KISHORE vs KUMARI NAG
- Court
- Odisha High Court
SA/182/1989
ODHC010001171989
2026:OHC:278
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A No.182 of 1989
CNR No. ODHC010001171989
(In the matter of an Appeal under Section 100 of the Code of Civil
Procedure, 1908 assailing the judgment dated 07.02.1989 and decree
dated 22.02.1989 passed by the learned District Judge, Bolangir in
Title Appeal Nos.35 of 1986 reversing the judgment dated 16.09.1986
and decree dated 23.09.1986 passed by the learned Additional
Munsif, Bolangir in Title Suit No.17/9 of 1979-86)
Kishore Chandra Sai (dead)
Represented by his L.Rs. 1(a) to 1(e)
…. Appellant (s)
-versus-
Kumari Nag (dead)
Represented by her L.R.1(a) and Ors.
Respondent (s)
….
:
Advocates appeared in the case through Hybrid Mode
For Appellant (s) : Mr. H.S. Mishra, Adv.
For Respondent (s) : Mr. P.K. Ray, Adv.
CORAM:
HON’BLE DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-07.09.2026
DATE OF JUDGMENT:-30.10.2026
Dr. Sanjeeb K Panigrahi, J.
1. This Second Appeal is directed against the judgment dated 07.02.1989
and decree dated 22.02.1989 passed by the learned District Judge,
Bolangir in Title Appeal Nos.35 of 1986 reversing the judgment dated
16.09.1986 and decree dated 23.09.1986 passed by the learned
Additional Munsif, Bolangir in Title Suit No.17/9 of 1979-86 by which
the suit was dismissed filed by the Plaintiffs for declaration of their title,
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Location: ORISSA HIGH COURT, CUTTACK
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confirmation of possession in the alternative recovery of possession of
the suit land.
2. The deceased Appellant (Kishore Chandra Sai) was the Defendant No.5
and respondent No.5 in courts below. Respondent Nos.1 (dead) and 2
were the Plaintiffs and Appellants in courts below. The Respondent
Nos.3 to 8 were the defendants and Respondents in courts below .
ACTUAL ATRIX OF THE ASE
I. F M C :
3. The brief facts of the case are as follows:
(i) The case of the plaintiffs-Respondents Nos.l and 2 is that Krupa
Jal was the recorded tenant of holding No.587 of the current
settlement of village- Larkipall and he died in the year 1978
leaving behind the plaintiffs and his widow as only heirs and
successors. His widow has died. So, the Plaintiffs are only
surviving Legal heirs of late Krupa Jal. It is further alleged by the
plaintiffs in the suit that the defendants by manipulation got their
names recorded in the remarks column of the record of rights and
they create disturbance in the possession of the plaintiff during
the current settlement.
(ii) The defendant No.5/ Appellant only appeared and contested the
suit and filed his written statement contending that one Dhanu
Jal was the owner of the suit lands and he sold the same to one
Rajib Lochan Sai, father of the present appellant in the year 1945
for a consideration of Rs.25/- and delivered possession of the
same. In evidence of the said transaction, a stamp was executed
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Reason: Authentication
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by Dhanu Jal. But, the said document was stolen away. The
defendant/ Appellant further contended that the sale deed was
produced before the Settlement Authorities and based on that
document, possession was noted in the remarks column of the
R.O.R. of the current settlement. On the basis of the said
document, in the year 1951, also the possession of Rajib Lochan
Sai was recorded in the demand list. In the partition between
Rajib Lochan Sai and his brothers, the suit land fell to Rajib
Lochan Sai and in subsequent partition between the sons of Rajib
Lochan Sai, the suit land was allotted to the share of defendant
No.5. Hence, the defendant No.5/Appellant claims that since 1945
his father was in possession of the case land and thereafter, the
Appellant is in possession of the suit land in their own right, title
and interest. He further pleaded that they have also acquired title
by way of adverse possession.
(iii) Based on the aforesaid pleadings and matter in controversies
between the parties, altogether 7 (seven) numbers of issues were
framed by the learned Trial Court i.e. learned Additional Munsif,
Bolangir in the suit vide Title Suit No.17/9 of 1979-86 and the said
issues are:
“ISSUES
(1) Is there any cause of action for the suit?
