JUDGMENT The first appeal under Section 96 of the Code of Civil Procedure (for short, ‘the Code’) is at the instance of the defendant No. 1 of Title Suit No. 52 of 1995 who has filed the same being aggrieved by the result of the said suit. The suit has been decreed, directing him to deliver vacant possession of the suit property to the plaintiff-respondent. The judgment and decree passed on 31.03.2005 and 13.04.2005 respectively have been impugned in this first appeal. The second appeal under Section 100 of the Code has been filed by the plaintiff of Title Suit No. 90 of 1995 which although had been decreed by the trial Court directing the correction of the record of right of the suit land vide its judgment and decree dated 19.01.2000 and 05.02.2000 respectively, the same have been overturned by the lower appellate Court in Title Appeal No. 12 of 2000 filed by the defendant by its judgment dated 10.11.2000 followed by decree dated 24.11.2000 which are now impugned herein. 2. These two appeals though arise out of two suits, they involve same set of facts, revolving round the questions of law. Moreover, the subject matter of both the suit s are said to be identical with the doubled storied building in ward no. 12 on the side of the main road in the eastern row in the erstwhile Rambha Chhatrpur talik which is now under Khalikote taluk in the district of Ganjam measuring about 60 cubits east-west; 10 cubits north- south under Khatian no. 361 and plot No. 94 as per the boundary shown in schedule A and the specification given in the sale certificate admitted in evidence and marked Ext. 3 in T.S. No. 52 of 1995 giving rise to the first appeal i.e. RFA No. 159 of 2005. Thus, the property remains common in both the appeals, when the plaintiff is one and the same in both the suits, as also the principal defendants. 3. Fact remains that both the suit have been heard and disposed of separately. The trial Court has held the record of right questioned in the suit to be erroneous and thus has found that its liable to be corrected in the name of the plaintiff. This is based on the finding that the plaintiff has the title and as such the right to possess. The trial Court has held the record of right questioned in the suit to be erroneous and thus has found that its liable to be corrected in the name of the plaintiff. This is based on the finding that the plaintiff has the title and as such the right to possess. This was challenged by the adversary i.e. the affected defendant in whose name the record of right stood by carrying the first appeal i.e. T.A. No. 12 of 2000. The lower appellate Court while allowing the appeal has dismissed the suit holding the same to be not maintainable in view of the provision of Section 42 of the Orissa Survey and Settlement Act, 1962. It has also been observed therein that the plaintiff ought to have made a prayer for declaration of title and recovery of possession which in fact is the controversy in direct form in T.S. No. 52 of 1995 from which the first appeal i.e. RFA No. 159 of 2005 has arisen. That has been also pointed out by the Court below to be deficiency entailing dismissal of the suit. So the second appeal has been filed by the said plaintiff who has become unsuccessful before the first appellate Court in view of the reversal of the decree for correction of record of right. 4. The other suit i.e. T.S. No. 52 of 1995 has subsequently been decreed on 31.3.2005 directing the defendants to deliver vacant possession of the suit property on the ground that the defendants have failed to tender any such legally acceptable evidence in establishing their title in respect of the suit land and as such do not carry with them the right to possess. 5. Learned counsel for the appellant in RFA No. 159 of 2005 (defendant no. 1 of T.S. No. 52 of 1995 as well as defendant in T.S. No. 90 of 1995) at the outset contends that the second appeal be taken up for hearing first as there arises the question of attraction of the principles of res judicata which ought to have stood on the way of rendering necessary decision subsequently in T.S. No. 52 of 1995 which has been so decided against the plaintiff. In support of his submission, he has placed reliance upon the decision of the Apex Court in case of T.Ravi vs. B. Chinna Narasinha; 2017 (7) SCC 342 . 6. In support of his submission, he has placed reliance upon the decision of the Apex Court in case of T.Ravi vs. B. Chinna Narasinha; 2017 (7) SCC 342 . 