Diga Goud vs Sankri Goud

DR. A.K.RATH, J

Defendant is the appellant against a reversing judgment.

Plaintiff-respondent instituted the suit for permanent injunction. Case of the plaintiff was that Rupadhar Gountia and Sapneswar Gountia were

Gountias of the village. They had appointed the plaintiff as Nariha of their village to render services to the visiting officers and public servants. The

plaintiff has been rendering services to the aforesaid persons from the date of appointment. Schedule-A land has been recorded as Gram Kota land in

the name of Gountias. Out of the same, Schedule-B land was settled in his favour. He is in possession of the same. The defendant has no semblance

of right, title and interest over the same. On 21.7.1992, defendant trespassed into a portion of Schedule-C land. With this factual scenario, he instituted

the suit.

Defendant filed a written statement denying the title and possession of the plaintiff. Case of the defendant is that he is the brother of the plaintiff.

Their father Shiba Goud was appointed as Nariha of the village. After his death, they are in possession of Schedule-B land as Nariha. By amicable

partition, Schedule-C land fell to his share. He is in possession of the same.

On the inter se pleadings of the parties, learned trial court framed eight issues. Parties led evidence, oral and documentary. Learned trial court

came to hold that the plaintiff was not appointed as Nariha of the village. The suit land was not settled by Gountia in favour of the plaintiff. The suit

land is Gram Kota land. Placing reliance on R.O.R., Ext.3, it held that the plaintiff had acquired title over the suit land. Prior to institution of suit, the

plaintiff was dispossessed. The plaintiff was not in possession of the suit land on the date of institution of the suit. There is no prayer to recover the

suit land. Held so, it dismissed the suit. Plaintiff filed Title Appeal No.26/18 of 1994-96 before the learned Addl. District Judge, Sambalpur. Learned

appellate court came to hold that ROR, vide Ext.3, was published in the year 1979 in the name of the plaintiff. The plaintiff has title over the suit

property. Rent receipts, vide Ext.2 series, show that he is in possession of the same. Though there is no specific prayer in the plaint for recovery of

possession, but applying the principles laid down under Order 7 Rule 7 CPC, it held that the court can grant relief. Held so, it allowed the appeal.

The second appeal was admitted on the following substantial questions of law;

“b. Whether the suit for permanent injunction is maintainable, when plaintiff was not in possession of the suit land on the date of filing of the suit ?

c. Whether the learned court below is justified in decreeing the suit applying the provisions of Order 7 Rule 7 of the CPC which, by no stretch of imagination, can

enable the court to decree a suit, that is not maintainable in law ?â€​

Heard Mr. D.R. Mohapatra on behalf of Mr. S.B. Jena, learned counsel for the appellant. None appeared for the respondent.

Mr. Mohapatra, learned counsel for the appellant submitted that the plaintiff has no title over the suit land. The plaintiff was not in possession of the

suit land. Thus the simple suit for permanent injunction is not maintainable. He placed reliance on the decision of the apex Court in the case of

Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. and others, AIR 2008 SC 2033.

In Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. and others, AIR 2008 SC 2033, the apex court held that where a cloud is raised over

plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where

the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where

there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

The plaintiff asserts that the defendant has no semblance of right, title and interest over the suit land. On 21.7.1992, defendant trespassed into a

portion of Schedule-C land. The suit was filed on 4.9.1992. On the date of institution of the suit, the plaintiff was not in possession of the same. There

is no evidence on record that the plaintiff has title over the suit land. A cloud is raised over plaintiff’s title. The courts below have committed a

manifest illegality in placing reliance on the ROR, Ext.3, and come to a conclusion that the plaintiff has a title over the suit land. The ROR neither

creates title, nor extinguishes title. Thus the suit for permanent injunction is not maintainable. The substantial question of law enumerated in ground no.

(b) is answered in negative. In view of the same, the substantial question of law enumerated in ground no.(c) does not arise for consideration.

Resultantly, the impugned judgment is set aside. The appeal is allowed. The suit is dismissed. There shall be no order as to costs.

………………………..