(2) Whether the suit valued properly?
(3) Is the suit barred by limitation?
(4) Whether the defendant acquired title by adverse possession?
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(5) Is the suit non-joinder of necessary parties?
(6) Is the suit maintainable in the present form?
(7) Whether Dhanu Jal has sold the suit land for a sum of Rs.25/-
by executing a stamped document to Rajib Lochan Sai and
delivered possession of the same to the latter?
(iv) In order to substantiate the aforesaid relief (s) sought for by the
plaintiffs in the suit vide Title Suit No.17/9 of 1979-86 against the
defendants, the plaintiffs examined three witnesses from their
side and exhibited the document on their behalf vide Ext.1.
(v) On the contrary, in order to defeat/nullify the suit of the plaintiffs,
the defendants examined four witnesses on their behalf i.e.
D.Ws.1 to 4 and exhibited documents on their behalf marked as
Ext.A to Ext.E.
(vi) After conclusion of hearing and on perusal of the materials,
documents and evidence available in the record, the learned Trial
Court answered Issue Nos.1, 4 and 7 as Issue Nos.2, 3, 5 and 6
were not pressed and based upon the findings and observations
in aforesaid issues, the learned Trial Court dismissed the suit of
the plaintiffs vide Title Suit No.17/9 of 1979-86 on contest against
defendant5 and ex parte against other defendants vide judgment
dated 16.09.1986 and decree dated 23.09.1986 respectively and
passed the order as follows:
“The suit of the plaintiffs is dismissed on contest
against defendant no.5 and ex parte against other
defendants but in the peculiar circumstances of the case
without costs.
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Reason: Authentication
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Advocates fees on contested scale.
Xx xx xx”
(vii) Being aggrieved by the aforesaid judgment and decree passed by
the learned Trial Court in the suit vide Title Suit No.17/9 of 1979-
86, the plaintiffs (present Respondent Nos.1 and 2) preferred Title
Appeal No.35 of 1986 before the learned District Judge, Bolangir.
(viii) After hearing both the sides, the learned District Judge, Bolangir
vide the aforesaid judgment dated 07.02.1989 and decree dated
22.02.1989 allowed the Title Appeal Nos.35 of 1986 reversing the
judgment dated 16.09.1986 and decree dated 23.09.1986 passed by
the learned Additional Munsif, Bolangir in Title Suit No.17/9 of
1979-86 holding that:
“…….the land was not transferred to the appellant's
father by way of sale and delivery of possession was
not given. On the basis of Ext.1, it was held that
Dhanu Jal is the son of Krupa Jal, although that makes
no difference.”
(ix) Being aggrieved by the aforesaid judgment dated 07.02.1989 and
decree dated 22.02.1989 passed by the learned District Judge,
Bolangir in Title Appeal Nos.35 of 1986, the Defendant No.5
challenged the same preferring this Second Appeal being the
Appellant against the plaintiffs and defendant Nos.1 to 4 and 6
arraying them as Respondents.
(x) This Second Appeal was admitted on formulation of the
following substantial questions of law i.e.:-
“Whether the courts below are justified in law by
not accepting the contents of Ext.A, C and D to prove the
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sale in full specially when the same is not controverted by
the plaintiffs in their cross-examination?
Whether the entries in the demand list Ext.A
regarding transfer and possession, order in 145 Cr.P.C.
proceeding Ext.B, Amin report Ext.C, partition deed
Ext.D and the Ext.E, R.O.R. is sufficient in the eye of law
to prove the adverse possession of the appellant against the
respondent Nos.1 and 2 over the case land?”
II. S UBMISSIONS O N B EHALF O F T HE APPELLANT :
4.
The learned counsel for the Appellant earnestly made the following
submissions in support of his contentions:
(i) Exts. A to E are proved and are public documents. The report of
Amin which was prepared on the basis of enquiry conducted in
course of his o Ĝcial duty is presumed to be correct in view of
Section 114 (e) of the Evidence Act. The leamed lower appellate
court erred in law in observing that the Amin had no personal
knowledge. Such ęnding cannot be sustained in law at all.
