Orissa High Court
Basanta Kumari Panda & Others vs Bhagirathi Sethi And Others on 22 August, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 473 of 2006
An appeal under Section 100 Code of Civil Procedure.
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Basanta Kumari Panda & Others .... Appellants
-Versus-
Bhagirathi Sethi and Others ..... Respondents
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
JUDGMENT
22.08.2025
SASHIKANTA MISHRA, J.
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
per their respective status before the trial Court.
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
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:-
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
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.
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. 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
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
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
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
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
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
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,
dismissed. There shall be no order as to costs.
...............................
Sashikanta Mishra,
Judge
B.C. Tudu, Sr. Steno
Signed by: BHIGAL CHANDRA TUDU
Location: Orissa HIgh Court, Cuttack
Date: 22-Aug-2025 18:39:02
