The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.124 of 1991 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Ramesh Chandra Pradhan and another -versus- State of Orissa and others …. …. Appellants Respondents Appeared in this case:- For Appellants : Mr. S.P. Mishra, Sr. Advocate assisted by Mr. R.K. Agrawal, Advocate For Respondents : Mr. G. Mohanty Learned Standing Counsel CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 15.04.2025 / date of judgment : 16.05.2025 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment. 2. The appellants in this 2nd appeal were the plaintiffs before the trial court in the suit vide T.S. No.15 of 1988 and respondent nos.1 and 2 before the 1st appellate court in the 1st appeal vide T.A. No.20 of 1989. 3.
Legal Reasoning
The respondents in this 2nd appeal were the defendant nos.1 and 2 before the trial court in the suit vide T.S. No.15 of 1988 and appellants before the 1st appellate court in the 1st appeal vide T.A. No.20 of 1989. The respondent no.3 in this 2nd appeal was the defendant no.3 before the trial court in the suit vide T.S. No.15 of 1988 and the respondent no.3 before the 1st appellate court in the 1st appeal vide T.A. No.20 of 1989. 4. The case of the plaintiffs(appellants in this 2nd appeal) against the defendants(respondents in this 2nd appeal) as per the averments made in their plaint was that, plaintiff no.1 is the wife of Ratnakar Pradhan and plaintiff no.2 is the son of Ratnakar Pradhan. The husband of the plaintiff no.1 and the father of the plaintiff no.2, i.e., Ratnakar Pradhan is unheard of for a long period and due to non-availability of his whereabouts in spite of the best efforts of the plaintiffs to search out him, he (Ratnakar Pradhan) could not be traced out, for which, he (Ratnakar Pradhan) has not been made as a party in the suit. So, the plaintiffs have taken the shoes of Ratnakar Pradhan. The suit land stands recorded in the name of Government as per the revenue records of Sabik as well as Hal Settlement. Ratnakar Pradhan (husband of the plaintiff no.1 and father of the plaintiff no.2) was possessing the suit properties peacefully reclaiming the bushes from the same and after the civil death of Ratnakar Pradhan, the plaintiffs are in continuous possession over the suit properties like Ratnakar Pradhan to the knowledge of all without any hindrance from anybody. Page 2 of 13 The suit properties are adjacent to the plaintiffs recorded properties. The plaintiffs are the owners of Plot No.2620 A0.21 decimals. The suit properties are A0.15 decimals of Plot No.2621, which is situated to the adjacent South of their Plot No.2620. The plaintiffs and Ratnakar Pradhan as of their right have been possessing the suit properties, i.e., Plot No.2621 along with the trees standing thereon amalgamating the same with their Plot No.2620 converting the same into Gharabari Kisam since the time of Late Bharat Pradhan, i.e., since the time of the father of Ratnakar Pradhan. The grand-father of the plaintiff no.2, i.e., Late Bharat Pradhan had raised two Teak(Saguan) trees over suit Plot No.2621 during his life time and the said two teak (Saguan) trees were grown up under the care, protection, ownership and possession of the plaintiffs. For which, they(plaintiffs) have perfected their title over the suit properties by virtue of their peaceful possession over the same. As per the notings made in the remarks column of Hal RoR, the defendant nos.1 to 3 have admitted the possession of Ratnakar Pradhan over the suit properties. Because, unauthorized occupation of Ratnakar Pradhan in respect of the suit properties for an area of A0.15 decimals has been noted in the remarks column of the Hal RoR. So, the State has lost its right, title and interest over the suit properties. Because, the Page 3 of 13 plaintiffs have derived title of the same by virtue of adverse possession possessing the same for more than 50 years without any hindrance from any quarter. When, on dated 13.02.1988, the defendants forcefully cut two teak trees from the suit properties in spite of the resistance of the plaintiffs and threatened to disposses the plaintiffs from the suit properties, then, the plaintiffs filed the suit vide T.S. No.15 of 1988 against the defendants praying for restraining the defendants (State, Tahasildar and Divisional Forest Officer) permanently from interfering with the possession of the plaintiffs over the suit properties, seeking exemption of service of statutory notice under Section 80 of the C.P.C., 1908 as per Sub-section(2) of that Section 80 of the C.P.C., 1908. 