SAUMITRI vs DINABANDHU
- Court
- Odisha High Court
SA/175/1989
ODHC010009011989
2026:OHC:270
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.175 of 1989
(CNR NO-ODHC010009011989)
(In the matter of an appeal under Section 100 of the Code of Civil
Procedure, 1908).
Saumitri Panda & Ors. …. Appellant (s)
-versus-
Dinabandhu Mohanty (Dead)
through legal heirs
Mr. Pramod Kumar Mohanty & Ors.
…. Respondent (s)
Advocates appeared in this case through Hybrid Arrangement Mode :
For Appellant (s) : Mr. B.B. Rath, Adv.
For Respondent (s) : M/s. Dayananda Mohapatra, Sr. Adv.
along with Mr. M.R. Pradhan,
Mr. J. Barik, S.K. Rout, Advs.
CORAM:
HON’BLE DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING: -08.09.2026
DATE OF JUDGMENT: -30.10.2026
Dr. Sanjeeb K Panigrahi, J.
1. The present Second Appeal arises out of a reversing judgment passed
by the learned Sub-Judge, Bargarh in Title Appeal No.12 of 1987.
I. F ACTUAL M ATRIX :
2. The present litigation traces its origin to Title Suit No. 16 of 1982,
instituted by the Plaintiff-Respondent before the learned Munsif,
Bargarh, seeking declaration of his right, title and interest over
the suit schedule property, confirmation of possession or, in the
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alternative, recovery thereof, together with a decree of
permanent injunction against the Defendant-Appellants. The
suit, having been dismissed on contest, the Plaintiff-Respondent
carried the matter in appeal by instituting Title Appeal No. 12 of
1987 before the learned Sub-Judge, Bargarh. The learned First
Appellate Court allowed the appeal and set aside the judgment
and decree of the learned Trial Court, thereby reversing the
dismissal of the suit. Aggrieved by the reversing judgment and
decree of the learned First Appellate Court, the Defendant-
Appellants have preferred the present Second Appeal, which has
been admitted for determination of the following substantial
questions of law:
“7(B) Whether the lower appellate court is justified to arrive
at a conclusion that the Hamid Settlement Plot No.2607
and 2605 correspond to Major Settlement Plot No.7912
and 7911 respectively on the basis of the record of rights
(Ext.3 and 4) specially when there is absolutely no
evidence to hold that Major Settlement Plot No.7911 and
7912 corresponds to the suit lands claimed by the plaintiff
in the suit?
(C) Whether the lower appellate court is justified to hold
that Ac.0.22 dec. of land purchased by the wife of
defendant no.1 is quite distinct and separate from the suit
land specially when the plaintiff’s has purchased part
plots and there is no description of the boundary of the
lands purchased by him in his registered sale deed (Ext.1)
and the trace map appended to the R.S.D is not being
filed in court and thus there is no evidence to establish
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that lands purchased by the plaintiff under Ext.1 relates
to the suit land?
(E) Whether the lower appellate court is justified to decree
the plaintiff’s suit for permanent injunction specially
when there was no evidence led on behalf to the plaintiff
to establish his possession over the suit land? ”
II. S UBMISSIONS ON BEHALF OF THE APPELLANTS :
3. Learned counsel for the Appellants made the following submissions
in support of his contentions:
(i)
The Plaintiff-Respondent’s case, briefly stated, is that he
acquired the suit land from one Narayan Das by virtue of a
registered sale deed dated 08.06.1955 (Ext.1), whereupon he
entered into possession thereof and has continued to possess the
same ever since. In support of his claim of title and possession,
he relied upon the Record of Rights standing in his name and
the payment of land revenue. His grievance is that the
Defendant-Appellants, despite having no right, title or interest
in the suit land, began interfering with his peaceful possession
from 26.02.1982, asserting ownership over a portion thereof on
the strength of an alleged purchase. Such interference, coupled
with the denial of his title, compelled him to institute the suit
seeking appropriate relief.
(ii) The Defendant-Appellants, in their written statement, denied
the plaint averments and contested the suit, setting up an
independent claim of title and possession over the disputed
land. Their case, in substance, is that in Hamid Settlement Plot
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Location: ORISSA HIGH COURT, CUTTACK
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No. 2607, measuring Ac. 2.82 decimals, originally stood
recorded in the name of one Sundar Sahu, who, while in
possession thereof, surrendered the same in favour of the then
Mafidar Gountia, Smt. Jangyabati @ Janha Priya Kar. The latter,
having thus acquired possession, leased out Ac. 0.22 decimals of
land, including the suit land, in favour of Renuka Pandit on
16.08.1950. Renuka Pandit, in turn, sold the said land to
Sairendri Panda, wife of Defendant No. 1, for a consideration of
Rs. 800/- on 23.06.1960, whereafter the Defendants claim to have
remained in peaceful and continuous possession thereof. They
further pleaded that Hamid Settlement Plot No. 2605, measuring
Ac. 1.19 decimals, stood recorded in the name of Chintamani
Sahu, and that Narayan Das, through whom the Plaintiff claims
title, had neither right, title nor interest in, nor possession over,
the suit land.