6. Both the second appeal and first appeal on being heard simultaneously for their disposal by this common judgment, it clearly appears that practically this aspect of the recording of the land in the record of right whether or not proper and if the same needs change would be dependent on the outcome of the first appeal which till form the basis. The result of the second appeal which relates to correction of the record of right would accordingly follow. At the cost of repeatation, it may be stated that the first appeal concerns with the right, title and interest of the parties in so far as the suit land is concerned and therefore consequential to the result of the said first appeal, the position of the record of right relating to the property would get governed and accordingly hold the field. The submission of learned counsel for the appellant of the second appeal that principles of res judicata stand to apply in rendering the decision in T.S. No. 52 of 1995 subsequent to the decision given in Title Appeal No. 12 of 2000 arising out of T.S. No. 90 of 1995 is not acceptable. The facts and circumstances of the cited decision are clearly distinguishable. In that view of the matter, the first appeal is taken up for decision at first. 7. I have heard the learned counsel for the appellant as well as the respondent in both the appeals at length and have gone through the judgments rendered in both the suits by the trial Court as well as the one by the lower appellate Court in the first appeal. 8. The plaintiff’s case is that one Dasa Behera, the father-in-law of the defendant no. 1 had borrowed a sum of Rs. 3,000/- from her father and for the purpose of securing the loan, he had mortgaged his self acquired property by executing a valid deed of mortgage. The husband of the defendant no. 1 is the defendant No. 2 and the second wife of said Dasa Behera had been arrayed as defendant no. 3. 1 had borrowed a sum of Rs. 3,000/- from her father and for the purpose of securing the loan, he had mortgaged his self acquired property by executing a valid deed of mortgage. The husband of the defendant no. 1 is the defendant No. 2 and the second wife of said Dasa Behera had been arrayed as defendant no. 3. For better appreciation, inter se relationship amongst the defendants be described herein below:- Dasa Behera Rukkuni Beherani (wife)(D-1 in T.S. No. 34 of 1962) Lalita Beherani (wife) (the def. 2 of T.S. No. 34 of 1962 and defendant no. 3 of T.S. No. 52 of 1995) Jagatananda (D-3 in T.S. No. 34 of 1962) Jogindra (D-4 in T.S. No. 34 of 1962) Dillip (D-5 in T.S. No. 34 of 1962) & (D-2 in T.S. No. 52 of 1995) Jambu (D-6 in T.S. No. 34 of 1962) Jamuna (D-in T.S. No. 34 of 1962) Pramila (wife) ( D-1 in T.S. No. 52 of 1995) It is stated that the original mortgager, Dasa Behera though had repaid the debt in part, on two occasions, later on defaulted in clearing the entire loan. So the father of the plaintiff filed T.S. No. 34 of 1962 (referred to above in the genealogy) in the Court of learned Sub-Ordinate Judge, Berhampur (as it was then) claiming a sum of Rs. 5,000/- towards principal loan amount with interest and cost and pressed the aforesaid mortgage in his favour for the purpose. The defendant nos. 2 and 3 were parties to the said suit as defendant nos. 2 and 5, also the first wife of Dasa and his other two sons were parties thereto as has already been indicated in the genealogy provided above. This defendant no. 1 had advanced her claim there through Dasa Behera. The mortgaged property as described in the said suit is as under:- “A terrace upstair building situated on the main road in the eastern road of Rambha, Chhatrapur Taluk in the district of Ganjam measuring east to west about 60 cubits and north to south 10 cubits, bounded by east Khali Behera, high road, west Jai Krishna Pathagara.” This property description finds place in the preliminary decree passed in T.S. No. 34 of 1962 (admitted in evidence and marked Ext. 10) which is the subject matter of both the suits. 10) which is the subject matter of both the suits. In the aforesaid suit, a preliminary decree for sale was passed under order 34 rule (1) the Code, directing realization of money and in default, sale of the mortgaged property. Accordingly, father of the plaintiff filed execution proceeding numbered as E.P. No. 40 of 1974 under Order 21 Rule 11 of the Code. The mortgaged property was sold under Order 21 Rule 66 of the Code and that is the subject matter of the suits before us. The plaintiff’s father purchased the same in the sale held by the Court. The sale certificate was issued under Order 21 Rule 94 of the Code. In the said execution case, the writ of delivery of possession under Order 29 Rule 95 of the Code being issued, the plaintiff’s father also got the possession of the said property by ejecting the defendant nos. 2 and 3 and others which was duly accepted by the executing Court. It is stated that the suit property being acquired as above, was gifted to the plaintiff under the registered deed of gift marked as Ext. 6 and she built a doubled storied pucca building over there after obtaining permission from the local authority. It is stated that she utilized her own funds for the purpose of construction of the building. The plaintiff then inducted tenants in respect of different portions of the said building. As the settlement records were not corrected, the record of right in respect of the suit land continued to remain in the name of those defendants of prior suit who had no independent right except whatever they had through defendant nos. 2 and 3 which stood extinguished. It is stated that the defendants having tried to trespass upon the suit property, the same has provided the cause of action to file the suit for delivery of possession, claiming damage and mesne profit so also for correction of the record of rights. 