(ii) The ęnding of leamed trial court based on evidence with regard
to possession could not have been set aside lightly. This is in clear
violation of the provisions of Order 41 Rules 3l and 32 of the Code
of Civil procedure.
(iii) The record of rights produced by plainti ěs vide Ext.1 clearly
indicates the possession of the Appellant. It is for the plainti ěs/
Respondent Nos.1 and 2 to establish that the same was wrong.
The learned appellate court had wrongly placed the burden on
the Appellant as if he is required to prove the possession and
dislodge the entry.
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(iv) The learned lower appellate court has unnecessarily found out if
Krupa Jai is son of Dhanu Jai, when such plea is absent in the
pleadings and the ęnding is hit by provisions of Order 6 Rule 2
of CPC.
(v) There is clear evidence both oral and documentary about the
possession of the Appellant and the ęnding of adverse possession
by the learned trial court upon discussion of the same fully,
should not have been set aside by lower appellate court.
(vi) In view of the foundation laid, the petition under Order 41 Rule
27 of the CPC needs to be allowed and if the same is taken into
account, the case of the Appellant that there was a sale and was
lost would be clearly established.
(vii) For the aforesaid grounds, the Second Appeal may be allowed.
III. S UBMISSIONS O N B EHALF O F T HE RESPONDENT NO.1:
5. Per contra , the learned counsel for the Respondent No.1 earnestly made
the following submissions in support of his contentions:
(i) ln the Second Appeal, out of seven substantial questions of law
formulated on behalf of the Appellant- Defendants, except
question No.(iv), none others can be said to have involved
substantial question of law. On the said point i.e. on point
No.(iv) the ma Ĵer has been set at rest by the Hon'ble Apex
1
Court in Raghunath and Ors. -vrs.- Hemalata Barik and Ors .
and also in series of cases that basing on revenue record only
1
MANU/OR/0512/2021 Para-8-72
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no one's legal rights can be taken away by way of adverse
possession which can only be based on oral and factual
possession.
(ii) The ęnding of the learned trial court discarding the
unregistered documents along with delivery of possession
having been concurrently discarded by both the courts below,
and the defendants having not challenged the ęnding of the
learned trial court before the ęrst Appellate court, the same
becomes ęnal and any Revenue records prepared based on said
documents are apparently false and fabricated, thus, has legal
value. The aforesaid maĴer further gets support when, the
Defendants have not pleaded in their wriĴen statements as to
which date the said un-registered stamp paper document was
executed except that the delivery of possession was given in
1945 on the basis of said document. But during the cross
examination of P.W.No.1, he was suggested on behalf of
Defendants that the said un-registered stamp paper document
was executed in 1951, which is contrary to the evidence led on
behalf of defendants that the said un-registered stamp paper
document was executed in 1945 followed by delivery of
possession. In course of hearing of this Second Appeal on
behalf of the Appellant one Petition has been ęled under Order
41 Rule 27 with aĜdavit, the said un-registered stamp paper
document, executed in 1945 was lost hence another document
acknowledging the sale was executed in 07.09.1952 by the
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Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
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original vendor. Besides, the contention in the said petition is
completely di ěerent than the document ęled (Annexure-A). As
per decision of the Hon’ble Apex Court in Biswanath Prasad
2
and Ors. Vrs. Dwaraka Prasad and Ors . the court can refer to
the a Ĝdavit while deciding the case on merit. In view of the
aforesaid principle of law, the contention in the aĜdavit
regarding the missing of the so-called documents of the year
1945 and execution another document on 07.09.1952 by the
original vendor, who as per the unchallenged evidence on
record died in the year 1946 supports concurrent ęnding of
both the courts discarding execution of any unregistered stamp
paper documents in 1945 by Dhanu Jal in favour of Rajib
Lochan ancestors of the Defendants relating to transfer of the
suit land and it is only a fabricated story. Therefore, the
Revenue record prepared and ęled on behalf of the Defendants,
based on the so-called documents, are out and out fabricated at
the instance of the then defendants or their ancestors. Hence,
no legal presumption can be drawn upon the same.