(iii) According to the Defendant-Appellants, out of the aforesaid Ac.
0.22 decimals, they subsequently alienated Ac. 0.06 decimals
from the southern portion to Judhisthir Panda and Ac. 0.05
decimals from the western portion to Haradan Hota, who, in
turn, transferred the same to Rushi Bhoi. The remaining Ac. 0.11
decimals, they asserted, continued in their exclusive possession,
of which Ac. 0.03 decimals was occupied by their residential
house, while the balance Ac. 0.08 decimals were being used as a
courtyard, kitchen garden and frontage. They further claimed to
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have erected a shed over the said land in 1964 and planted a
berry tree, the fruits of which they had been enjoying ever since.
Apart from asserting title through the aforesaid transactions, the
Defendants alternatively pleaded acquisition of title by adverse
possession. In support of their claim of possession, they relied
upon Criminal Misc. Case No. 58 of 1978, initiated under Section
145 of the Code of Criminal Procedure, wherein, according to
them, their possession over the disputed land had been
acknowledged by the Plaintiff and found to exist in the
proceeding..
(iv) While hearing the matter the learned trial Court framed the
following issues for determination:-
a. Is there any cause of action to bring the suit?
b. Is the suit maintainable in its form?
c. Is the suit barred by law of limitation?
d. Whether the plaintiff’s vendor Narayan Das had right,
title and interest over the suit land and the plaintiff by
virtue of a Registered Sale Deed dt.08.06.1955 executed
by Narayan Das got right, title, interest and possession
over the suit land?
e. Whether the suit land includes Ac.0.22 dec. of land that
purchased by the defendants in the year 1960 from
Renuka Pandit through Sayalandri Panda?
f. Whether the defendants have acquired their right over
the suit land by adverse possession?
g. Whether the corresponding H.S and M.S plots of the suit
lands as described in the plaint schedule are correct?
h.
To what other reliefs the plaintiff is entitled to?
(v) Upon consideration of the rival pleadings and evidence on
record, the learned Trial Court, having answered the issues
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Date: 06-Nov-2026 16:08:19
framed for adjudication, dismissed Title Suit No. 16 of 1982 by
judgment dated 22.06.1987 and decree dated 21.07.1987.
Aggrieved thereby, the Plaintiff-Respondent preferred Title
Appeal No. 12 of 1987, which came to be allowed by the learned
First Appellate Court by judgment dated 02.01.1989 and decree
dated 19.01.1989, thereby reversing the findings of the learned
Trial Court and setting aside its judgment and decree.
(vi) Learned counsel for the Defendant-Appellants contends that the
learned First Appellate Court fell into a substantial error of law
in treating the registered sale deed (Ext.1), read with the Record
of Rights (Exts.3 and 4), as sufficient to establish the Plaintiff-
Respondent’s title over the suit land, without examining the title
of his vendor. He submits that it is a settled principle of law that
an entry in the Record of Rights neither creates nor extinguishes
title, and that a purchaser can acquire no better title than that
possessed by his vendor. The learned Trial Court, upon
appreciation of the evidence, had categorically found that there
was no material to establish the right, title or possession of
Narayan Das, the Plaintiff’s vendor, over the disputed property
and, consequently, that the registered sale deed dated 09.06.1955
(Ext.1) conferred no title upon the Plaintiff. In such
circumstances, it is urged that the learned First Appellate Court,
in holding that an inquiry into the vendor’s title was
unnecessary and in relying upon the revenue entries to sustain
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Date: 06-Nov-2026 16:08:19
the Plaintiff’s claim, proceeded upon an erroneous
understanding of the law governing proof and derivation of
title, thereby rendering its reversing judgment legally
unsustainable.
(vii) Learned counsel for the Defendant-Appellants further contends
that the Plaintiff-Respondent failed to establish the identity of
the suit land by proving that Hamid Settlement Plot Nos. 2607
and 2605 correspond to Major Settlement Plot Nos. 7912 and
7911, respectively. He submits that the trace map appended to
the Plaintiff’s registered sale deed, identifying and demarcating
the specific portions allegedly purchased, was not produced in
evidence. The learned Trial Court, having considered this
evidentiary deficiency, expressly found that the alleged
correspondence between the plots under the two settlements
could not be satisfactorily established. Notwithstanding such
finding, the learned First Appellate Court proceeded to accept
their identity without any supporting evidence. It is, therefore,
submitted that the finding of the learned First Appellate Court
rests on no evidentiary foundation and that the decree founded
upon such an unproved identification of the suit property
suffers from a substantial error of law warranting interference in
Second Appeal.
