Claims of occupancy rights and adverse possession cannot coexist; an encroacher is not entitled to injunctive relief against the rightful owner.

JUDGMENT :

A.C.BEHERA, J.

This 2^nd appeal has been preferred against the reversing judgment.

2. The appellants in this 2^nd appeal were the defendant nos.1 to 3 before the trial court in the suit vide T.S. No.43 of 1977 and respondent nos.1 to 3 before the 1^st appellate court in the 1^st appeal in T.A. No.11 of 1980.

3. The respondent no.1 in this 2^nd appeal was the sole plaintiff before the trial court in the suit in T.S. No.43 of 1977 and appellant before the 1^st appellate court in the 1^st appeal in T.A. No.11 of 1980.

4. When, during the pendency of this 2^nd appeal, the respondent no.1(plaintiff) expired, then, in his place, his legal representatives have been substituted as respondent nos.1(a) and 1(b) respectively.

5. The respondent Nos.2 and 3 in this 2^nd appeal were the defendant Nos.4 and 5 before the trial court in the suit in T.S. No.43 of 1977 and respondent no.4 and 5 before the 1^st appellate court in T.A. No.11 of 1980.

6. The suit of the plaintiff(respondent no.1 in this 2^nd appeal) against the defendant nos.1 to 3(appellants in this 2^nd appeal) was a suit for permanent injunction simpliciter.

7. The defendant nos.4 and 5 are the own brothers of plaintiff and their father was Late Dama Sahu. Accordingly, the plaintiff and defendant nos.4 and 5 are sons of Late Dama Sahu. The suit properties are Ac.0.20 decimals of Plot No.1547 under Khata No.501 in Mouza/village Juna in the district of Cuttack.

8. According to the plaintiff, his father Dama Sahoo reclaimed the suit properties in the year 1934 and the officers of the State accepted him (dama Sahu) as a raiyat of the suit properties accepting yearly rents for the same from him(Dama Sahu). Therefore, the father of the plaintiff, i.e., Dama Sahu was the settled raiyat of the suit properties. So, after the death of Dama Sahu, the plaintiff and defendant nos.4 and 5 being the three sons as well as successors of Dama Sahu, they(plaintiff and defendant nos.4 and 5) became the settled raiyat over the suit properties like their father Dama Sahu by inheriting the same from him. As such, they (plaintiff and defendant nos.4 and 5) acquired their “stitiban rayati right” over the suit properties during Ex-intermediary system/period. For which, the Ex-intermediary of Kujang estate accepted rents of the suit properties from them(plaintiff and defendant nos.4 and 5) by providing rent receipts. They(plaintiff and defendant nos.4 and 5) constructed a house on a portion of the suit properties and also dug a tank and planted several trees, such as, Cocoanut, Lemon, Guava on the suit properties. The house, which was constructed by them on a portion of the suit properties, the said house was destroyed in a cyclone in the year 1971. As, they(plaintiff and defendant nos.4 and 5) had acquired their stitiban occupancy rayati right over the suit properties long before vesting of Kunjang estate with the Government, for which, their possession over the suit properties was an adverse to the State and their stitiban right over the suit properties cannot be taken away by the State even after vesting when dissension arised in the family of the plaintiff between him (plaintiff) and defendant nos.4 and 5, then, since last four to five years, the defendant no.4 is not taking any interest in their family matters. In the year 1971, the Tahasildar, Marshaghai, i.e., Sri Gobardhan Tripathy threatened the plaintiff to fill up the tank in the suit properties, then, he(plaintiff) filed a suit vide T.S. No.01 of 1977 against the said Tahasildar Gobardhan Tripathy praying for injuncting him from interfering into his possession over the sui