(iii) Regarding the factum of possession, the statement of D.W.No.4
at para-4 in cross examination to the e ěect that “ the plainti ě has
stacked bricks on the suit land and none of the parties are in possession
of the suit land ęve to six years prior to ęling of the suit ” clearly
shows that the defendants were never in continuous possession
of the suit land till ęling of the suit and the Plaintiě was in
2
MANU/SC/0006/1973 in para-8
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possession of the same, nor they disclosed anywhere the date
when they came in possession of the suit land and since when
they were in adverse possession of the same, which are the
most important ingredients to claim title by way of adverse
possession as per the case laws of the Hon'ble Apex Court
referred to in Raghunath case (Supra), decided in Ram Nagina
3
Rai and Ors. Vrs. Deo Kumor Rai and Ors . , P.T.
4
Munichikkanna Reddy and Ors. Vrs. Ravamma and Ors . .
(iv) As per the principle of law decided in number of cases
5
including Gurdev Kaur and Ors. Vrs. Kaki and Ors. , the ęrst
Appellate Court being the ęnal court of fact the same is ęnal
and there is no scope to interfere the same. Besides, on the
question of transfer of the suit land both the courts below are
concurrent in their ęndings, the ęnding on the question of
seĴing aside the adverse possession is based on actual physical
possession as has been discussed in submission 6(iii) in
nutshell.
(v) Regarding the application ęled under Order 41, Rule 27, it is
submiĴed that the contention and title of documents both in
the Petition under Order 41, Rule 27 and in the annexure there
to, i.e. Annexure-A are completely diěerent. It is ęled after 47
years of ęling of suit. It is not registered when valuation
3
MANU/SC/1003/2018 Para-9
4
MANU/SC/7325/2007 para 9-20
5
MANU/SC/2699/2006 para-25-40
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disclosed as Rs.115/-. The contention shows that it was signed
by original owner when as per the evidence on record which
has also been discussed by both the courts below while
discarding the transfer of the suit land in favour of Rajib
Lochan. To that e ěect Srimati Haramani vrs. Srikantha and
6 7
Ors . and Gajanand Agarwal vrs. Golakh Prasad and Ors . are
referred to.
(vi) Therefore, considering the material on record relating to
transfer of land in favour ancestors of the Defendants and
se Ĵing aside the ęnding of adverse possession of the
Defendants by the learned trial court over the suit land is in
accordance with the fact on record and the law decided by the
Hon'ble Apex Court as have been referred to above. Hence, it
is prayed to dismiss the Second Appeal.
IV. F INDINGS AND DECISION OF THE LEARNED TRIAL COURT .
6. The leamed Additional Munsif, Bolangir heard the suit on merit. The
leamed trial court framed seven issued and dismissed the suit of the
Plainti ěs- Respondent Nos.l and 2 by holding that the suit land was
not transferred by way of sale by Dhanu Jai to Rajib Lochan Sai and
possession was not delivered to him as the sale deed was not
produced before the court. Strangely, the learned trial court has held
that Exts.A and C demand list and Amin's enquiry report do not
6
MANU/OR/0825/2008 para 8-12
7
MANU/OR/0122/2008 para - 7 to 10
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speci ęcally speak about the document was ever ęled before then.
Leaned trial court had gone to the extent of observing that the Amin
could not have reported about possession, although it is the duty of
the Amin to enquire and report. However, the learned Munsif
believed the plea of adverse possession of the appellant on the basis of
the evidence produced by the appellant is the deed of partition Ext. D
which came into existence as back as 1974, shows the possession of the
suit land by the appellant’s family and that the demand list prepared
in 1950 prepared by the revenue authorities show that the suit land
was in possession of Rajib Lochan , father of the appellant, the current
R.O.R Ext.1 discloses the forcible possession. There is absolutely no
material to show that the possession of the appellant and his father
was interrupted by the plaintiff at any point of time. The 145 Cr.P.C.
proceeding between the appellant and the plaintiffs’ father in respect
of the case land went in favour of the appellant and Ext. B, the copy of
the order in the said proceeding is crystal clear. Accordingly, the trial
court declared the adverse possession of the appellant against the
plaintiffs and his title is declared and dismissed the suit filed by the
plaintiffs.
INDINGS AND DECISION OF THE LEARNED LOWER APPELLATE COURT
V. F .
7.