(viii) Learned counsel for the Defendant-Appellants further submits
that the registered sale deed (Ext.1), under which the Plaintiff-
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Location: ORISSA HIGH COURT, CUTTACK
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Respondent claims title, admittedly contains no description of
the boundaries of the land conveyed, although the purchase
relates only to portions of larger plots. He contends that, upon
appreciation of the evidence in its entirety, the learned Trial
Court specifically found that there was no material to establish
that the land purchased under Ext.1 corresponded to Major
Settlement Plot Nos. 7912 and 7911. Despite this fundamental
deficiency in the identification of the property, the learned First
Appellate Court proceeded to decree the suit principally on the
strength of the Record of Rights (Exts.3 and 4), without any
independent evidence connecting the land described in the sale
deed with the suit property. It is, therefore, contended that the
learned First Appellate Court erred in treating revenue entries
as proof of the identity of the land conveyed and that its finding,
resting upon an unestablished correspondence between the
purchased land and the suit land, gives rise to a substantial
question of law warranting interference in Second Appeal.
(ix) Learned counsel for the Defendant-Appellants further contends
that it is a settled principle of law that a purchaser cannot
acquire a better title than that possessed by his vendor. In the
present case, there being no evidence to establish the right, title
or interest of Narayan Das, the Plaintiff-Respondent’s vendor,
over the suit property, the registered sale deed (Ext.1) could not,
by itself, confer any valid title upon the Plaintiff. He submits
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that, particularly when the vendor’s title had been specifically
disputed by the Defendants, the learned First Appellate Court
was obliged to examine whether the vendor himself possessed a
transferable interest in the property. By decreeing the suit
without determining this foundational question, the learned
First Appellate Court committed a substantial error of law,
rendering its reversing judgment legally unsustainable.
(x) Learned counsel for the Defendant-Appellants further submits
that the learned Trial Court, having found the suit land to be
inadequately described and incapable of definite identification,
erred in holding that the Ac. 0.22 decimals of land purchased by
the wife of Defendant No. 1 under the registered sale deed
(Ext.H) constituted a property distinct and separate from the
suit land. He contends that the said finding, subsequently
affirmed by the learned First Appellate Court, rests on no
satisfactory evidence establishing the identity and boundaries of
the respective properties. It is submitted that both Courts failed
to consider the material evidence adduced by the Defendants
concerning the location, extent and identity of the land
purchased under Ext.H and proceeded to exclude the suit land
from the said purchase without any reliable evidentiary
foundation. Such findings, being founded upon an unproved
distinction between the competing properties and reached
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Date: 06-Nov-2026 16:08:19
without proper consideration of material evidence, are assailed
as perverse and legally unsustainable.
(xi) Learned counsel for the Defendant-Appellants further contends
that, in the absence of any cogent evidence establishing the
Plaintiff-Respondent’s possession over the suit land, the learned
First Appellate Court committed a substantial error of law in
granting a decree of permanent injunction against the
Defendants. He submits that, without a definite finding of
possession founded upon reliable evidence, the grant of such
relief is legally unsustainable, particularly when the Plaintiff’s
title and the identity of the suit property themselves remain
seriously disputed.
(xii) He, accordingly, prays for allowing the prayer made in the
present Second Appeal.
III. S UBMISSIONS ON BEHALF OF THE RESPONDENTS :
4. In his opposition, learned counsel for the Respondents submits that:
i. Learned counsel for the Plaintiff-Respondent, on the other hand,
submits that the Plaintiff acquired the suit land from one
Narayan Das under a registered sale deed dated 08.06.1955
(Ext.1) and has remained in peaceful possession thereof ever
since. His possession, it is submitted, is supported by the Record
of Rights standing in his name and the continuous payment of
land revenue. He further contends that the Defendant-
Appellants, having no right, title or interest in the suit property,
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began interfering with the Plaintiff’s possession and disputing
his title from 26.02.1982 on the strength of an alleged purchase.
It was this interference with his possession, coupled with the
denial of his title, that gave rise to the cause of action for
institution of the suit.
ii. He further contends that the Defendant-Appellants have never
disputed the due execution or genuineness of the registered sale
deed (Ext.1), under which the Plaintiff claims title. He submits
that, the deed having remained unchallenged and the Record of
Rights (Exts.3 and 4) standing in the Plaintiff’s name, there was
no occasion for the learned Trial Court to embark upon an
independent inquiry into the title and possession of Narayan
Das, the Plaintiff’s vendor. According to him, the learned First
Appellate Court rightly found such an inquiry unnecessary and
upon consideration of Ext.1 in conjunction with the revenue
records, correctly held that the registered sale deed constituted a
valid conveyance of title in favour of the Plaintiff-Respondent.
iii. He further submits that the Record of Rights (Exts.3 and 4)
clearly establishes that Hamid Settlement Plot Nos. 2607 and
2605 correspond to Major Settlement Plot Nos. 7912 and 7911,
respectively. He contends that, once the identity of the plots
under the two settlements stood established through the
revenue records, no further evidence was necessary to identify
the suit land. The learned Trial Court, therefore, erred in holding
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that the suit property was insufficiently described and incapable
of identification. According to him, the learned First Appellate
Court, upon proper appreciation of the documentary evidence,
rightly reversed that finding and held that the identity of the
suit land had been sufficiently established.
