Orissa High Court
Procedure vs Bhargabi Das(Dead) And Others on 17 September, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.587 of 2003
(In the matter of an appeal under Section 100 of the Code of Civil
Procedure, 1908)
Gourhari Mohanty(dead) and others .... Appellants
-versus-
Bhargabi Das(dead) and others .... Respondents
Appeared in this case:-
For Appellant : Mr. G. Mukharji, Senior Advocate
assisted by Mr. A. Mishra,
Advocate
For Respondents : Mr. S.K. Nayak, Advocate
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 03.09.2025 / date of judgment : 17.09.2025 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.399 of 1996-I and respondents before the 1st appellate court in the 1st appeal vide T.A. No.67 of 2002.
3. The respondents in this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.399 of 1996-I and appellants before the 1st appellate court in the 1st appeal vide T.A. No.67 of 2002. The suit of the plaintiffs (appellants in this 2 nd appeal) against the defendants(respondents in this 2nd appeal) vide T.S. No.399 of 1996-I was a suit for declaration and correction of record of right(RoR).
As per the averments made in the plaint of the plaintiffs(appellants in this 2nd appeal) against the defendants(respondents in this 2nd appeal) that, Haguru Mohanty was their common ancestor. Haguru Mohanty died leaving behind his four sons, i.e., Prasad, Narayan, Baraju@ Brajakishore and Kalandi. Kalandi died unmarried. After the death of Kalandi, his share devolved upon his three brothers.
Baraju@ Brajakishore died leaving behind his son Brundaban. Brundaban died unmarried, for which, the share of Brundaban devolved upon other two branches, i.e., upon the branch of Prasad and Narayan.
Narayan died leaving behind his son, Pranabandhu. Pranabandhu died leaving behind Hadiani, Jema and Asha.
Prasad died leaving behind his only son Mohan. Mohan died leaving behind his only son Jagannath. Jagannath died leaving behind the plaintiffs as his successors.
The suit properties were under Khata No.541/3 Ac.12.25 decimals in the revisional settlement of the year 1905 and the same was recorded jointly in the names of Jagannath, Pranabandhu, Brajamohan and Kalandi.
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The said properties covered under Revisional Settlement Khata No.541/3 was partitioned through a suit vide O.S. No.2/1924 Class-I in the court of Sub-Judge, Cuttack.
In the said partition, Pranabandhu got Ac.7.10 decimals and Jagannath got Ac.5.15 decimals. In spite of such partition, in its next Sabik Settlement of the year 1930, the said properties were recorded jointly in the names of Pranabandhu, Jagannath and Brundaban.
Hadiani got Ac.2.66 decimals of land out of Ac.7.10 decimals land of Pranabandhu from Sabik Plot No.484. Jema and Asha got Ac.3.48 decimals land of Pranabandhu from Sabik Plot No.484.
Out of Ac.3.48 decimals properties of Jema and Asha from Sabik Plot No.484, they(Jema and Asha) 1st sold Ac.3.32 decimals from Sabik Plot No.484 to Padmalochan through registered Sale Deed No.2030 dated 11.04.1928(Ext.D). For which, the rest Ac.0.16 decimals of land from Sabik Plot No.484 remained with Jema and Asha. They(Jema and Asha) again sold Ac.1.22 decimals through registered Sale deed No.3318 dated 07.07.1931(Ext.E) in favour of Padmalochan. The 2nd Sale Deed No.3318 dated 07.07.1931(Ext.E) in favour of Padmalochan was for Ac.0.16 decimals from Sabik Plot No.484 and Ac.0.96 decimals from Sabik Plot No.490. The total purchased land of Padmalochan from Jema and Asha Page 3 of 16 through the above two sale deeds was Ac.3.32 decimals + Ac.1.22 decimals = Ac.4.54 decimals in total.
Sabik Plot Nos.484 and 490 were Plot Nos.448 and 460 in the previous revisional settlement.
In the Hal Settlement, the said Sabik Plot Nos.484 and 490 became Hal Plot Nos.832, 833, 836 and 853 and out of which, the Hal Plot number 853 is the suit land in the suit.
In the year 1963, Padmalochan partitioned/divided the part of his above purchased properties(those were purchased from Jema and Asha through two sale deeds vide Exts.D & E), between his two sons, i.e., Pratap and Prafulla by a registered partition deed vide Ext.8 and allotted Ac.1.22 decimals each from Sabik Plot No.484 and Ac.0.48 decimals each from Hal Plot No.490 to Pratap and Prafulla. As such, Padmalochan partitioned/divided Ac.1.22 decimals + Ac.1.22 decimals(from Sabik Plot No.484) and Ac.0.48 decimals +Ac.0.48 decimals from Sabik Plot No.490 in total Ac.3.40 decimals between Pratap and Prafulla and the rest property, i.e., Ac.0.14 decimals remained with him(Padmalochan). Because, Padmalochan had purchased Ac.4.54 decimals in total from Jema and Asha.
