The main legal point established in the judgment is that a simple suit for permanent injunction is not maintainable when there is a dispute over the title and possession of the plaintiffs. The appropriate remedy in such cases is a suit for declaration and possession, with or without a consequential injunction.

JUDGMENT :

Dr. A.K.RATH, J.

1. This is a plaintiffs’ appeal against confirming judgment in a suit for permanent injunction.

2. The case of the plaintiffs is that the suit land was recorded in the name of defendant no.1, Sri Madhabanda Jew marfat Krishna Chandra Deba Goswami and others in sabik settlement record of rights. The same was recorded as istamarari madhyastwadhikari in the name of Banchhanidhi Tripathy, father of defendant no.2. The estate vested in the State in the year 1963-64. Banchhanidhi Tripathy had three sons, namely, Sricharan, Ghanshayam and Balaram. Sricharan died leaving behind his only daughter, Basanti-defendant no.3. Ghanshyam died leaving behind his only son, Debi-defendant no.4. The further case of the plaintiffs is that their fathers were in cultivating possession of the suit land as bhag tenants for the last 45 years. They used to pay rajbhog. Thereafter they are in possession of the lands. They filed three separate O.L.R. cases bearing no.344/76, 333/76 and 696/76 respectively before the Tahasildar, Niali under Section 36(A) of the Orissa Land Reforms Act (in short “O.L.R.Act”). The Tahasildar, Niali by its order dated 7.2.77 came to a finding that as the suit land vested in the State Government free from all encumbrances, their applications under Section 36(A) of the O.L.R. Act were not maintainable. The defendant nos.2 to 4 claiming to be the legal heirs of Banchhanidhi threatened them to dispossess from the suit land. With this factual scenario, they filed the suit seeking the reliefs mentioned supra.

3. The defendants 2(b), 3 and 4 filed written statement denying the assertions made in the plaint. The case of the defendants is that the intermediary interest vested in the State on 29.4.1963. Thereafter defendant nos.2 to 4 filed an application under Sections 6 & 7 of the Orissa Estate Abolition Act (“O.E.A.Act”) for settlement of the suit land along with other lands in their names, which was registered as O.E.A.Case No.52/75-76. The suit land had been settled in their favour. Rent and cess were fixed at Rs.75.72 ps. per year. They paid rent to the State Government and obtained receipt. Thereafter the plaintiffs filed O.E.A Appeal No.17/79, which was dismissed for non-prosecution. Again the plaintiffs filed O.E.A. Appeal No.9/83, which is sub-judice. It is further pleaded that they are in possession of the suit land. The plaintiffs are not in possession of the suit land. The other defendants did not contest the suit and as such they were set ex parte. It is apt to state here that during pendency of the suit, Kurhsna Chandra Deba Goswami expired and as such defendants 1(a) to 1(d) were substituted as marfatdars and out of them, defendant no.1(a) died during pendency of the suit without leaving any legal heir. His name was expunged from the cause title. The original defendant no.2, Balaram Tripathy, also died during pendency of the suit and as such his legal heirs, defendants no.2 (a) and 2(b) had been substituted in his place, out of whom, defendant no.2 (a) died. His name was also deleted.

3. Steaming on the pleadings of the parties, the learned trial court struck eight issues. Both parties led evidence, oral and documentary, to substantiate their case. On a threadbare analysis of the evidence on record and pleadings, the learned trial court came to hold that the suit is barred under Section 39 of O.E.A. Act. It further held that the defendants were in possession of the suit schedule land. Held so, it dismissed the suit. The unsuccessful plaintiffs appealed before the learned District Judge, Cuttack in T.A.No.69 of 1990, which was eventually dismissed.

4. The appeal was admitted on the following substantial questions of law:-

“(i) Whether the jurisdiction of Civil Court is barred under Section 67 of the O.L.R.Act ?

(ii) Whether the simple suit for permanent injunction is maintainable, when the title and possession of the plaintiffs over the suit land is in dispute?”

5. Heard Mr.D.P.Mohanty, learned Advocat