The plainti ěs preferred appeal i.e. Title Appeal No.35 of 1986 before
the learned District Judge, Bolangir, against the judgment in T.S.
No.17/9 of 1979-86 passed by the learned Additional Munsif, Bolangir.
who allowed appeal without taking into consideration of the
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Reason: Authentication
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contention raised by this appellant giving contradictory views. The
st
learned 1 appellate court held that the land was not transferred to the
appellant's father by way of sale and delivery of possession was not
given. On the basis of Ext.l, it was held that Dhanu Jal is the son of
Krupa Jal, although that makes no di ěerence. The appellate court
negatived the observations made by learned trial court based on the
Exts.A and C with a perverse observation that there is nothing to show
that the authorities had any knowledge in this regard. The Amin who
recorded the same had no personal knowledge about the possession.
st
With these ęndings the 1 Appellate Court excluded Ext.A from
consideration.
8.
Accordingly, the Appeal was allowed reversing the trial court’s
judgment.
OURT S EASONING AND NALYSIS
VI. C ’ R A :
9. Heard learned counsel for the parties and perused the materials
available on record. A small patch of earth in village Larkipali has kept
two families in the corridors of courts for close to half a century. The
suit was born in 1979. The second appeal came here in 1989. The
original appellant has since passed away and so has one of the original
plaintiffs. Hamlet famously laments “the law’s delay” in his iconic "To
be, or not to be" soliloquy (Act III, Scene I), listing it among the many
miseries of mortal life that make suicide or endurance a heavy choice.
Litigants in this country have learnt to live with them, though they
should not have to. The least this Court can do, after so long a wait, is
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to decide the questions that truly arise, decide them on the law, and
decide them without ceremony.
10. First, the jurisdictional fence erected in the form of Section 100 of the
Code of Civil Procedure which does not license a second round of fact-
finding. A second appeal is not a second innings on facts. The High
Court does not reweigh evidence that two courts have already
weighed, unless the finding rests on no evidence, ignores material
evidence, admits inadmissible evidence or misreads the law that
governs the evidence which have been crystalized in the authoritative
pronouncement of the Supreme Court of India in Hero Vinoth v.
8 9
Seshammal , Gurdev Kaur v. Kaki and so on. With these limits in view,
I take up the two substantial questions of law on which the appeal was
admitted, and then the remaining contentions.
A. SUBSTANTIAL QUESTION NO.1: WHETHER EXTS. A, C AND D
PROVE THE SALE:
11.
The appellant’s case starts from a sale. In 1945, he says, Dhanu Jal sold
the land to his father Rajib Lochan Sai for Rs.25/- on a stamped paper
and put him in possession. That paper was stolen. Since the deed
cannot speak, the appellant asks the demand list (Ext.A), the Amin’s
report (Ext.C) and the family partition deed of 1974 (Ext.D) to speak for
the same which they cannot. A sale is a transfer of ownership and it has
to be roved by proving the transfer. A demand list records who is to
pay the revenue. An Amin’s report records what the Amin found or
8
(2006) 5 SCC 545
9
(2007) 1 SCC 546
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was told in the course of an enquiry. A partition deed records as to how
the members of a family divided among themselves what they believed
was theirs. None of these documents is a conveyance and none of them
was made by the person said to be the vendor. Revenue records are
fiscal footprints. They show who walked across the revenue office, but
they cannot show who owned the land. The Supreme Court has
reiterated this so often that it has become a settled article of our
property jurisprudence, entries in revenue records neither create nor
extinguish title; they serve the fiscal purpose for which they are kept
10
which has been crystalized in Sawarni v. Inder Kaur , Suraj Bhan v.
11
Financial Commissioner and so on.
12.
The learned counsel for the Appellant places reliance on Section 114,
Illustration (e) of the Indian Evidence Act, 1872 which permits the
Court to presume that official acts have been regularly performed. The
presumption, however, concerns the regularity of official procedure
and does not extend to the truth of every fact recorded or represented
in the course of such proceedings. It may be presumed that the Amin
conducted the enquiry and prepared his report in the ordinary
discharge of his official duties. But such presumption cannot establish
the factum of a sale which the Amin neither witnessed nor verified by
reference to any instrument of transfer. Significantly, the learned Trial
Court found that neither Ext.A nor Ext.C discloses that any sale deed
was produced before the revenue authorities. Thus, the very
10
(1996) 6 SCC 223
11
2007) 6 SCC 186
(
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documents upon which the Appellant relies are silent on the material
fact sought to be established. A presumption of regularity cannot
establish the proof of a transaction whose existence in the official
records do not establish.