5. The defendant nos.1 and 2, State and Tahasildar challenged the suit of the plaintiffs by filing their joint written statement denying the averments made by the plaintiffs in their plaint taking their stands inter alia therein that, the suit of the plaintiffs is not maintainable under law. The same is bad for non-joinder of necessary party, i.e., Ratnakar Pradhan, who is the husband of the plaintiff no.1 and father of the plaintiff no.2. The plaintiffs have not brought Ratnakar Pradhan to the picture deliberately in order to suppress the real truth. Ratnakar Pradhan has not died, but he is alive. There is no civil death of Ratnakar Pradhan. Page 4 of 13 The plaintiffs have no locus standi to file the suit. The suit properties are under Abadajogya Anabadi Khata vide Khata No.423 of the Government. Neither Bharat Pradhan nor Ratnakar Pradhan or the plaintiffs had ever possessed the suit properties. For which, the question of their continuous possession over the same does not arise. The suit Plot No.2621 has never been amalgamated with Plot No.2620. Bharat Pradhan had never raised any teak tree on suit Plot No.2621. They(plaintiffs) have not perfected their title over the suit properties. Rather, Ratnakar Pradhan(husband of the plaintiff no.1 and father of the plaintiff no.2) had applied before the Divisional Forest Officer, Dhenkanal (defendant no.3) on dated 02.07.1987 seeking permission in order to allow him to cut two teak trees situated on Plot No.2610 under Khata No.332 in Mouza-Gundurapasi and when the defendant nos.2 and 3 visited the spot, they did not find any teak tree on Plot No.2610, but, they came to know that, the plaintiffs have cut and removed two teak trees from Plot No.2610, even though the Plot No.2610 is a Government land and when the teak trees were cut and removed by the plaintiffs from the Government land, i.e., from Plot No.2610, for which, timbers thereof were seized by the R.I., Kapilas on dated 11.07.1987 and after seizure, the same were kept under the zima of one Nilakantha Pradhan and subsequent thereto, the said seized timbers were sold away through auction on dated 26.10.1987. Page 5 of 13 As such, the plaintiffs have no interest or possession over the suit properties. For which, the suit of the plaintiffs is liable to be dismissed. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether eight numbers of issues were framed by the trial court in the suit vide T.S. No.15 of 1988 and the said issues are:- I S S U ES Is the suit maintainable in law? Is the suit under-valued? Is the suit bad for miss-joinder and non-joinder of necessary party? (i) (ii) (iii) (iv) Has the plaintiff locus standi to file the suit? (v) Is there any cause of action to file the suit? (vi) Whether the plaintiffs have acquired title over the suit land and the teak trees standing thereon by virtue of adverse possession? (vii) Whether this Court has got pecuniary jurisdiction to try the suit? (viii) To what other relief/relief(s), the plaintiffs is entitled? 7. In order to substantiate the aforesaid relief in the suit, i.e., permanent injunction, they(plaintiffs) examined three numbers of witnesses including the plaintiff no.1 as P.W.3 and relied upon two documents vide Exts.1 and 2 from their side. On the contrary, in order to defeat/nullify the suit of the plaintiffs, the defendants examined three witnesses including the Tahasildar as D.W.1 and exhibited series of documents on their behalf vide Exts.A to G/1. Page 6 of 13 8. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the trial court answered all the issues in favour of the plaintiffs and against the defendants and basing upon the findings and observations made by the trial court in all the issues in favour of the plaintiffs and against the defendants, the trial court restrained the defendants permanently from interfering in the possession of the plaintiffs over the suit properties and decreed the suit of the plaintiffs vide T.S. No.15 of 1988 on contest against the defendants as per its judgment and decree dated 11.07.1989 and 26.07.1989 respectively assigning the reasons that, they(plaintiffs) are in possession over the suit properties as of right and they have perfected their title over the suit properties by way of adverse possession on the basis of noting of illegal possession of the suit properties in favour of Ratnakar Pradhan in the remarks column of the Hal RoR of the suit properties and due to unheard of said Ratnakar Pradhan for more than seven years, he(Ratnakar Pradhan) has suffered civil death, for which, the plaintiffs being his successors, they(plaintiffs) are the owners and in possession over the suit properties. 