The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 473 of 2006 An appeal under Section 100 Code of Civil Procedure. --------------- Basanta Kumari Panda & Others .… Appellants Bhagirathi Sethi and Others ..… Respondents -Versus- Advocate(s) appeared in this case:- _______________________________________________________ For Appellants : Mr. C.R. Nanda, Advocate For Respondents : M/s. B. Mishra & B.L. Mishra, Advocates _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 22.08.2025 This is a plaintiffs’ appeal against a confirming judgment. The suit filed by the plaintiffs for permanent injunction was dismissed by the trial court and confirmed by the 1st Appellate Court. 2. For convenience, the parties are described as
Legal Reasoning
per their respective status before the trial Court. Page 1 of 12 3. The plaintiffs case, briefly stated is, the suit schedule land originally belonged to the ex-intermediary- Ganeswar Mishra, who leased out the same to the original plaintiff No.1-Radhu Panda (since deceased) by an unregistered deed of lease on 17.04.1939 on receipt of rent. The said land was vested in the State Government with the plaintiffs being accepted as a tenant as per order passed in OEA Misc. Case No.170/94 of 1980. Further, the Consolidation Authorities also recorded the suit land in the names of the plaintiffs, who possessed the same by paying rent. On the other hand, the defendants having no manner of right, title, interest or possession challenged the order of the Consolidation Authorities in Remand Revision No.467 of 1986, which was dismissed. Again they filed OJC No.6116 of 1991 before this Court, which was also dismissed on 18.12.1991. The defendants thereafter tried to obstruct the free and peaceful possession of the plaintiffs over the suit land and also threatened to catch fish from the suit tank. Hence, the suit. 4. Of the three defendants, defendant Nos.1 and 2 did not appear but defendant No.3 being the Sarpanch of Page 2 of 12 Saina Sasan Gram Panchayat appeared and filed his written statement, inter alia, pleading that after vesting of Sabik Plot No. 2037 with the State Government, it was transferred by the Collector, Puri to the said Gram Panchayat for rearing fish and other purposes. Since then the suit property is in the possession of defendant No.3, which is being put to auction regularly every year and sometimes, the panchayat is itself cultivating fish and the income earned thereby is taken to the account of Gram Panchayat and maintained. All the inhabitants of the Gram Panchayat are in enjoyment and possession of the suit property. It is also pleaded that the plaintiffs fraudulently and surreptitiously prepared records in their name in collusion and connivance with the Consolidation Authorities but they have no clear right, title, interest and possession over the suit tank. Further, the suit was challenged as not maintainable as only the relief of permanent injunction was claimed without claiming declaration of title. 5. Basing on the rival pleadings, the trial Court framed the following issue for determination:- Page 3 of 12 1. Is the suit legally maintainable? 2. Have the plaintiffs any cause of action to bring the suit? 3. Have the plaintiffs any clear right, title, interest and possession over the suit land? 4. Has the defendant No.3 any right, title, interest and possession over the suit land? 5. Are the plaintiffs entitled to the relief of permanent injunction? 6. To what other reliefs? 6. After analyzing the oral and documentary evidence on record including the Sabik settlement ROR of 1927-28 (Ext. E), the trial court found that Ganeswar Mishra was not at all the ex-landlord but Radha Prasad Bhagat and Mahanta Bhagaban Ramanuj Das were the actual landlords through their common manager. The plaintiffs utterly failed to show how the suit plot came to the hands of Ganeswar Mishra after 1927-28. The trial court further found that no jamabandi was filed by the ex- intermediary in favour of plaintiff No.1 and no tenant ledger was opened in this name. As regards the order of settlement passed in the OEA case vide Ext. 3, the trial court did not accept the same as the same was in torn condition with several over writings, corrections, etc. That Page 4 of 12 apart, the original record of the OEA case, though called for, was not made available on the ground that no such record was available in the office. The trial court also disbelieved the rent receipt filed by the plaintiffs as there was huge gap in payment of rent between the years 1939 and 1956. It was also noted that the delivery of possession of the suit by the landlord was not proved and therefore it cannot be said that plaintiff No.1 was the actual tenant either under the ex-landlord or under the State Government. The trial court further took note of the fact that the plaintiffs’ title being challenged by defendant No.3 from the very inception, the suit for permanent injunction simplicitor was not maintainable. On the above findings, the suit was dismissed. 7. The plaintiffs carried appeal to the District Court. Learned 1st Appellate Court, after independently appreciating the oral and documentary evidence on record, fully concurred with the findings of the trial court and held that the suit had been rightly dismissed. Page 5 of 12 8. Being further aggrieved, the plaintiffs have filed this Second Appeal, which was admitted on the following substantial questions of law.:- “i. Whether it was obligatory on the part of the plaintiffs- appellants to have claimed declaration of title on the face of their title being finally declared by the consolidation authorities? ii. Whether the civil courts have jurisdiction to sit on appeal over the order passed by the consolidation authorities?” 9.
