R.N. Misra, J. - (1.)PLAINTIFFS have appealed against the reversing judgment and decree of the learned Additional District Judge of Puri in a suit for declaration that the order of the Collector under the Orissa Estates Abolition Act settling the disputed land with the Defendant is invalid and does not create any interest in the Defendant over it. Alternately Plaintiffs prayed that if it be found that the Defendant has title over the disputed property, the right over a pathway running over it be declared and the Defendant be restrained by permanent injunction from interfering with Plaintiffs' right.
(2.)PLAINTIFFS sued in their representative capacity on behalf of the villagers of Sanasolahala as provided under Order 1, Rule 8 of the Code of Civil Procedure claiming that the land under plot No. 93 provided a passage used by the public as of right from time immemorial and though the same was included in the bahel khata of the attendant and others, it had been recorded as a gohiri in the current Settlement record -or -rights. The public at large used it as a rastha for going to the gochar lands of the village and the cattle of the village passed over this land. After abolition of the estate, the intermediaries preferred a claim under Section 7 of the Estates Abolition Act and the Tahsildar as Collector under the Act rejected the claim as the land was neither agricultural non horticulture in the khas possession of the intermediaries as required under Chapter II of the Act, but upon Defendant's application, settlement was ordered with him. This settlement is said to be contrary to law, inasmuch as, the procedure laid down for affecting settlement had not been followed and no opportunity had been given to the Plaintiffs to contest the Defendants claim. The order of settlement being without jurisdiction and having been made contrary to the requirements of the law is bound to be vacated.
Defendant contested Plaintiffs' claim saying that the settlement obtained was a valid one and denied the Plaintiffs' assertion that the disputed land was a gohiri used as a passage. Swapneswar's claim was disallowed as he was not in possession and the Estate Abolition Collocate upon due enquiry found Defendant to be entitled to settlement. The suit was hit by the provisions of Section 39 of the Estates Abolition Act and the Plaintiffs had no cause of action.

(3.)THE learned Trial Judge came to hold that the villagers had acquired the right of way over the disputed land by custom and the Civil Court was competent to enquire about the right of way in spite of the settlement of the disputed plot with the Defendant by the Estate Abolition Collector.