A suit for permanent injunction is not maintainable when the plaintiff's title is in dispute and they are not in possession of the land.

JUDGMENT :

A.K.Rath, J.

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

2. The case of the plaintiffs is that they came to Angul in the year 1944 and purchased Ac.0.12 dec. of land appertaining to Holding No.1/265. There was a dilapidated house on the Government land appertaining to sabik plot no.590/683, which corresponds to hal plot no.1267. Plaintiff no.1 repaired the building and occupied the same. Thereafter he constructed the house and used the same as godown and cattle shed to the knowledge of the Government. Plaintiff no.2, his son-in-law, is in possession of the house after plaintiff no.1. While matter stood thus, the Tahasildar initiated Encroachment Case No.86/88-89. The same is sub-judice. The defendants, a Cooperative Bank, had no semblance of right, title and interest over the suit land. But then the defendants created disturbance in their possession on 2.10.1988. With this factual scenario, they instituted the suit.

3. The defendants entered contest and filed written statement denying the assertions made in the plaint. According to them, the suit is hit under Section 127 of the Orissa Cooperative Societies Act and Sec.38 of Specific Relief Act. The suit land has been leased out in their favour by the Government in Misc.Case No.314 of 1941-42. The land has been recorded in their favour. The defendants are in possession of the suit land. In order to garb the suit property, the plaintiffs, with the help of R.I., initiated encroachment case.

4. Stemming on the pleadings of the parties, learned trial court struck eleven issues. Parties led evidence, oral and documentary. The suit was dismissed. Unsuccessful plaintiffs filed T.A.No.1 of 1997/12 of 2001 before the learned Additional District Judge, Angul, which was eventually dismissed. It is apt to state here that during pendency of the appeal proforma respondent no.3 died.

5. The Second Appeal was admitted on the following substantial question of law. The same is :

“Whether a suit for injunction simplicitor is maintainable without praying for any declaration of title when injunction is sought for not against the true owner but against the trespassers?”

6. Heard Mrs.Supriya Patra, learned Advocate on behalf of Mr.Bibekananda Bhuyan, learned Advocate for the appellant. None appeared for the respondents.

7. Mrs.Patra, learned Advocate for the appellant submitted that learned appellate court committed a manifest illegality in dismissing the suit after coming to the conclusion that “it is true that the evidence of P.Ws. 1 and 2 reveals that they are in possession of the suit land and also receive the support from the written statement filed by the defendants in para 31 of the written statement.” The defendants admitted that the plaintiffs used to tie cow in the damaged house and made temporary thatching. This shows that the plaintiffs are in possession over the suit land. The suit for permanent injunction is maintainable. The defendants are trespassers. To buttress submissions, she places reliance on the decisions of the apex Court in the case of Rame Gowda (Dead) by Lrs. v. M. Varadappa Naidu (Dead) by Lrs. and another, (2004) 1 SCC 769, Ramji Rai and another v. Jagadish Mallah (Dead) through L.Rs. and another, (2007) AIR SC 900, Anathula Sudhakar v. P.Buchi Reddy (Dead) By Lrs and others, (2008) AIR SC 2033 and this Court in the case of Kalitirtha Kalipuja Committee v. Sri Balunkeswar Mahesh Bije, Attopur (Badasasan), (2017) 1 ILR(Cut) 303.

8. The apex Court in Anathula Sudhakar held that where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to s