13.
The Ext.D stands on even on a weaker footing. It is a deed executed in
the year 1974 amongst the members of the Appellant’s own family, to
which the Plaintiffs were neither parties nor were they privies. A
partition or arrangement amongst family members may regulate their
inter se rights in property lawfully belonging to them but it can neither
create a title where none exists nor extinguish the lawful title of a
stranger. The principle embodied in the maxim res inter alios acta alteri
nocere non debet ( things done between strangers ought not to injure
those who are not parties to them ) squarely applies. Thus, Ext.D, at best,
evidences an arrangement amongst its executants. It neither establishes
their antecedent title to the disputed property nor binds the Plaintiffs,
whose independent rights cannot be defeated by a private transaction
to which they were strangers.
14.
Further, the absence of cross-examination concerning these documents
does not advance the Appellant’s case. The principle that an
unchallenged statement may be accepted relates to the credibility of
testimony and does not dispense with the legal requirement of proving
a fact by admissible evidence. The burden of establishing the alleged
sale rested upon the Appellant, who specifically pleaded the
transaction as the foundation of his claim. Yet, the sale deed, being the
primary evidence of the transaction which was never produced.
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Neither was any foundation laid, as contemplated under Section 65 of
the Indian Evidence Act, 1872, for adducing secondary evidence of its
contents. Mere production of revenue records or subsequent family
documents cannot substitute proof of the alleged conveyance. The
Plaintiffs were under no obligation to disprove a transaction which the
Appellant had failed to establish in the first instance. The absence of
cross-examination cannot cure an inherent deficiency in proof, nor can
it shift the burden of establishing title from the party upon whom the
law places it.
15. The Appellant’s case is further weakened by material inconsistencies in
his own account especially due to the alleged transaction. While the
written statement asserts that the sale took place in the year 1945,
followed by delivery of possession, it does not disclose the date of
execution of the alleged sale deed. In the cross-examination of P.W.1,
however, a suggestion was made that the document had been executed
in the year 1951. Yet another version emerges from the application
under Order XLI Rule 27 of the Code of Civil Procedure filed before this
Court, wherein reference is made to a document dated 07.09.1952.
These discrepancies are not merely incidental variations in dates but
concern the very transaction upon which the Appellant based his claim
of title. In the absence of the original instrument or any legally
admissible evidence establishing the alleged conveyance, such shifting
of versions materially undermine the credibility of his claim. Both the
courts below, upon appreciation of the evidence, have disbelieved the
alleged sale. Their concurrent findings are neither perverse nor based
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on any misapplication of law and, therefore, warrant no interference in
second appeal. Substantial Question No.1 is accordingly answered
against the appellant. The courts below were justified in law in holding
that Exts.A, C and D fail to prove the sale.
B. SUBSTANTIAL QUESTION NO.2: WHETHER EXTS. A TO E
PROVE ADVERSE POSSESSION:
16. The plea of adverse possession is a strange plea in a legal order that
respects property. It asks the court to take title from the owner and
hand it to the one who has kept him out. The law grants such a prayer
only grudgingly, only on strict proof, and only when time has done its
slow work in the open. The possession must be nec vi, nec clam, nec
precario ( not by force, not by stealth, not by permission). It must be
actual, open, continuous, hostile to the true owner and to his
knowledge, for the full statutory period as held in Karnataka Board of
12
Wakf v. Government of India and P.T. Munichikkanna Reddy v.
13
Revamma . The person who pleads it must state with precision when
his possession began, when did it turn adverse, and against whom.
Adverse possession is a sword that may now be wielded even by a
plaintiff which has been resonated in Ravinder Kaur Grewal v. Manjit
14
Kaur . Yet, a sword it remains, and to be effective, it must possess an
edge. A plea wanting in precision, particulars and proof is nothing but
a blunt instrument, incapable of cutting through an otherwise
established title.
