Civil Suit No. 3 of 2009 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.300 of 2011 [In the matter of an appeal under Section 100 of CPC from the judgment and decree dated 12.05.2011 passed in RFA No. 23/2009 by the Additional District Judge, Gajapati, Parlakhemundi arising out of the judgment and decree dated 13.10.2009 passed by the Civil Judge (Senior Division), Parlakhemundi in Civil Suit No. 3 of 2009] AFR Sudam Sahukar …. Appellant -Versus- Dasamukhi Appalaswami …. Respondent Advocate(s) appeared in this case: For the Appellant :M/s. Biplab Mohanty, T.K. Pattnaik, A. Patnaik, S. Patnaik & R.P. Ray, Advocates. For Respondent :Mr. P.V. Balakrishna, Advocate CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 28th November, 2025 SASHIKANTA MISHRA, J. Plaintiff is the appellant against the judgment dated 12.05.2011 followed by decree passed by Learned Additional District Judge, Parlakhemundi in RFA No.23 of 2009, Page 1 of 17 whereby the judgment dated 13.10.2009 followed by decree passed by the learned Civil Judge (Senior Division), Parlakhemundi in C.S. No.3 of 2009 was reversed. 2. For convenience, the parties are referred to as per their respective status before the Trial Court. 3.
Legal Reasoning
The plaintiff filed the above suit for declaration of his right, title, interest and permanent injunction. His case, briefly stated, is that the suit land standing on Plot No.648/1418 appertaining to Khata No. 142 in Mouza Padampur was recorded in his name. It was lying vacant. The defendant made an attempt to construct a house over it by stating that he had purchased the said land from one Mangal Bhuyan and Mangal Bhuyan, in turn, had supposedly purchased the land from one Braja Rout. Both were scheduled tribes. The plaintiff had a case with the defendant relating to a piece of land before the Officer on Special Duty under Regulation II of 1956, Parlakhemundi. The defendant declared on 05.12.2008 that he had purchased the suit land and therefore, he was constructing the house. Hence, the suit. Page 2 of 17 4. Pursuant to summons, the defendant appeared and contested the suit by filing a written statement. It was stated that the case before the Officer on Special Duty being RMC No. 102 of 1978 under Regulation II of 1956 was initiated against one Braja Rout. The plaintiff was evicted as per order passed on 17.11.1978. The plaintiff never challenged the order of eviction. Therefore, this Court has no jurisdiction to adjudicate the dispute. The suit land consists of a dwelling house and a shop room, wherein the defendant and his brother have been residing. The father of the plaintiff donated the same properties to the defendant for performing seva puja of the deity and after his death, the plaintiff demanded the usufructs of the land from the defendant. When the defendant refused, the plaintiff filed the suit only to harass the defendant. It is further stated that the defendant belongs to ‘Mahali’ caste which is synonymous to ‘Jangam’. As such, the suit is not maintainable. The suit was also stated to be not maintainable on the ground of non-joinder of necessary parties as also was undervalued. The Page 3 of 17 maintainability of the suit was also questioned on the ground of limitation. 5. On such rival pleadings the trial court framed the following issues for determination. “1. Is the suit maintainable? 2. Is the suit under-valued? 3. Is the suit bad for non-joinder of necessary parties? 4. Is there any cause of action for the suit? 5. Is the plaintiff having right, title, interest and possession over the suit land? 6. Is the plaintiff entitled to the relief sought for?” 6. Taking up issue No.5 at the outset, the trial Court, after analyzing the oral and documentary evidence found that a case was initiated on the recommendation of the Welfare Extension Officer with regard to alienation of the land, wherein it was held that the petitioner of the said case was a member of the scheduled tribe while the respondent was a member of non-scheduled tribe. As such, the order of eviction was passed. However, the trial Court found that the said order does not indicate that the proceeding was in respect of the suit plot. The dispute was in respect of Ac.0.40 decimals of land under Parlakhemundi Tahasil, which is not related to Page 4 of 17 the suit land in any manner. The order passed by the Officer on Special Duty for restoration of the land also does not indicate the Khata number and plot number of the land. The report of the Amin with regard to delivery of possession also does not contain the plot number in respect of which possession was delivered. It was found that Sudam Sahukar had purchased Ac.0.40 decimals of land from Braja Rout without obtaining prior permission from the competent authority. As such the case was initiated suo motu but the application of Braja Rout as also the recommendation for restoration does not contain the Khata number and plot number of the land in question. The trial court further held that even if all the documents