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IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.115 of 1988 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Arnapurna Sweta Kar (dead) and others …. Appellants -versus- Nikunja Kishore Ratha (dead) and others ..... Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - For Respondents- Mr. R. C. Rath, Advocate. Mr. B. P. Rath, Advocate. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :24.10.2025 :: Date of Judgment :23.12.2025 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment. 2. The appellants and respondent No.2 in this 2nd appeal were the defendants before the Trial Court in the suit vide T.S. No.125 of 1981 and respondents before the 1st Appellate Court in the First Appeal vide T.A. No.2 of 1987. The predecessor of the respondent Nos.1(a) to 1(d) in this 2nd appeal i.e. Nikunja Kishore Ratha was the sole plaintiff before the Trial Page 1 of 22 {{ 2 }} Court in the suit vide T.S. No.125 of 1981 and appellant before the 1st Appellate Court in the 1st appeal vide T.A. No.2 of 1987. 3. The suit of the plaintiff-Nikunja Kishore Ratha (respondent No.1 in this 2nd appeal) before the Trial Court vide T.S. No.125 of 1981 against the defendants (appellants and respondent No.2 in this 2nd appeal) was a suit for declaration and rectification/correction of the sale deeds dated 21.02.1969 (Ext.2) and 16.01.1981 (Ext.1). The suit land is Khata No.374, Plot No.563, Ac0.24 decimals in village Baransa. 4. The case of the plaintiff (Nikunja Kishore Ratha) as per the averments made in his plaint against the defendants was that, the suit land originally belonged to the defendant No.1. The defendant No.1 sold the
Legal Reasoning
suit land to the defendant No.3 on dated 21.02.1969 by executing and registering a sale deed and the defendant No.3 was possessing the suit land. Then he (defendant No.3) sold the same to the plaintiff on dated 16.01.1981 (Ext.1) by executing and registering the sale deed and delivered possession thereof. The sale deed dated 16.01.1981 (Ext.1) was executed by the defendant No.3 in favour of the plaintiff on the basis of the previous sale deed dated 21.02.1969 (Ext.2) executed by the defendant No.1 in his favour and accordingly, the plaintiff was the owner Page 2 of 22 {{ 3 }} and in possession over the suit land i.e. over Ac0.24 decimals of suit plot No.563 under Khata No.374. Though, the previous sale deed dated 21.02.1969 (Ext.2) was executed in favour of the defendant No.3 in respect of the suit plot No.563, but inadvertently, instead of Plot No.563, Plot No.562 was written in the said sale deed dated 21.02.1969 and the said wrong writing of plot number in the sale deed dated 21.02.1969 was not within the knowledge of defendant No.3 or the plaintiff. In fact, the sale transaction was made through RSD dated 21.02.1969 (Ext.2) only in respect of the Plot No.563, but not in respect of Plot No.562. As, there was mis-description of Plot No.562 instead of its real Plot No.563 in the sale deed dated 21.02.1969 (Ext.2), the same mistake was repeated in its subsequent sale deed dated 16.01.1981 (Ext.1) executed by defendant No.3 in favour of the plaintiff. But, in fact, the suit Plot No.563 was sold to the plaintiff by the defendant No.3, but not Plot No.562 and the plaintiff is the owner and in possession over Plot No.563 through RSD dated 16.01.1981 (Ext.1). On dated 26.06.1981, the defendant No.1 threatened plaintiff and claimed Plot No.563 as his land. For which, on that day i.e. on 27.06.1981, the plaintiff came to know for the first time on verification of the sale deeds and revenue records that, there was mis-description of the Page 3 of 22 {{ 4 }} sold plot number in the previous sale deed dated 21.02.1969 (Ext.2) executed by the defendant No.1 in favour of his vendor i.e. the defendant No.3, for which, the said mis-description had continued in the next sale deed dated 16.01.1981 (Ext.1) executed by the defendant No.3 in his favour. But, in fact, the transacted plot number was 563, but not 562. The defendant No.1 either due to mistake or out of mischief had supplied Plot No.562 in place of Plot No.563 to the scribe at the time of scribing/writing the sale deed dated 21.02.1969 (Ext.2) in favour of the defendant No.3, for which, the scribe committed