iv. He further submits that both Courts below have concurrently
found that the Ac. 0.22 decimals of land purchased by the wife
of Defendant No. 1 under the registered sale deed (Ext.H) is
distinct and separate from the suit land and does not include
any portion thereof. He points out that the learned Trial Court,
while answering Issue No. 5, arrived at this finding upon
consideration of the oral and documentary evidence adduced by
the Defendants themselves, which was subsequently affirmed
by the learned First Appellate Court. Such concurrent finding of
fact, he contends, cannot be reopened in Second Appeal merely
on a reappreciation of evidence. He further submits that, since
the Defendants’ claim rests substantially upon their assertion
that the suit land forms part of the property conveyed under
Ext.H, the concurrent finding that the two properties are distinct
strikes at the very foundation of their defence and renders their
claim to the suit land unsustainable.
v. He further submits that both Courts below have concurrently
rejected the Defendant-Appellants’ plea of acquisition of title by
adverse possession. The said finding, having not been
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challenged in the present Second Appeal, has attained finality
and cannot be reopened at this stage. He, therefore, contends
that, with their claim of title under Ext.H having been negatived
and their alternative plea of adverse possession having also
failed, the Defendant-Appellants are left with no sustainable
claim of title over the suit land.
vi. He further submits that the finding regarding possession
recorded in Criminal Misc. Case No. 58 of 1978, a proceeding
under Section 145 of the Code of Criminal Procedure, is of no
conclusive significance in the present suit. He contends that
proceedings under Section 145 Cr.P.C. are summary in nature
and are confined to determining actual possession for the
limited purpose of preventing a breach of peace, without
adjudicating the competing claims of title. Any finding of
possession recorded therein, therefore, neither determines
proprietary rights nor does it bind the Civil Court in a
substantive suit for declaration of title and consequential relief.
Consequently, the Defendant-Appellants cannot rely upon the
said proceeding as conclusive proof of their possession or as a
ground to defeat the Plaintiff’s claim of title.
vii. He further submits that the Plaintiff’s claim of possession is
supported by his title acquired under the registered sale deed
(Ext.1), the Record of Rights (Exts.3 and 4) standing in his name
and the payment of land revenue. These materials, considered
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cumulatively, sufficiently establish his lawful possession over
the suit land. He contends that the Defendant-Appellants,
having failed to establish any right, title or interest therein, have
no lawful authority to interfere with such possession. The
learned First Appellate Court, therefore, upon consideration of
the evidence and the competing claims of the parties, rightly
granted a decree of permanent injunction protecting the
Plaintiff’s possession. The said finding, being founded upon the
evidence on record, warrants no interference in Second Appeal.
viii. He, lastly, submits that the contentions advanced by the
Defendant-Appellants essentially seek a fresh appreciation of
evidence concerning the identity of the suit land, the competing
claims of title and the question of possession, all of which fall
within the domain of factual adjudication. He contends that the
learned First Appellate Court, being the final Court of fact, has
arrived at its conclusions upon consideration of the oral and
documentary evidence on record, and that mere disagreement
with such findings does not give rise to a substantial question of
law within the meaning of Section 100 of the Code of Civil
Procedure, 1908. In the absence of any perversity,
misapplication of law or other legally recognised ground
warranting interference, the reversing judgment and decree of
the learned First Appellate Court, he submits, ought not to be
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disturbed. He accordingly prays for dismissal of the Second
Appeal.
IV. FINDING OF THE TRIAL COURT AND THE LOWER APPELLATE COURT :
5. While deciding the issues noted hereinabove, the learned trial court
made the following findings:-
i. While answering the issue No.4 the learned trial Court held that
“since the plaintiff has failed to establish that his vendor Narayan
Das has valid title in respect of the suit land, I am constrained to
hold that the plaintiff has failed to establish his source of title.
Consequently, I find on the strength of the registered sale deed
(Ext.1) dt.9.6.55, Plaintiff-Respondent has not acquired valid title
in respect of the suit land.
ii. While dealing with Issue No.5 the learned trial court found that
“As such considering the oral and documentary evidence adduced
on behalf of the defendants I find the suit land and the land
purchased by the defendants under Ext.H are distinct and separate
and the suit land is not included within the Ac.0.22 decimals of
land that was purchased by the defendants in the year 1960”.
iii. While deciding the Issue No.6 the learned trial court held
“Accordingly, I find the defendants have not acquired title over
the suit land by adverse possession.
iv. While deciding Issue no.7 the learned trial court held “I find from
the oral & documentary evidence placed on behalf of the plaintiff,
it is quite difficult to hold that the suit H.S. Plot No.2607 and 2605
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having an area of Ac.0.09 dec. and Ac.0.05 dec. respectively
corresponding to Major Settlement Plot No.7912 and 7911
respectively.
v. On Issue Nos.1 & 2 the trial court held that in view of his finding
on Issue No.4 & 7 there was no cause of action to bring the suit
and the suit is not maintainable in its form.
