Failure to serve notice under Sec. 80 CPC rendered the suit not maintainable.

JUDGMENT :

A.K. Rath, J.

Plaintiff is the appellant against a reversing judgment in a suit for declaration of right, title and interest and restraining the defendants from interfering with her possession.

2. Case of the plaintiff is that the suit land appertaining to Khata No.54, Plot No.1351/1646 area H.0.28 R. which corresponds to Khata No. 232/2, Plot No.1646/1671 of Mouza-Kanjamendi originally belonged to Khageswar Patra. He had gifted some landed property including the suit land to the deity Sri Sri Rameswar Mahadev bije Nuagaon. A committee was constituted for management of the affairs of the deity. The Committee decided to lease out the landed properties of the deity to different persons for construction of houses. Pursuant to the said decision, about fifty persons including the plaintiff were inducted as tenants basing upon the lease deed executed between the plaintiff and the management of the committee. The disputed property was recorded in the name of the Government. While the matter stood thus, defendant no.2 initiated Encroachment Case No.120 of 1986 against the plaintiff. Order of eviction was passed. Rent and penalty was imposed. Certificate Case No. 17 of 1995 was initiated for realisation of certificate dues of Rs.24,040.58 p. for realisation of rent and penalty. With this factual scenario, the plaintiff instituted the suit seeking the reliefs mentioned supra.

3. Defendants filed a written statement denying the assertions made in the plaint. It is pleaded that the suit land is a Government land. The temple committee has no right to alienate the suit land in favour of the plaintiff. Encroachment Case No.120 of 1986 was initiated in respect of Plot No.1351 area H.0.006 as the plaintiff did not pay the rent and penalty for which a certificate case was initiated for realisation of the amount. The certificate case is pending.

4. Stemming on the pleadings of the parties, the learned trial court struck eight issues. Both the parties led evidence, oral as well as documentary, to substantiate their case. The learned trial court came to hold that the suit land originally belonged to the temple and subsequently the temple committee had alienated the suit land to the plaintiff. It was further held that the suit land is not a Government land and that the plaintiff had not encroached upon any Government land. Held so, it decreed the suit. Assailing the judgment and decree, the defendants filed T.A No.6 of 2002 before the learned District Judge, Phulbani. The learned lower appellate court came to hold that though it is mentioned in the plaint that encroachment case in respect of Plot No. 1351/1646 measuring H.0.28 was initiated against the plaintiff, as a matter fact the encroachment case in respect of a portion of Plot No.1351 measuring H.0.006 was initiated. It was further held that an attempt has been made to suppress the fact that the real dispute is with regard to H.0.006 of land which is a portion of Plot No.1351 and that the plaintiff has brought the suit with a view to restrain the appellants from putting her land into auction for recovery of the rent as well as penalty for which a recovery proceeding has been initiated under the Orissa Public Demand Recovery Act. The plaintiff has created a confusion by not distinguishing or separating the portion of the land which is encroached by her and by describing the entire land appertaining to Plot No. 1351/1646 to be the land in respect of which the encroachment proceeding has been initiated. The defendants have not claimed suit land to be the Government land. The plaintiff has no cause of action to file the suit. Notice under Sec. 80 CPC has not been served on the defendant before institution of the suit. Held so, it allowed the appeal.

5. The second appeal was admitted on the following substantial questions of law;

“1. Whether the learned appellate court has erred in law in relying upon the documents regarding which there was no pleading nor the same were exhibited before the tr