such mistake copying out the land for sale from its previous sale deed dated 21.02.1969 (Ext.2), when he scribed/written the sale deed in favour of the plaintiff on dated 16.01.1981. As such, the intended subject matter of the transaction of the suit land i.e. plot No.563 was indicated in the sale deed dated 16.01.1981 (Ext.1) in favour of the plaintiff by-mistake as plot No.562 as well as due to the fraudulent action of defendant No.1. In fact, the defendant No.3 had purchased the suit plot No.563 through RSD dated 21.02.1969 (Ext.2) from the defendant No.1 and he (defendant No.1) had sold the same to the plaintiff. When the mis-description of the sold Plot No.562 had occurred in the sale deed dated 21.02.1969 (Ext.2), the same was Page 4 of 22 {{ 5 }} repeated in the sale deed dated 16.01.1981 (Ext.1) in favour of the plaintiff. As, the plaintiff is the real purchaser of the suit plot No.563 and the suit plot No.563 was purchased by his vendor i.e. defendant No.3 through the sale deed dated 21.02.1969 (Ext.2) and his vendor i.e. defendant No.3 was in possession over the same and thereafter, the plaintiff is in possession over the same purchasing the same from the defendant No.3 through sale deed dated 16.01.1981, for which, he (plaintiff) has perfected his title over the suit properties by way of adverse possession. When, the defendant No.1 threatened him (plaintiff) to possess the suit plot No.563 as owner of the same, then without getting any way, the plaintiff (Nikunja Kishore Ratha) approached the Civil Court by filing the suit vide T.S. No.125 of 1981 against the defendants praying for a declaration that, “the sale deed dated 21.02.1969 (Ext.2) executed by the defendant No.1 in favour of the defendant No.3 and sale deed dated 16.01.1981 (Ext.1) executed by the defendant No.3 in favour of the plaintiff contains mis-description of plot number and to rectify/correct the sold land in the sale deeds dated 21.02.1969 (Ext.2) and 16.01.1981 (Ext.1) from Plot No.562 to Plot No.563 and to pass any other relief, to which, the plaintiff is entitled for.” Page 5 of 22 {{ 6 }} 5. Having been noticed from the Trial Court in the suit vide T.S. No.125 of 1981, the defendant No.3 (vendor of the plaintiff) was set ex parte. The defendant Nos.1 & 2 contested the suit of the plaintiff by filing their joint written statement denying the averments made by the plaintiff in his plaint taking their stands that, the defendant No.1 and father of the defendant No.2 had sold some properties of the plot No.562 to the defendant No.3 through sale deed dated 21.02.1969 (Ext.2), but he (defendant No.1) had never sold any portion of Plot No.563 to the defendant No.3 and as such, the defendant No.3 was the purchaser of Plot No.562 through RSD dated 21.02.1969 (Ext.2), but not Plot No.563. There was also no mis-description of plot number in the sale deed dated 21.02.1969 (Ext.2) as well as in the sale deed dated 16.01.1981 (Ext.1). For which, the question of declaration that, the sale deed dated 21.02.1969 (Ext.2) executed by the defendant No.1 in favour of the defendant No.3 and sale deed dated 16.01.1981 (Ext.1) executed by the defendant No.3 in favour of the plaintiff contains mis-description of plot number does not arise. Likewise, the question of rectification/correction of the transacted plot number in the sale deeds dated 21.02.1969 (Ext.2) and 16.01.1981 Page 6 of 22 {{ 7 }} (Ext.1) also does not arise. That apart, the suit of the plaintiff is barred by limitation. Because, correction/rectification of the plot number in the sale deed dated 21.02.1969 (Ext.2) has been sought for by the plaintiff eleven years after the execution of the same. The plaintiff has no cause of action for filing the suit. As per law, the plaintiff is not entitled for the reliefs sought for by him. For which, the suit of the plaintiff is liable to be dismissed against them (defendant Nos.1 & 2). 