Dismissed¶123

Iswar v. Asamani

Orissa HC23 Dec 2025SA/70/1995

Case brief

AI extract

What is this about?

Second appeal Section 100 CPC; declaration of title and recovery of possession; permissive possession versus ancestral possession; presumption of own-right title from long possession without title deed; plaintiff must succeed on strength of own title; non-interference with first appellate findings of fact; Hal R.o.R. recording dispute; Mouza Bhuasuni Plot No.596; T.S. No.99 of 1987; T.A. No.8 of 1990; Orissa High Court; Bisu Patra lineage; adverse possession context; eviction decree reversed.

What did the court decide?

In a suit for declaration of title and recovery of possession, the plaintiffs can succeed only on the strength of their own title in the suit properties, by adducing sufficient evidence to discharge the onus on them, irrespective of whether the defendant has proved its case or not. ¶97

Iswar Vs Asamani — Orissa HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶123

Issue for consideration

Whether the findings and observations of the learned 1st Appellate Court in T.A. No.8 of 1990 setting aside the Trial Court's judgment and decree in T.S. No.99 of 1987 — namely, that the defendant's possession of the suit properties since the time of her ancestor is not permissive and draws a presumption that she possesses in her own right and title without any title deed in her favour and without proving acquisition through inheritance or succession — are sustainable under law.

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Court's answer

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Ratio / Principle

The plaintiffs neither pleaded nor evidenced any date or year of the alleged permission said to have been granted by their father Bisu Patra, or of the construction of the house, and their own witnesses (P.W.1 to P.W.3) deposed that the defendant and her father resided in the suit house and her mother died therein, showing possession continuing from her grandfather Parikhita Patra; hence the plaintiffs failed to establish their case, and the findings of the 1st Appellate Court that the defendant possesses the suit properties and house in her own right and title cannot be held erroneous.

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Key takeaways

Findings of fact recorded by the learned 1st Appellate Court after appreciation of evidence should not be interfered with by the learned 2nd Appellate Court.ratio¶112
Since the judgment and decree of the 1st Appellate Court in T.A. No.8 of 1990 dismissing the plaintiffs' suit are not unreasonable, there is no merit in the second appeal; it is dismissed on merit without cost, and the 1st Appellate Court's judgment and decree are confirmed.ratio¶123

Detailed headnote1 paragraphs

Second Appeal (S.A. No.70 of 1995) under Section 100 of the Code of Civil Procedure, 1908, High Court of Orissa at Cuttack (A.C. Behera, J.), decided 23.12.2025. The plaintiffs' suit T.S. No.99 of 1987 for declaration of title and recovery of possession over Ac0.25 decimals of Plot No.596, Khata No.7, Mouza Bhuasuni (Sabik Plot No.339) was decreed by the Trial Court (judgment 20.12.1989; decree 03.01.1990) on the footing that the defendant Asamani Patra held permissive possession from Bisu Patra; the 1st Appellate Court reversed in T.A. No.8 of 1990 (judgment 10.02.1995; decree 24.02.1995), holding her possession continuous from her grandfather Parikhita Patra and thus in her own right and title. Substantial question: whether that finding — possession since the ancestor, not permissive, drawing a presumption of own-right possession without title deed or proof of inheritance — is sustainable. Held: (i) a plaintiff in a declaration-of-title suit must succeed on the strength of his own title irrespective of the defendant's case, relying on (2014) 2 SCC 269, AIR 1959 SC 31, (2019) 6 SCC 82 and 2021 (3) CCC 511 (SC); (ii) the plaintiffs pleaded and proved no date or year of the alleged permission by Bisu Patra, and their own witnesses established the defendant's ancestral residence in the suit house; (iii) findings of fact of the 1st Appellate Court after appreciation of evidence are not to be interfered with in second appeal, relying on 2023 (3) Civil Court Cases 653 (Raj.) and AIR 2020 SC 1912. Appeal dismissed on merit without cost; judgment and decree of the 1st Appellate Court confirmed.

