GHUTURAM BAGH vs COMMISION OF ENDOWME
- Court
- Odisha High Court
RSA/256/2006
ODHC010372602006
2026:OHC:259
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 256 of 2006
CNR No- ODHC010372602006
(In the matter of an Appeal under Section 100 of the Code of Civil
Procedure, 1908 assailing the judgment and decree dated 25.03.2006,
passed by the learned Additional District Judge, Sonepur in R.F.A.
No.14 of 2005, confirming the judgment dated 07.02.2005 & decree
dated 21.02.2005 passed by the learned Civil Judge (Senior Division),
Sonepur in T.S. No.87 of 2001).
Ghuturam Bagh (Dead) by his LRs …. Petitioner (s)
-versus-
Commissioner of Endowments,
Bhubaneswar & Anr.
…. Opposite Party (s)
:
Advocates appeared in the case through Hybrid Mode
For Petitioner (s) : Mr. Manoj Mishra, Senior Adv.
along with associates
Mr. Tanmay Mishra, Adv.
For Opposite Party (s) : Mr. Prabhu Prasanna Behera, ASC
Ms. Pratyusha Naidu, Adv.
CORAM:
HON’BLE DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-11.09.2026
DATE OF JUDGMENT:-30.10.2026
Dr. Sanjeeb K Panigrahi, J.
1. The present appeal has been filed challenging the judgment dated
25.03.2006 passed by the learned Additional District Judge, Sonepur in
RFA No.14 of 2005, whereby the judgment dated 07.02.2005 and decree
Signature Not Verified
Page 1
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
dated 21.02.2005 passed by the learned Civil Judge (Senior Division),
Sonepur in T.S. No.87 of 2001 have been confirmed.
I. F ACTUAL M ATRIX OF THE C ASE :
2. The brief facts of the case are as follows:
(i) The suit land belongs to the deity Maa Sureswari Devi of Sonepur
Town. His father was in possession of the suit land for more than
50 years and, after his death, the Plaintiff has been continuing in
possession thereof. It is contended that, by virtue of such long and
continuous possession, the Plaintiff has acquired a right of
occupancy over the suit land. During the 5th Settlement
Operation, the Plaintiff requested the Defendants to settle the suit
land in his favour, but the same was refused. Consequently, after
serving notice on the Defendants, the Plaintiff instituted the
present suit.
3. Based on the aforesaid pleadings and matter in controversies between
the parties, altogether 5 (five) numbers of issues were framed by the
learned Trial Court in the suit vide T.S. No.87 of 2001 and the said issues
are:-
ISSUES
(i) Is the suit maintainable ?
(ii) Has the plaintiff got cause of action to file the suit?
(iii) Is the suit bad for non-joinder of necessary party?
(iv) Has the plaintiff got right, title and interest over the suit
properties?
(v) To what relief, if any, the plaintiff is entitled ?
Signature Not Verified
Page 2
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
4. In order to substantiate the aforesaid relief (s) sought for by the plaintiff
in the suit vide T.S. No.87 of 2001 against the defendants, the plaintiffs
examined three witnesses from his side and exhibited the documents
on his behalf vide Exts.1 to 3.
5.
On the contrary, in order to defeat/nullify the suit of the plaintiff, the
defendants examined one witness on their behalf i.e. D.W.1.
6. 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 defendants and against the plaintiff and
basing upon the findings and observations made by the learned Trial
Court in all the issues, the learned Trial Court dismissed the suit of the
plaintiff vide T.S. No.87 of 2001 on contest against the defendants as per
its judgment and decree dated 07.02.2005 and 21.02.2005 respectively
assigning the reasons as follows:
“Admittedly, the suit property is a Devottar property
belonging to Deity Sureswari Devi. A deity is a perpetual
minor against whom no adverse possession can be pleaded.
Further, the evidence as discussed goes to show that
Ghuturam has never possessed the suit land on Bhag. The
receipts filed by him discloses that his father Daulat was
taking the land on annual lease and was paying Bhag
regularly and further his brother Nakul has taken the land on
Bhag annually as disclosed from the receipts vide Ext.3
series. A Bhag tenant or an annual lease-holder of the land
cannot also claim adverse possession over the properties by
him on annual lease basis as the said possession is a
permissive possession and permissive possession also cannot
be converted into adverse possession. As regard starting of
encroachment case the same is to be treated as a misconceived
one as the Tahasildar has got no right to start an
Signature Not Verified
Page 3
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
encroachment case belonging to the deity and the suit land
cannot be treated as the property belonging to the State
Government though the management of the deity is looked
after by the Commissioner Endowment. Thus, the plaintiff
has got no connection with the suit land nor has got any right
over the suit property far less to have acquired right over the
same by way of adverse possession.”
