JUDGMENT :

A.K. Rath, J.

This appeal at the instance of the defendant nos.1, 2 and 4 assails the reversing judgment of learned District Judge, Cuttack in R.F.A. No.72 of 2004.

2. Plaintiff-respondent no.1 instituted the suit for permanent injunction restraining the defendants from interfering with his peaceful possession and mandatory injunction directing the defendants to remove the structure over the suit land. The case of the plaintiff is that he is the owner in possession of the land appertaining to Khata No.370, Hal Plot No.528, Ac.0.20 dec. of village-Paikapadapatna, Dist.-Cuttack. The land is recorded in his name along with his mother. He has been cultivating the land by using "public road" appertaining to Hal Plot No.526, admeasuring Ac.0.18 dec. The same is adjacent to his land and recorded as public road. The length of the road is about 600 kadi in East-West direction and about 30 kadi in South-North direction. The public road is being used by him as well as the public to enter into their own land since more than 30 years. When the defendant nos.1 to 3 constructed a pucca building encroaching upon the said road covering the entrance of the plaintiff and others by closing the only way to his land, he instituted the suit seeking the reliefs mentioned supra.

3. The defendant nos.1, 2 and 4 filed written statement denying the assertions made in the plaint. Case of the defendant nos.1, 2 and 4 is that the suit is barred by misjoinder and non- joinder of necessary parties. Since the year 1959, Narasinghpur Block Colony was established over Plot No.526. The Block Colony has been surrounded by a compound wall with one iron gate in front of it towards East. The said gate is locked at night in order to prohibit the general public from entering into the colony. The plaintiff has never used the said road. The suit land is the approach road from Block Office to Block Colony. The Block officials are using the said road from time to time. The suit plot is in exclusive possession of the Block staff. The plaintiff and the public are using a separate road to enter into their paddy field. The defendant no.3 was set exparte.

4. On the interse pleadings of the parties, learned trial court framed eight issues. Parties led evidence, oral and documentary. Learned trial court dismissed the suit holding inter alia that the State Government is the owner of the suit land. The plaintiff has no access to the suit land due to the existence of the boundary wall. The plaintiff has no right, title and interest or possession over the suit land. The plaintiff appealed before learned District Judge, Cuttack. Learned appellate court came to hold that the suit for injunction is maintainable without prayer for declaration of title. The suit plot has been described as public road. The plaintiff has claimed his access to the same. The same was obstructed by the State. The plaintiff has suffered inconvenience. The State Government cannot restrict the right of the plaintiff to confine himself to a part of the street of the choice of the plaintiff. The plaintiff is entitled to permanent and mandatory injunction. Held so, it allowed the appeal.

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

"(1) Whether in the absence of any prayer for plaintiffs easementary right over the suit land, the lower appellate court was justified in decreeing the suit ?

(2) Whether the judgment of the lower appellate court suffers from perversity of non-consideration of materials on record indicating that the suit land situated inside boundary wall of the block colony ?

(3) Whether the suit for permanent injunction is maintainable when the plaintiff has no title over the suit land ?"

6. Heard Miss Samapika Mishra, learned A.S.C. for the appellant, Mr. Manoj Kumar Mishra, learned Senior Advocate along with Mrs. Jyotsnamayee Sahoo and Mr. Anup Mishra, learned Advocates for the respondent no.1. None appeared for the respondent no.2.

7. Miss Mishra, learned A.S.C. for the