The defendants are the daughters of Bharata. Bharata was the 1st son of Padmalochan. Suka was the wife of Bharata. In the year 1966, Page 4 of 16 Padmalochan executed a sale deed vide Ext.C in favour of his daughter- in-law, i.e., Suka in selling Ac.2.00 decimals out of Sabik Plot No.484, although Padmalochan had only remaining Ac.0.14 decimals from Sabik Plot No.484 with him after dividing his purchased properties of that Sabik Plot No.484 between his two sons, i.e. Pratap and Prafulla.
4. On the basis of the above excess land purchased by Suka from Padmalochan, i.e., from Sabik Plot No.484, the daughters of Suka, i.e., defendants created disturbances in the possession of the plaintiffs over the suit Plot No.853 corresponding to Sabik Plot No.484, as the RoR of the suit Hal Plot No.853 was erroneously published in the names of the defendants. For which, the plaintiffs filed the suit praying for declaration of their title over the suit Plot No.853 and for correction of the RoR of Hal Plot No.853 from the names of the defendants to the names of the plaintiffs.
5. The defendants challenged the suit of the plaintiffs taking their stands in their joint written statement that, Padmalochan had sold Ac.2.00 decimals through registered sale deed in the year 1966 vide Ext.C in favour of their mother Suka, in which, Padmalochan was the exclusive owner. For which, the plaintiffs had/have no interest in the suit land. Therefore, taking the title and possession of the defendants over the suit Plot No.853 into account, the RoR of the suit Plot No.853 along with Page 5 of 16 other plots under Hal Khata No.479 was prepared properly and lawfully in the names of the defendants discarding the objection of the plaintiffs. For which, the suit of the plaintiffs for correction of record of right of the suit Plot No.853 from the names of the defendants to the names of the plaintiffs does not arise. Because, the defendants are the lawful owners and in possession over the same, but, the plaintiffs had/have no interest and possession in the suit land. 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 four numbers of issues were framed by the learned trial court and the said issues are:-
ISSUES i. Whether the suit is maintainable?
ii. Whether the plaintiffs have right, title and possession over the suit land?
iii. Whether the defendants have got right over the suit land?
iv. To what other relief, the plaintiffs are entitled to get?
7. In order to substantiate the aforesaid relief sought for by the plaintiffs against the defendants, they (plaintiffs) examined three witnesses from their side including the plaintiff no.1 as P.W.1 and relied upon several documents vide Exts.1 to 11 on their behalf. Page 6 of 16
On the contrary, in order to nullify/defeat the suit of the plaintiffs, the defendants examined three witnesses from their side including defendant no.1 as D.W.1 and exhibited several documents on their behalf vide Exts.A to L.
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 in favour of the plaintiffs and against the defendants.
Basing upon the findings and observations made by the learned trial court in all the issues in favour of the plaintiffs and against the defendants, the learned trial court decreed the suit of the plaintiffs on contest against the defendants as per its judgment and decree dated 22.08.2003 and 08.09.2003 respectively and declared that, the recording of the suit land in the names of the defendants in the M.S. RoR is erroneous and the record thereof is to be corrected from the names of the defendants to the names of the plaintiffs and the plaintiffs have title over the suit Hal Plot No.853, but, the defendants have no title in Hal Suit Plot No.853 assigning the reasons that, "although, Padmalochan had purchased total Ac.3.40 decimals as per law from Jema and Asha, but, he has transferred Ac.5.40 decimals out of his purchased Ac.3.40 decimals, for which, sale of Ac.2.00 Page 7 of 16 decimals from Sabik Plot No.484 in favour of Suka (mother of the defendants) was not legal. Because, prior to that, he (Padmalochan) had distributed/divided his total purchased land of Sabik Plot No.484 in favour of his two sons through registered partition deed vide Ext.8. For which, the recording of Hal Suit Plot No.853 in the names of defendants as the successors of Suka is not legal and as such, the defendants have no interest over the suit Plot No.853. So, it was declared by the learned trial court that, recording of Hal Suit Plot No.853 in the names of the defendants is erroneous. Therefore, direction was given for correction of Hal RoR thereof from the names of the defendants to the names of the plaintiffs."
9. On being dissatisfied with the aforesaid judgment and decree dated 08.05.2002 and 20.06.2002 respectively passed by the learned trial court in T.S. No.399 of 1996-I in favour of the plaintiffs and against the defendants, they(defendants) challenged the same preferring the 1 st appeal vide T.A. No.67 of 2002 being the appellants against the plaintiffs arraying them (plaintiffs) as respondents.