7. On being dissatisfied with the aforesaid judgment and decree of the
dismissal of the suit of the plaintiff passed by the learned Trial Court in
the suit vide T.S. No.87 of 2001, the plaintiff challenged the same
preferring the 1st appeal vide R.F.A. No.14 of 2005 being the appellant
against the defendants arraying them (defendants) as respondents.
8. After hearing from both the sides, the learned 1st Appellate Court
allowed that 1st Appeal vide R.F.A. No.14 of 2005 of the plaintiff and
dismissed the appeal on contest and the judgment dated 07.02.2005 and
decree dated 21.02.2005 passed by the learned Trial Court in the suit
vide T.S. No.87 of 201 was confirmed assigning the reasons as follows:
“It is the admitted position that the suit property is Devottor
property which belongs to the deity Sureswari Devi.
Significantly, the deity is a perpetual minor against whom no
case of adverse possession can lie. Besides, the evidence on
record unmistakably shows that the plaintiff had never been
in possession of the suit land. However, the rent receipts as
contained in Ext.3 show that plaintiff’s father Daulata was
taking the suit land on annual lease and was paying bhag
regularly. It is the settled position of law that neither a bhag
tenant nor an annual lease holder of a land can claim adverse
possession over the properties on the basis of annual lease for
the simple reason that the possession is permissive in nature
and under no circumstance permissive possession can turn
into adverse possession. The learned trial Cout has, therefore,
Signature Not Verified
Page 4
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
rightly come to the conclusion that the plaintiff has no right,
title over the suit land and has not acquired title by way of
adverse possession. The contentions raised by the learned
counsel for the appellant are rejected being legally
unsustainable. While finding the illegality or infirmity in the
impugned judgment. I am entirely in agreement with it.
10. Resultantly, the appeal is dismissed on contest and the
judgment dated 7.02.2005 and decree dated 21.02.2005
passed by the trial court in T.S. No.87 of 2001 are hereby
affirmed.”
9. On being aggrieved with the aforesaid judgment and decree dated
st
07.02.2005 and 21.02.2005 respectively passed by the learned 1
Appellate Court in R.F.A. No.14 of 2005 in favour of the defendants, the
plaintiff challenged the same preferring this 2nd appeal being the
appellants against the defendants arraying them as respondents.
10. This 2nd Appeal was admitted on formulation of the following
substantial questions of law i.e.:-
Whether the evidence are sufficient enough to prove the
adverse possession of the appellants over the suit land and
further the law of adverse possession can be applicable to the
properties of a deity.
II. S UBMISSIONS O N B EHALF O F T HE A PPELLANT :
11.
The learned counsel for the Appellant earnestly made the following
submissions in support of his contentions:
(ii) Both the learned Courts below have concurrently held that, the
deity being a perpetual minor, the Plaintiff cannot claim adverse
possession against the deity. Both the Courts below have further
held that the Plaintiff is in permissive possession over the suit
property. Thus, the permissive possession of the Plaintiff over the
Signature Not Verified
Page 5
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
suit property has been concurrently found and confirmed by both
the Courts below.
(iii) It is true that adverse possession cannot be claimed against a
deity, which is a perpetual minor. However, both the learned
Courts below, having found that the plaintiff is in possession over
the suit property, have decreed the suit for confirmation of
possession only.
(iv) It is well settled in law that a person in settled possession of a
property cannot be dispossessed except by following due process
of law. Such person is entitled to protect his settled possession
and has a possessory right in respect of the property.
1
(v) In Rame Gowda (D) by LRs vs M. Varadappa Naidu wherein, at
paragraph 9, the Hon’ble Supreme Court has held as follows:
“8.It is the settled possession or effective possession of a
person without title which would entitle him to protect his
possession even as against the true owner…..no one,
including the true owner, has a right to dispossess the
trespasser by force if the trespasser is in settled possession of
the land and in such a case unless he is evicted in the due
course of law, he is entitled to defend his possession even
against the rightful owner.”