are to be accepted then it would be evident that Ac.0.40 decimals of land had only been restored to Braja Rout. But the plaintiff had filed the suit in respect of Ac.0.160 decimals of land. The defendant could not establish his right, title and interest in respect of the rest area of the suit land. So, in the absence of the schedule of the land it was not proper to say that such land was part and parcel of the suit land. Further analysing the documentary Page 5 of 17 evidence, the trial court found that the suit Plot No.648/1418 was recorded as ‘Padar’. The defendant did not state as to when the house was constructed nor adduced any evidence. Thus, the trial court was of the opinion that the defendant has no title over the suit land. The settlement ROR and the rent receipts relied upon by the plaintiff together with the oral evidence clearly established that the plaintiff has right, title, interest and possession over the suit land. The issue was answered accordingly. On the remaining issues, the trial court found that the order passed in RMC No.102 of 1978 will not make the suit incompetent and since the order does not correspond to the suit land, the suit is not barred by limitation. As regards the plea of under valuation, the trial court found that the defendant did not produce any document or material to indicate the value of the suit land. The suit land had been recorded as ‘Padar’ in the settlement ROR. The area being Ac.0.160, the trial court was of the view that the valuation of the suit land given by the plaintiff in the plaint is correct. On the plea of non-joinder of necessary parties, the trial court held that Braja Rout was not a Page 6 of 17 necessary party in the case. Thus, the suit was decreed on the above findings. 7. The defendant carried appeal to the District Court. The First Appellate Court after examining the rival contentions framed the following points for determination. “1. Whether the appellant is a Schedule Tribe person? 2. Whether the property decided by the competent authority under the Orissa Regulation-II of 1956 vide R.M.C. 102/1978 (Ext.A) is the same property as described in the plaint as suit property? 3. Whether the finding of the learned lower court in issue No.1 is correct? 4. Whether the finding of the learned lower court in issue No.5 is correct? 5. Whether the finding of the learned lower court in issue No.6 is correct?” 8. On point No.1, the First Appellate Court was of the view that defendant is not a scheduled tribe person but since the plaintiff had instituted a case against the defendant under Regulation II of 1956, a natural inference can be drawn that the defendant is a scheduled tribe person. The plaintiff had contradicted his own stand. However, the caste certificate granted by the Tahasildar, Rayagada showed that he is a schedule tribe person. Page 7 of 17 9. On point No.2, the First Appellate Court was of the view that the order under Regulation-II was passed on 17.11.1978. The Plot number and Khata number of the disputed land had not been mentioned, but the first settlement operation in the suit locality took place in the year 1978 and so by the time of disposal of the said case under Regulation-II, there could not have been any Plot number and Khata number for which the parties had not referred to the same in the case but had described the suit land giving the boundaries. Therefore, the finding of the trial court was held to be incorrect. 10. The First Appellate Court then took up Point No.3 and noted the boundary description of the suit land as mentioned in the order passed under Regulation II of 1956. Since the matter was already decided by the competent authority under the Regulation II, the Civil Court has no jurisdiction and therefore, the suit was not maintainable. 11. On Point No.4, the First Appellate Court taking note of his findings on the other points held that the plaintiff had no right, title, interest and possession over the land Page 8 of 17 which is the property of a scheduled tribe person. The other contentions of the plaintiff were negatived. The ROR and rent receipts were not accepted as valid proof of title by the first appellate authority on the ground that ROR does not create or extinguish title though there is a presumption of correctness in the absence of contrary evidence yet in the instant case, contrary evidence was available in the form of the order passed by the competent authority under Regulation II that the property belongs to a scheduled tribe person for which the plaintiff was prohibited to enter into the suit land and he was also penalized. Thus, there was no basis for publication of the settlement ROR and so presumption of correctness is not available. On such findings, the appeal was allowed and the judgment and decree of the trial court was set aside. 