Advocates:
['M/S RAMAKANTA MOHANTY', '', 'P K SAMANTRAY', 'P K SATPATHY', 'B K MOHANTY', 'A P BOSE', 'DEBAKANTA MOHANTY', 'P K RATH']

HIGH COURT OF ORISSA: CUTTACK

RSA No.70 of 2004

From the judgment and decree dated 23.12.2002 and 15.01.2003

respectively passed by Sri M.N. Patanaik, learned District Judge, Khurda

at Bhubaneswar in T.A No.21 of 2001 confirming the judgment and decree

dated 26.7.2001 and 9.8.2001 respectively passed by Sri K.C. Barik,

learned Civil Judge (Junior Division), Bhubaneswar in Title Suit

No.343/118 of 2000/1986.

-----------

Dharmananda Sahu (dead)

through L.Rs.

…. Appellants

Versus

State of Orissa & others

…. Respondents

For Appellants

For Respondents

…

…

Mr. Ramakanta Mohanty, Sr. Adv.

Mrs. Sumitra Mohanty, Adv.

Mr. Swayambhu Mishra, ASC

J U D G M E N T

PRESENT:

THE HONOURABLE DR. JUSTICE A.K.RATH

Date of hearing: 18.07.2019

: Date of judgment: 29.07.2019

Dr. A.K.Rath, J Plaintiffs are

the

appellants against

a

confirming

judgment in a suit for declaration of occupancy right over the suit

land.

2.

Case of the plaintiffs was that Dinabandhu Sahu, original

plaintiff no.1, and Gouri Behera were the joint occupancy raiyats in

respect of the suit schedule property. Gouri met civil death.

Thereafter, Dinabandhu became the exclusive owner in possession of

the suit property. In the year 1925, the suit property was wrongly

recorded in the name of the Forest Department. The same was

2

cancelled subsequently. Dinabandhu remained in possession of the

suit property till death; whereafter his sons are in possession of the

same. In 1962 settlement, the suit land was recorded in the name of

the State Government-defendant no.1. With this factual scenario,

they instituted the suit seeking the reliefs mentioned supra.

3.

Defendant no.1 filed a written statement denying the

assertions made in the plaint. Case of the defendant no.1 was that

neither the plaintiffs nor their predecessor-in-interest were in

possession of the suit land. In the year 1916, the entire suit land was

transferred to Mutation Khata No.1 (Government) in Block No.36.

But inadvertently the area mutated in the Government Khata was

wrongly reflected. The balance area was again recorded in the

Government Khata No.1 by order dated 7.1.1929 of the Collector of

the District. After transfer of the entire area to the Government Khata

in the year 1916, it was recorded in favour of the Government in

1929-30 settlement. In 1962 settlement, the plot merged with new

khata no.388 of the Forest Department forming a big new plot

measuring Ac.41.650 dec. with classification “Chhota Jungle”.

Defendant no.1 is in possession of the suit land since 1916.

4.

On the inter se pleadings of the parties, learned trial court

framed six issues. Parties led evidence, oral and documentary.

Learned trial court dismissed the suit holding that Dinabandu and

Gouri were not the occupancy raiyats in respect of the suit land. The

plaintiffs and their predecessor-in-interest were not in possession of

the suit land. The suit is barred by limitation as the original plaintiffs

have not taken any steps to record the land in their favour after

1962. The suit is bad for non-joinder of the legal heirs of Gouri.

Unsuccessful plaintiffs filed Title Appeal No.21 of 2001, which was

eventually dismissed. It is apt to state here that during pendency of

3

the suit, plaintiff no.1 died, whereafter his legal heirs have been

substituted.

5.

The second appeal was admitted on the substantial

questions of law. The same are -

“1. Whether the courts below were correct in dismissing the

plaintiff-appellants’ suit on the ground of limitation when

the said suit was for declaration of occupancy right and not

for correction of ROR as envisaged under Section 42 of the

Orissa Survey and Settlement Act ?

2. Whether the courts below were correct in dismissing the

plaintiff-appellan