JUDGMENT : A.K. Parichha, J. - The Plaintiffs are in appeal against the Judgment and decree passed by Learned Additional District and Sessions Judge, 1st Track Court No. II, Bhubaneswar in T.A. No. 35 of 1995 (4/20C1) and Cross Appeal No. 14 of 1998 (32/2001). 2. The suit land measures AC.0.720 decimals appertaining to plot No. 3183/3678 of Khata No. 271 corresponding to Hal Plot No. 4242 of Khata No. 722 of Mouza-Badagada. The Plaintiffs' case in essence was that one Dhani Das and Sarbeswar Jena were the joint owners of Ac.1.910 decimals of land which constituted the entire area of the above noted plot and that land stood recorded in their names in Ext. 1, the record of rights of old statement. Sometime in 1946-47 there was a partition between the co-sharers Naba Bewa, the widow of Dhani Das and Bimbadhara Jena, the son of Sarbeswar Jena wherein each of them got Ac.0. 955 decimals of land; Naba Bewa taking the western half and Bimbadhar taking eastern half. Thereafter, Ac.0. 805 decimals of land out of share of Naba Bewa was acquired by the State Government for the purpose of Daya River Canal leaving a balance of Ac.0. 150 decimals which now stands recorded in the name of Rabindra Beura, the grand son of Naba Bewa. Out of the share of Sarbeswar the original Plaintiff No. 1, Bimbadhar sold away Ac.0.500 decimals to different purchasers leaving an area of Ac.0. 455 decimals. Bimbadhar then encroached and amalgamated adjoining government land to the extent of Ac.0. 255 decimals and thus remained in possession of Ac.0.710 decimals of the land, which is the suit land. Since the Defendants through their agent tried to sell this suit land and threatened to disturb the possession of the Plaintiffs the suit was filed by the Plaintiffs for decree of permanent injunction against the Defendants, who are the present Respondents. The Defendants in the written statement while denying the claim of the Plaintiffs over the suit land pleaded that Ac.1.910 decimals of land in plot No. 3183/3678 of Khata No. 271 was the joint property of Sarbeswar Jena and Dhani Das. Naba Bewa, the widow of Dhani Das and Sarbeswar Jena jointly sold that land to one Mahendranath Sundar Ray on 14.11.1946 under a registered sale deed Ext. Naba Bewa, the widow of Dhani Das and Sarbeswar Jena jointly sold that land to one Mahendranath Sundar Ray on 14.11.1946 under a registered sale deed Ext. L and the said Mahendranath Sundar Ray in turn sold that property to one Dwijendranath Banarjee under registered sale deed, Ext.K. On the death of Dwijendranath Banarjee his sons Bimalendu Banarjee and Jadabendu Banarjee became the joint owners of this property. Jadabendu then sold his share to his brother-Bimalendu under sale deed, Ext.N. The Defendant Nos. 2 to 5 purchased different portions of this land from Bimalendu Banarjee and possessed their respective portions. The specific plea of these Defendants was that the Plaintiffs have no right, title or possession over the suit property, their suit is barred by limitation and is bad for non-joinder of necessary parties. They also claimed that the suit for injunction simpliciter is not maintainable in the absence of any prayer for declaration of title and possession. From the above noted pleadings of the parties, the Trial Court framed the following five issues: (i) Is there any cause of action to institute the suit? (ii) Have the Plaintiffs exclusive right, title, interest and possession over the suit land? (iii) Are the Plaintiffs entitled for the permanent injunction as prayed for? (iv) What relief, if any, the Plaintiffs are entitled to? (v) Have the Defendant Nos. 2 to 5 any right, title, interest and possession over the suit land? 3. The Plaintiffs examined five witnesses and produced documents, which were marked as Exts. 1 to 13. Defendants also examined five witnesses and proved documents, which were marked as Exts. A to P. On consideration of these evidence, the Trial Court held that the Plaintiffs have title and possession over the suit land, but their suit suffers from non-joinder of necessary parties, it is barred by limitation and the suit for injunction simpliciter is not maintainable. Accordingly, the Court dismissed the suit. The Plaintiffs filed appeal challenging the findings on issue Nos. 1, 3 and 4. The Defendant-Respondents also filed cross appeal challenging the findings of the Trial Court on issue Nos. 2 and 5. The first Appellate Court on reconsideration of the pleadings evidence and the submissions of the parties came to hold that the suit is barred by limitation, it suffers from non-joinder of necessary parties and it is not maintainable in the present form. 2 and 5. The first Appellate Court on reconsideration of the pleadings evidence and the submissions of the parties came to hold that the suit is barred by limitation, it suffers from non-joinder of necessary parties and it is not maintainable in the present form. The Appellate Court also reversed the findings of the Trial Court on issue Nos. 2 and 5 and held that the Plaintiffs failed to prove their exclusive right, title and possession over the suit land. Consequently, he allowed the cross appeal of the Respondents and dismissed the appeal of the Plaintiff-Appellants. The said Judgment and decree is under challenge in this appeal. 