(vi) The plaintiffs have been in possession of the suit property since
the time of their grandfather, as has been concurrently held by the
learned Courts below. The appellant is also, as on date, in
possession of the suit land and is cultivating the same. Thus, the
plaintiffs are in settled possession of the suit property and,
1
2004 (1) SCC 769
Signature Not Verified
Page 6
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
therefore, their possession is required to be protected in
accordance with the ratio laid down by the Hon’ble Supreme
Court in the judgment relied upon.
(vii) Therefore, in view of the facts and circumstances of the case, the
submissions made and the law laid down by the Hon’ble Apex
Court, the plaintiffs are found to be in settled possession of the
suit land and, therefore, are entitled to a decree for confirmation
of possession. Accordingly, the learned Courts below committed
an error of law in dismissing the suit in its entirety.
III. S UBMISSIONS O N B EHALF O F T HE R ESPONDENTS :
12.
Per contra , the learned counsel for the Respondents earnestly made the
submission in support of his contentions.
(i) The original Plaintiff filed Title Suit No. 87 of 2001 seeking
declaration of his right, title and interest over the suit land
belonging to the deity and for confirmation of his possession
thereon.
(ii) Admittedly, the suit lands belong to the deity, Maa Sureswari
Devi. The predecessor-in-interest of the Plaintiff, as well as the
Plaintiff himself, were tenants under the said deity and had been
cultivating the suit lands for and on behalf of the deity.
(iii) The plaintiffs are in cultivable possession of Ac. 7.467 decimals of
the deity’s land. During the settlement operation, the plaintiffs
requested the defendants to settle the suit land in their favour.
However, the said request was declined, which led to the
institution of the suit.
Signature Not Verified
Page 7
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
(iv) It is no longer res integra that a suit for adverse possession is not
maintainable against a deity, the deity being a perpetual minor.
(v) The Hon’ble Apex Court in in Nilam Gupta and Others vs.
2
Rajendra Kumar Gupta has reiterated that, in order to establish
a plea of adverse possession, the claimant is required to establish
the essential ingredients are as follows:
a) Nec Clam (Without Secrecy)
b) Nec Vi (Without Force/Peace
c) Nec Precario (Animus Possidendi/Hostile Intent)
(vi) The plaintiffs have neither pleaded nor proved the essential
ingredients necessary to establish adverse possession against the
defendant. There is also no specific pleading or evidence
indicating the date of their entry into the suit property or the date
from which their possession allegedly became adverse to the
defendant. In the absence of such foundational pleadings and
evidence, the basic ingredients of adverse possession remain
unestablished. Accordingly, the plea of adverse possession is
liable to fail.
(vii)
The law is well settled that a second appeal before the High Court
is maintainable only when the Court is satisfied that the case
involves a substantial question of law. In the absence of any
substantial question of law, the second appeal cannot be
entertained and is liable to be dismissed at the threshold, as the
2
AIR 2014 SC 5374
Signature Not Verified
Page 8
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
jurisdiction of the High Court under Section 100 of the Code of
Civil Procedure is not attracted.
3
(viii) The judgment in Rame Gowda vs. M. Varadappa Naidu relied
upon by the Appellant is not applicable to the facts of the present
case. Paragraph 12 of the said judgment makes it clear that where
the title is not clear, the question of possession may be gone into.
However, in the case at hand, the Appellant/Plaintiffs are
trespassers and, therefore, cannot seek a decree for confirmation
of possession against the true owner.
(ix) The Appellant/Plaintiffs, having failed in their attempt to obtain
a decree declaring their right, title and interest over the lands
belonging to the deity and having been unsuccessful in the said
proceeding, are now making a belated attempt to assert
possession over the deity’s land. Moreover, when the very entry
into the property was illegal and unauthorised, no subsequent
right or claim flowing merely from such possession can be
recognised or legalised.