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IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.70 of 1995

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(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)

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Iswar Patra @ Iswar Chandra Patra (since dead through his LRs)

…. Appellants

-versus-

Asamani Patra

…. Respondent

Appeared in this case by Hybrid Arrangement

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(Virtual/Physical Mode):

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For Appellants - Mr. Prabhav Behera, Advocate. On behalf of Mr. D. K. Mishra, Advocate.

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For Respondent - D. P. Mohanty, Advocate.

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CORAM:

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HON’BLE MR. JUSTICE A.C.BEHERA

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Date of Hearing :19.11.2025 :: Date of Judgment :23.12.2025

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A.C. Behera, J . This 2^nd appeal has been preferred against the

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reversing judgment.

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2 . The appellants in this 2^nd appeal were the plaintiffs before the Trial

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Court in the suit vide T.S. No.99 of 1987 and respondents before the 1^st

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Appellate Court in the 1^st Appeal vide T.A. No.8 of 1990.

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Page 1 of 16

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The respondent in this 2^nd appeal was the defendant before the

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Trial Court in the suit vide T.S. No.99 of 1987 and appellant before the 1^st Appellate Court in the 1^st Appeal vide T.A. No.8 of 1990.

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3 . The suit of the plaintiffs (appellants in this 2^nd appeal) against the defendant (respondent in this 2^nd appeal) was a suit for declaration of title and recovery of possession.

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4 . The case of the plaintiffs as per their pleadings in their plaint in nutshell against the defendant was that, the suit properties are Ac0.25 decimals of Plot No.596 under Khata No.7 in Mouza Bhuasuni, which were described in Schedule ‘A’ of the plaint. The suit Plot No.596 corresponds to Sabik Plot No.339.

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As per the case of the plaintiffs, Chamu Patra had four sons, namely, Parikhita Patra, Krishna Patra, Krushna Patra and Bisu Patra. The plaintiffs are the sons of Bisu Patra.

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Parikhita Patra was the brother of Bisu Patra.

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Parikhita Patra died leaving behind his son Dassarathi Patra. Dassarathi Patra died leaving behind his daughter Asamani Patra (defendant).

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Bisu Patra was the separated brother of Parikhita Patra.

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The suit properties were the properties of Bisu Patra, in which, neither Parikhita Patra nor his son Dassarathi Patra or his daughter

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Page 2 of 16

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Asamani Patra (defendant) had/has any interest. Asamani Patra (defendant) had no land to construct a house for her residential purpose, but she (Asamani Patra-defendant) was allowed by the father of the plaintiffs i.e. Bisu Patra to construct a house on the suit properties and to reside there. As per the permission granted by the father of the plaintiffs i.e. Bisu Patra, the defendant (Asamani Patra) constructed a house on the suit properties and stayed in that house. For which, her possession over the suit properties is purely permissive in nature and the said permissive nature of possession of the defendant (Asamani Patra) cannot create any interest in her favour in the suit properties. The suit properties in the Sabik settlement were recorded in favour of the plaintiffs. But, during Hal settlement, the suit properties were erroneously recorded in the name of the defendant (Asamani Patra). Such recording of the suit properties in the Hal settlement in the name of Asamani Patra (defendant) is illegal and erroneous. As, Asamani Patra was/is possessing the suit properties on permission granted by the father of the plaintiffs i.e. Bisu Patra, for which, the Settlement Authorities should not have recorded the suit properties in the name of the defendant (Asamani Patra), because the plaintiffs are the owners of the same and as per law, they are in actual possession over the same. When, Asamani Patra did not leave the suit properties under the possession of the plaintiffs, then without getting any

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Page 3 of 16

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way, the plaintiffs approached the Civil Court by filing the suit vide T.S.

