D.H. Patnaik, J.
1. This appeal is by the defendants against the confirming judgments of the Courts below decreeing the plaintiffs suit for declaration of title and confirmation of possession.
2. The dispute relates to an area of Ac. 0.040 decimals in Puri town under Khata No. 513/2045 comprising under plot No. 513 measuring Ac. 0.010 decimals and plot No. 513/2045 measuring 0.030 decimals This admittedly stood recorded in the name of Mukta Bewa in the settlement of 1899 as a Sthitiban tenant under the deity Lord Jagan-nath and the land was the Amrutamonehi land of the said deity. Plaintiff claims ownership and possession on the basis that he is the paternal great grand son of Mukta Bewa. Defendants claim ownership and possession by oral purchase for a consideration of Rs. 50/- from said Mukta Bewa in the year 1928. Alternatively they claim to have acquired title by way of adverse possession. The lower Court found the plaintiff to be the descendant of said Mukta Bewa in the line of succession and, therefore, held that the plaintiff has title to the suit land. In regard to the adverse possession of the appellants the lower Court held, there was no sufficient evidence to such adverse possession. Both the findings of the Lower Court were upheld by the lower appellate Court.
3. Two substantial questions of law were raised by Shri A. K. Mishra, learned counsel for the appellants-defendants. Firstly, the disputed land being the subject-matter in the earlier suit No. O.s. 201 of 1967 and the finding in that suit being that the present defendants were in possession of the disputed land as occupancy tenants, and further, plaintiff herein having laid no claim over this property of Mukta Bewa, the entire claim in the present suit is barred by the principle of res judicata; and secondly, in the absence of finding that the plaintiff was in possession of the disputed land, it was an error on the part of the Courts below in decreeing the plaintiff’s suit.
Shri A. K. Sahu, learned counsel for the respondent-plaintiff, controverting the above submissions of Shri Mishra, submitted that the earlier suit by plaintiff Balaram Das having been dismissed, the present plaintiff who was defendant No. 4 in that suit could not have challenged the findings and, therefore, question of res judicata would not arise.
The rival contentions need examination.
4. So far as the point raised with regard to res judicata is concerned, the principle is rather well settled by authoritative decisions of the Apex Court as well as this Court, it is well known that res judicata is a mixed question of fact and law. It has to be specifically pleaded and parties relying on the principle of res judicata should place before the court all material particulars which would be sufficient to give a finding whether the particular case is barred by the principle of res judicata. In the case of Gurrala Jaggarao v. Gopisetti Bhaskar Ramachandra Rao Dora, AIR 1958 Ori 58, a Division Bench of this Court held that a plea of res judicata which was never raised before the Court nor the pleadings of the parties were before the Court, such a new plea could not be allowed to be raised at the appellate stage when further materials may be necessary for the purpose of determination of the issue. In the case of Sahadeb Naik v. Satyabadi Naik, AIR 1984 Ori 30, this Court laid down that a plea of res judicata has to be specifically pleaded and proved and such a plea would not be available for the first time in second appeal.
In the present case no issue was framed and, therefore, both the courts below did not deal with this point so raised now. Except the judgment (Ext. 7) of the previous suit we have no other materials, particularly the pleadings of the parties. The previous suit related to the separately recorded lands of Bana Biswal, Bhagaban Mohanty and Mukta Bewa. We are unable to verify the correctness of the observation of the Court in that judgment (Ext. 7) that the plaintiff in the present suit did not lay any claim over the present property of Mukta Bewa. Except the observation in the judgment (Ext. 7), neither any such admission has been proved nor we have got the written statement of the plaintiff (defendant No. 4 in that case). No doubt admission is a substantial evidence and could be proved against the party without the same being confronted to him. But when the party is in the witness-box such an important fact should have been asked to him so that he could have explained such admission so proved against him. It is also equally well settled that admissions are not conclusive proof of the facts admitted. To arrive at such a conclusion there must be unequivocal admission on which a court can base its decision or that the correctness and reliability of such an admission can be judged from other materials on record coupled with such admission. In the absence of any such material before this Court, it is difficult to accept the contention of Shri Mishra that the present suit is barred by the principle of res judicata.
5. Shri Mishra also submitted that the finding of the court in that suit under Ext. 7 that the present defendants were found to be in possession of the disputed land as occupancy tenants would be also barred by the principle of res judicata is not correct, inasmuch as that suit filed by Balaram Das against the present plaintiff and the defendants was dismissed and none of the defendants could have appealed against the decision. But, however, both the sets of the defendants did file appeal and the Appellate Court held that the appeal was not maintainable and therefore dismissed the appeal. Admittedly none of them challenged this appellate judgment in the higher court.
A Division Bench of this Court as far back as in 1977 in the case of Bhima Jalli v. Nata Jalli, AIR 1977 Ori 59, held that in such a situation, when the original suit is dismissed with a finding against the defendants and the defendants have no opportunity to appeal because of dismissal of the suit being in their favour, question of res judicata would not arise. It was held that the decree in the earlier suit would not operate as res judicata with regard to any particular issue decided against the defendants. For the above reasons the contention of Shri Mishra must fail
6. Once, factually on the basis of the evidence on record, both the courts have concurrently found that respondent Nila-kantha to be the great grandson and, therefore, successor-in-interest to the property of Bhagaban Mohanty and Mukta Bewa, this Court for no justifiable reason whatsoever will interfere with such a finding. Therefore, that finding is upheld.
Once title to the property is established, the only question to judge is whether the present plaintiff should be non-suited for having lost his title because of the acquisition of title by adverse possession by the defendants.
7. The substantial question only for which this second appeal was admitted is, whether in the absence of a finding of the courts below that the plaintiff was in possession, the decree for confirmation of possession is correct.
It is well settled that plaintiff has to prove his title. It is for the defendants to prove that they have, on the other hand, acquired title by adverse possession. Therefore, it was initially the onus on the defendants to prove their possession for more than the statutory period. Going through the evidence of two witnesses including the party, I have no hesitation to hold that there is absolutely no evidence with regard to possession of the defendants being exclusive, open and with a hostile animus for more than the statutory period. Both the courts have, therefore, rightly held the defendants not to have proved the possession. In such a case it was not necessary to give a finding that the plaintiff was in possession within the statutory period of 12 years. In fact having gone through the evidence from the side of the plaintiff, I have no hesitation to hold that the lower Court has correctly analysed the evidence and for good reasons has believed the evidence from the side of the plaintiff with regard to possession thereby disbelieving the possession of the defendants.
8. In the result, there is no merit in the second appeal which is dismissed, Parties to bear their own costs.