HIS COURT S EASONING AND NALYSIS
IV. T ’ R A :
13. The jurisdiction of this Court in second appeal is confined to substantial
questions of law. The Court cannot undertake a fresh appraisal of the
evidence merely because another factual inference is possible. In
4
Santosh Hazari v. Purushottam Tiwari , the Supreme Court explained
the requirement of formulating a substantial question of law and the
3
AIR 2004 SUPREME COURT 4609
4
(2001) 3 SCC 179
Signature Not Verified
Page 9
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
relationship between that question, the pleadings and the findings
necessary for deciding the dispute. The Court observed the following:
“The phrase substantial question of law, as occurring in the
amended Section 100 is not defined in the Code. The word
substantial, as qualifying question of law, means - of having
substance, essential, real, of sound worth, important or
considerable. It is to be understood as something in
contradistinction with - technical, of no substance or
consequence, or academic merely. However, it is clear that the
Legislature has chosen not to qualify the scope of substantial
question of law by suffixing the words of general importance
as has been done in many other provisions such as Section
109 of the Code or Article 133(1)(a) of the Constitution. The
substantial question of law on which a second appeal shall be
heard need not necessarily be a substantial question of law of
general importance. In Guran Ditta & Anr. Vs. T. Ram
Ditta, AIR 1928 Privy Council 172, the phrase substantial
question of law as it was employed in the last clause of the
then existing Section 110 of the C.P.C. (since omitted by the
Amendment Act, 1973) came up for consideration and Their
Lordships held that it did not mean a substantial question of
general importance but a substantial question of law which
was involved in the case as between the parties.”
14. The present appeal must therefore be examined within the question on
which it was admitted.
15. The existence of concurrent findings does not, however, exclude
scrutiny of the legal principles applied in reaching them. In Hero
5
Vinoth v. Seshammal , the Supreme Court recognised that interference
may be warranted where the courts below disregard material evidence,
5
(2006) 5 SCC 545
Signature Not Verified
Page 10
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
draw erroneous inferences by applying the law incorrectly or wrongly
place the burden of proof. The relevant excerpts are produced below:
“The general rule is that High Court will not interfere with
concurrent findings of the Courts below. But it is not an
absolute rule. Some of the well recognized exceptions are
where (i) the courts below have ignored material evidence or
acted on no evidence; (ii) the courts have drawn wrong
inferences from proved facts by applying the law erroneously;
or (iii) the courts have wrongly cast the burden of proof.
When we refer to 'decision based on no evidence', it not only
refers to cases where there is a total dearth of evidence, but
also refers to any case, where the evidence, taken as a whole,
is not reasonably capable of supporting the finding.
16.
The substantial question has two connected aspects. The first concerns
the legal availability of adverse possession in respect of property
belonging to a deity. The second concerns whether the possession relied
upon in this case satisfies the requirements of that doctrine. The
appellants’ alternative submission seeking confirmation of possession
must also be distinguished from their claim to acquisition of title by
prescription.
17.
Both courts below proceeded on the proposition that a deity is a
perpetual minor and that adverse possession can never operate against
its property. That proposition cannot be accepted in such absolute
6
terms. In M. Siddiq v. Mahant Suresh Das , the Constitution Bench
expressly rejected the contention that a deity stands exempted from
limitation merely because it is described as a perpetual minor. The
Court explained that the analogy cannot be extended to create an
6
(2020) 1 SCC 1
Signature Not Verified
Page 11
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
exemption which the law of limitation does not provide. The judgment
highlighted the need for human agency to represent the deity does not
place its property beyond the operation of limitation. The relevant
excerpts are produced below:
“The analysis of the legal position on the applicability of the
law on perpetual minority by Justice S U Khan commends
itself. Based on the judicial precedents analysed above, it is
an established position that a deity cannot on the ground of
being a perpetual minor stand exempted from the application
of the Limitation Act. The submission which was urged by
Mr C S Vaidyanathan is contrary to the jurisprudence of
close to a century on the issue. We follow the line of
precedents emanating from the Privy Council, this Court and
several High Courts noted earlier. The applicability of the law
of limitation cannot be ruled out on the basis of the theory of
perpetual minority.”
18. The second limb of the substantial question must therefore be answered
by holding that the description of a deity as a perpetual minor does not,
by itself, exclude a claim founded on adverse possession. This
conclusion does not dispense with the requirements of prescription or
determine the application of any special statutory provision governing
religious endowments. Those matters depend upon the nature of the
right asserted and the proceeding concerned. For the present appeal, it
is sufficient to examine whether the plaintiff established possession
having the character necessary to support his claim.
19.
The error concerning perpetual minority does not necessarily require
reversal of the decrees. The courts below also rejected the claim on the
independent ground that the occupation disclosed by the receipts
Signature Not Verified
Page 12
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
originated in annual lease arrangements and that acquisition of title by
adverse possession had not been established. The sustainability of that
ground must therefore be considered separately.