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No.99 of 1987 against the defendant (Asamani Patra) praying for a declaration that, they (plaintiffs) are the owners of the ‘A’ Schedule suit properties and also to declare that, the recording of the suit properties in the Hal R.o.R. in the name of Asamani Patra (defendant) is illegal and to direct the defendant (Asamani Patra) to deliver the possession of the suit properties to the plaintiffs after demolishing the house constructed thereon and to pass a decree for eviction of Asamani Patra (defendant) from the suit properties along with other reliefs, to which, they (plaintiffs) are entitled for.

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5 . Having been noticed from the Trial Court in the suit vide T.S. No.99 of 1987, the defendant (Asamani Patra) contested the same by filing her written statement denying the above allegations alleged by the plaintiffs in their plaint against her (defendant) taking her stands specifically that,

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“ Parikhita Patra was the grandfather of defendant. He (Parikhita Patra) died prior to the sabik settlement of the year 1929 leaving behind his widow wife and Dasarathi Patra (father of defendant).

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When, Dasarathi Patra was a small boy, his father Parikhita Patra had expired. Therefore, the father of the plaintiffs i.e. Bisu Patra was looking after the properties and persons of Dasarathi Patra as well as his widow mother. For which, widow of Parikhita Patra and minor Dasrathi Patra were fully dependent upon the

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Page 4 of 16

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father of the plaintiff i.e. Bisu Patra and they had ample trust upon him i.e. Bisu Patra. Bisu Patra was very shrewd and intelligent person. So, taking the advantage of simplicity of the widow of Parikhita Patra and his minor son Dasarathi Patra in connivance with the settlement people managed to record the suit properties illegally in the sabik settlement in the name of the father of the plaintiffs i.e. Bisu Patra without the knowledge of the widow Parikhita Patra.

¶40

The suit properties were the properties of the grandfather of the defendant i.e. Parikhita Patra. After the death of Parikhita Patra, the suit properties along with other properties left by him devolved upon his widow wife and his minor son Dasarathi Patra. After the death of Dasarathi Patra and his mother, the suit properties left by them devolved upon her (defendant) as their only successor. As such, she (defendant) is the owner of the suit properties, in which, the plaintiffs have no interest.

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The house over the suit properties was constructed by the grandfather of the defendant i.e. Parikhita Patra and the plaintiffs have falsely averred in the plaint that, on the permission of their father, she (defendant) has constructed the house on the suit properties. As the suit properties are her ancestral properties, for which, she (defendant) had/has been possessing the same and she (defendant) had/has been residing in the house on the suit properties as her own properties, in which the plaintiffs have no right, title, interest and possession. As, she (defendant) had/has been possessing the suit properties as the owner of the same, then the suit of the plaintiffs for declaration of title as well as for the declaration of the recording of the Hal R.o.R. of the suit properties in the name of the defendant as illegal and for recovery of possession of the suit properties from her (defendant) cannot be acceptable under law.

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Therefore, the suit of the plaintiffs is liable to be dismissed .”

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Page 5 of 16

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6 . Basing upon the aforesaid pleadings and matters in controversies

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between the parties, altogether 7 (seven) numbers of issues were framed by the learned Trial Court in the suit vide T.S. No.99 of 1987 and the said

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issues are:-

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ISSUES

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(i) Whether the plaintiffs are the owners of the suit land? (ii) Whether the defendant acquired title by adverse possession? (iii) Whether the recording of the suit land in the name of the defendant is wrong and illegal? (iv) Whether the defendant is liable to be evicted from the suit land and the house over it and whether the possession of the suit land is liable to be delivered to the plaintiffs? (v) Whether the plaintiffs have cause of action? (vi) Whether the suit is maintainable? (vii) To what relief or reliefs, the plaintiffs are entitled?

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7. In order to substantiate the aforesaid relief(s) sought for by the

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plaintiffs in the suit vide T.S. No.99 of 1987 against the defendant, the plaintiffs examined four witnesses from their side including plaintiff No.1 as P.W.1 and exhibited series of documents on their behalf vide Exts.1 to 3.

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On the contrary, in order to nullify/defeat the suit of the plaintiffs,

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the defendant examined three witnesses on her behalf including her as D.W.3 and relied upon series of documents from her side vide Exts.A to C Series.