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 6 (six) numbers of issues were framed by the learned Trial Court in the suit vide T.S. No.125 of 1981 and the said issues are:- I S S U E S (i) Is the suit maintainable? (ii) Has the plaintiff any right, title, interest in the suit land? (iii) Has the plaintiff any cause of action to bring the suit? (iv) Is the suit property transferred to the plaintiff? (v) Is the suit barred by limitation and plaintiff has acquired right by adverse possession? (vi) To what relief, if any, the plaintiff is entitled to? 7. In order to substantiate the aforesaid relief(s) sought for by the plaintiff against the defendants in the suit vide T.S. No.125 of 1981, he (plaintiff) examined five numbers of witnesses from his side including Page 7 of 22 {{ 8 }} him (plaintiff) as P.W.1 and relied upon series of documents on his behalf vide Exts.1 to 4. On the contrary, in order to nullify/defeat the suit of the plaintiff, the contested defendant Nos.1 & 2 examined 7 (seven) numbers of witnesses from their side including the defendant No.2 as D.W.1 and exhibited series of documents on their behalf vide Exts.A to C. 8. 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 against the plaintiff and in favour of the defendant Nos.1 & 2 except issue No.1, as issue No.1 was not pressed by the parties. Basing upon the findings and observations made by the learned Trial Court in the issues against the plaintiff, the learned Trial Court dismissed the suit of the plaintiff vide T.S. No.125 of 1981 on contest against the defendant Nos.1 & 2 and ex parte against the defendant No.3 as per its judgment and decree dated 22.11.1986 and 08.12.1986 respectively assigning the reasons that, “it is established that, there was no mis-description of properties in the sale deeds dated 21.02.1969 (Ext.2) and 16.01.1981 (Ext.1) respectively. Because, the suit plot No.563 was not transferred (transacted) through the sale Page 8 of 22 {{ 9 }} deeds vide Exts.2 & 1. For which, the plaintiff has no title over suit plot No.563, as he has not purchased the same through the sale deed dated 16.01.1981 (Ext.1) and his vendor (defendant No.3) had not purchased the same from the defendant No.1 through the sale deed dated 21.02.1969 vide Ext.2. Therefore, the plaintiff has failed to acquire title through adverse possession over the suit properties.” 9. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.125 of 1981 passed by the learned Trial Court, the plaintiff challenged the same preferring the 1st appeal vide T.A. No.2 of 1987 being the appellant against the defendants arraying them (defendants) as respondents. 10. After hearing from both the sides, the learned 1st Appellate Court allowed that 1st Appeal vide T.A. No.2 of 1987 of the plaintiff as per its judgment and decree dated 21.11.1987 and 09.12.1987 respectively and set aside to the judgment and decree of the dismissal of the suit vide T.S. No.125 of 1987 passed by the learned Trial Court and decreed the suit of the plaintiff vide T.S. No.125 of 1981 on contest and declared that, the sale deed dated 21.02.1969 (Ext.2) executed by the defendant No.1 in favour of the defendant No.3 and the sale deed dated 16.01.1981 (Ext.1) executed by the defendant No.3 in favour of the plaintiff has contained mis-description of plot number and the said sale deeds really conveyed Page 9 of 22 {{ 10 }} the suit land measuring an area A0.24 decimals out of the plot No.563 and the plot No.562 in the sale deeds be substituted and corrected as Plot No.563 assigning the reasons that, “in both the sale deeds, and the boundaries of Plot No.563 have been reflected, but not the boundary of Plot No.562. For which, the transferred land was suit plot No.563, but not Plot No.562 and as such, there was mis-description of plot number in both the sale deeds and the intention of the parties were in selling Plot No.563, but not Plot No.562. For which, the learned Trial Court has not properly accessed the evidence and true purport of the sale deed dated 21.02.1969 (Ext.2) and for which, the learned Trial Court arrived at incorrect findings on all aspects except on question of adverse possession claimed by the plaintiff in the suit land. For which, learned 1st Appellate Court set aside the judgment and decree passed by the learned Trial Court and decreed the suit of the plaintiff as per its judgment and decree as stated above.” 