10. After hearing from both the sides, the learned 1st appellate court allowed that 1st appeal vide T.A. No.67 of 2002 of the defendants and set aside the judgment and decree passed by the learned trial court in the suit vide T.S. No.399 of 1996-I and dismissed the suit of the plaintiffs on Page 8 of 16 contest against the defendants as per its judgment and decree dated 22.08.2003 and 08.09.2003 respectively assigning the reasons that, "the plaintiffs have not been able to establish firmly that, they are the owners and in possession over Hal Suit Plot No.853. Rather it is established that Hal Suit Plot No.853 corresponding to part of Sabik Plot No.484 was the purchased property of Suka (mother of the defendants) from her father-in-law Padmalochan. Padmalochan being the lawful owner of the same, he (Padmalochan) had sold the same to the mother of the defendants, i.e., Suka, for which, the plaintiffs have no right, title and possession over the Hal Suit Plot No.853. The recording of Hal Suit Plot No.853 under Hal Khata No.479 in the names of defendants as the successors/daughters of Suka is proper."
11. On being aggrieved with the aforesaid judgment and decree dated 22.08.2003 and 08.09.2003 respectively passed by the learned 1st appellate court in T.A. No.67 of 2002 in dismissing the suit of the plaintiffs, they(plaintiffs) challenged the same 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 questions of law, i.e.:-
Page 9 of 16
(i) Whether first appellate court committed error of law in reversing judgment and decree of the learned trial court without discussing the evidence, on which it is based?
(ii) Whether non-consideration of Ext.8 is an error of law for coming to a finding that, there is no documentary evidence to show that Plot No.490 fell to the share of Pranabandhu.?
(iii) Whether the Rafa-nama(Ext.2) executed by Suka, the predecessors in interest of the defendants is binding on her daughters, the defendants/respondents?
(iv) Whether the defendants, in view of Ext.2 are estopped from claiming that their lands have been amalgamated with the lands of the plaintiffs?
(v) Whether the adverse inference is to be drawn against the defendants for not examining the husband of Suka, who is otherwise acquainted with the facts of the case?
13. I have already heard from the learned senior counsel for the appellants(plaintiffs) and learned counsel for the respondents(defendants).
14. When, all the above formulated substantial questions of law are inter-linked having ample nexus with each other according to the findings and observations made by the learned trial court and learned 1st appellate court on the basis of the pleadings and evidence of the parties, then, all the aforesaid formulated substantial questions of law are taken up together analogously for their discussions hereunder :- Page 10 of 16
It is the admitted/undisputed case of the parties that, as per the decree passed in O.S. No.02 of 1924(Ext.1), the predecessor of the defendants, i.e., Panabandhu got Ac.7.10 decimals of land.
Out of that Ac.7.10 decimals of land, Ac.2.66 was given to Hadiani(one successor of Pranabandhu).
The rest Ac.4.44 decimals out of Ac.7.10 decimals remained with Jema and Asha(successors of Pranabandhu)
15. It appears from the compromise decree passed in O.S. No.02 of 1924(Ext.1) that, properties of R.S. Plot Nos.448, 460 along with several other plots under R.S. Khata Nos.380 and 541/3 were the subject matter of the compromise decree in O.S. No.02 of 1924.
In the suit / appeal at hand, the dispute between the parties relating to C.S. Plot Nos.484 and 490 corresponds to R.S. Plot Nos.448 & 460 of the Revisional Settlement.
16. The C.S. Plot Nos.484 and 490 were under C.S. Khata No.303 as per Ext.-A. The area of C.S. Plot No.484 was Ac.6.01 decimals. The area of C.S. Plot No.490 was Ac.0.96 decimals. The area of R.S. Plot No.448 was Ac.2.44 decimals. The area of R.S. Plot No.460 was Ac.4.48 decimals.
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Pranabandhu got Ac.1.22 decimals from R.S. Plot No.448 and Ac.3.36 from R.S. Plot No.460 in total Ac.4.58 decimals in the compromise decree of the partition suit vide O.S. No.02 of 1924.
P.W.1(Plaintiff No.1) has deposed that, Pranabandhu sold Ac.2.66 decimals to Hadiani from C.S. Plot No.271. Since C.S. Plot No.271 does not relate to the subject matter of the suit at hand, the said sale of Ac.2.66 decimals to Hadiani from C.S. Plot No.271 has no nexus/connection with this suit/appeal at hand.
As Pranabandhu had got Ac.4.58 decimals of land from R.S. Plot Nos.448 and 460, the said Ac.4.58 decimals had come to the hands of Jema and Asha.
17. The area of C.S. Plot No.484 was Ac.6.01 decimals. Jema and Asha sold Ac.3.32 decimals out of Ac.6.01 decimals from C.S. Plot No.484 to Padmalochan through R.S. D. No.2030 of 1928(Ext.-D) and again sold Ac.1.22 decimals out of the very same C.S. Plot No.484 to Padmalochan through R.S.D. No.3318 of 1931(Ext.-E).
