Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Ori) 674

IN THE HIGH COURT OF ORISSA AT CUTTACK
A.C.BEHERA, J.
Dhanmati Muchu and others - Appellants
Versus
Narayan Muchu and others – Respondents
R.S.A. No.27 of 2008
Decided On : 17-03-2026

Advocates Appeared:
For the Appellants :Mr. S. Ghosh, Advocate
For the Respondents:Mr. A.K. Nanda, Advocate

A suit for declaration of title requires the plaintiff to be in possession of the property; otherwise, as per Section 34 of the Specific Relief Act, the suit is not maintainable.

Headnote:(A) Indian Evidence Act, 1872 - Sections 101 and 50 - Property Law - Suit for declaration of title and confirmation of possession initiated by members of the Schedule Tribe community against a claim by an alleged family member - The plaintiffs failed to establish their genealogy, while the defendant substantiated his possession of the disputed property under the Record of Rights (RoR) acknowledged since 1977. The findings of the lower appellate court affirming the defendant's title were supported by unchallenged evidence. (Paras 19, 33, 35)

(B) Suit Maintainability - A suit for declaration of title when the plaintiff is not in possession of the property is not maintainable in absence of a prayer for recovery of possession, as outlined in Section 34 of the Specific Relief Act. (Paras 34)

Facts of the case:
The plaintiffs filed a suit claiming title over certain properties, asserting they descended from a common ancestor, but the defendant contested their genealogical claims, asserting he was a family member possessing the properties since 1977. (Paras 3, 10, 19)

Findings of Court:
The learned trial court initially ruled in favor of the plaintiffs, but the first appellate court set aside this decree based on evidence of the defendant's ownership and continuous possession. The genealogy delineated by the plaintiffs was not proven correct, shifting the presumption of title to the defendant. (Paras 15, 31, 35)

Issues: The court primarily addressed whether the plaintiffs had established their genealogical claims and whether the suit filed was maintainable given their lack of possession. (Paras 19, 34)

Ratio Decidendi: The court determined that the plaintiffs bore the burden of proof regarding their genealogical claims. Additionally, the failure to seek recovery of possession rendered their title declaration suit untenable under law. (Paras 23, 34)

Result: Second appeal dismissed.

Table of Content
1. establishes case background and genealogy. (Para 1 , 2 , 3 , 4)
2. dispute over property possession and ownership. (Para 6 , 7 , 8 , 9 , 10)
3. defendant's counterarguments regarding genealogy. (Para 11 , 12)
4. issues framed for trial. (Para 13 , 14 , 15)
5. 1st appellate court's ruling on ownership. (Para 16 , 17)
6. substantial questions of law in 2nd appeal. (Para 18 , 19 , 20 , 21)
7. burden of proof regarding genealogy. (Para 22 , 23 , 24 , 25 , 26)
8. admissions as best evidence. (Para 27 , 28 , 29)
9. possession evidence and implications. (Para 30 , 31 , 32)
10. dismissal grounds for plaintiffs' suit. (Para 33 , 34 , 35)
11. conclusion of the 2nd appeal. (Para 36 , 37)

JUDGMENT :

A.C. Behera, J.

The 2nd appeal has been preferred against the reversing judgment.

2. The appellants in this 2^nd appeal were the plaintiffs before the learned trial court in the suit vide C.S. No.33 of 2002 and the respondent nos.1 to 6 before the learned 1^st appellate court in the 1^st appeal vide RFA No.05/18 of 2006.

The respondent no.1 in this 2^nd appeal was the defendant no.1 before the learned 1^st appellate court in the suit vide C.S. No.33 of 2002 and the appellant before the learned 1^st appellate court in the 1^st appeal vide RFA No.05/18 of 2006.

The respondent nos.2 to 4 in this 2^nd appeal were the defendants nos.2 to 4 in the suit vide C.S. No.33 of 2002 and respondent nos.7 to 9 before the learned 1^st appellate court in the 1^st appeal vide RFA No.05/18 of 2006.

3. The suit of the plaintiffs(appellants in this 2^nd appeal) vide C.S. No.33 of 2002 was a suit for declaration of title and confirmation of possession.

As per the case of the plaintiffs, they (plaintiffs) and proforma defendant nos.2 to 4 are the members of Schedule Tribe community and they belong to one family and their common ancestor was Dhruba Muchu. Dhurba Muchu died leaving behind his six sons, i.e., Bairag, Jhankar, Bariha, Jaysa, Khageswar and Dhanurja.

Bairag died leaving behind his two sons, i.e., Kunja and Dingara(plaintiff no.2).

Kunja died leaving behind his widow Dhanmati(plaintiff no.1).

The 2^nd and 3^rd son of Dhurba Muchu, i.e., Jhankar and Bariha died issueless.

The 4^th son of Dhurba Muchu, i.e., Jaysa Muchu died leaving behind his four sons, i.e., Kubera(defendant no.2), Parikhita(plaintiff no.3), Rudra(defendant no.3) and Prasad(plaintiff no.4).

The 5^th son of Dhurba Muchu, i.e., Khageswar Muchu died leaving behind his son Mangulu Muchu(defendant no.4)

The 6^th son of Dhurba Muchu, i.e., Dhanarja Muchu died leaving behind his two sons, i.e., Makaradhwaja Muchu(plaintiff no.5) and Biranchi Muchu(plaintiff no.6).

4. In order to have a better appreciation and so also for an easy understanding about the family pedigree of the plaintiff and defendants, their genealogy as stated above, is depicted hereunder for an instant reference:-

5 According to the plaintiffs, defendant no.1 Narayan Samini @ Muchu son of Chandrasekhar Samini@Muchu is in no way related to the family of the plaintiffs and proforma defendant no.2 to 4. He (defendant no.1) is a stranger to their family.

The grand-father of the defendant no.1, i.e., Brusabha Samini had come to their village from an another village and he(Brusabha Samini) was working as a field servant under their common ancestor Dhurba Muchu.

Dhurba Muchu was the only son of his father Harihar Muchu. The said Dhurba Muchu was possessing A.18.10 decimals of land being the owner thereof and the RoR of the same was published in his name exclusively in the last Hamid Settlement.

Their common ancestor Dhurba Muchu died in or about 1948 leaving behind his widow and sons as described in the genealogy and after the death of their common ancestor Dhurba Muchu, his sons had mutated the properties to their names in the year 1949-50 paying rent to the Government.

6. The 1^st son of Bairag Muchu sold some acres of land out of A.18.10 decimals properties to different persons executing different sale deeds as reflected in Para No.4 of the plaint.

7. In the la