Decided on September 12,1973

Shyama Charan Mohanty And Ors. Appellant
Upendra Mohanty And Ors. Respondents


B.K. Ray, J. - (1.) PLAINTIFFS are the Appellants in a suit for permanent injunction to restrain the Defendants from encroaching upon or changing the communal character of the land in suit.
(2.) THEY have instituted the suit as representatives of the village public. The case as made out in the plaint may be stated as follows. The land in suit is communal in nature and has been in use by the villagers in general since time immemorial as a pasture ground and as a land over which they take water from the canal to irrigate their lands. The father of the Defendants obtained two collusive and anti -dated leases in respect of the suit land from the then proprietors in violation of the provisions contained in Act 1 of 1948. These two leases were purported to have been granted on 2 -7 -1945 and 10 -12 -1945. In Misc. Case No. 11 of 1948 -49, the Collector declared the two leases as void and found that the land was communal. The father of the Defendants filed T.S. No. 223 of 1951 against the villagers for declaration of title, confirmation or in the alternative recovery of possession and for other reliefs. The defence of the villagers in the said suit was as is their case at present. T.S. No. 223 of 1951 was dismissed by the trial Court on the finding that the two leases which were the basis of the Plaintiffs ' title in the suit were void and that the land was communal. An appeal carried against this decision was allowed by the District Judge whereafter the villagers filed S.A. No. 49 of 1956 in this Court. The said second appeal was allowed by this Court on 1 -8 -1958, the judgment and decree of the District Judge were set aside and those of the trial Court restored. The controversy between the parties again came up for decision before the Collector in Misc. Case No. 124 of 1958 -59 and the Collector confirmed his earlier order in Misc. Case No. 11 of 1948 -49. In spite of all these, the Defendant -Respondents in the present case challenged the communal character of the suit land and disturbed the Plaintiffs ' possession. Hence, the Plaintiffs have instituted the suit out of which this appeal arises for the reliefs mentioned above.
(3.) THE defence taken by the Defendant -Respondents is as follows : The suit land was originally the anabadi land of the then proprietor, even though it was wrongly recorded as puratan patita in the C.S. record -of -rights. The father of the Defendants reclaimed the same and remained in possession thereafter for more than four years prior to 1945. The Defendants being settled raiyats of the village where the suit land is situate acquired occupancy right in it. The State after vesting of the estate accepted rent from the Defendants and realised the same also in certificate proceedings. The Defendants, therefore, acquired valid title to the suit land. The land was never being used as alleged in the plaint and was not communal in nature.;

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