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8 . 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 plaintiffs and against the defendant and basing upon the findings and observations made by the

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Page 6 of 16

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learned Trial Court in the issues, the learned Trial Court decreed the suit of the plaintiffs vide T.S. No.99 of 1987 on contest against the defendant as per its judgment and decree dated 20.12.1989 and 03.01.1990 respectively assigning the reasons that,

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“ the plaintiffs are the owners of the suit properties, in which the defendant has no interest, because the suit properties were the properties of the father of the plaintiffs i.e. Bisu Patra and after the death of Bisu Patra, the suit properties devolved upon the plaintiffs and the defendant has constructed the house on the suit properties and residing in the same on the permission granted by the father of the plaintiffs and the permissive possession of the defendant over the suit properties cannot establish her ownership on the same. For which, the defendant is liable to be evicted from the suit properties and house. As such, the learned Trial Court declared that, the plaintiffs are the rightful owners of the suit properties and recording of the suit properties in the Hal R.o.R. in the name of the defendant is wrong and illegal. The defendant is directed to vacate the possession of the suit properties including the house standing thereon and to deliver the possession of the same to the plaintiffs within two months from the date of the decree. ”

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9 . On being dissatisfied with the aforesaid judgment and decree

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passed by the learned Trial Court in the suit vide T.S. No.99 of 1987 in favour of the plaintiffs and against the defendant, the defendant challenged the same preferring the 1^st appeal vide T.A. No.8 of 1990 being the appellant against the plaintiffs arraying them (plaintiffs) as respondents.

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Page 7 of 16

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10 . After hearing from both the sides, the learned 1^st Appellate Court allowed that 1^st Appeal vide T.A. No.8 of 1990 of the defendant and set aside the judgment and decree passed by the learned Trial Court in the suit vide T.S. No.99 of 1987 as per its judgment and decree dated 10.02.1995 and 24.02.1995 respectively and dismissed the suit of the plaintiffs vide T.S. No.99 of 1987 on contest against the defendant assigning the reasons that,

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“ when it is established from the evidence in the Record that, the grandfather of the defendant i.e. Parikhita Patra was possessing the suit properties and he was residing in the house standing thereon and thereafter, the defendant has been residing in the same, then the question of giving permission by the father of the plaintiffs i.e. Bisu Patra to the defendant for construction of a house on the suit properties does not arise and as such, the possession of the defendant over the suit properties is since the time of her ancestors and that possession was not permissive possession and she (defendant) had/has been possessing the suit properties and the house standing thereon as her own right and title, in which, the plaintiffs have no interest. For which, the decree passed by the learned Trial Court in favour of the plaintiffs in respect of the suit properties against the defendant cannot be sustainable under law. Therefore, the learned 1^st Appellate Court set aside the judgment and decree passed by the learned Trial Court and dismissed the suit of the plaintiffs .”

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11 . On being aggrieved with the aforesaid judgment and decree dated

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10.02.1995 and 24.02.1995 respectively passed by the learned 1^st Appellate Court in T.A. No.8 of 1990 in dismissing the suit of the

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Page 8 of 16

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plaintiffs vide T.S. No.99 of 1987 after setting aside the judgment and decree of the learned Trial Court, they (plaintiffs) challenged the same preferring this 2^nd appeal being the appellants against the defendant arraying her (defendant) as respondent.

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12 . During the pendency of the 2^nd appeal, when the appellant No.1 (plaintiff No.1-Iswara Patra) expired, then his LRs were substituted in his place as appellant Nos.1(a) to 1(d).

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13 . This 2^nd Appeal was admitted on formulation of the following substantial question of law i.e.:-

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“Whether the findings and observations made by the learned 1^st Appellate Court in its judgment and decree passed in T.A. No.1/8 of 94/90 setting aside the judgment and decree passed by the learned Trial Court in T.S. No.99 of 1987 on the ground that, the possession of the defendant over the suit properties since the time of her ancestor is not permissive and such possession of the defendant draws a presumption in her favour that, she has been possessing the same in her own right and title without any title deed in her favour and without proving the acquisition of the suit properties through inheritance or succession is sustainable under law?”

