The defendant's lack of title to the suit lands allowed the plaintiff to resist the defendant from taking possession, and the suit was abated under Section 4(4) of the Orissa Act 21 of 1972.

P. K. MOHANTI, J.

( 1 ) THE second appeal is by the defendant against a decree of affirmance arising out of a suit for permanent injunction.

( 2 ) THE plaintiff's case was that the suit lands originally belonged to the parties and their brother Gangadhar Das and were amicably partitioned by a registered deed dated 30-4-53. After partition, Gangadhar sold away the properties, which fell to his share, to one Shankar Padhan who, in his turn, sold away the same to the plaintiff by a sale deed dated 26-3-58. The plaintiff claimed to be in possession of the suit lands from the date of his purchase. The defendant having threatened him with dispossession, he came to Court for a permanent injunction restraining the defendant from interfering with his possession.

( 3 ) THE defendant claimed to be the absolute owner in respect of the suit lands. His contention was that after vesting of the estate in the State of Orissa under the Orissa Estates Abolition Act, he applied for rent settlement and in claim case No. 6770 of 1963-64 the entire suit plot was settled with him.

( 4 ) THE trial court held that the suit lands were settled with the defendant by mistake and that the plaintiff has been in possession of the same. The appellate court held that though the plaintiff did not prefer any claim for settlement of the lands in his favour, yet he has been in possession as a trespasser; but the defendant not having acquired any title to the suit lands, the plaintiff could resist him from getting into possession. Upon such findings, the decree for permanent injunction passed by the trial court was confirmed.

( 5 ) DURING the pendency of this appeal, a notification under Section 3 (1) of the orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, (Act 21 of 1972) was published in the Orissa Gazette and the suit lands were brought under the consolidation Operation.

( 6 ) THE facts of the case as narrated above, would show that though the suit is clothed in the garb of a simple suit for permanent injunction, yet it involves questions relating to right and interest. The plaintiff has to get rid of the cloud which has settled on his title by the settlement of the lands in favour of the defendant. Though

a suit for permanent injunction as such has not been expressly referred to in Section 4 (4) of the Act 21 of 1972, yet in the present case the Court will have necessarily to adjudicate upon the right or interest of the plaintiff having regard to the claim of the defendant, before granting a decree for permanent injunction. Therefore, by virtue of Section 4 (4) of the Act the suit shall stand abated.

( 7 ) IN the result, the suit, out of which this appeal arises, stands abated under section 4 (4) of Orissa Act 21 of 1972, the decisions of the courts below being set aside.

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