6. Thereafter, while deciding the issues framed in the Title Appeal the
learned lower Appellate Court also made the following findings:-
i. When the valid execution of Ext.1 of the vendor Narayan in favour
of the plaintiff-respondent have not been challenged by the
defendants and when the R.O.R’s Ext.3 and 4 in respect of the suit
land stand in favour of the plaintiff, the court below acted wrongly
unnecessarily exercising and taking it’s brain by investigating into
the title and possession of the said Narayan.
ii. The findings of the court below that the suit properties are
unspecific and unidentifiable cannot be tenable in the eye of law.
iii. When the portion of the said Hamid Settlement plots have been
proved to be the corresponding plot nos.7912 and 7914, nothing
more can be excepted from the side of the plaintiff to make his suit
lands more specific.
iv. I am led to conclude that the Ext.1 is a valid sale deed and the
suit lands have been well described and it is never unspecific and
unidentifiable.
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vi. It must be held that Ext.H is the valid deed and the vendee
concerned i.e. the wife of defendant no.1 and Chitra lekha Mishra
have acquired title over their purchased lands of Ac.0.22 dec. by
virtue of the same vide sale deed (Ext.H).
vii. The court below has correctly assessed the evidence of the
parties and has come to a finding that the said purchase lands of
Ac.0.22 dec. of the defendants are distinct and separate properties
and they do not include the suit properties.
viii. I find the finding of the court below vide Issue No.6 is well
bounded and correct by disbelieving the said adverse possession.
V. C OURT S R EASONING AND A NALYSIS :
’
7. Heard learned counsel for the parties and perused the material on
record. The appeal was admitted on grounds 7(B), (C) and (E) of the
memorandum. Stripped of their argumentative dress, they present the
following substantial questions of law:
(i) Whether the lower appellate court erred in law in holding
that the Plaintiff acquired title under Ext.1. It reached that
view without examining the vendor’s title, which the
Defendants had put squarely in issue, and it relied on the
record of rights (Ext.3 and Ext.4) as proof of title.
(ii) Whether the lower appellate court’s finding that Hamid
Settlement Plot Nos.2607 and 2605 correspond to Major
Settlement Plot Nos.7912 and 7911, and that the suit land is
identifiable, rests on no legal evidence.
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(iii) Whether the finding that the Ac.0.22 decimals purchased
under Ext.H is distinct from the suit land can sustain a
decree in the Plaintiff’s favour, when the suit land itself was
never located on the ground.
(iv) Whether the decree for permanent injunction could be
granted without proof of the Plaintiff’s possession over an
identified parcel on the date of the suit.
8. A Second Appeal is no third round on facts. Section 100 of the Code of
Civil Procedure, 1908 confines this Court to substantial questions of
law. That restraint, however, has limits. The jurisdiction of the High
Court under Section 100 CPC does not extend to a fresh appreciation
of evidence merely because another view of the facts is possible. Yet, a
finding of fact is not immune from scrutiny where the process by
which it was reached is itself legally flawed. If a finding rests on no
evidence, overlooks material evidence, proceeds upon an erroneous
application of law, or wrongly places the burden of proof, it may give
rise to a substantial question of law. The Supreme Court, in
Hero
1
Vinoth (Minor) v. Seshammal , has explained that even a finding
ostensibly based on evidence may be treated as one based on no
evidence where the evidence, taken as a whole, is not reasonably
capable of supporting it. The distinction, therefore, is between a
finding that may be factually debatable and one that is legally
unsustainable. Section 100 CPC permits interference with the latter,
1
(2006) 5 SCC 545
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but not merely with the former. Fact-finding that has lost its moorings
in the evidence does not acquire immunity merely because it wears
the label of fact.
9. A further obligation rests upon the First Appellate Court when it
reverses a judgment of the Trial Court, as the final Court of fact, it is
undoubtedly competent to reassess the evidence and arrive at
independent conclusions. Such power, however, carries with it a
corresponding duty to examine the reasons which persuaded the Trial
Court to reach a contrary conclusion and to demonstrate, through a
reasoned appreciation of the evidence as to why those reasons cannot
be sustained. A judgment of reversal must engage with, and not
merely displace, the findings it seeks to overturn. The Supreme Court,
2
in Santosh Hazari v. Purushottam Tiwari , has emphasised this
obligation. In the present case, the learned Trial Court dismissed the
suit principally on two independent grounds that is the Plaintiff’s
failure to establish his vendor’s title under Issue No. 4 and his failure
to establish the identity of the suit land under Issue No. 7. The
sustainability of the impugned reversing judgment must, therefore, be
examined in the light of whether the learned First Appellate Court has
adequately addressed and displaced both these findings by cogent
reasons founded upon the evidence on record.