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14. I have already heard from the learned counsel for the appellants (plaintiffs) and learned counsel for the respondent (defendant).

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15 . It is the specific case of the plaintiffs that, the suit properties are their ancestral properties and their father Bisu Patra had given permission to the defendant for construction of a house on the suit properties and in

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Page 9 of 16

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the said house, the defendant is residing, in which, the defendant has no title.

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To which, the defendant has seriously disputed claiming that, the

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suit properties are her ancestral properties and the house over the suit properties was constructed by her grandfather i.e. Parikhita Patra and her grandfather Parikhita Patra was residing in the house on the suit properties. Her grandfather Parikhita Patra died leaving behind her father Dasarathi Patra and his widow wife. After the death of Parikhita Patra, her father and her widow mother were residing in the same being the successors of Parikhita Patra. After the death of her father Dasarathi Patra, she (defendant) had/has been residing in the house on the suit properties as her own right. As such, the suit properties and the house standing thereon is her ancestral properties. For which, the question of constructing the same by the defendant on the permission of the father of the plaintiffs does not arise.

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16 . There is no pleadings or evidence in the Record on behalf of the plaintiffs to show, on which date or on which year, permission was sought for by the defendant from their father Bisu Patra for construction of a house on the suit properties and on which date or year, such so called permission was granted.

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Page 10 of 16

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Likewise, there is also no pleadings or evidence on behalf of the

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plaintiffs to show, on which date or on which year, the house over the suit properties was constructed by the defendant.

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Rather, the plaintiff No.1 (P.W.1) has deposed in his evidence during the trial of the suit stating that,

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“the father of the defendant i.e. Dassarathi Patra was residing in the suit house while the defendant (Asamani Patra) was born.”

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P.W.2 (witness of the plaintiffs) has deposed in his evidence

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stating that,

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“the father of the defendant i.e. Dassarathi Patra was residing in the suit house and when the said house was broken, the defendant constructed a house on the same land. The defendant was also born in the said house. The defendant had a brother, namely, Brahamananda. The said brother of the defendant i.e. Brahamananda died in the suit house about 30 to 40 years back.”

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So, as per the above evidence of P.W.2, the defendant had/has been

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possessing the suit properties and the house standing thereon since the time of her ancestors.

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P.W.3 another witness of the plaintiffs has deposed that,

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“the mother of the defendant had died in the suit house”.

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The aforesaid evidence of the own witnesses of the plaintiffs are

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going to show that, the defendant (Asamani Patra) had/has been

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possessing the suit properties since the time of her grandfather (Parikhita

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Page 11 of 16

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Patra). Her grandfather was possessing the same. After him, her father i.e. Dasarathi Patra possessed the same as his successor, then, she (defendant) had/has been possessing the suit properties and the house standing thereon as the sole successor of her father Dasarathi Patra. When, the possession of the defendant over the suit properties and the house standing thereon has been continuing since the time of her ancestors, then at this juncture, the question of making construction of house on the suit properties by the defendant on permission of the father of the plaintiffs i.e. Bisu Patra had not arisen.

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Therefore, the learned 1^st Appellate Court held reversing the findings of the learned Trial Court that, the suit properties are the ancestral properties of the defendant and she (defendant) had/has been possessing the same along with the house standing thereon as her ancestral properties, in which, the plaintiffs have no interest, as they (plaintiffs) have not been able to establish through pleadings and evidence that, the possession of the defendant over the suit properties is permissive one.

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17 . Now it will be seen,

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Whether, the aforesaid findings and observations made by the learned 1^st Appellate Court setting aside the judgment and decree passed by the learned Trial Court is sustainable under law?