11. On being aggrieved with the aforesaid judgment and decree dated 21.11.1987 and 09.12.1987 respectively passed by the learned 1st Appellate Court in T.A. No.02 of 1987, the defendant Nos.1 & 2 challenged the same preferring this 2nd appeal being the appellants against the plaintiff and the defendant No.3 arraying them as respondent No.1 & 2 respectively. Page 10 of 22 {{ 11 }} 12. When during the pendency of the 2nd appeal, the sole plaintiff- Nikunja Kishore Ratha (respondent No.1 in this 2nd appeal) expired, then in his place, his LRs have been substituted as respondent Nos.1(a) to 1(d). 13. This 2nd appeal was admitted on formulation of the following substantial questions of law i.e.:- the learned 1st appellate Court (i) Whether is justified in allowing the relief for rectification of the plot number in the sale deeds vide Exts.2 & 1 after expiry of the statutory period of limitation provided under Article 59 of the Indian Limitation Act, 1963 specifically when the instant suit is being filed in 1981 and sale deed (Ext.2) executed in the year 1969 and the same was within the knowledge of the vendor of the plaintiff i.e. defendant No.3? (ii) When the contents of the sale deeds vide Exts.2 & 1 are unambiguously clear about the sold land i.e. plot No.562 and the parties had sold plot No.562, then even if, there is some incorrect description of boundary of the sold plot number, then whether the said plot number can be corrected as per law on the basis of the boundary? (iii) Whether judgment and decree regarding the rectification of the sale deeds vide Exts.2 & 1 in respect of the plot number transacted therein is legally sustainable? (iv) Whether, the contents of the sale deeds vide Exts.2 & 1 were unambiguous and the same were not within the knowledge of defendant No.3, defendant No.1 and the plaintiff? (v) Whether Ext.A i.e. the so-called letter of the defendant No.3 can supersede the contents of Exts.2 & 1 relating to the plot for sale indicated in the deeds vide Exts.2 & 1? Page 11 of 22 {{ 12 }} 14. I have already heard from the learned counsel for the appellants
Legal Reasoning
and learned counsel for the respondents. 15. When, all the aforesaid formulated substantial questions of law are interlinked according to the findings and observations made by the learned Trial Court and learned 1st Appellate Court in their respective judgments and decrees on the basis of the pleadings and evidence of the parties, then all the aforesaid substantial questions of law are taken up together analogously for their discussions hereunder. 16. The relief i.e. rectification of plot number in the sale deeds, which was sought for by the plaintiff in the suit vide T.S. No.125 of 1981 comes within the purview of Section 26 of the Specific Relief Act, 1963. In order to get a decree in a suit filed by the plaintiff under Section 26 of the Specific Relief Act, 1963 for rectification of a sale deed like the suit at hand vide T.S. No.125 of 1981, the essentials thereof must be pleaded by the plaintiff or plaintiffs and the same must proved. 17. The essentials of Section 26 of the Specific Relief Act, 1963 are as follows:- (a) there must be fraud or mutual mistake of the parties to the deed i.e. the real intention of the parties was not expressed in the instrument in respect of which, the rectification sought for in the suit. Page 12 of 22 {{ 13 }} (b) such rectification must have been sought for either by the parties to the deed in question or their representatives. (c) there must be an issue relating to the rectification in the suit. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i) In a case between Joseph John Peter Sandy Vrs. Veronica Thomas Rajkumar and Anr. reported in AIR 2013 (SC) 2028, 2013 (3) Civ.C.C. 270 (SC) & 2013(1) Civ.L.T. 389 (SC) that, the Section 26 of the Specific Relief Act, 1963 for rectification of a deed is applicable only where it is pleaded and proved that, through fraud or mutual mistake of the parties, the real intention of the parties is not expressed in relation to an instrument. Such rectification is permissible only by the parties to the instrument and by none else. (Para 7) (ii) In a case between Themma Vrs. Infant Jesus Church and Ors. reported in 2016 (4) Civ.C.C. 824 (Kerala) (DB) that, A mutual mistake envisage under Section 26 of the Specific Relief Act, 1963 can creep in only when the agreement in the written form does not expressly state the meeting of the minds of the contracting parties. (iii) reported in 2016 (3) Civ.C.C. 93 (Kerala) that, In a case between Aliyar Vrs. Raju V. Vayalat merely