When title is under dispute and possession cannot be established, a suit for declaration, possession, and injunction is necessary.

JUDGMENT :

Dr. A.K. Rath, J.

Plaintiffs are the appellants against a confirming judgment in a suit for permanent injunction.

2. The case of the plaintiffs was that one Raghunath Singh was the recorded owner of the suit property. After his death, his son, Harekrushna became the owner of the suit property. Harekrushna died in the year 1981 leaving his widow, plaintiff no.1 and sons, plaintiff nos.2 to 9. They became the owners of the suit property. They were in possession of the suit land. Their names had been mutated. They used to pay rent. The defendant had no semblance of right, title and interest over the suit land. The alleged sale deed dated 21.6.1988 executed by the three sons of Radharani, 1st wife of Harekrushna, is void and the defendant had not acquired any right over the same. With this factual scenario, they instituted the suit seeking the relief’s mentioned supra.

3. The defendant filed written statement denying the assertions made in the plaint. The case of the defendant was that Raghunath was the owner of the suit land. He had two sons, namely, Rama and Harekrushna. There was a partition amongst the co-sharers. The same was reduced to writing and registered on 22.11.1944. After death of Raghunath, Harekrushna kept a concubine, plaintiff no.1 and plaintiff nos.2 to 9 are their children. The suit property fell to the share of Harekrushna and after his death, his wife, Radharani and sons alienated the suit property. The vendors sold an area of Ac.0.225 dec. out of Ac.0.665 dec. by means of a registered sale deed dated 21.6.88 to the defendant. The plaintiffs had no title over the same. They managed to record their names in respect of the suit land in Revenue Misc. Case No.39/85.

4. On the interse pleadings of the parties, learned trial court struck five issues. Parties led evidence oral and documentary. Learned trial court dismissed the suit holding, inter alia, that when the title was in dispute, simple suit for permanent injunction was not maintainable. Plaintiffs had failed to prove their exclusive ownership over the suit property. They had not impleaded all the successors of Harekrushna including the vendees of the defendant. The defendant had challenged the title of the plaintiffs over the entire portion of the suit land. There is a cloud over the title of the plaintiffs over the entire suit property. Held so, it dismissed the suit. The unsuccessful plaintiffs challenged the judgment and decree of the learned trial court in appeal before the learned District Judge, Bhubaneswar, which was subsequently transferred to the court of the learned 2nd Additional District Judge, Bhubaneswar and renumbered as T.A. No.25/23 of 1997/93. Learned appellate court came to hold that Harekrushna married to Radharani. The plaintiff no.1 is the 2nd wife of Harekrushna. In view of the specific plea of defendant regarding the execution of the deed of partition dated 22.11.1944 and admission made by the plaintiff no.2, it can be said that the suit schedule land fell to the share of Harekrushna. Harekrushna died leaving behind 15 children. The suit had been instituted by only 9 excluding other seven. Radharani was the legal married wife of Harekrushna. Three sons of Radharani out of seven sold the land to the defendant. Held so, it dismissed the appeal.

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

“(i). Whether the finding of the learned lower appellate court that the plaintiffs being some of the children of late Harekrushna and the other children having not been impleaded as parties to the suit, the plaintiffs cannot maintain a suit for permanent injunction is sustainable in law.

(ii). When admittedly the defendant has purchased the undivided interest of some of the co-sharers from a joint property is the finding of the learned court below that the plaintiffs should have filed a suit for declaration of title in stead of a suit for permanent injunction is correct in law.”

6. Heard Mr. Bhaskar Chandra Panda,