R.N. Misra, J.
1. Plaintiff has appealed against the affirming judgment and decree of the learned Additional Subordinate Judge of Jeypore upholding dismissal of his suit for declaration of title and injunction restraining the defendant from disturbing his possession.
2. Plaintiff alleged that he had purchased 86 decimals of land out of plot No. 57 in Mauza Kaki under a registered sale deed dated 28-11-1970 (Ext. 2) for a consideration of Rs. 2,580/- after obtaining the requisite permission from the competent authority under the provisions of the Orissa Land Reforms Act from one Dalapati Hantal. Dalapati had purchased the property from Hadi Hantal and Laxman Hantal in Feb., 1969. Plaintiff has remained in possession of the property following his acquisition and had constructed an asbestos-roofed house thereon. On 14-4-1972, the Additional Tahsildar of Sunabeda initiated a proceeding under the Orissa Prevention of Land Encroachment Act, 1972, on the allegation that the land in question had already been acquired under the Land Acquisition Act (I of 1894) by the State Government of Orissa and notwithstanding the objection of the plaintiff, directed his eviction on the footing that plaintiff was an encroacher. Plaintiff tried to obtain relief under the Statute, but since his appeal and revision were dismissed, he was obliged to institute the suit. According to him, the land is not 'Government property' within the definition of the Encroachment Act and as such the proceeding was not maintainable. It may be stated that the proceeding was in respect of 8 decimals out of the 86 decimals purchased by the plaintiff.
3. In its written statement, the defendant pleaded that the land belonged to one Raghunath Hantal and he died leaving behind his daughter Padma. The 92 decimals of land belonging to Raghunath Hantal including the disputed property was notified for acquisition. A dispute arose as to who was the proper person to be compensated and the matter was referred to the Court of the Subordinate Judge, Jeypore, in M.J.C. No. 109 of 1964 under Section 30 of the Land Acquisition Act. The learned Subordinate Judge held that the land was the separate property of Raghunath Hantal and Hadi Hantal had no title over it. Plaintiff's vendor had never acquired any title to the property and plaintiff, therefore, is not entitled to declaration of his title. The construction of the house by the plaintiff is an encroachment after the acquisition and plaintiff is not entitled to protection. The land encroachment proceeding had been rightly initiated as the disputed property was Government land and plaintiff was an encroacher,
4. Several issues were raised and the learned trial Judge came to hold that the plaintiff had no title and the disputed property was a part of the land acquired by the State for the purpose of the Central Government, i.e. the MIG factory at Sunabeda and plaintiff had, therefore, no cause of action for instituting the suit. The learned Appellate Judge affirmed the finding that Hadi Hantal, the vendor had no title. Possession of Hadi Hantal and Dalapati Hantal as also of plaintiff was unuthorised and plaintiff was a mere trespasser. Plaintiff was not entitled to claim possessory title. He, however, came to hold that there was no evidence that the State Government had taken over possession of the property in the land acquisition proceeding. On these findings, the appeal was dismissed.
5. The second appeal was placed before our learned brother Das, J. who referred the matter to a larger Bench for considering the question of maintainability of the suit in view of the provisions contained in the Orissa Prevention of Land Encroachment Act. That is how this appeal is before us.
6. The finding that plaintiff has acquired no title appears to have become final as learned counsel for the appellant does not ask us to take a different view. It is contended that the learned Appellate Judge failed to appreciate the claim of possessory title. The learned Appellate Judge was not inclined to accept the principles enunciated by this Court in the case of Gadadhar Sahu v. Karsanbasta Patel, ILR (1963) Cut 482 and in the case of E. Mangulu v. Paddili Sriramlu, (1974) 1 Cut WR 568, by saying :--
'.....But in the present case there is no evidence to show that the plaintiff was in long possession of the property, or he came into lawful possession of the property. It is significant to note that there is no averment in the pleadings that the plaintiff has any possessory title or for that matter was in lawful possession of the property since long. It is the specific case of the plaintiff that the property belonged to Hadi Hantal who sold the same to Dalapati Hantal (P.W. 1) who in his turn sold the same to the plaintiff. P. W. 1--Dalapati Hantal purchased the property from Hadi Hantal in the year 1969 and sold the property to the plaintiff in the year 1970. As already stated, the property admittedly belonged to one Raghunath Hantal who is the brother of Hadi and both of them were living separate. There is no evidence worth the name to show that Hadi Hantal was in possession of the property for a long time in exercise of his rights. It is in evidence that Raghunath was living with Hadi after the death of his wife and it is thus how Hadi was in possession of the property and continued to possess the same after the death of Raghunath.....'