12. Being aggrieved, the plaintiff has filed this second appeal, which was admitted on the following substantial questions of law. “1. Whether the lower appellate court has committed an error of law and procedure by recording a speculative finding that "as the Settlement operation in the suit Page 9 of 17 locality had taken place for the first time in the year 1978 as evident from Ext. 1 and therefore, by the time of disposal of R.M.C. No. 102/1978, there could not be availability of plot number and Khata number and that was the reason as to why both parties would not refer any plot number and khața number before the competent authority and they described the disputed is land by giving the boundary, although there absolutely no evidence available on record to justify the aforesaid finding of the lower appellate court and as such, the judgment and decree passed by the lower appellate Court reversing the judgment and decree of the trial court are based on perverse finding and therefore, the same are liable to set aside? 2. Whether the lower appellate court has. committed an error of law in recording a finding that as the land in dispute is also the subject matter of dispute in a proceeding under Regulation-II of 1956, the civil suit is not maintainable in respect of such land in view of the provision under Section 7 (A) of the said Regulation? 3. Whether the lower appellate has committed an error of law by recording a finding that "it is admitted position one Braja Rout is a Scheduled Tribe", although the plaintiff nowhere admitted either in his pleading or his evidence that the vendor of the defendant belong to a S.T. community and the alleged transfer is hit by the provisions under Regulation II of 1956? 13.
Legal Reasoning
Heard Ms. Soma Pattnaik, learned counsel for the plaintiff-appellant and Mr. P.V. Balakrishna, learned counsel appearing for the defendant-respondent. 14. Ms. Pattnaik would assail the impugned judgment by submitting that the same is based on perverse findings. She submits that the conclusion reached by the First Appellate Court that the land mentioned in the Regulation-II case is the same land involved in the suit is entirely without Page 10 of 17 any evidence. The further finding that since the settlement operation in the suit locality was conducted for the first time in 1978, therefore, the Plot number and Khata number was not available is entirely erroneous because even though the Hal settlement records were not available but the Sabik Khata number and Plot number were always available at that time. Therefore, the finding given to justify the non- availability of Khata number and Plot number cannot be accepted. Ms. Pattnaik further argues that the trial court had arrived at a definite finding by referring to all the documents available on record to show that the land involved in the Regulation case is entirely different from the suit land. Said finding being based on evidence, could not have been overturned only on speculation. The defendant did not adduce any evidence with regard to construction of the house despite which the First Appellate Court held that he being a scheduled tribe person and there being an order passed by the authority under the Regulation-II, the plaintiff has no title, is completely without evidence. Page 11 of 17 15. Mr. Balakrishna, on the other hand, would argue that once the provisions of Regulation-II has been invoked and an order passed in a proceeding initiated thereunder, the Civil Court has no jurisdiction. The trial Court must therefore, be held to have committed gross illegality which was rectified by the First Appellate Court. Moreover, the defendant filed a caste certificate issued by the Tahasildar on 18.08.2009 which shows that he was a schedule tribe person but the plaintiff suppressed such fact for which the suit is barred under Section 6 of Specific Relief Act. As regards identity of the suit land, Mr. Balakrishna would argue that Ext-A, which is the order dated 17.11.1978 passed in the Regulation Case, corresponds to the land covered under Ext- 1 and even though there is absence of Plot number or Khata number, the boundaries would prevail which have not been disputed by the plaintiff. Since the plaintiff had purchased the land from a scheduled tribe person without obtaining permission, it was rightly held by the authority under the Regulation II that he has no title over the suit land. Page 12 of 17 16. After considering the rival submissions, the first point that falls for consideration is, whether the finding of the First Appellate Court that the suit land is the same as the one involved in the Regulation-II case is correct or not. In this regard, after going through the findings of the First Appellate Court, this Court finds that there is no clear-cut evidence adduced by the parties in this regard. Nevertheless, it is borne out from the evidence on record that the Regulation-II case was in respect of land measuring Ac.0.40 dec., whereas the suit land measures Ac.0.160 decimals. Now, the order passed by the competent authority in the Regulation proceeding does not mention any plot number. Though it was no one’s case, yet the First Appellate Court appears to have made out a third case