9. On being dissatisfied with the aforesaid judgment and decree passed by the trial in T.S. No.15 of 1988 in favour of the plaintiffs and against the defendants, the defendant nos.1 and 2 challenged the same by filing the 1st appeal vide T.A. No.20 of 1989 being the appellants against Page 7 of 13 the plaintiffs arraying them (plaintiffs) as respondent nos.1 and 2 and also arraying the defendant no.3 as Pro-forma respondent no.3. 10. After hearing from both the sides, the 1st appellate court allowed the 1st appeal vide T.A. No.20 of 1989 of the defendant nos.1 and 2 against the plaintiffs on contest as per its judgment and decree dated 25.01.1991 and 31.01.1991 respectively and set aside the judgment and decree of the trial court passed on dated 11.07.1989 and 26.07.1989 respectively in T.S. No.15 of 1988 and dismissed the suit vide T.S. No.15 of 1988 of the plaintiffs assigning the reasons that, though the plaintiffs have claimed their possession over the Government land, i.e., over the suit properties as the successors of Ratnakar Pradhan on the ground of noting of possession of Ratnakar Pradhan in respect of the suit properties in the remarks column of the Hal RoR, but, they(plaintiffs) have not been able to establish through legally admissible evidence about the civil death of Ratnakar Pradhan. Because, their plaint is silent about the date, from which, Ratnakar Pradhan was unheard of and when, on 02.07.1987 Ratnakar Pradhan had applied before the Divisional Forest Officer, Dhenkanal(defendant no.3) for issuance of necessary permission in order to cut two teak trees from Plot No.2610 under Khata No.332 in Mouza-Gundurapasi and when, the suit was filed by the plaintiffs on its next year, i.e., in the year 1988, then, at this juncture, it cannot be held that, Ratnakar Pradhan was unheard of for more than Page 8 of 13 seven years at the time of filing of the suit by the plaintiffs in the year 1988. Because, on 02.07.1987 Ratnakar Pradhan had applied before the Divisional Forest Officer, Dhenkanal seeking permission to cut two teak trees from undisputed Government Plot No.2610 and as such, no necessary essentials have been pleaded and proved as per law by the plaintiffs to establish their title over the suit properties through adverse possession and when, in absence of the prayer of the plaintiffs for declaration of title over the suit properties, the trial court has illegally declared the title of the plaintiffs over the suit properties in the issue no.6 of the judgment in a simple suit for injunction of the plaintiffs, then the judgment and decree passed by the trial court cannot be sustainable under law. 11. On being aggrieved with the aforesaid judgment and decree dated 25.01.1991 and 31.01.1991 respectively passed by the 1st appellate court in T.A. No.20 of 1989 in favour of defendants(State and Tahasildar) and against the plaintiffs, they(plaintiffs) challenged the same by preferring this 2nd appeal being the appellants against the defendants arraying them(defendants) as respondents. 12. This 2nd appeal was admitted on formulation of the following substantial question of law, i.e., :- Whether, the appellate court without considering the evidence adduced in the case is justified in drawing an Page 9 of 13 inference from the entry of a name in the settlement record that, he(Ratnakar Pradhan) is not unheard of? Since the result of this appeal depends upon this finding? 13. I have already heard from the learned counsel for the appellants(plaintiffs) and the learned Standing Counsel for the State(defendants). 14. It is the specific case of the plaintiffs as per the averments made in paragraph-1 of their plaint in the suit vide T.S. No.15 of 1988 supported with an affidavit that, “the plaintiff nos.1 and 2 are related to each other as mother and son respectively. The father of plaintiff no.2, i.e., Ratnakar Pradhan is unheard of for a long period and due to non-availability of his whereabouts in spite of their best efforts, he(Ratnakar Pradhan) could not be made as a party in the suit. As such, they(plaintiffs) have stepped into the shoes of Ratnakar Pradhan for filing the suit against the defendants in respect of the suit properties.” The plaintiff no.1 (P.W.3) has deposed in her examination-in-chief that, “the plaintiff no.2 (Ramesh Chandra Pradhan) is her son. Her husband Ratnakar Pradhan’s whereabouts is not known since last twelve years. They have searched for him for the last three to four years. They(plaintiffs) are in possession of his landed properties.” 