DAMA SWAIN Vs. GANGADHAR MOHAPATRA

JUDGEMENT

(1.) This second appeal is filed by the defendant against the concurrent decisions of the Courts below decreeing the plaintiff's suit for permanent injunction.

(2.) THE respondent filed O. S. No. 335 of 1973 -1 before the Munsif, Puri, against the appellant with the prayer to permanently restrain the latter from going upon the land, from interfering with the possession of the suit land, from reaping, removing, destroying or otherwise causing any waste to the crops standing on the suit land by any means whatsoever. The suit land was described in the schedule to the plaint as Ac O. 74 decimals under plot No. 1084, Khata No. 391, of Mouza Kamasasan in the district of Puri. The gist of the case made out in the plaint was that the suit land formed a part of the estate of the deity Banambar Deb installed at Markandeswar sahi. The Marfatdars of the deity had inducted the father of the plaintiff to hold and cultivate the suit land as a raiyat under them on condition of paying Sanja trend (in kind). An unregistered deed was executed by the Marfatdars of the deity in the year 1945 through their power -of -attorney holder, Lingaraj Rath, for this purpose. The plaintiff's father being a settled raiyat of the village, acquired occupancy right in respect of the suit land of which he was in cultivating possession throughout his life. The intermediary interest of the deity was abolished in 1966 under the provisions of Orissa Estates Abolition Act in short 'the Act). After vesting of the estate, the local revenue authorities on enquiry found the plaintiff's father and the plaintiff to be in possession of the suit property and recognised them as tenants under Section 8(1) of the Act. Subsequently, at the instance of the plaintiff the kind rent was commuted to cash rent under Section 5(9) of the O. L. R. Act. It was further case of the plaintiff that the defendant having failed to get the land settled with him, with connivance of the ex -inter -mediaries, managed to get some papers in his favour, without any right, title or interest in the suit property. The said defendant threatened to forcibly reap and remove the paddy crops standing on the suit land raised by the plaintiff. Hence, the suit for the reliefs noticed earlier.

(3.) THE trial Court framed as many as seven issues including the issue whether the suit as framed was maintainable and if the suit for permanent injunction only was maintainable in view of the admitted dispute. The Court on consideration of the materials on record held that the plaintiff had right, title, interest and possession over the suit land and the suit for permanent injunction was maintainable. Accordingly, the trial Court decreed the suit against the defendant and permanently injuncted him from interfering with the peaceful possession of the plaintiff over the suit land. On appeal by the defendant the lower appellate Court confirmed the decision of the trial Court holding that the plaintiff had acquired right of occupancy in the land in question and being in possession he is entitled to get the injunction prayed for. Alternatively, the appellate Court came to hold that even assuming that the plaintiff has not proved his title over the suit land yet being in possession of the land, he is entitled to resist aggression of others excepting the true owners and the defendant having failed to show his title or possession, the suit for permanent injunction was to be decreed.