12
(2004) 10 SCC 779
13
(2007) 6 SCC 59
14
(2019) 8 SCC 729
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17. Tested against these settled principles, the Appellant’s plea of adverse
possession fails at the threshold. His principal case is that his father
purchased the suit land and entered into possession as its lawful owner.
Such a claim necessarily proceeds on a recognition of the vendor’s title,
from which the alleged purchaser seeks to derive his own. Possession
asserted under a claim of purchase is thus referable to the title so
claimed and does not, by itself, establish hostility towards the true
owner. Although an alternative plea of adverse possession is not
impermissible in law, the Appellant must independently plead and
prove when and in what manner his possession became hostile to the
true owner. In fact, no such foundation has been laid here. Having
consistently asserted ownership by purchase, the Appellant cannot,
merely upon failure to establish that purchase, convert the same
possession into adverse possession without proving a distinct and
unequivocal assertion of hostile title. The failure of a claim wholly
based on purchase does not, by itself, mature possession into title by
prescription.
18.
The pleas of title by purchase and acquisition of title by adverse
possession fundamentally rests on different foundations. While the
former asserts ownership derived from a lawful conveyance, the latter
proceeds upon hostile possession to the title of the true owner. The
distinction has been explained by the Supreme Court in Mohan Lal v.
15 16
Mirza Abdul Gaffar and Dagadabai v. Abbas . Although alternative
15
(1996) 1 SCC 639
16
(2017) 13 SCC 705
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pleas are permissible in law, each must rest on clear and specific
pleadings supported by evidence. In the present case, the written
statement merely contains a passing assertion that the Appellant has
also acquired title by adverse possession. It neither specifies when his
possession became hostile to the true owner nor does it disclose any
overt act by which such hostile assertion was brought to the latter’s
knowledge. The essential ingredients of adverse possession are thus
conspicuously absent. A bare assertion of adverse possession,
unsupported by the material particulars constituting it, is not a plea in
the eye of law but merely a conclusion without a foundation.
19.
Further, possession on paper is not possession on the soil. Adverse
possession is a fact of occupation, not a fact of record. Revenue entries
may corroborate actual possession that is otherwise proved but they
cannot substitute for it. This is what the Supreme Court said in Ram
17
Nagina Rai v. Deo Kumar Rai and what the learned counsel for
Respondent No.1 contended on the strength of the other decisions he
cited.
20.
Further, Ext.E, the record of rights, deserves a closer look, because the
appellant reads it as his strongest card. The record of rights stands in
the name of Krupa Jal, the plaintiffs’ predecessor as a recorded tenant.
The appellant’s possession finds a place only in the remarks column,
and the learned trial court itself read that entry as one of forcible
possessions. The statutory presumption that attaches to a finally
published record of rights under Section 42 of the Odisha Survey and
17
(2019) 13 SCC 324
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Settlement Act, 1958 runs, in favour of the recorded tenant. An entry of
forcible possession in the remarks column concedes that title lies
elsewhere. It records just a possessor who is not the owner. Whether
that possession ripened into title is a separate question and the burden
of answering it lie on the person who claimed it.
21.
Ext.B, the order under Section 145 Cr.P.C., does not carry the appellant
further. The jurisdiction of the Magistrate under that section is a police
jurisdiction to keep the peace. It decides who was in actual possession
on the relevant date, and it does so expressly “until evicted therefrom
in due course of law”. It decides nothing about title, and its declaration
of possession yields to the decree of a civil court. At most, Ext.B shows
possession on one date but Adverse possession needs proof of
possession over twelve continuous years.
22. Continuity is precisely what the appellant’s own witness systematically
destroys. D.W.4, in paragraph 4 of his cross-examination, admitted that
the plaintiffs had stacked bricks on the suit land and that none of the
parties was in possession for five to six years before the suit was filed.
On the appellant’s own evidence, his possession was broken well
before the suit was filed. Interrupted possession does not ripen into
title. The clock of limitation that must run unbroken for twelve years
stopped, by his own witness’s account, before the suit was filed.
