JUDGMENT : P. Ray, J. - The plaintiff filed a suit against the defendant/ respondents for permanent injunction restraining the defendant-respondents from demolishing the disputed thatched house and from interfering with his peaceful possession. In the plaint the plaintiff has claimed that the land on which the disputed thatched house stands is not the land of the Municipality. The defendant-respondents have contested the suit inter alia claiming mat the disputed site on which the disputed matched house stands is a part of street survey field No. 212 of Ward No. 3 (old) of the Municipality and forms part of the Municipal road. The defendants have also denied any right, title or interest of the plaintiff over the suit site. 2. The basis of the claim of the plaintiff is that the disputed site is a part of plot Nos. 1046 and 1047 of village Madhabapur of Berhampur Tahasil. The defendant-respondents disputed the said allegation and have asserted that the disputed sits does not appertain to or form part of those plots. 3. The trial Court decreed the suit, inter alia, holding that the disputed thatched house is situated on the plot Nos. 1046 and 1047. It is not, however, understandable how it could arrive at that finding without getting the disputed site surveyed and relayed with the plot Nos. 1046 and 1047, The said determination of the trial Court is not founded on any sound basis. 4. The lower appellate Court reversed the decision of the trial Court inter alia holding that the suit was not maintainable because notice as required u/s 349 of the Orissa Municipal Act. 1950 was not sent and the State of Orissa was not made a party. it appears that the lower appellate Court has failed to appreciate the issues at controversy and has adopted an erroneous and misconceived approach. 5. The defendant-respondents have not pleaded or claimed that any step required by See. 254 of the Orissa Municipal Act, 1950 was taken and any notice was served on the plaintiff. The attempt to evict the plaintiff forcibly with the help of police force without any notice u/s 254 cannot be said to be an act done under the provisions of the Orissa Municipal Act and as such no notice u/s 349 was necessary before institution of a suit or proceeding for restaring such illegal and unauthorised attempt or action. The attempt to evict the plaintiff forcibly with the help of police force without any notice u/s 254 cannot be said to be an act done under the provisions of the Orissa Municipal Act and as such no notice u/s 349 was necessary before institution of a suit or proceeding for restaring such illegal and unauthorised attempt or action. In this connection reliance can be placed on the decision reported in B. Baliarsing and Another Vs. Bamdev Misra and Others. The lower appellate Court was also not correct in holding that the State of Orissa was a necessary party particularly when no relief was prayed against the State. 6. In the aforesaid circumstances, the judgments and decrees passed by both the lower appellate Court and the trial Court are set aside. The suit is remanded back to the trial Court for considering and determining the question whether the disputed site appertains to plot Nos. 1046 or 1047 or not by getting the disputed site surveyed and relayed with reference to the plot Nos. 1046 and 1047 by appointing a competent commissioner and allowing the parties to adduce further evidence if they so like. The trial Court will also consider whether the disputed site belongs to the Municipality as claimed by it or not. If any objection about the maintainability of the suit as framed is raised the trial Court will also consider the same. 7. This is a suit of 1982 and accordingly the trial Court is directed to dispose of the suit within six months from the date of receipt of the records of the case. 8. The appeal is allowed. The case is remanded back to the trial Court for reheating afresh in the light of the observations made hereinbefore. No order as to costs. Final Result : Allowed