10. Further, the questions raised are purely factual and, therefore,
beyond the scope of Section 100 CPC which cannot be accepted
2
(2001) 3 SCC 179
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without examining the nature of the errors alleged. Had the learned
First Appellate Court, upon a proper appreciation of the evidence,
merely preferred one reasonably possible view over another, its
findings would ordinarily have remained beyond interference in
Second Appeal. The infirmity here, however, lies deeper. The learned
First Appellate Court proceeded on the premise that the due
execution of a registered sale deed sufficiently established the
vendor’s title, treated entries in the Record of Rights as proof of
ownership, and accepted the identity of the suit land without
identifying any reliable evidence connecting the property conveyed
under the sale deed with the land claimed in the suit. These are not
mere errors in the appreciation of evidence, but errors concerning the
legal requirements for establishing title and identifying immovable
property. The distinction is fundamental, while an erroneous
inference from evidence may remain within the province of factual
adjudication, a conclusion based on an incorrect legal premise or
unsupported by evidence is amenable to scrutiny under Section 100
CPC. The impugned findings, therefore, cannot claim immunity
merely because they were rendered by the final Court of fact.
A. Question (i): Execution of the deed and title of the vendor:
The lower appellate court reasoned that since the Defendants did not
challenge the valid execution of Ext.1, the trial court needlessly
exercised its brain over the title of Narayan Das. With respect, the
reasoning confuses two distinct things. Execution answers whether
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the vendor signed and registered the deed. Title answers whether the
vendor had anything to convey. A deed is a vehicle of transfer. It
carries only the interest that its maker possessed. Section 8 of the
Transfer of Property Act, 1882 passes to the transferee all the interest
which the transferor is then capable of passing, and nothing more.
The ancient maxim nemo dat quod non habet expresses the same truth.
A purchaser stands in the shoes of his vendor. If those shoes are
empty, the purchaser stands on nothing.
11. The defence of the Defendant-Appellants was not one of mere denial,
rather hey specifically challenged the right, title, interest and
possession of Narayan Das, the Plaintiff’s vendor, and asserted an
independent chain of title through Sundar Sahu, the Mafidar Gountia
and Renuka Pandit. It was against this backdrop that the learned Trial
Court framed Issue No. 4 concerning the vendor’s title and the
validity of the Plaintiff’s acquisition under Ext.1. Once the very source
of the Plaintiff’s title was disputed, the question whether his vendor
possessed any transferable interest became fundamental to the
adjudication. An undisputed sale deed may establish the execution of
a conveyance, but not necessarily the title of the person executing it. A
vendor can convey no better title than he possesses. The learned First
Appellate Court, therefore, fell into a legal error in treating the
absence of a challenge to the execution of Ext.1 as dispensing with the
necessity of examining the vendor’s title. In doing so, it answered
Issue No. 4 without resolving the very controversy that lay at its heart.
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12. It is well settled that revenue and settlement entries, being primarily
maintained for fiscal purposes, neither create nor extinguish title to
immovable property. The Supreme Court, in Suraj Bhan v. Financial
3
Commissioner , has reiterated this principle as follows:
“It is well settled that an entry in Revenue Records does
not confer title on a person whose name appears in
Record of Rights. It is settled law that entries in the
Revenue Records or Jamabandi have only 'fiscal purpose'
i.e. payment of land-revenue, and no ownership is
conferred on the basis of such entries. So far as title to the
property is concerned, it can only be decided by a
competent Civil Court (vide Jattu Ram v. Hakam Singh
and Ors., AIR 1994 SC 1653)”
13.
Although a finally published Record of Rights under the Odisha
Survey and Settlement Act, 1958 carries a statutory presumption of
correctness, such presumption is rebuttable and extends only to the
matters recorded therein. It does not, by itself, establish the
proprietary title of the person in whose favour the entry stands. More
importantly, an entry made during a subsequent settlement cannot
retrospectively establish that Narayan Das possessed a valid and
transferable title to the suit land in 1955. Equally, it cannot, without
supporting evidence, establish that the land recorded under the Major
Settlement is identical to the property conveyed under Ext.1. The
learned First Appellate Court, therefore, erred in treating the revenue
entries as sufficient to bridge two distinct evidentiary gaps: the
absence of proof of the vendor’s title and the failure to establish the
3
(2007) 6 SCC 186
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identity of the land conveyed. A presumption arising from a revenue
entry cannot be enlarged into proof of matters which the entry neither
records nor establishes.
14. The burden lay throughout on the Plaintiff. Under Sections 101 and
102 of the Indian Evidence Act, 1872, which governed the trial, the
party who asserts a fact must prove it. A plaintiff who seeks a
declaration of title must succeed on the strength of his own title and
gains nothing from the weakness of the defence. The Supreme Court
4
in Union of India v. Vasavi Co-operative Housing Society Ltd .,
restated this. In the said decision, the Court cautioned that revenue
entries are no substitute for the proof of title. The trial court found
that no evidence could be established pertaining to Narayan Das’s
title or possession. The lower appellate court did not disturb that
finding on the evidence. It simply declared the question irrelevant.