4. The following substantial questions of law were formulated for consideration in this appeal. (i) Whether the suit for injunction in the absence of prayer for declaration of right is maintainable, when the Defendants challenge the title of the Plaintiffs? (ii) Whether the state of Orissa is a necessary party and the suit is bad for non-joinder of the said party ? (iii) Whether the findings of the first Appellate Court that the Plaintiffs have no title and possession over the suit land and that the Defendant Nos. 2 to 5 have title and possession are based on no evidence or perverse approach? 5. Mr. P.K. Patnaik, Learned Counsel for the Appellants stated that in a suit for permanent injunction a person can defend his possession against all the world except the true owner having a better title than the Plaintiff, so much so, a trespasser can defend his possession against a subsequent trespasser unless the latter shows a better title to the property in question. He stated that the Courts below without appreciating this legal principle held that a suit for permanent injunction simplicitor by the Plaintiffs was not maintainable. In support of his contention, Mr. Patnaik relied on the cases of Swaraswati Mohanty and Others Vs. Tirthananda Badu, and M. Kallappa Setty Vs. M.V. Lakshminarayana Rao. Mr. Patnaik argued that the suit land stands recorded in the name of the Plaintiffs and they are seeking injunction against the Defendants only and in that situation the State of Orissa was not at all a necessary party and the suit was never bad for non-joinder of state of Orissa. Mr. Patnaik, further argued that in the face of the sale deed, Ext. Mr. Patnaik, further argued that in the face of the sale deed, Ext. 4, in favour of the daughter of Naba Bewa and the subsequent partition between Naba Bewa and Bimbadhar, there was no scope of believing the plea of sale of the entire property by Naba Bewa and Sarbeswar in favour of Mahendranath Sundar Ray or the sale by Mahendranath Sundar Ray to Dwijendranath Banarjee. According to him, the analysis and approach of the first Appellate Court on the score of title and possession is perverse and therefore, this Court of second appeal can reanalyze the evidence and set aside the finding of the first Appellate Court on issue Nos. 2 and 5. In support of this plea, he cited the case of Yadarao Dajiba Shrawane (dead) by Lrs. Vs. Nanilal Harakchand Shah (dead) and Others where it was said that when there is finding recorded by the Courts below ignoring some admission and relying on inadmissible documents, the Court of second appeal can interfere with the said finding. 6. Mr. P.K. Rath, Learned Counsel for the Respondents on the other hand supported the impugned Judgment and stated that a suit for injunction simplicitor is maintainable where the title or possession of the Plaintiff is admitted, but where the Defendant disputes the title of the Plaintiff and sets up a better title over the property, the Plaintiff must ask for a declaration of his title along with prayer for injunction. He stated that if in such situation declaration of title is not asked for then the suit has to be dismissed. In support of his stand he relied on the cases of Braja Kishore Sahu and Others Vs. Smt. Sailabala Sahu and Others, and Sudarsan Prusty v. Rabindranath Prusty and Ors. 1989 (I) OLR 379. On the point of non-joinder of necessary parties Mr. Rath stated that as the Plaintiffs themselves pleaded that they encroached and amalgamated a piece of government land and claimed a decree for injunction in respect of that Government land and some other lands, the state became a necessary party and the Courts below did not commit any error in saying that the suit suffers from non-joinder of necessary party. Relating to the finding on issue Nos. 2 and 5 Mr. Rath stated that the first Appellate Court discussed the relevant evidence and circumstances carefully and arrived at the conclusion. Relating to the finding on issue Nos. 2 and 5 Mr. Rath stated that the first Appellate Court discussed the relevant evidence and circumstances carefully and arrived at the conclusion. Such finding is based on evidence and reasonable approach and therefore, there is no scope for the Court of second appeal to reassess the evidence and record a different finding. 