JUDGMENT

Dr. A.K. RATH, J. - This appeal at the plaintiff’s instance assails reversing the first appellate judgment of learned District Judge, Ganjam-Gajapati, Berhampur in a suit for declaration that L.E.C. Case No.1372/85 is illegal, without jurisdiction, mandatory and permanent injunction.

02. The case of the plaintiff is that he was the owner in possession of the suit land. A footpath was adjoining to the south of the suit land. In the year 1985, the Tahasildar, Chikiti, defendant no.2, at the instance of defendant nos.3 to 5, initiated Land Encroachment Case No.1372/85 against him. He filed objection to the said case. The case was allowed. He challenged the order in appeal, which met the same fate. Thereafter, he preferred R.C. No.17/90 before the Revenue Divisional Commissioner, Southern Division, Berhampur. The revisional authority held that it had no jurisdiction to entertain the revision and dropped the case. He also prayed for demarcation of the suit land. An Amin was deputed by the defendant no.2 to demarcate the suit land. The Amin found that an area Ac.0.01 dec. as described in schedule-B of the plaint had been amalgamated with the path. After the revision was dropped by the R.D.C., the defendant nos.3 to 5 put earth on the suit land in spite of his protest. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra after issuance notice under Sec.80, C.P.C. to the defendant nos.1 and 2.

03. The defendant nos.1 and 2 filed written statement denying the assertions made in the plaint. The case of the defendant nos.1 and 2 was that initiation of L.E. Case No.1372/85 by the defendant no.2 was legal and valid. There was no encroachment of any portion of the plaintiff’s land amalgamated with the village path. Defendant nos.3 to 5 also filed their written statement denying the assertions made in the plaint.

04. On the interse pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that initiation of encroachment case by the Tahasildar, Chikiti under the Orissa Prevention of Land Encroachment Act, 1972 (“Act”) is vitiated, since notice was issued under the Orissa Prevention of Land Encroachment Act, 1954 (Repealed Act). In the ROR, Ext.2, the name of the plaintiff finds place. It held that the plaintiff is the absolute owner in respect of the lands described in schedule-A and schedule-B of the plaint. The defendant nos.3 to 5 have not put any earth on schedule-B land converting the same a part of the road. Held so, it decreed the suit. Felt aggrieved, the defendant nos.1 and 2 filed T.A. No.43 of 1993 before the learned District Judge, Ganjam-Gajapati, Berhampur. Learned appellate court came to hold that issuance of notice under the Repealed Act is mere an irregularity and will not vitiate the proceeding under the Act. Held so, it allowed the appeal.

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

“Whether the lower appellate court was correct in reversing the finding of the lower court that the plaintiff was owner in possession of the land in question without any reason and without considering the evidence on record ?”

06. Heard Mr. A.P. Bose, learned Advocate on behalf of Mr. P.C. Panda, learned Advocate for the appellant and Mr. R.P. Mohapatra, learned Additional Government Advocate for the respondent nos.1 and 2.

07. Mr. Bose, learned Advocate for the appellant, submits that issuance of notice under the Repealed Act is bad in law. Thus initiation of proceeding under the Act is vitiated. He further submits that the learned trial court came to hold that the plaintiff is the owner of the land in question. But then, the learned appellate court did not render any finding on the said issue. On this score, the matter may be remitted back to the learned appellate court.

08. Per contra, Mr. Mohapatra, learned A.G.A. for the respondent nos.1 and