on proving the boundaries in a suit for rectification of the land for sale in the deed cannot entitle the plaintiff to succeed without satisfying the essential legal requirements. for seeking Absence of material pleadings rectification of an instrument and declaration and lack of proof thereof can only lead to dismissal of the suit. required The condition precedent for claiming rectification is the existence of a valid and complete contract. There can be no rectification where there is no prior agreement with reference to which the rectification has to be done. Page 13 of 22 {{ 14 }} (iv) In a case between Subhadra and Ors. Vrs. Thankam reported in 2010 (4) Civ.C.C. 876 (SC) & 2010 (2) OJR (SC) 185 that, The relief of rectification can be claimed where it is through fraud or a mutual mistake of the parties that, real intention of the parties is not expressed in relation to an instrument. Even then, the party claiming will have to make specific pleadings and claim an issue in that behalf. (v) In a case between Brijendra Nath Pandey and another Vrs. Major Upendra Nath Pandey and another reported in 2011 (1) Civ.C.C. 20 (Allahabad) (DB) that, rectification of sale deed sought for under Section 26 of the Specific Relief Act, 1963 on the ground that, the intention was to execute a gift deed. But, the instrument is titled as sale deed and the sale consideration mentioned. No document has been produced by either of the parties to show that, the appellants intended to execute the gift deed and not the sale deed. There is no evidence on record to establish that, the documents were the result of mutual mistake on the part of the parties contrary to their intention. If the case is not a case of mistake, case does not fall within the purview of Section 26 of the Specific Relief Act, 1963. 18. The meaning of the word i.e. mutual mistake as per the Law Lexicon is as follows:- Where the two parties to a contract agree in mind about the terms thereof, but when the terms are put in writing, the writing does not express the real intention of the parties, it is said to be a mutual mistake. 19. In view of the propositions of law enunciated in the ratio of the aforesaid decisions, in order to get the benefit of Section 26 of the Specific Relief Act, 1963 for rectification of the contents of a Page 14 of 22 {{ 15 }} deed/instrument like Exts.2 & 1 in this suit/appeal at hand as prayed for by the plaintiff, the plaintiff must plead and prove that, “prior to the execution of such sale deeds vide Exts.2 & 1 respectively, there was an agreement in mind between the parties that, the sold property through the sale deeds dated 21.02.1969 and 16.01.1981 vide Exts.2 & 1 respectively was from plot No.563, but out of fraud or mutual mistake between them, instead of the required plot meant for sale i.e. plot No.563, it was written in the said deed vide Exts.2 & 1 as Plot No.562.” 20. The plaintiff has indicated the reasons about the wrong indication of plot number as 562 instead of plot No.563 and for rectification of the same in paragraph No.6 of his plaint as follows:- “the defendant No.1 either due to mistake or out of mischief supplied plot No.562 in place of plot No.563 to the scribe or while writing out the plot number, the scribe committed mistake, though the land was sold by identification of area.” 21. In nowhere in the pleadings of the plaintiff, there is an indication/reflection about any agreement in mind between the parties for transferring the properties of plot No.563, but due to fraud or mutual mistake, the real intention of the parties regarding the selling of the properties of plot No.563 was not indicated in the sale deeds vide Exts.2 & 1. Page 15 of 22 {{ 16 }} Rather, the plaintiff has specifically stated in his pleadings that, the scribe has committed mistake, while writing plot number in the sale deed dated 16.01.1981 (Ext.1) in copying out the same from the previous deed vide Ext.2. 22. It is the settled propositions of law as per the ratio of the aforesaid decisions that, when the essentials of Section 26 of the Specific Relief Act, 1963 are not pleaded in the pleadings of the plaintiff and the same are not proved through evidence, then in that case, even if there will be mis-description of plot number in the sale deed with correct description of boundaries, still then, the rectification sought for by the plaintiff cannot be allowed. 