to justify absence of Plot numbers and Khata numbers in the said order by stating that the settlement operations had not been conducted by that time. But then, as argued by Ms. Patnaik, learned counsel for the plaintiff, even though Hal settlement operations had not been conducted, but the Sabik records were in existence and therefore, the plot could have been described with reference Page 13 of 17 to the Sabik entries. Nevertheless, it is not disputed that the suit plot is plot No. 648/1418 appertaining to Khata No.42 of Mouza Padampur. The First Appellate Court has referred to the boundary mentioned in order under Ext-A. According to the First Appellate Court, the boundary is the same as the boundary of the suit land, which was admitted by the plaintiff in his cross-examination. Ordinarily, in the absence of plot numbers, the boundary description would be enough to identify the suit land. But in this case, it would not be so for the reason that there is absence of clear-cut evidence as to the exact land which was involved in the Regulation proceeding and the suit. There is no clear-cut finding given by the First Appellate Court that it was the same land. Therefore, this finding appears to be more speculative in nature than being based on any evidence on record. 17. The First Appellate Court has placed much emphasis on the fact that the defendant is a scheduled tribe person which is an admitted fact. Nothing has been placed before this Court to show as to where the plaintiff had admitted such fact. An order was passed by the Regulation II Page 14 of 17 authority to evict the plaintiff in 1978. This, according to the First Appellate Court proves that the defendant being a scheduled tribe person and the plaintiff being evicted from the land implies that he has no title over the land but then for the above finding to subsist, the identity between the land covered under the Regulation II and the one covered by the suit has to be established at the first instance. Unless that is established, all other findings would be rendered unsustainable. While it is true that the dispute covered by the Regulation II bars the jurisdiction of the civil Court, but then the fact that the suit land was involved in the Regulation II proceeding has never been established to satisfaction. In the absence of such evidence, it will be difficult to accept the finding that the suit was barred. The trial court has relied upon all the documents to hold that Ac.0.40 decimals of land had been restored to Braja Rout. But the plaintiff filed the suit in respect of Ac.0.160 decimals of land, which already stood recorded in his name. The First Appellate Court has held that the statutory presumption of correctness of the entries made in the ROR stood rebutted by contrary stand of Page 15 of 17 the plaintiff does not hold much water for the reason that except for the finding that the defendant was a schedule tribe person, there is no other evidence to show as to how the recording in the Hal ROR was wrong. As already stated, without the foundational fact that the land involved in the suit was also involved in the Regulation-II proceeding being proved to satisfaction, the entries in the Hal ROR cannot be automatically nullified. The First Appellate Court appears to have proceeded on an erroneous notion by placing much emphasis on the fact that the defendant is supposedly a scheduled tribe person. Even if he is a scheduled tribe person, unless he establishes by concrete evidence that he has a valid interest over the land and as to how the same came to him, his claim cannot be accepted and on the same analogy, the claim of the plaintiff of title over the land cannot be nullified. The First Appellate Court has committed manifest error in holding otherwise. 18. Reading of the judgment passed by the trial Court, reveals that all the documentary evidence as well as oral evidence has been scanned meticulously and right conclusion Page 16 of 17 has been reached that the defendant could not establish any manner of right or title and even possession over the suit land. In view of what has been stated before, this Court finds nothing wrong in the said findings so as to justify the order of reversal by the First Appellate Court. 19. Thus, from a conspectus of the facts and analysis made, this Court is of the view that the judgment of the trial court was well-reasoned and based on evidence on record. On the contrary, the First Appellate Court reversed the findings by proceeding from an erroneous perspective. The impugned judgment cannot therefore be sustained. The substantial questions of law are answered accordingly. 20. In the result, the appeal is allowed, the impugned judgment is set aside. The judgment and decree passed by the trial Court is hereby confirmed. ………….…………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack The 28th November, 2025/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: P.A. Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 28-Nov-2025 12:59:01 Page 17 of 17