7. Section 100 of the C.P.C. clearly provides that a Court of second appeal is to entertain and adjudicate substantial question of law raised by the Appellant and it is normally not to delve into any factual issue unless finding on the factual issue is recorded on no evidence or is the result of placing the burden of proof on a wrong person or due to perverse approach. If none of these lacunae is available, then even if the Court of second appeal feels that another conclusion could have been drawn from the evidence on record, still it would not interfere with the findings of the Court below on factual issue. In the present case, issue Nos. 2 and 5 relate to the right title interest and possession of the suit land. The Plaintiffs claimed that there was a partition in 1946 where Ac.0.955 decimals of land fell to the share of Naba Bewa the widow of Dhani Das out of which the government acquired Ac.0.805 decimals leaving only Ac.0.150decimals. They claimed that out of the land which fell to the share of Sarbeswar, the father of the Plaintiff No. 1-Bimbadhar Ac.0.500decimals were sold to different persons leaving Ac.0.455 decimals and the Plaintiffs amalgamated Ac.0.255 decimals of government land along with this land and remained in peaceful possession of those lands. The Defendants on the other hand claimed that Sarbeswar Jena and Naba Bewa were the joint owners of the entire plot, which they sold to Mahendrasundar Ray in 1946 and Mahendra sundar Ray in turn sold it to Dwijendranath Banarjee and thereafter Bimalendu be came the owner of the property and he sold the lands to the Defendant Nos. 2 to 5. Ext. 1 is the ROR of 1913, wherein the suit plot stands recorded jointly in the names of Sarbeswar and Dhani Das. The Plaintiffs proved one sale deed of the year 1936, Ext. 4, with the plea that Naba Bewa sold her share of the property to her daughter. 2 to 5. Ext. 1 is the ROR of 1913, wherein the suit plot stands recorded jointly in the names of Sarbeswar and Dhani Das. The Plaintiffs proved one sale deed of the year 1936, Ext. 4, with the plea that Naba Bewa sold her share of the property to her daughter. Then the Plaintiffs claimed that in 1946 there was a partition between Naba Bewa and Bimbadhar and each party got half share measuring Ac.0.955decimals. The first Appellate Court observed that if Naba Bewa had already sold her share to her daughter in 1936, then there was no scope for partition of the suit plot in 1946. The Plaintiffs also pleaded and produced oral evidence that Ac.0.805 decimals of land out of the share of Naba Bewa was acquired by the State for the purpose of canal and that Naba Bewa and her successors got compensation or the acquired land. But there was not a scrap of paper to show that the lands of Naba Bewa as alleged was acquired by the State or that Naba Bewa or her successors got any compensation from the State Government. On the other hand, the Defendants produced the sale deed, Ext. L of the year 1946 wherein Naba Bewa and Plaintiff-Bimbadhar are shown to have sold the entire joint property measuring Ac.1.910decimals to Mahendrasundar Ray. This sale transaction is supported by the subsequent transaction. Sale deed, Ext. K shows that Mahendrasundar Ray sold the above said land to one Dwijendranath Banarjee. Sale deed Ext. N shows that Jadabendu sold his share to his brother Bimalendu. Ext. M, the mutation order shows that Dwijendranath Banarjee's son Bimalendu applied for mutation of this land and mutation was allowed in his name. If there would have been no sale transaction in favour of Mahendra sundar Ray then the subsequent sale, mutation etc. could not have been there. These documents cannot be said to be fake or fabricated for the simple reason that at that point of time there was no contemplation of any litigation between the parties. Furthermore, the Defendants produced the land acquisition paper, Ext.P, which revealed that Bimalendu was one of the interested persons in respect of the acquired land. The pleading of the Plaintiffs reveled that Mahendrasundar Ray sold land out of the suit plot to persons namely-Prabodh Singh, Pravashsundar Ray and A.N. Dutta. Ext. Furthermore, the Defendants produced the land acquisition paper, Ext.P, which revealed that Bimalendu was one of the interested persons in respect of the acquired land. The pleading of the Plaintiffs reveled that Mahendrasundar Ray sold land out of the suit plot to persons namely-Prabodh Singh, Pravashsundar Ray and A.N. Dutta. Ext. P shows that these persons received compensation from the State Government for the acquired lands. The documents of this land acquisition proceeding by itself do not create or extinguish any right or title, but it certainly shows that Mahendra sundar Ray exercised right over the suit property and sold it to some persons and those persons received compensation from the State Government after an inquiry by the Land Acquisition Authority. These circumstances lend support to the plea of the Defendants that Mahendra Sundar Ray purchased the entire plot from the co-sharers. Considering all the above noted evidence and circumstances, Learned first Appellate Court observed that the claim of the Defendants over the suit land appears more probable and reasonable than the plea and claim of the Plaintiffs and applying the theory of preponderance of probability, he accepted the case of the Defendants. It is alleged from the side of the Appellants that oral evidence of the witnesses, which contained some admission were not duly considered. Learned first Appellate Court has clearly observed that the witnesses examined no doubt supported the case of the respective parties and they are interested witnesses and so much reliance is not to be placed on their evidence. Oral evidence can be created, but documentary evidence particularly old document cannot be created easily and, therefore, it is always safe to rely on documents rather than oral evidence. The first Appellate Court adopted this principle and considering the pleadings and documentary evidence of the parties came to the conclusion that the claim of right, title and possession of the Defendants ever the suit land appears more reasonable and probable. Such analysis and conclusion cannot be said to be based on no evidence or perverse approach. So, there is no scope for this Court of second appeal to up set that finding. 