The learned subordinate Judge had taken note of the observation of this Court to the effect:--
'Lawful possession does not mean that there must be a semblance of title to make the possession lawful though the title is not proved conclusively.'
In that view of the matter, plaintiff being in possession of the property for at least three or four years prior to the dispute must be found to have been in prior possession and is entitled to retain possession by resorting to the judicial process against the entire world but not the true owner.
7. There is no dispute that there has been a land acquisition proceeding for acquisition of this property for the purposes of the MIG factory at Sunabeda and the said acquisition is for a Central owned Corporation by the State of Orissa on behalf of the Central Government. Learned Standing Counsel does not dispute the finding of the lower appellate court that possession has not been taken of the property in the land acquisition proceeding. Section 16 of the Acquisition Act provides:--
'When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.'
Possession having not yet been taken, the acquired land has not yet vested with title in the State and the defendant is not, therefore, entitled to contend that title to the property vests in the Government and Government being the real owner, no relief on the basis of possessory title can be given against the true owner. On the aforesaid analysis, plaintiff being in prior possession, was entitled to maintain his possession as, against the State Government.
8. Learned Standing Counsel has conceded before us that the property in dispute in the suit is a total area of 86 decimals which plaintiff claimed to have acquired under a registered sale deed. The proceeding under the Encroachment Act was only in regard to 8 decimals of land. In that view of the matter, the suit could not have been found not to be maintainable. It has been the case of the plaintiff that the land in regard to which proceeding was taken under the Encroachment Act was not 'Government land'. It is conceded before us by defendant's counsel that if the land would not be 'Government land', the Encroachment Act would not have application. No provision in the Orissa Prevention of Land Encroachment Act of 1972 has been shown to us which excludes the jurisdiction of the Civil Court to determine whether the Tribunal created under the statute has acted within its own bounds. It has been held by the Privy Council in the case of Secretary of State v. Mask & Co., AIR 1940 PC 105 that it is open to the Civil Court to examine in a given case whether a tribunal created by an Act has acted within its own limitations. In the case of Firm Seth Radha Kishan (deceased) v. Administrator, Municipal Committee, Ludhiana, AIR 1963 SC 1547 it was observed (at p. 1551):--
'Under Section 9 of the Code of Civil Procedure the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of Civil Courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of Civil Courts. The statute may specifically provide for ousting the jurisdiction of Civil Courts; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the Civil Court's jurisdiction is not completely ousted. A suit in a Civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions.'
In view of what has been said above, we are inclined to take the view that the Civil Court did have jurisdiction to entertain the suit even in respect of the property which has been made the subject matter of the encroachment proceeding. The encroachment proceeding had been decided on the basis that the land had been acquired and had thus become Government land. As we have found that the property had not vested in the State, the presumption on which the encroachment proceeding was concluded is not of any avail.
9. On our findings that the Civil Court had jurisdiction and, therefore, the suit was maintainable and the plaintiff being in previous possession was entitled to protection of his possession against the State which has not yet acquired title to the property, plaintiff must be entitled to a decree for injunction on the basis of previous possession only. The claim of title which had been negatived in the courts below stands affirmed in the absence of any challenge from the plaintiff. The defendant shall be restrained from interfering with plaintiff's possession as long as in the land acquisition proceeding possession is not taken under Section 16 of the Land Acquisition Act. Once such possession be taken, the title in the property would vest in the State and plaintiff with possessory right would not be entitled to any further remedy. We make it clear that injunction shall not be operative once possession is taken under Section 16 of the Act by the defendant and the relief granted in the suit must come to an end.
Parties are directed to bear their respective costs throughout.
B.K. Ray, J.
10. I agree.