9. The case of the defendant no. 1 as projected in the written statement is that the said Court sale is neither binding on her nor on her father, Giridhari, it is stated that Giridhari had built the two storied house over the said property. It is further stated that on the basis of that, the record of right has been rightly prepared and accordingly she has been paying the land revenue. It is further stated that on the basis of that, the record of right has been rightly prepared and accordingly she has been paying the land revenue. It is stated that Griridhari was in possession of the suit property and after him, she is in possession of the same. 10. The defendant no.1 in the suit from which the first appeal has arisen has objected to the prayer for recovery of possession of the suit property. The question arises as to whether she has the right to do so. It may be stated that no such record is available to show that the defendant no. 1 has even projected any independent claim or right unto herself in respect of the suit property. In the written statement, the defendant no. 1 has averred to have the right over the property in question and claims to have so derived through her father who had built a house over the suit property. However, there remains no such pleading or evidence leading to show as to on what basis such possession had rested on her father and has thus come to rest on her which is now claimed by the defendant no. 1. It’s important because of the fact that the defendant no. 1 has not projected any case of acquisition of title by way of adverse possession in so many words whereas the plaintiff’s claim of delivery possession is on the basis of antecedent title over the suit land flowing to her hand from her father. The defendant no. 1 states to have been merely in long possession that to, since the time of her father. The plaintiff has proved the flow of title unto her, starting from the sale held by the Court under sale certificate, Ext. 4 then by the execution and registration of the registered gift deed and its acceptance by her. It be stated at this stage, bearing the risk of repeatation that the defendant no. 1 is not coming to say that she has acquired any right over the property by virtue of adverse possession. On the other hand, the plaintiff has proved the order sheet of E.P. No.4 of 1974 of 1974 (Ext. 5) showing return of writ of delivery of possession after execution and its acceptance leading to closure/culmination of the execution case. The execution petition (Ext.2) establishes the description of the property. On the other hand, the plaintiff has proved the order sheet of E.P. No.4 of 1974 of 1974 (Ext. 5) showing return of writ of delivery of possession after execution and its acceptance leading to closure/culmination of the execution case. The execution petition (Ext.2) establishes the description of the property. The memo of delivery of possession of the property (Ext.1 series) shows the actual delivery of property with police help. Under the circumstance, when the plaintiff alleges to have been dispossessed on 14.2.1995 and has led evidence on that score, the suit for possession is well within the period of limitation and cognizable as such not only under the provision of Section 6 of the Specific Relief Act but also it squarely falls as allowable under Article 65 of the Limitation Act. The defendant No. 1 has neither given any evidence to show as show as to if her father had the right over the property despite the Court sale which had absolutely no impact nor has shown as to how her father acquired any right over the property after the Court sale. The sale held by the Court in the execution proceeding of the year 1974 has never faced any challenge at any point of time and so also the factum of delivery of possession. The original owner through whom the defendant claims the right over the property when had lost the title by order of the Court in the proceeding and her husband and mother-in-law were also parties thereto; the claim of defendant no. 1 as to have derived the title from her father is wholly unacceptable. Mere recording of the land in question in the name of defendant no. 1 in the settlement operation finally published in the year 1993 (Ext. A) cannot be taken as the document of title in her favour over the land. Furthermore, simple possession of the defendant no. 1 for the period does in no eay ensure to her benefit when it is pitted against the person having the title over it, in the absence of establishment of a case of extinguishment of the title of the true owner by proving all the required classical legal requirements leading to hold that the title of the true owner having thus been extinguished, the same has been acquired by the possessor of the land i.e. defendant no.1. 