23. As per the discussions and observations made above, when all the essentials of Section 26 of the Specific Relief Act, 1963 for rectification of the sale deeds vide Exts.2 & 1 have neither been pleaded nor the same has been proved by the plaintiff during trial of the suit, then at this juncture, the question of rectification of plot number in the sale deeds vide Exts.2 & 1 invoking Section 26 of the Specific Relief Act, 1963 does not arise. Therefore, the findings and observations made by the learned First Appellate Court reversing the judgment and decree of the learned Trial Page 16 of 22 {{ 17 }} Court for rectification of plot in the sale deeds dated 21.02.1969 (Ext.2) and 16.01.1981 (Ext.1) cannot be sustainable under law. 24. That apart, by filing the suit vide T.S. No.125 of 1981 on dated 30.06.1981, the plaintiff had sought for the rectification of plot No.562 in the sale deed dated 21.02.1969 vide Ext.2 specifically stating in its pleading that, the scribe had indicated plot No.562 in the sale deed dated 16.01.1981 (Ext.1) on the basis of its previous sale deed dated 21.02.1969 (Ext.2). The above rectification of plot No.562 from the sale deed dated 21.02.1969 vide Ext.2 was sought for by the plaintiff 11 years after its execution without stating that, the execution and existence of the sale deed dated 21.02.1969 (Ext.2) was not known to him earlier. So, the prayers of the plaintiff for declaration as well as rectification of plot number from the sale deed dated 21.02.1969 (Ext.2) 11 years after its execution cannot be entertainable under law. Because, such prayer for rectification of plot number in the sale deed dated 21.02.1969 by filing the suit on dated 30.06.1981 is barred by law of limitation. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- Page 17 of 22 {{ 18 }} (i) In a case between Smt. Seema Thakur Vrs. Union of Indian and Ors. reported in 2015 (4) Civ.C.C. 360 (Delhi) that, suit was for declaration and cancellation of document. Once the documents in question are known to the plaintiff admittedly since the year 2004, the suit has to be filed by the year 2007 for questioning the documents, but the present suit is filed in the year 2010, which is clearly barred by limitation being filed beyond 3 years, as required under Articles 58 & 59 of the Limitation Act. Suit dismissed. (ii) In a case between Hulugappa Hanumappa Hiremani and Ors. Vrs. Dundappa Shekhrappa Kolaji and Ors. reported in 2021 (1) Civ.C.C. 123 (Karnataka) that, in a suit for declaration, the plaintiff admitted that, about 13 years back itself, he (plaintiff) has got the knowledge about the entries in defendants’ name in the RTC relating to the suit properties. The plaintiff ought to have filed the suit within three years from the date of knowledge and the suit filed by the plaintiff is barred by limitation as per the Article 58 of the Limitation Act. (iii) In a case between Dhirubhai Jethabhai Patel and Ors. Vrs. Gananben and Ors. reported in 2025 (4) CCC 71 (Gujarat) that, plaintiff cannot be permitted to challenge the registered sale deeds after a period of over 24 years. Plaint is barred by Limitation and rejected. (iv) In a case between Kishan Chand Vrs. Amar Singh reported in 2015 (4) Civ.C.C. 247 (P & H) that, suit for declaration of sale deed in question is null and void. Sale deed in question was sought to be cancelled after more than 18 years of its execution or registration. Suit held barred in view of the Article 59 of the Act, as cancellation of the Page 18 of 22 {{ 19 }} sale deed is to be sought within 3 years from the date of its execution. 25. Here in this matter at hand, when the pleadings and evidence of the plaintiff is going to show that, the plaintiff as well as his vendor i.e. defendant No.3 had their knowledge about the execution and registration of the sale deed dated 21.02.1969 (Ext.2) soon after its execution and on the basis of the execution of the said Ext.2, he (plaintiff) purchased to the plot number indicated in the sale deed dated 21.02.1969 (Ext.2) and when neither the vendor of the plaintiff i.e. defendant No.3 nor the plaintiff had filed any suit for rectification of the plot number in the sale deed dated 21.02.1969 (Ext.2) within 3 years from the date of its execution, then at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions, the suit of the plaintiff for rectification of plot No.562 from the sale deed dated 21.02.1969 (Ext.2) is barred by limitation. 