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3. Pursuant to issuance of summons, the defendant entered appearance and filed written statement contending, inter alia, that the suit is not maintainable, bad for non-joinder of necessary parties and non- compliance of mandatory provision of Order 1 Rule 8 C.P.C. The plaintiff has no right, title and interest over the suit land. The ROR issued in favour of the plaintiff is the outcome fraud and mis-representation of facts. The plaintiff was never a public deity. The deity was installed by the Brahmins of Badasasan, Keonjhar and as such it is their private deity. Although on 5.5.1970 it was declared as public deity and taken up by the Commissioner of Endowments, after the intermediary estate vested in the Government on 3.1.1970, no list of property of the deity was furnished or declared. Mere payment of rent or order passed in settlement case no.40/86 cannot bestow any right, title and interest in favour of the deity in respect of the suit property. The Executive Officer is not the representative of the deity. The deity is represented by the Executive Officer, Keonjhar debottar-cum-Sub-Collector, Keonjhar. The present Executive Officer has no locus standi to file the suit. The ROR was published in the year 1981. The suit land was recorded in favour of the State as Patita. Area Ac.0.04 dec. of land appertaining to plot no.370, khata no.137 is recorded as Debighar and the rest part of the suit land in possession of the defendant, which is known as Kalipadia. The Kalitirtha Kalipuja committee was started by the Ex-Ruler of Keonjhar in 1941. Since then the suit land remains under the possession and management of the defendant. The defendant was duly permitted to carry on mina bazar and opera show on 28.10.2008. The defendant has used the suit land for various public purposes, i.e., for the benefit of the general public and state. The further case of the defendant is that the suit land, i.e., Hatiatangar Mouza was given as "Chakada dan" by Ex-Ruler of Keonjhar Estate in the year 1953 at the time of establishment of 'Badasasan'. The status of the land was accepted as 'Brahmotor'. The brahmins of Badasasan established Lord Siva and constructed temple of Balunkeswar Mahesh. For seva puja and nitikranti of Lord Balunkeswar Mahesh, the brahmins of Badasasan donated an area Ac.10.50 dec. of land. In 1915 settlement, the total land of Hatiatangar mouza, i.e., area Ac.105.55 dec. was recorded as Debottar Niskar in the name of Balunkeswar Marfat 'State'. Though the land of Hatiatangar mouza was in sub-judice before the Collector, the plaintiff managed to settle an area Ac.48.61 dec. of land fraudulently under Sec.7-A of the Orissa Estate Abolition Act, 1951 (hereinafter referred as "O.E.A. Act") in case no.62/85 in Board of Revenue. In the application for settlement, the plot number, area, kisam and actual status of the land were not furnished. Subsequently relying on the ROR, another ROR was wrongly issued in the year 1983 in favour of the plaintiff which is an outcome of fraud. The same do not confer any title for the plaintiff. In such circumstances, the simple suit for permanent injunction is not maintainable.

7. The second appeal was admitted on 28.10.2015 on the substantial question of law enumerated in ground no.A of the appeal memo. The same is quoted hereunder.

"(A) Whether the plaintiff-respondent has acquired any right, title and interest over the suit land in view of the fact that the land in question has been settled u/s.7(A) of the O.E.A. Act and while settling the land in favour of the plaintiff-respondent, the Member, Board of Revenue has not followed the mandatory requirement of law required to be followed while settling land under section 7(A) of the O.E.A. Act ?"

8. Heard Mr. Bidyadhar Mishra, learned Senior Advocate for the appellant and Mr. Ganeswar Rath, learned Senior Advocate for the respondent.