7
20. In Karnataka Board of Wakf v. Government of India , the Supreme
Court explained that adverse possession requires possession
accompanied by the intention to hold adversely to the true owner. Its
commencement, nature, continuity, publicity and hostile character
must be established. The claimant must plead and prove the
circumstances in which possession became adverse and continued for
the prescribed period. Mere occupation, however longstanding, does
not establish those requirements. The inquiry involves both the facts of
possession and their legal character. The relevant excerpts are
produced below:
“In the eye of law, an owner would be deemed to be in
possession of a property so long as there is no intrusion. Non-
use of the property by the owner even for a long time won't
affect his title. But the position will be altered when another
person takes possession of the property and asserts a right
over it. Adverse possession is a hostile possession by clearly
asserting hostile title in denial of the title of true owner. It is
a well- settled principle that a party claiming adverse
possession must prove that his possession is 'nec vi, nec clam,
nec precario', that is, peaceful, open and continuous. The
possession must be adequate in continuity, in publicity and
in extent to show that their possession is adverse to the true
owner. It must start with a wrongful disposition of the
rightful owner and be actual, visible, exclusive, hostile and
continued over the statutory period. (See : S M Karim v. Bibi
Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC
7
(2004) 10 SCC 779
Signature Not Verified
Page 13
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
375 and D N Venkatarayappa v. State of Karnataka (1997) 7
SCC 567). Physical fact of exclusive possession and the
animus possidendi to hold as owner in exclusion to the actual
owner are the most important factors that are to be accounted
in cases of this nature. Plea of adverse possession is not a pure
question of law but a blended one of fact and law. Therefore,
a person who claims adverse possession should show (a) on
what date he came into possession, (b) what was the nature of
his possession, (c) whether the factum of possession was
known to the other party, (d) how long his possession has
continued, and (e) his possession was open and undisturbed.
A person pleading adverse possession has no equities in his
favour. Since he is trying to defeat the rights of true owner,
it is for him to clearly plead and establish all facts necessary
to establish his adverse possession.”
21. Where possession originates with the owner’s permission, its duration
must be distinguished from the duration of any subsequent hostile
8
possession. In Thakur Kishan Singh v. Arvind Kumar , paragraph 5, the
Supreme Court held that permissive possession does not become
adverse merely through the passage of time. A change to hostile
possession must be established by cogent evidence and must be
adverse to the knowledge of the true owner. Accordingly, the
observation of the courts below that permissive possession can never
become adverse requires qualification. The correct position is that
permission does not become hostility merely because occupation
continues.
22.
The relevant commencement is that of possession adverse to the owner,
rather than the date on which ownership arose or occupation first
8
(1994) 6 SCC 591
Signature Not Verified
Page 14
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
began. Possession referable to a tenancy or lease does not establish the
hostile animus necessary for prescription merely because the occupier
subsequently asserts ownership.
23. In the present case, the receipts relied upon by the plaintiff were
understood by both courts below as evidencing annual leases and
payment of bhag by his father and brother. Those documents support
occupation referable to the deity’s permission. They do not, by
themselves, establish that the persons cultivating the land held it in
denial of the deity’s title. Nor does the existence of receipts in the names
of family members automatically establish an independent right in
favour of the original plaintiff.
24.
Even assuming that the plaintiff continued the cultivation previously
undertaken by his father, the claim to adverse possession does not
follow. Continuity of cultivation is not equivalent to continuity of
hostile possession. The period during which the family occupied the
land under annual arrangements cannot be counted as adverse merely
because the occupation is said to have extended over several decades.
A subsequent change in the character of possession, followed by its
continuance for the requisite period, remained necessary.
25. The findings below disclose no established commencement of such
hostile possession or a proved course of conduct repudiating the deity’s
title for the prescriptive period. The deficiency is therefore substantive.
It concerns the character of the occupation and the absence of an
established transition from permission to hostility. On this aspect, the
receipts support the conclusion reached by the courts below,
Signature Not Verified
Page 15
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
independently of their erroneous proposition concerning perpetual
minority.
