A suit for permanent injunction without a declaratory relief is not maintainable when the title to the property is in dispute or under a cloud, and the plaintiff's possession and right of occupancy are not established.

JUDGMENT :

A.K. Rath, J.

This is a plaintiffs’ appeal against an affirming judgment in a suit for permanent injunction.

2. The suit schedule land consists of Ac.21.50 dec. appertaining to khata no.63, plot no.460 of mouza-Bahakuda, P.S.-Mahakalapada, Dist.-Cuttack.

3. The case of the plaintiffs is that the suit schedule land was under Anabadi khata of Ex-Zamindar, Burdhawan Estate. It was lying fallow and water logged. About 40 years back, the plaintiffs and their predecessors reclaimed the suit land, made it fit for cultivation, dug a tank for the purpose of irrigation and pisciculture and constructed a house over a portion of the same. They had planted various fruit bearing trees with the express and implied consent of the ex-landlord. They used to raise paddy crops over a major portion of the suit land. The coconut trees standing over the suit land are in their exclusive enjoyment. They are in possession of the land peacefully, continuously, without any interruption and to the knowledge of the defendants and as such acquired right of occupancy over the same. The ex-intermediary leased out the land in their favour on payment of salami and annual rent. They paid salami to the ex-landlord. On receipt of premium, he settled the lands in their favour. They were tenants under the ex-landlord. They continued to possess the suit land on payment of annual rent to the ex-landlord and obtained rent receipts. After vesting of estate, the ex-landlord submitted rent roll in their favour. Thereafter, they submitted applications before the Tahasildar, Kujanga to accept rent. But the same was not accepted. The specific case of the plaintiffs is that they are deemed tenants. The land had been illegally recorded in the name of the defendants. With this factual scenario, they instituted the suit seeking reliefs mentioned supra.

4. The defendant no.1 filed written statement denying the assertions made in the plaint. The defendant challenged the maintainability of the suit for non-service of notice under Sec.80 C.P.C. and non-identification of the suit land. The specific case of defendant no.1 is that the suit land is a Government land. The Soil Conservation Department had raised cashew plantation over the suit land. Thereafter, the same was transferred by the Tahasildar to the Orissa State Cashew Development Corporation in the year 1980. The later was in possession of the same.

5. On the interse pleadings of the parties, learned trial court struck seven issues. Both the parties led evidence, oral and documentary, to substantiate their respective cases. On a threadbare analysis of the evidence on record and pleadings, learned trial court came to hold that Kujanga estate vested in the State on 27.11.1952. The date of rent receipts, Ext.1, was originally 7.12.1952, but subsequently the date has been mentioned as 24.11.1952 in order to show that receipt had been granted before vesting. The plaintiffs had paid rent for the year 1953-54 after vesting. The intermediary had no right to accept any rent. The plaintiffs had failed to show that the rent was paid prior to vesting. They are not deemed tenants. It further held that the Soil Conservation Department had grown cashew plantation. Thereafter, the Orissa State Cashew Development Corporation, defendant no.4, is in possession of the land. Held so, it dismissed the suit. The plaintiffs appealed before the learned Subordinate Judge, Kendrapara which was eventually dismissed.

6. The second appeal was admitted on the following substantial question of law.

“Whether possession of the plaintiff is unlawful in view of the provisions of Orissa Estates Abolition Act?”

7. Heard Mr. Ashutosh Mahanta, learned counsel for the appellants and Mr. Swyambhu Mishra, learned Additional Standing Counsel for the respondent nos.1 and 2.

8. Mr. Mahanta, learned counsel for the appellants submits that the land belonged to ex-landlord of Kujanga. About 40 years back, the plaintiffs and their predecessors reclaimed the land, made it fit