15. The plaintiffs have also stated in paragraph-3 of their plaint that, the unauthorized occupation of Ratnakar Pradhan has been noted in the Hal RoR of the suit land. Page 10 of 13 16. The defendants have seriously disputed/denied the civil death of Ratnakar Pradhan in their written statement. Because, in paragraph-6 of the written statement of the defendants, they(defendants) have specifically taken their pleas that, they(defendants) do not admit the contents in the plaint of the plaintiffs about the civil death of Ratnakar Pradhan. The specific plea of the defendants are that, Ratnakar Pradhan is alive and the plaintiffs have avoided to bring him to the picture with their intention that, real truth shall come out, if Ratnakar will come to the picture. 17. When, there is serious dispute concerning the civil death of Ratnakar Pradhan, then, at this juncture, what are the requirements for the plaintiffs under law for establishing the civil death of Ratnakar Pradhan has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions :- In a case between Alla Ramu vrs. The State of Andhra (i) Pradesh and others : reported in 2024(4) Civil Court Cases- 53(A.P.) that, son of the petitioner was missing in the year 2005—Since then, his whereabouts were not known. It is thus, left open for the petitioner to file civil suit in terms of Section 108 of the Indian Evidence Act, 1872 and Section 34 of the Specific Relief Act, 1963 to obtain necessary orders from the competent civil court in accordance with law.(Para-10) In a case between Saroop Singh vrs. Banto and others : (ii) reported in AIR 2005(S.C.)-4407 that, If a person has not been heard of for seven years, there is a presumption of law that, he is dead, but at what time within that period, he died is not a Page 11 of 13 matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within seven years lies upon the person who claims a right to the establishment of which, that fact is essential. The presumption would not be a ground that she had died seven years prior to the date of institution of the suit. In a case between Darshan Singh and others vrs. (iii) Gujjar Singh(dead) by L.Rs. and others : reported in AIR 2002(S.C.)-606 that, If there is neither any pleading nor an averment regarding the date or death, the presumption under Section 108 of the Evidence Act, 1872 cannot arise. In a case between N. Jayalakshmi Ammal and another (iv) vrs. R. Gopala Pathar and another : reported in AIR 1995(S.C.)-995 that, the presumption under Section 108 of the Evidence Act, 1872 is as to the fact of death at the time the question was raised and not at any particular antecedent time. There is no presumption also to the cause and circumstances of death. The presumption under Section 107 of the Evidence Act will apply, when the question is whether a person was alive or not, and not where the question is whether the person was alive or dead on a particular date. 18. Here, in the suit/appeal at hand, when there is serious dispute to the claim of civil death of Ratnakar Pradhan raised by the plaintiffs from the side of the defendants and when no specific date of death of Ratnakar Pradhan has been given in the plaint and evidence of the plaintiffs, though it has been stated in the plaint and evidence of the plaintiffs that, Ratnakar Pradhan has not been heard of for seven years and when Ratnakar Pradhan had sought permission from the defendant no.3 through an application dated 02.07.1987 to cut two teak trees from an undisputed Plot No.2610 under Khata No.332 in the suit village, then at this juncture, by applying the principles of law enunciated in the ratio of the above decisions, it is held that, the civil death of Ratnakar Pradhan Page 12 of 13 has been failed to be established by the plaintiffs due to lack of necessary essentials in the pleadings and evidence of the plaintiffs to establish the same. 19. For which, the findings and observations made by the 1st appellate court reversing the judgment and decree of the trial court holding that, appellants(plaintiffs) have failed to establish the civil death of Ratnakar Pradhan cannot be held as erroneous. So, the question of interfering with the impugned judgment and decree passed by the 1st appellate court through this 2nd appeal filed by them(plaintiffs) does not arise. 20. Therefore, there is no merit in this 2nd appeal of the appellants(plaintiffs). The same must fail. 21. In result, this 2nd appeal filed by the appellants(plaintiffs) is dismissed on contest against the respondents(defendants), but, without cost. The judgment and decree passed by the 1st appellate court in T.A. No.20 of 1989 setting aside the judgment and decree of the trial court in T.S. No.15 of 1988 is confirmed. ( A.C. Behera ) Judge Orissa High Court, Cuttack The 16th of May, 2025/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 17-May-2025 13:26:04 Page 13 of 13