That is nothing but a misdirection in law. Question (i) is answered in
favour of the Appellants.
B. Question (ii): Identity of the suit land:
15. Land, unlike a chattel, cannot be handed across the counter. Before a
court declares a man’s title to land, it must know where on the earth
that land lies. For that reason, Order VII Rule 3 of the Code requires a
plaint concerning immovable property to describe it sufficiently to
identify it. The plaint may do so by boundaries or by survey numbers.
4
(2014) 2 SCC 269
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A decree over land that cannot be located is a decree in the air. It
invites a fresh dispute at the stage of execution.
16. The difficulty in this case is acute. Ext.1 conveys portions of Hamid
Settlement Plot Nos.2607 and 2605. According to the Defendants,
these are large plots of Ac.2.82 decimals and Ac.1.19 decimals. The
suit claims only Ac.0.09 decimals and Ac.0.05 decimals out of them.
The deed does not describe the boundaries of the portions sold. The
trace map said to be appended to it, which alone could show which
slice of the larger plots passed to the Plaintiff, was not produced.
When a purchaser buys a fragment of a large plot, the fragment has
no identity apart from the boundaries or the map that defines it.
Without either, the deed tells the court how much was sold and is
completely silent about the portion.
17. The lower appellate court bridged this gap with the record of rights. It
is held that once the Hamid Settlement plots were “proved” to
correspond to the Major Settlement plots, nothing more could be
expected of the Plaintiff. The reasoning is nothing but circular. Ext.3
and Ext.4 show that certain Major Settlement plots stand recorded in
the Plaintiff’s name. They do not show that those plots are the very
portions conveyed by Ext.1. The link between the deed and the
settlement record is the fact in issue. The lower appellate court
assumed that link and then treated it as proved. It also left
unanswered, the trial court’s reasoning on Issue No.7, which had
examined the oral and documentary evidence and found the
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correspondence unproved. Its own finding refers in one place to Plot
Nos.7912 and 7914, which reflects the want of care with which the
question was approached.
18. A finding on the identity of land that rests on no evidence linking the
deed to the ground is a finding on no evidence. It raises a substantial
question of law. Question (ii) is answered in favour of the Appellants
C. Question (iii): The distinctness of the land under Ext.H:
19. Both Courts below have found that the Ac. 0.22 decimals of land
purchased by the wife of Defendant No. 1 under Ext.H is distinct from
the suit land. The Plaintiff-Respondent relies upon this concurrent
finding to resist interference in Second Appeal. The contention,
however, overlooks a fundamental distinction. A finding that the
Defendants’ purchased land is separate from the suit property does
not, by itself, establish either the Plaintiff’s title or the identity of the
land conveyed under Ext.1. The failure of one party to establish its
claim cannot relieve the other party of the burden of proving its own.
The concurrent finding, therefore, even if accepted, cannot fill up the
missing foundation of the Plaintiff’s title or cure the deficiencies in the
identification of the suit land.
20. A finding that two parcels of land are distinct necessarily
presupposes that their respective identities and locations have been
satisfactorily established. In the present case, however, the learned
Trial Court expressly found the suit land to be insufficiently described
and incapable of definite identification. Viewed against that finding,
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its conclusion that the property conveyed under Ext.H was distinct
from the suit land could, at best, signify that the Defendants had
failed to establish that the disputed land formed part of their
purchase. Such a negative finding cannot, by itself, establish the
identity or location of the land claimed by the Plaintiff. The failure to
prove that the suit land falls within Ext.H is not proof that it falls
within Ext.1. The distinction is fundamental, for the absence of proof
supporting the Defendants’ claim cannot substitute for affirmative
evidence identifying the property claimed by the Plaintiff. The
concurrent finding of distinctness, therefore, does not resolve the
question of identification upon which the Plaintiff’s claim
substantially depends.
21. The finding, at best, negatives the Defendant-Appellants’ claim that
the suit land forms an integral part of their purchase under Ext.H, it
does not, by itself, establish any right or title in favour of the Plaintiff-
Respondent. It is a settled principle that a plaintiff seeking declaration
of title must succeed on the strength of his own case and not upon the
weakness of his adversary’s claim. The failure of the Defendants to
establish their title cannot dispense with the Plaintiff’s obligation to
prove his own. Even accepting the concurrent finding in its entirety,
the two fundamental deficiencies identified by the learned Trial Court
remain unanswered, namely, the absence of proof of the Plaintiff’s
vendor’s title and the failure to establish the identity of the suit land.
The learned First Appellate Court, therefore, erred in treating the
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rejection of the Defendants’ competing claim as lending affirmative
support to the Plaintiff’s title. A finding that the Defendants have no
title is not, by itself, a finding that the Plaintiff has one. Accordingly,
substantial question of law No. (iii) is answered by holding that the
concurrent finding concerning Ext.H, irrespective of its correctness,
cannot independently sustain a decree declaring the Plaintiff’s title
over the suit land.
