. Suit is not maintainable for non-joinder of necessary party, i.e., State. In a case between Subal Chandra Jena and (v) others vrs. Gopal Mohapara and others : reported in 2018(1) CLR-225—Suit for recovery of possession and permanent injunction over Government land— State is not impleaded—Suit is misconceived. (vi) In a case between Ashim Ranjan Das(D) By Lrs. vrs. Shibu Bodhak and others : reported in 2018(2) CCC(S.C.)-2—In a suit for declaration of title, such suit is bad for non-joinder of necessary party without impleading the party, in whose name Patta has been prepared. (vii) Ch. Surat Singh(dead) and others vrs. Manohar Lal and others in AIR 1971(S.C.)-240 that, property of a person cannot be dealt with behind his back in a suit for declaration. : reported 17. Here, in this 2nd appeal at hand, when it is the own case of the plaintiff that, the suit land is a Government land, then at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions, the State was the necessary party in the suit vide T.S. No.01 of 1986 filed by the plaintiff in respect of his relief, i.e., the declaration of his right, title and interest over the suit land. For which, the suit of the plaintiff should have been dismissed by the learned 1st appellate court confirming the Page 11 of 15 judgment and decree of the dismissal of the same passed by the learned trial court on the ground that, the suit of the plaintiff is bad for non-joinder of the necessary party(State), but, the leaned 1st appellate court has not done so. For which, the impugned judgment and decree passed by the learned 1st appellate court cannot be sustainable under law. 18. So far as the declaration of possessory title of the plaintiff over the suit land by the learned 1st appellate court in absence of the undisputed owner of the suit land, i.e., State is concerned. It is the settled propositions of law that, mere possession does not ripen to possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. 19. On this aspect, propositions of law has already been clarified in the ratio of the following decisions :- In a case between Kasinath Panda, after him (i) Manorama Patra and another vrs. Silla Satyabadi Patra, after him Silla Sundari Patra and others : reported in 106(2008) CLT-663 (Para-15)—Possession simplicitor without proof of hostile animus does not mature to possessory title. Page 12 of 15 (ii) In a case between Chatti Kanti Rao and others vrs. Palle Venkat Suba Rao : reported in 2010(4) Civil Law Times-428(S.C.)(Para-15) and reported in 2011(1) OJR(S.C.)-60—Mere possession does not ripen into the possessory title, until the possessor holds property adverse to the title of the true owner for the said purpose, In a case between Annakili (iii) vrs. A. Vedanayagam and others : reported in (2007) 14 SCC-308 that, mere possession of the land would not ripen into a possessory title for the said purpose. The possessor must have animus possidendi and to hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the limitation Act.(Para-24) 20. When, as per law, the possessory title of a party in respect of the property can only be declared against the true owner of the land and when the plaintiff has not arrayed the true owner of the suit land, i.e., State as a party in the suit and when in the plaint of the plaintiff, he has not stated that, he has been possessing the suit land having hostile animus with the true owner, i.e., State, then at this juncture by applying the principles of law enunciated in the ratio of the aforesaid decisions to this suit/appeal at hand, it is held that, the possessory title of the plaintiff over the suit land declared by the learned 1st appellate court in T.A. No.01 of 1989 cannot be sustainable under law. Page 13 of 15 21. That apart, the evidence adduced by the parties are not establishing possession of the plaintiff over the suit land. For which, the findings made by the learned 1st appellate court about the possession of the plaintiff over the suit land on the basis of the report of the Commissioner vide Ext.5 without the examination of the said Commissioner as a witness during the trial of the suit is not acceptable under law. Because, as per law, the so- called report of the Commissioner vide Ext.5 in respect of the possession of the parties over the suit land is hearsay in nature. Therefore, the findings and observations made by the learned 1st appellate court concerning the possession of the suit land in favour of the plaintiff disregarding the findings of the learned trial court cannot be sustainable under law. 22. When, as per the discussions and observations made above, the findings and observations made by the learned 1st appellate court are not legally sustainable under law, then at this juncture, there is justification under law for making interference with the judgment and decree passed Page 14 of 15 by the learned 1st appellate court in T.A. No.01 of 1989 through this 2nd appeal filed by the defendants(appellants). 23. Therefore, there is merit in this 2nd appeal filed by the defendants(appellants). The same must succeed. 24. In result, this 2nd appeal filed by the defendants(appellants) is allowed on contest against the respondent(plaintiff), but, without cost. The judgment and decree passed by the learned 1st appellate court in T.A. No.01 of 1989 is set aside and the judgment and decree passed in T.S. No.01 of 1986 by the learned trial court in dismissing the suit vide T.S. No.01 of 1986 of the plaintiff is confirmed. Orissa High Court, Cuttack The 26th of August, 2025/ Jagabandhu, P.A. ( A.C. Behera ) Judge Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 26-Aug-2025 18:27:12 Page 15 of 15