26. The plaintiff’s request that the land be settled in his favour does not
supply that deficiency. Such a request is consistent with seeking a grant
or recognition from those managing the deity’s property. Its precise
effect would depend upon its terms and timing, and it need not be
treated as conclusively defeating every conceivable claim of prior
adverse possession. Nevertheless, the request does not itself prove that
hostile possession commenced or that title had already been acquired
by prescription.
9
27.
In Ravinder Kaur Grewal v. Manjit Kaur , the Supreme Court
recognised that a plaintiff who has perfected title by adverse possession
may seek affirmative relief. The present claim cannot therefore be
rejected merely because adverse possession is advanced by the plaintiff
rather than by a defendant. The availability of the remedy, however,
does not establish its factual foundation. The claim here fails because
possession having the requisite hostile character has not been
established, rather than because such a suit is inherently unavailable.
28. The first limb of the substantial question is accordingly answered
against the appellants. The longstanding cultivation relied upon,
considered with the annual lease arrangements evidenced by the
receipts, does not establish acquisition of title by adverse possession.
Correcting the legal proposition concerning the deity’s status does not
remove this independent deficiency in the plaintiff’s case.
9
(2019) 8 SCC 729
Signature Not Verified
Page 16
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
29. The alternative submission based on settled possession requires
10
separate consideration. In Rame Gowda v. M. Varadappa Naidu , the
Supreme Court recognised that settled possession may be protected
against forcible dispossession even at the instance of the true owner.
Failure to establish ownership does not, by itself, permit the use of force
against an occupier. At the same time, protection against forcible
dispossession must be distinguished from recognition of a proprietary
or occupancy right over the land.
30. The material findings reproduced in the judgments below do not
support the appellants’ assertion that both courts concurrently
recognised the original plaintiff’s settled possession. Nevertheless, the
present appeal need not be decided by treating the plaintiff’s personal
cultivation as conclusively disproved. Even accepting the cultivation
asserted by the appellants, and referred to in the respondents’
submissions, such cultivation would not establish the acquisition of
title claimed in the suit. The receipts and the duration of occupation do
not convert the general protection against force into a declaration of an
independent right over the deity’s land.
31. The claim to a right of occupancy, insofar as it is founded merely upon
the length of cultivation, encounters the same difficulty. Occupation
under an annual arrangement and acquisition of an enduring legal
interest are distinct matters. The latter must rest upon an established
legal foundation. The conclusion that adverse title has not been proved
does not mean that a tenant or lessee can never possess enforceable
10
(2004) 1 SCC 769
Signature Not Verified
Page 17
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
rights. It means that those rights cannot be inferred solely from the
period of cultivation relied upon to support the present prescriptive
claim.
32. The appellants’ reliance on Rame Gowda (supra) must therefore be
accepted to the extent that recovery of possession cannot be pursued by
unlawful force. It does not require the Court to declare that the
appellants have acquired the proprietary or occupancy right asserted
by them. The proper course is to preserve the distinction expressly. The
dismissal of their claim does not operate as a decree for eviction in
favour of the respondents and cannot be treated as authority to
dispossess any person otherwise than through the procedure
applicable in law.
V. CONCLUSION:
33. The substantial question of law is answered as follows. A deity is not
exempt from the law of limitation merely because it is described as a
perpetual minor. The contrary proposition adopted by the courts below
is therefore disapproved. Nevertheless, the occupation evidenced by
the annual lease arrangements and bhag receipts, together with the
failure to establish possession adverse to the deity for the requisite
period, independently sustains rejection of the plaintiff’s claim to title
by prescription. The assertion of continued cultivation does not
warrant a declaration of the independent right claimed, although the
protection available in law against forcible dispossession remains
unaffected.
Signature Not Verified
Page 18
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47
34. Subject to the correction of the legal propositions and the clarification
concerning dispossession stated above, the judgment dated 25.03.2006
passed by the learned Additional District Judge, Sonepur in R.F.A. No.
14 of 2005, affirming the judgment dated 07.02.2005 and decree dated
21.02.2005 passed by the learned Civil Judge (Senior Division), Sonepur
in T.S. No. 87 of 2001, is affirmed.
35. The second appeal is dismissed. No order as to cost.
36. Interim order, if any, passed earlier stands vacated.
(Dr. Sanjeeb K Panigrahi)
Judge
Orissa High Court, Cuttack,
th
Dated the 30 October,, 2026/
Signature Not Verified
Page 19
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 15:59:47