9. Mr. Mishra, learned Senior Advocate for the appellant argued with vehemence that the suit has been filed by a person in representative capacity as Executive Officer of the plaintiff. The defendant is a registered society consisting of members of general public. In view of the same, the plaintiff is bound to comply the mandatory provision of Order 1 Rule 8 C.P.C. The same has not been done. The Executive Officer has no locus standi to represent the plaintiff. He further submitted that the simple suit for permanent injunction without a prayer for declaration of title is not maintainable. The finding of the learned trial court that any defect in title of the plaintiff of the suit land has been rectified by the settlement under Sec.7(A) of the O.E.A. Act which cannot be challenged in the civil court is perverse. Referring to first proviso to sub-sec.(1) of Sec.8 of the O.E.A. Act, he submitted that the Member, Board of Revenue has not followed the mandatory provisions enumerated in O.E.A. Act in settling the land in favour of the plaintiff on 3.10.1985 in Case No.62 of 1985 vide Ext.3. Public notice was not issued for which the general public including the defendant could not be able to stake its claim. He further submitted that the application was made on 17.9.1985. The Collector recommended the case on 19.9.1985 and the order of settlement was passed at 3.10.1985 without giving public notice. The order is without jurisdiction and is nullity. It's invalidity could be set up even in collateral proceedings. He further submitted that pursuant to the order of the Member, Board of Revenue, the Tahasildar settled the land in favour of the plaintiff on 10.7.1987. In O.E.A. Lease Revision No.2/80, the plaintiff's claim was rejected vide Ext.J. Thereafter, the plaintiff filed O.J.C. No.3374/88. The same was dismissed. Thus the whole transaction obtaining settlement is tainted with fraud. He further submitted that the plaintiff was not in possession of any portion of the suit land. On the other hand, the defendant was all along in possession over the same performing Kali Puja. The possession of the defendant has been admitted by the plaintiff in W.P.(C) No.671 of 2008 vide Ext.M-1. He further submitted that where there is a competition between two persons, one claiming occupancy right and the other claiming khas possession as an intermediary on the date of vesting, the rival claims would be determined by the Estate Abolition Collector. In the event the claims are decided after following the mandatory formalities, then the decision is final and conclusive and cannot be questioned in a civil court. But then the civil court has jurisdiction to examine whether the public notice prescribed under the first proviso to Sec.8-A of sub-sec.(1) of O.E.A. Act inviting objection from persons interested was complied with. He further submitted that the Trust Board of the plaintiff filed application during pendency of the O.E.A. Revision. The said fact was not disclosed. The plaintiff is guilty of suppressio veri and suggestio falsi. He further submitted that the plea of res judicata cannot be raised for the first time in the second appeal. Since the plaintiff was not in possession of the suit land, the settlement of land in favour of the plaintiff by the Member, Board of Revenue is bad in law. The plaintiff simultaneously prosecuted two parallel proceedings for the same relief before two different forum for settlement of the land. The same is an abuse of process of the court. He relied on the decisions in the case of Kiran Singh and others vs. Chaman Paswan and others, AIR 1954 SC 340, Raghunath Panigrahi vs. Udayanath Sahu and others, 1969 ILR (CUT) 214, Baikuntha Das vs. Sabitri Devi and another, 1971 ILR (CUT) 1065, Radhamohan Malia and another vs. Basudeb Khuntia and others, AIR 1981 ORISSA 16, S.L. Narasing Rao and others vs. Gopaljee Mahaprabhu and others, AIR 1990 ORISSA 177, Lakhana Nayak and another vs. Basudev Swamy and others, AIR 1991 ORISSA 33, Laxmi Dibya (since dead) and after her Smt. Suvasin Mohapatra vs. Sridhar Suar and others, 1991 (II) OLR 12, S.P. Chengalvaraya Naidu (dead) by L.Rs., vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853, V. Rajeshwari (Smt) vs. T.C. Saravanabava, (2004) 1 SCC 551, Dalip Singh vs. State of Uttar Pradesh and others, (2010) 2 SCC 114, Meghmala and others vs. G. Narasimha Reddy and others, (2010) 8 SCC 383 and Smt. Badami (Deceased) By Her L.R. vs. Bhali, AIR 2012 SC 2858.

17. In S.L. Narasing Rao and others (supra), a Division Bench of this Court held that under Sec.7-A power is vested in the State Govt. to settle land, tank or building in the vested trust estate which were used for certain purposes and which are needed for carrying out the purpose of the trust efficiently, with the person who immediately before such vesting was an intermediary in respect of such land or tank or building. The power of the State Government has been delegated to the Board of Revenue by a notification and is not available to be exercised by the Addl. District Magistrate or the O.E.A. Act Collector. In the said case, the deity was not in possession of the land on the date of vesting. Thus, the O.E.A. Collector has right in holding that the claim of the managing trustee for settlement of the land under Sec.6 having failed the land must be held to have vested in the State Government free from all encumbrances under Sec.5 of the Act. But the same is not the case here. Thus, the said decision is distinguishable.