23. Substantial Question No.2 is accordingly answered against the
appellant. The entries in Exts.A to E are not sufficient in the eye of law
to prove adverse possession against Respondent Nos.1 and 2.
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THE CONTENTION UNDER ORDER 41 RULES 31 AND 32 CPC:
24. The learned counsel for the appellant contends that the learned lower
appellate court set aside a reasoned finding of the trial court on
possession without meeting its reasons. There is some force in the
complaint as a matter of craft. A first appellate court that reverses must
meet the trial court’s reasons and give its own. The observation that the
Amin had no personal knowledge, standing alone, is not a satisfying
answer to Ext.C.
25. But a flaw in the reasoning does not, by itself, entitle the appellant to a
decree. Where the evidence on record is sufficient, Section 103 of the
Code empowers this Court to determine the issue itself rather than send
the parties back on yet another round after four decades. On the
appellant’s own pleadings and his own evidence, the plea of adverse
possession could not have succeeded. The decree of the learned lower
appellate court is therefore sustained on the reasons set out in this
judgment.
THE PLEA OF WRONG BURDEN AND OF ORDER 6 RULE 2 CPC:
26. The complaint that the learned lower appellate court placed the burden
on the wrong shoulders does not survive scrutiny. The burden of
proving a sale squarely lies on the party who pleads the sale. The
burden of proving adverse possession squarely lies on the party who
claims it. Both burdens lay, by law, on the appellant. The record of
rights, as seen above, does not shift either burden. It confirms them.
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27. The finding that Dhanu Jal was the son of Krupa Jal may have travelled
beyond the pleadings. But the learned lower appellate court itself said,
in terms, that it makes no difference to the result. A finding that makes
no difference causes no prejudice, and a finding that causes no
prejudice raises no substantial question of law.
THE PETITION UNDER ORDER 41 RULE 27 CPC:
28. Additional evidence at the appellate stage is an exception, not a right.
It may be admitted when the court below wrongly refused it, when the
party could not produce it despite due diligence, or when the appellate
court itself requires it to pronounce judgment which has been
18
crystalized in K. Venkataramiah v. A. Seetharama Reddy and Union
19
of India v. Ibrahim Uddin , The rule is not a back door through which
a party may repair, decades later, the gaps of his evidence left at trial.
29. The document now offered fails every test, and some tests which the
rule does not even ask. It is said to be dated 07.09.1952 and executed by
the original vendor. The unchallenged evidence on record is that the
vendor died in 1946. A man six years already in his grave does not sign
documents. The petition was filed some 47 years after the suit was
instituted, with no explanation of where the document was existing all
this while. Its story is not the story of the written statement, which
spoke only of a document of 1945 that was stolen and said nothing of
any later document. It is unregistered, though the valuation disclosed
is Rs.115/-, which brings the transaction within the reach of Section 17
18
AIR 1963 SC 1526
19
(2012) 8 SCC 148
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of the Registration Act and Section 54 of the Transfer of Property Act.
By Section 49 of the Registration Act, it cannot be treated as evidence of
the transaction. As the learned counsel for Respondent No.1 rightly
resonated in the strength of Biswanath Prasad (supra), the appellant’s
own affidavit in support of the petition contradicts the case, he set up
at trial and lends support to the concurrent finding that the sale is a
fabrication.
30. This Court does not require the document to pronounce judgment. It
would do, if anything, cloud the judgment. The petition under Order
41 Rule 27 CPC is rejected.
VII. CONCLUSION:
31. Law can be patient with the honest litigant who lacks a document. It
cannot be indulgent with a claim that changes its shape each time it is
examined. The appellant’s case began as a sale, became a plea of
adverse possession, and ended as a document from a dead man’s hand.
Neither the revenue papers nor the family partition can carry the
weight he places on them. The plaintiffs hold the record of title, and the
appellant has failed to show that time and hostile possession took that
title away.
32. Both substantial questions of law are answered against the appellant.
The petition under Order 41 Rule 27 CPC is rejected. The judgment
dated 07.02.1989 and decree dated 22.02.1989 passed by the learned
District Judge, Bolangir in Title Appeal No.35 of 1986 are confirmed.
The Second Appeal is dismissed. No order as to costs.
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33. 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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