D. Question (iv): Permanent injunction:
22. An injunction protects possession. It does not create it. Where a
plaintiff sues for an injunction on the basis of possession, the court
must ask whether he was in possession of the identified property on
the date of the suit. The Supreme Court in Anathula Sudhakar v. P.
5
Buchi Reddy , explains the distinction between a suit for bare
injunction and one that turns on title, the relevant paragraph is
extracted herein below:
“15. There is some confusion as to in what
circumstances the question of title will be directly and
substantially in issue, and in what circumstances the
question of title will be collaterally and incidentally in
issue, in a suit for injunction simpliciter. In Vanagiri
Sri Selliamman Ayyanar Uthirasomasundareswarar
Temple vs. Rajanga Asari AIR 1965 Mad. 355, the
Madras High Court considered an appeal arising from a
suit for possession and injunction. The defendant
contended that the plaintiff had filed an earlier suit for
injunction which was dismissed, and therefore the
plaintiff was precluded from agitating the issue of title
5
(2008) 4 SCC 594
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in the subsequent suit, being barred by the principle of
res judicata. It was held that the earlier suit was only for
an injunction (to protect the standing crop on the land)
and the averments in the plaint did not give rise to any
question necessitating denial of plaintiff's title by the
defendant; and as the earlier suit was concerned only
with a possessory right and not title, the subsequent suit
was not barred. There are several decisions taking a
similar view that in a suit for injunction, the question of
title does not arise or would arise only incidentally or
collaterally, and therefore a subsequent suit for
declaration of title would not be barred. On the other
hand, in Sulochana Amma vs. Narayanan Nair 1994 (2)
SCC 14, this Court observed that a finding as to title
given in an earlier injunction suit, can operate as res
judicata in a subsequent suit for declaration of title. This
was on the premises that in some suits for injunction
where a finding on possession solely depended upon a
finding on the issue of title, it could be said that the
issue of title directly and substantially arose for
consideration; and when the same issue regarding title is
put in issue, in a subsequent title suit between the
parties, the decision in the earlier suit for injunction
may operate as res judicata. This Court observed :
"Shri Sukumaran further contended that the remedy
of injunction is an equitable relief and in equity, the
doctrine of res judicata cannot be extended to a
decree of a court of limited pecuniary jurisdiction.
We find no force in the contention. It is settled law
that in a suit for injunction when title is in issue for
the purpose of granting injunction, the issue directly
and substantially arises in that suit between the
parties. When the same issue is put in issue in a
later suit based on title between the same parties or
their privies in a subsequent suit the decree in the
injunction suit equally operates as res judicata.This
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was also reiterated in Annaimuthu Thevar v.
Alagammal 2005 (6) SCC”
23. Here the Plaintiff’s possession was said to flow from his title under
Ext.1 and from the record of rights. Neither of them survives the
analysis above. The lower appellate court recorded no independent
finding of possession on the evidence. The proceeding in Criminal
Misc. Case No.58 of 1978 under Section 145 of the Code of Criminal
Procedure, 1973 also stands in the way. The Respondent rightly
submits that an order in such a proceeding does not decide title and
does not bind the civil court on that question. It remains relevant
evidence of who held possession at the time. The Plaintiff had to
displace it but he did not. An injunction granted to protect a
possession that was never proved, over land that was never located,
cannot stand. Question (iv) is answered in favour of the Appellants.
E. Whether a remand is called for?
6
24. A reversing judgment that fails the test in Santosh Hazari may
ordinarily be sent back for fresh consideration. This suit, however,
was instituted in 1982. The evidence is complete, and the trial court
has examined it issue by issue. Section 103 of the Code empowers this
Court to determine an issue of fact necessary for disposal of the
appeal where the evidence on record suffices. A remand after four
decades would only prolong a litigation that has already outlived
many of its witnesses. The record shows no evidence that establishes
6
2001 (3) SCC 179
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the vendor’s title, the identity of the suit land, or the Plaintiff’s
possession. On that record, the trial court’s conclusions are the correct
ones.
VII. CONCLUSION:
25. The lower appellate court erred in law on each of the substantial
questions formulated above. It treated execution as title and a revenue
entry as ownership. It held a fragment of a large plot identified
without the boundaries or the map that alone could define it. It
granted an injunction over land whose possession and location were
never proved. The judgment dated 02.01.1989 and decree dated
19.01.1989 passed in Title Appeal No.12 of 1987 by the learned Sub-
Judge, Bargarh are set aside. The judgment dated 22.06.1987 and
decree dated 21.07.1987 passed in Title Suit No.16 of 1982 by the
learned Munsif, Bargarh are restored.
26. Accordingly, the instant Appeal is allowed . In the circumstances, the
parties shall bear their own costs.
27. Interim order, if any passed earlier, stands vacated.
(Dr. Sanjeeb K Panigrahi)
Judge
Orissa High Court, Cuttack,
th
Dated the 30 October, 2026 /
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