11. The defendant no. 11. The defendant no. 1 who has been examined as D.W.1 in both the suits in her evidence on oath has stated as under:- That the suit property is my paternal property which I have inherited from my late father Giridhari (P-4) of deposition of T.S. No. 52 of 1995 After the demise of my father I being the only issue and heir succeeded and continued in possession of the suit house. (para-2 of deposition of T.S. No. 90 of 1995) Xxx xxx xxx xxx I have not verified any document to ascertain from whom my father had acquired the suit property, out of which source. By the time of my birth there was house on the suit land. (para-10 of deposition of T.S. No. 90 of 1995) Xxx xxx xxx xxx The suit house is situated under Ward No. 12 abutting to the main road. I have not verified the NAC record to know the recorded owner of the suit property in the NAC. I do not know if my father was paying NAC tax in respect to the suit house nor I have seen the cist receipt or municipality tax receipt. After issuance of ROR in my favour I took the attempt to verify the NAC record in respect of the suit house but the NAC record in respect of the suit house but the NAC authority did not allow me to verify the record. At the time of commencement of settlement of operation, my father was dead. I had not filed any petition before the settlement authority at the time of settlement operation to record my name with respect to the suit land nor I had filed any document or record before them claiming my title. I have no paper with me to show that I am the only the legal heir of deceased father. But my father was kept my husband as a domesticated son. (para-10 of the deposition of T.S. No. 90 of 1995) Xxx xxx xxx xxx I have no paper to show that my father was paying cist in respect of the suit property prior to 1995. (para-10 of the deposition of T.S. No. 90 of 1995) 12. Over and above the afore-quoted evidence of the defendant no. (para-10 of the deposition of T.S. No. 90 of 1995) Xxx xxx xxx xxx I have no paper to show that my father was paying cist in respect of the suit property prior to 1995. (para-10 of the deposition of T.S. No. 90 of 1995) 12. Over and above the afore-quoted evidence of the defendant no. 1 from her side, she has proved the record of right published in the year 1993 and few rent receipts showing payment of rent to the State thereafter along with some receipts showing payment of electricity dues towards the electric energy consumption said to have been consumed in the said house for the connection taken therein. In her entire evidence, she has not questioned the identity of the said land in clearly stating that the property in her occupation is not the property as has been described in the plaint or on the documents such as the sale certificate issued by the Court, the writ of delivery of possession etc. Even accepting all these evidence in entirety on their face value, I am of the considered view that the defendant no. 1 has failed to establish her title over the suit land being pitted with the plaintiff and as has been proved by the plaintiff. Nor she has been able to prove that the title of the plaintiff stood extinguished and as such has been so acquired by her by virtue of long possession of the suit property satisfying all other necessary legal requirements for the purpose. 13. Thus the defendant no. 1 is found to have no right, title and interest over the property and the defendant no. 1 cannot be said to be having the right to possess the same. The defendant no. 1 therefore cannot thwart the move of the title holder of the property i.e. the plaintiff in possessing the same as its rightful owner, more so when the defendant no. 1 has failed to prove that the title of the plaintiff stood extinguished in the eye of law. 14. In that view of the matter, this Court finds no fault with the ultimate finding of the trial Court in T.S. No. 52 of 1995 which is hereby affirmed. Consequent upon the same, the judgment and decree passed in the said suit do hereby receive the seal of confirmation. 14. In that view of the matter, this Court finds no fault with the ultimate finding of the trial Court in T.S. No. 52 of 1995 which is hereby affirmed. Consequent upon the same, the judgment and decree passed in the said suit do hereby receive the seal of confirmation. The first appeal i.e. RFA No. 159 of 2005 is accordingly dismissed. 15. For dismissal of the first appeal i.e. RFA No. 159 of 2005, the result of the second appeal i.e. S.A. No. 32 of 2001 now has to abide by the same in a way that the position of the record relating to land in the suit shall stand corrected in terms of judgment and decree passed in T.S. No. 52 of 1995 as confirmed in RFA No. 159 of 2005. The second appeal is accordingly disposed of. The suit i.e. T.S. No. 52 of 1995 thus stands decreed to the extent as above. In the facts and circumstances, the parties are to bear their respective cost of the litigations all throughout. Ordered accordingly.