8. In the case of Saraswati Mohanty and Ors. Such analysis and conclusion cannot be said to be based on no evidence or perverse approach. So, there is no scope for this Court of second appeal to up set that finding. 8. In the case of Saraswati Mohanty and Ors. (supra) this Court observed that in a suit for permanent injunction a person can defend his possession against all the world except the true owner having a better title than the Plaintiff, so much so, a trespasser can also defend his possession against a subsequent trespasser unless the latter shows a better title to the property in question. The same observation is also available in the case of M. Kallappa Setty (supra). However, the legal position was further clarified in the case of Braja Kishore Sahu and Ors. (supra) where this Court clearly observed that a true owner or a person having possessory title can file a suit for injunction against a trespasser; but where the Defendant refuses title of the Plaintiff, there the Plaintiff has to seek both declaration of title and injunction, if necessary, by amending the plaint, because in such a case title of the parties over the suit land becomes an essential issue. In the case of Sudarsan Prusty (supra) this Court maintained the same view. So, whether a suit for permanent injunction simplicitor would lie it depends upon the facts and circumstances of each case and the Court has to carefully examine the facts and circumstances to determine whether the suit for perpetual injunction simpliciter would lie. In case, it comes to the conclusion that unless title which is disputed is decided and the entire evidence would be mostly on title, though evidence of possession is to be led, it shall give opportunity to the Plaintiff, if necessary, to amend the plaint and seek declaration of his title and pay necessary Court fees. In the instant case, the Defendants disputed the right, title and possession of the Plaintiff over the suit land and claimed title and possession over the suit land. In such a situation, question of title over the suit land became a vital issue and without adjudicating the issue of title grant of injunction was not possible. Therefore, the Plaintiffs were legally duty bound to ask for declaration of their title. Not having done so, their suit became non-maintainable. In such a situation, question of title over the suit land became a vital issue and without adjudicating the issue of title grant of injunction was not possible. Therefore, the Plaintiffs were legally duty bound to ask for declaration of their title. Not having done so, their suit became non-maintainable. The Courts below, therefore, did not commit any error in holding that the suit for injunction simpliciter was not maintainable. 9. There was also issue of limitation. It was clearly pointed out by the Courts below that the Bimalendu Banajree- Defendant No. 1 made a paper publication on 23.6.1978, vide Ext. 2, claiming that he is the owner of the land measuring Ac.1.940 decimals appertaining to the suit plot and warned the people not to purchase any part of that land from any other person. About a month later the Plaintiffs made paper publication on 2.8.1978, vide Ext. 3, denying such claim of Bimalendu Banarjee. From these documents it is clear that the Plaintiffs knew that Bimalendu Banarjee was claiming title over the suit land, yet they did not file the suit for injunction within three years instead they filed the suit in 1985. So, the Courts below were justified in saying that the suit was barred by limitation. 10. Regarding non-joinder of necessary parties, the Plaintiffs themselves pleaded that they encroached and amalgamated Ac.0.250 decimals of Government land and claimed title and possession over that land and basing on such possession they prayed for injunction against the Defendants. When the Plaintiffs based the prayer for injunction by claiming right, title and possession over the land, part of which belongs to the government, it was essential that they should have made the State Government a party. The Courts below were therefore, justified in saying that the suit suffers from non-joinder of State of Orissa. However, Rabindra Beura the grand son of Naba Bewa was not a necessary party because the Plaintiffs never claimed any right, title over his land or prayed for injunction in respect of that land. 11. In view of the discussions and conclusion noted above, the substantial questions of law are answered against the Appellants end the appeal is found to be without any merit. 12. The same is accordingly dismissed on contest, but without cost. Final Result : Dismissed