A suit for permanent injunction is not maintainable if the plaintiff has no title or possession over the land.

JUDGMENT :

A.K. Rath, J.

This is a plaintiff’s appeal against confirming judgment in a suit for permanent injunction.

2. An area of Ac.2.10 cents of land appertaining to survey no.347/1, out of Ac.12.50 cents of land in village-Pathara is the subject matter of dispute.

3. The Case of the plaintiff is that the suit land belongs to Revenue Department, Government of Orissa. He was a lessee in respect of the suit land since the year 1944. The lease was granted annually. The lease continued till 1979. In the year 1979, the Revenue Department, Government of Orissa took a decision to lease out the surplus land to landless persons in public auction. Accordingly, a letter, vide Ext.A was issued to the Board of Revenue, Orissa, Cuttack for implementation of the decision. In the year 1980, the Government modified its earlier decision and took a decision that in the event, the surplus lands were in occupation of lessees, who are landless, then those lands, would not be put to auction. The land shall be leased out to them on annual basis on payment of rent. On 11.04.1980, a letter was issued, vide Ext.3, to the Board of Revenue for implementation of the modified decision. The Tahasildar, Berhampur, defendant no.3 was of the view that the plaintiff was not a landless person. The plaintiff was not entitled for lease in accordance with the instructions contained in Ext.3 and the suit land was to be leased out in favour of the highest bidder amongst the landless persons for the year 1980. Though the plaintiff wanted to participate in that auction, but he was not allowed by the Tahasildar on the ground that he was not a landless person of the locality. In the said auction, defendant nos. 1 and 2 participated and became lessees in respect of the suit land. When the defendant nos.1 and 2 threatened to cultivate the suit land, the plaintiff instituted the suit seeking the relief mentioned supra.

4. Defendant nos.1, 3 and 4 filed a separate written statement taking the similar stand. According to them, the State is a paramount owner of the suit land. The State is entitled to deal with the property in any manner. The suit land was leased out to the defendant nos.1 and 2 in the year, 1980-81 in accordance with the instructions contained in Ext.3 and Ext.A. The plaintiff had no title over the suit land. The suit for permanent injunction was not maintainable.

5. Stemming on the pleadings of the parties, learned trial court struck ten issues. Parties led evidence, both oral and documentary, to substantiate their case. Learned trial court came to hold that the plaintiff had no title over the suit land. He was not in possession of the same. Held so, it dismissed the suit. The unsuccessful plaintiff filed T.A. No. 95 of 1987 in the court of the learned District Judge, Ganjam, Berhampur, which was eventually dismissed.

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

“(a) As to whether the true import of the stipulation under Ext.3 namely “a land-less person as on the date of lease” would be the date of initial induction as a lessee in the year 1944 ?

(b) As to whether the right of the plaintiff shall be governed by the Govt. instructions contained under Ext.3 or under Ext.A ?

(c) In view of the fact that under Mahammadan Law there is no concept of joint family or tenancy in common, as to whether the courts below have erred in law, in taking into consideration the income of the sons of plaintiff from their business sources as the income of the plaintiff ?

(d) Whether the finding of the courts below is correct on the question of service of notice under Sec.80 C.P.C. ?”

7. Learned counsel for the appellant submits that the suit land is a surplus land of the Government of Orissa. The same was leased out in favour of the plaintiff since the year 1944 on an annual lease basis. He was a leasee till 1979. The plaintiff was prevented to participate in the bid of the year 1980. In accordance with the circulars issued by the State of Orissa vide Exts.3