As such, Jema and Asha sold total Ac.4.54 decimals of land out of Ac.6.01 decimals from C.S. Plot No.484 to Padmalochan through two registered sale deeds vide Ext.D and Ext.E respectively.
18. When, the above purchased land, i.e., Ac.2.00 decimals of Suka from her father-in-law Padmalochan through the sale deed vide Ext.C has Page 12 of 16 been recorded in the names of her daughter, i.e., in the names of the defendants as Hal Plot No.853 along with other plots in Hal Settlement, then at this juncture, it cannot be held that, the recording of suit Plot No.853 under Hal Khata No.479 in the names of the defendants is erroneous.
The plaintiffs have stated in their plaint that, the tenancy ledger in respect of the purchased land of Padmalochan from Jema and Asha was prepared in the name of Padmalochan.
The plaintiffs have not produced any document to show that, the properties covered under the tenancy ledger in the name of Padmalochan in respect of his purchased properties from Jema and Asha corresponds to C.S. Plot No.490.
19. When, Padmalochan had purchased Ac.4.54 decimals of land from Jema and Asha through two registered sale deeds vide Exts.D & E and when, Padmalochan was the exclusive owner of that Ac.4.54 decimals of land, in which, his sons, i.e., Pratap and Prafulla had no interest, then at this juncture, Padmalochan being the exclusive owner of that Ac.4.54 decimals of his purchased land from C.S. Plot No.484, he(Padmalochan) had no authority under law to partition/divide and provide from his purchased Ac.4.54 decimals of land to his two sons, i.e., Prafulla and Page 13 of 16 Pratap, i.e., Ac.1.22 decimals each through registered partition deed of the year 1963 vide Ext.8.
Because, his purchased Ac.4.54 decimals of land from Sabik Plot No.484 were his self-acquired properties, For which, he(Padmalochan) was not authorized under law to partition/divide the same, i.e., his self- acquired properties between his two sons, i.e. Pratap and Prafulla through partition deed vide Ext.8 giving them each Ac.1.22 decimals of land, as Pratrap and Prafulla were not the owners of the said land by the time of partition through Ext.8.
On this aspect, propositions of law has already been clarified in the ratio of the following decisions:-
(i) In a case between Sarojini Dei alias Das and others vrs. Satya Prasad Pattnaik and others : reported in 2014 (II) OLR-932-
Partition--Exclusive property of one cannot be distributed/partitioned by him between his children.
(ii) In a case between Sita Ram Bhama vrs. Ramvatar Bhama :
reported in (2018) 15 SCC-130 --The Supreme Court observed that, neither the plaintiff nor the defendant had any share in the property on the date when it was said to have been partitioned by their father, who ultimately died and after his death, the plaintiff, the defendant and their mother as well as the sisters became the legal heirs. Because, partition made by father to his own property (in which, the sons had no interest) between his sons was not legal.
So, in view of the above propositions of law, the title of entire purchased Ac.4.54 decimals of land from Jema and Asha through sale deeds vide Exts.D & E was with Padmalochan. For which, the sale of Ac.2.00 decimals of land from C.S. Plot No.484 by Padmalochan in Page 14 of 16 favour of the mother of the defendants, i.e., Suka cannot be held as illegal.
20. As per the discussions and observations made above, when Padmalochan was the owner of more than Ac.2.00 decimals of land of C.S. Plot No.484 by the time of execution of the sale deed vide Ext.C in favour of the mother of the defendants in the year 1966, then at this juncture, it cannot be held that, the sale of Ac.2.00 decimals land by Padmalochan in favour of Suka (mother of the defendants) is illegal.
Therefore, recording of Hal Suit Plot No.853 in the names of the defendants as the successors as well as daughters of Suka cannot be held as erroneous.
21. For which, the findings and observations made by the learned 1 st appellate court refusing the prayer of the plaintiffs (appellants in this 2nd appeal) for correction of the Hal RoR of the suit land from the names of the defendants to the names of the plaintiffs cannot be held as erroneous. Because, the plaintiffs have failed to establish their title and interest over the suit land vide Hal Plot No.853.
Therefore, the question of interfering with the impugned judgment and decree passed by the learned 1st appellate court through this 2nd appeal filed by the appellants/plaintiffs does not arise. Page 15 of 16
22. As such, there is no merit in this 2nd appeal filed by the appellants(plaintiffs). The same must fail.
23. In result, this 2nd appeal filed by the appellants(plaintiffs) is dismissed on contest, but, without cost.
( A.C. Behera ) Judge Orissa High Court, Cuttack The 17th of September, 2025/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 18-Sep-2025 07:26:49 Page 16 of 16