Legal Reasoning
Heard Mr. C.R. Nanda, learned counsel for the plaintiff-appellants and Mr. B. Mishra, learned counsel appearing for defendant Nos. 1 and 2- respondents. 10. Notice on defendant No.3-respondernt being refused, the same was held sufficient but there was no appearance. 11. Mr. Nanda would argue that both the courts below have committed manifest error in holding that the suit for permanent injunction simplictor is not maintainable ignoring the fact that the plaintiffs’ title over the suit property was never under a cloud. Defendant Nos. 1 and 2 did not appear before the trial court nor filed any written statement challenging their title. They did not even cross-examine the plaintiffs’ witnesses. Mr. Nanda therefore argues that the plaintiffs were not obliged to Page 6 of 12 seek declaration of their title. He further argues that the order passed by the Consolidation Authorities was never challenged and having become final, the Civil Court has no jurisdiction to sit in appeal over the same. 12. Mr. Mishra, on the other hand, would argue that the plaintiffs case is based on erroneous facts inasmuch as both the courts below have concurrently held that the suit land is a tank belonging to Radha Prasad Bhagat and Mahanta Bhagaban Ramanuj Das. It was further found that Ganeswar Mishra, the so-called landlord of the plaintiffs was not the original owner. The plaintiffs could not prove as to how the property came to the hands of Ganeswar Mishra. In the consolidation revision, the authorities granted liberty to the plaintiffs to approach the civil Court, which was challenged before this Court in a writ application which was ultimately withdrawn. Mr. Mishra further argues that both the courts below disbelieved the consolidation ROR because of the discrepancies therein. The plaintiffs not having established a clear title and there being a valid challenge to their title, they could not have maintained a suit for Page 7 of 12 permanent injunction simplicitor as was rightly held by both the courts below. 13. In view of the rival contentions noted above, it is clear that the first point that falls for consideration is, whether the suit for permanent injunction simplictor, in the facts and circumstances of the case was maintainable in the absence of any relief sought for declaration of title. Law is no longer res integra in this regard that where the title of the plaintiffs is not disputed, a simple suit for injunction would be maintainable but if the title is disputed, the plaintiffs shall have to seek declaration of title along with injunction. It has also been held that dispute to title has to be a valid dispute and not one raised for the sake of it. Reference may be had in this regard to the oft-quoted judgment of the Supreme Court in the case of Anathula Sudhkar v. P. Buchi Reddy, reported in (2008) 4 SCC 594. It is also well settled that in case title is disputed in a suit for injunction simplictor, the plaintiff must amend his plaint appropriately to include the relief of declaration of title. Reference may be had to the judgment of this Court in the case of Braja Page 8 of 12 Kishore Sahu V. Sailabala Sahu, reported in 1995 (I) OLR 348. 14. Tested on the touchtone of the above legal propositions, it is seen that both the courts below have concurrently found that the so-called ex-intermediary namely, Ganeswar Mishra from whom the plaintiffs claim flow of title, was not the recorded tenant at all. In fact the recorded tenants as per 1927-28 settlement where Radha Prasad Bhagat and Mahanta Bhagaban Ramanuj Das. Of course, the above was not pleaded in the written statement filed by defendant No.3 but the Courts below ascertained the above fact upon analysing the documentary evidence on record. 15. Be that as it may, in his written statement defendant No.3 took a plea that after vesting with the State Government, the suit property was transferred by Collector, Puri to the Gram Panchayat for rearing fish. It is not disputed that the suit property is a tank measuring Ac.1.04 decimals out of which the plaintiffs claim title over Ac.0.40 decimals. The 1st Appellate Court has observed and according to this Court rightly, that the suit property Page 9 of 12 being a tank is indivisible in nature. Thus, there is a valid challenge to the title of the plaintiffs with a simultaneous claim of title by defendant No. 3. The evidence adduced by the plaintiffs in support of their contentions that the land was settled firstly by the OEA Collector and subsequently by the consolidation authorities was found not worthy of acceptance by both the courts below. True, the courts below did not accept the claim of defendant No.3 that the suit tank was transferred by the Collector, Puri to the Gram Panchayat but said plea was considered as a valid challenge to the title of the plaintiffs. This Court finds nothing wrong in such reasoning of the Courts below. Under such circumstances, it was incumbent upon the plaintiffs to amend their plaint to incorporate prayer for declaration of title along with injunction. Since the plaintiffs did not do so, the suit was rightly held to be not maintainable. This answers substantial question of law No.1. 16. Coming to the next question as to if the Civil Court can sit in appeal over the order passed by the consolidation authority, this Court concurs with the Page 10 of 12 reasoning of the trial court that the civil court has jurisdiction to discuss the validity of the order passed by the Consolidation Authority, if the same is found to have been passed without jurisdiction. Having held so, the trial court refrained from considering the validity of the order passed by the Consolidation Authorities by noting that the same would not be permissible in a suit for permanent injunction simplicitor without any prayer for declaration of title. This is being said for all the more reason that defendant No.3 challenged the documents relied upon by the plaintiffs to be fabricated and forged and to have been created with connivance of the Consolidation Authorities. The 1st Appellate Court also held that under such circumstances, the question of title based on the order passed by Consolidation Authorities cannot be tested in a suit for permanent injunction simplicitor. This Court therefore, finds that the question is not so much whether civil courts have jurisdiction to sit in appeal over order passed by the Consolidation Authorities but in the peculiar facts and circumstances, such a question could not have been gone into at all for want of the prayer for Page 11 of 12 declaration of title by the plaintiffs. This answers substantial question of law No.2. 17. For the foregoing reasons therefore, this Court is unable to persuade itself to find fault with the order passed by the courts below so as to interfere therewith. 18. In the result, the appeal fails and is therefore,
Decision
dismissed. There shall be no order as to costs. ……..………………….. Sashikanta Mishra, Judge B.C. Tudu, Sr. Steno Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa HIgh Court, Cuttack Date: 22-Aug-2025 18:39:02 Page 12 of 12