The interpretation and application of Section 8(2) and 39 of the Orissa Estates Abolition Act, 1951, in relation to service tenure lands and the settlement of such lands.

R. N. MISRA, J.

( 1 ) THIS is a Letters Patent appeal directed against the judgment of a learned single Judge in second appeal at the instance of the plaintiff.

( 2 ) ON 14-5-1970, plaintiff filed the suit for declaration that the properties in dispute belonged to her, the order of the Estates Abolition Collector settling the lands with the defendant was void, for permanent injunction against the defendant from entering upon the disputed properties and for recovery of possession of a house on the allegation that the disputed properties constituted village carpenter's service inam and on the death of Jogi (plaintiff's husband) in 1921, his son Gadadhar had succeeded to the property. Gadadhar however, died in 1943 and thereafter plaintiff was in possession of the disputed properties. As the defendant started interfering with the plaintiff's possession and enjoyment, she was forced to come to court.

( 3 ) DEFENDANT is the son of Jogi's brother Bhima. According to his case, after Jogi died in 1921, Bhima rendered service and came to possess the property. Bhima died in 1945 and after him, defendant was rendering service and was in possession. In regard to two plots, no claim was raised by the defendant.

( 4 ) THE trial court found:--

(i) The service tenure was partible by custom and had been partitioned and the disputed properties had fallen to Jogi's share; (ii) After Jogi, his son Gadadhar succeeded to the properties and remained in possession till 1943, when he died; (iii) The plaintiff failed to prove her right, title and possession after 1943; and (iv) Plaintiff's claim in regard to the house was not supported by any evidence. The trial court dismissed the suit excepting in regard to the two plots for which there is no contest by the defendant.

( 5 ) THE lower appellate court affirmed the finding that the property was partible : Gadadhar had rendered service until his death and had remained in possession of the property; plaintiff had failed to establish possession after 1943. It, however, found that to the suit as framed, Article 65 of the new limitation Act applied and the defendant having failed to establish title by adverse possession, plaintiff was entitled to a decree on the basis of her anterior title. Accordingly it reversed the decree of the trial court.

( 6 ) DEFENDANT was the appellant in the second appeal before this Court. Two contentions had been advanced in support of the appeal by the defendant:- (1) Plaintiff being out of possession on the date of the suit, relief for injunction was not admissible and the suit was bound to be dismissed. (2) In view of the settlement of the disputed properties with the defendant under the Estates Abolition Act, the suit was hit by the provisions of Section 39 of that Act and the plaintiff was not entitled to any relief.

( 7 ) THE trial court as also the lower appellate court clearly found that the plaintiff was not in possession on the date of the suit. A plaintiff not in possession is certainly not entitled to the relief of injunct on without claiming recovery) of possession. If authorities are necessary for such a conclusion, reference may be made to the Full Bench decision in the case of Masjid Shahid Ganj v. S. G. P. Committee, AIR 1938 Lah 369 (FB); Abdul Nabi v. Bajan Sahib, AIR 1944 Mad 221 and Hasmat Hussain v. Inayatullah, AIR 1958 All 706.

( 8 ) BEFORE the learned Single Judge, the plaintiff sought for amendment of the plaint by addition of the relief of recovery of possession, but the move was negatived and this is what the learned Single Judge said:-

" mr. Dora, the learned counsel appearing on behalf of the respondent (plaintiff) when confronted with this situation sought to amend the plaint. I would have allowed the same if the amendment would have been either formal or of a technical nature or it would have tilted the issue in favour of the respondent. But as would be discussed hereafter, there is another hurdle for the respondent to clear to get a finding