26. In addition to that, in Paragraph No.8 of the plaint of the plaintiff, it has been specifically pleaded that, the plaintiff has perfected his title over the suit land vide Plot No.563 under Khata No.374 by way of adverse possession. Page 19 of 22 {{ 20 }} It is the settled propositions of law that, the plea of adverse possession taken by the plaintiff against the defendants in respect of the suit land is his indirect admission to the title of the defendant over the said land, because without admitting the title of the opponent/defendant, the plaintiff cannot take the plea of adverse possession. On this aspect, the adverse possession of law has already been clarified in the ratio of the following decisions:- (i) In a case between Jagat Singh and others Vrs. Srikishan Dass and others reported in 2008 (3) CCC 173 (P& H) that, once a plea of adverse possession is raised, it pre- supposes the title of the plaintiff over the suit land. (ii) In a case between Gurbax Singh Vrs. Karnail Singh reported in 2008(4) CCC 239 (P&H) that, the plea of adverse possession of the defendant necessarily implies the admission of the title of the plaintiff. (iii) In a case between Pappayammal Vrs. Palanisamy & Ors. reported in 2005 (3) CCC 167 (Mad.) that, a party can plead adverse possession, only when, he admits that, another party has got title. (iv) In a case between Sultan & Ors. Vrs. Kasturi & Ors. reported in IV (2005) Civ.L.T.-378 (P & H) that, plea of adverse possession is an indirect admission of ownership of person against whom such claim is advanced. 27. When by taking the plea of adverse possession against the defendant Nos.1 & 2, the plaintiff has indirectly admitted their title over Page 20 of 22 {{ 21 }} suit plot No.563, then at this juncture, the ownership of the plaintiff over the suit plot No.563 through R.S.D. dated 16.01.1981 (Ext.1) has been failed to be established. 28. The interlocutory application under O.41 R.27 of the CPC, 1908 filed by the appellants (defendant Nos.1 & 2) for the production of additional evidence in order to prove the documents indicated in the schedule of the I.A. vide I.A. No.297 of 2025 at this 2nd appellate stage is not entertainable under law. Because, the evidence available in the record are sufficient for pronouncing the judgment in this 2nd appeal and no additional evidence is required to enable this Court for pronouncing the judgment in this 2nd appeal. That apart, the pleadings and evidence of the parties are not justifying for the adduction of additional evidence at this 2nd appellate stage. Therefore, this I.A. No.297 of 2025 under O.41 R.27 of the CPC, 1908 filed by the appellants (defendant Nos.1 & 2) is dismissed and
Decision
disposed of finally being devoid of any merit. 29. As per the discussions and observations made above, when it is held that, the plaintiff (respondent No.1-Nikunja Kishore Ratha) is not entitled for the relief i.e. rectification of the sale deeds dated 21.02.1969 and 16.01.1981 vide Exts.2 & 1, then at this juncture, the judgment and Page 21 of 22 {{ 22 }} decree passed by the learned 1st appellate Court in T.A. No.2 of 1987 for rectification of plot number from 562 to 563 in the sale deeds dated 21.02.1969 and 16.01.1981 (Exts.2 & 1) cannot be sustainable under law. For which, there is justification under law for making interference with the same through this 2nd appeal filed by the appellants (defendant Nos.1 & 2). As such, there is merit in this 2nd Appeal filed by the appellants (defendant Nos.1 & 2). The same must succeed. 30. In result, this 2nd appeal filed by the appellants (defendant Nos.1 & 2) is allowed on contest. The judgment and decree passed by the learned 1st Appellate Court in T.A. No.2 of 1987 is set aside. The judgment and decree of the dismissal of the suit vide T.S. No.125 of 1981 passed by the learned Trial Court is confirmed. Orissa High Court, Cuttack. 23.12.2025//Utkalika Nayak// Junior Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: OHC Date: 27-Dec-2025 14:57:55 (A.C. Behera), Judge. Page 22 of 22