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Page 12 of 16

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18 . When, the suit of the plaintiffs (appellants in this 2^nd appeal) vide T.S. No.99 of 1987 is a suit for declaration of title and recovery of possession, then as per law, the plaintiffs can only get their success in the suit only on the strength of their own title in the suit properties and the same can only be made by adducing the sufficient evidence in discharging the onus lies upon them irrespective of the question, whether the defendant has proved its case or not.

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On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:-

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(i) In a case between Union of India (UOI) and Others Vrs. Vasavi Co-op. Housing Society Ltd. and Ors. reported in ( 2014) 2 SCC 269 that,

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The plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question, whether the defendants have proved their case or not.

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(ii) In a case between Moran Mar Basselios Catholicos Vrs. Thukalan Paulo Avira and Ors. reported in AIR 1959 (SC) 31 that,

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It is perfectly clear that, in a suit for declaration, if the plaintiffs are to accused, they must do so on the strength of their own title.

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(iii) In a case between Jagdish Prasad Patel (dead) thr. L.Rs. and Ors. Vrs. Shivnath and Ors. reported in ( 2019) 6 SCC 82 that,

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In suit for declaration for title and possession, plaintiffs could succeed only on the strength of their own title.

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(iv) In a case between P. Ishwari Bai Vrs. Anjani Bai and Ors. reported in 2021 (3) CCC 511 (SC) that,

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Page 13 of 16

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In a suit for declaration of title and recovery of possession, the same cannot be decreed, when the plaintiff has not made out any case for declaration of his/her title over the disputed property.

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19 . Here in this suit/appeal at hand, when the plaintiffs have specifically pleaded/stated in Para No.4 of their plaint that, the defendant was allowed by their father Bisu Patra to construct a house over the suit properties and when own witnesses of the plaintiffs including the plaintiff No.1 as stated above have deposed in their evidence that, the defendant had/has been residing in the suit house since the time of her ancestors i.e. since the time of her grandfather Parikhita Patra and the question of making any construction thereon by her (defendant) on the permission of the father of the plaintiffs had not arisen and when the materials on record are going to show that, the house standing on the suit properties is the ancestral house of the defendant and the grandfather of the defendant i.e. Parikhita Patra was the own brother of the father of the plaintiffs i.e. Bisu

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Patra and when neither in the pleadings nor in the evidence of the plaintiffs, the date and year of seeking permission by the defendant from the father of the plaintiffs for construction of a house on the suit properties as well as the date and year of granting permission for construction of house in the suit properties is available and when it is established from the materials on record that, the defendant has been residing in her ancestral house on the suit properties, then at this juncture,

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Page 14 of 16

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the findings and observations made by the learned 1^st Appellate Court appreciating the pleadings and evidence of the parties that, the defendant had/has been possessing the suit properties along with the house standing thereon in her own right and title cannot be held as erroneous. Because, the plaintiffs have not been able to establish their case through their pleadings and evidence for the reasons assigned above.

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20 . It is the settled propositions of law that, the findings of fact recorded by the learned 1^st Appellate Court after appreciation of evidence should not be interfered with by the learned 2^nd Appellate Court.

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On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:-

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(i) In a case between Mahaveer & others Vrs. Omprakash reported in 2023 (3) Civil Court Cases 653 (Raj.) that,

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finding of fact recorded by the First Appellate Court after appreciation of evidence, not to be interfered with in the Second Appeal.

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(ii) In a case between C. Doddanarayana Reddy (dead) by Lrs. & others Vrs. C. Jayarama Reddy (dead) by Lr. & others reported in AIR 2020 (SC) 1912 that,

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finding of fact cannot be interfered with in the Second Appeal, unless the findings are perverse.

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21 . As per the discussions and observations made above, when it is

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held that, the judgment and decree passed by the learned 1^st Appellate Court in T.A. No.8 of 1990 setting aside the judgment and decree of the learned Trial Court in T.S. No.99 of 1987 in dismissing the suit vide T.S.

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Page 15 of 16

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No.99 of 1987 of the appellants (plaintiffs) are not unreasonable, then at this juncture, the question of interfering with the same through this 2^nd appeal filed by the appellants (plaintiffs) does not arise.

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