The onus of establishing title was on the plaintiff, and the defendant's failure to provide evidence of his claimed title led to the dismissal of the appeal.

JUDGMENT :

Dr. A.K. RATH, J.

This is a defendant’s appeal against reversing judgment.

2. The plaintiff-respondent instituted the suit for declaration of title, permanent injunction and recovery of possession in the event he is dispossessed during trial of the suit. The case of the plaintiff was that the suit house originally belonged to one Chinalu Hadiani, wife of Chinalu Krishna. She along with her husband adopted the father of the plaintiff. His father, Chinalu Bhuluga became the owner of the suit house. For legal necessity, his father sold half of the suit house and kept other half with him. After death of his father, he, being the only son, succeeded to the suit house. The defendant is the agnatic brother of his father. He had no right, title and interest over the suit house. He created disturbance in possession of the plaintiff. The plaintiff initiated a proceeding under Section 144 Cr.P.C. in the court of the Executive Magistrate, Digapahandi, which was decided against him. With this factual scenario, he instituted the suit seeking the relief mentioned supra.

3. The defendant entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendant was that the house was sold to his father by the father of the plaintiff in the year 1946. Since then his father was in exclusive possession of the same. In a family partition, the suit house was allotted to his share. He was in possession of the same. The plaintiff had no right, title and interest over the suit house since his father sold the remaining portion to one A.Dandasi by means of a registered sale deed. The plaintiff is residing in another house situated in the village. A false case under Section 144 Cr.P.C. had been filed before the Executive Magistrate, Digapahani only to harass him.

4. On the inter se pleadings of the parties, the learned trial court framed four issues. Both parties led evidence, oral and documentary, to substantiate their case. The learned trial court came to hold that the plaintiff had failed to establish his title over the suit property. He was not in possession of the same. Held so, it dismissed the suit. Aggrieved by the judgment and decree of the learned trial court, the plaintiff filed appeal before the learned District Judge, Berhampur, which was subsequently transferred to the court of the learned 1st Additional District Judge, Berhampur and renumbered as Title Appeal No.11/99(Title Appeal No.42/92 G.D.C.). The learned appellate court held that the plaintiff had title over the suit house. The defendant had failed to prove his title. Held so, it allowed the appeal.

5. The Second Appeal was admitted on the following the substantial questions of law.

“1. Whether the decree granting permanent injunction in favour of the plaintiff can be sustainable in view of the finding of the trial court that the defendant is in possession of the suit house?

2. Whether the learned appellate court has entered into an erroneous legal approach in placing onus on the defendant for establishing his title, particularly when the onus is clearly on the plaintiff to establish his title in respect of the suit house and not on the basis of any lacuna in the title of the defendant?”

6. Heard Mr. Soubhagya Kumar Samal, learned Advocate on behalf of Mr. Buddhadev Routray, learned Senior Advocate for the appellant. None appears for the respondent.

7. Mr. Samal, learned Advocate for the appellant submits that father of the plaintiff sold half of the suit house to the father of the defendant in the year 1946 by means of a registered sale deed. The plaintiff was not in possession of the suit property. The learned trial court came to hold that the defendant had right, title, interest and possession over the suit land, but the learned appellate court up set the finding of the learned trial court on untenable and unsupportable reasons. Elaborating the submission, he further submits that the learned appellate court came to hold that the plaintiff