JUDGMENT : Dr. A.K. Rath, J. This is an appeal against the judgment and decree dated 17.8.1993 and 7.9.1993 respectively passed by the learned Sub-Judge, Jagatsinghpur in T.A.No.3/81 reversing the judgment and decree dated 9.12.1988 and 5.1.1989 passed by the learned Munsif, Jagatsinghpur in Title Suit No.101 of 1985. 2. Respondent nos. 1 and 2 as plaintiffs instituted the suit for permanent injunction. The case of the plaintiffs is that the plaintiffs and defendant nos. 2 and 3 are the members of one family. The suit property was purchased by them along with defendant nos. 2 and 3 jointly. There was a dwelling house on the suit property and they lived there. In the devastating flood of the year 1982, the house standing on the suit property collapsed. Thereafter the plaintiffs shifted to their original ancestral house with a plan to construct a new house again on the suit land. While the matter stood thus, defendant nos. 2 and 3 sold the property to defendant no.1, who is a stranger to the family. With this factual scenario, they instituted the suit. According to the plaintiffs, during pendency of the suit, defendant no.1 forcibly took possession of a part of the suit property. Thereafter they prayed for a decree of mandatory injunction. 3. Pursuant to issuance of summons, defendant no.1 filed her written statement. Defendant nos.2 and 3 had also filed their written statement. But then they were set ex parte. The plea taken in both the written statements are almost the same. It was pleaded by the defendant nos. 2 and 3 that the old thatched house, which was standing over the suit property, was never occupied by the parties. The said house was collapsed in the year 1970. In the said year the plaintiffs and defendant nos. 2 and 3 effected a partition of the suit property in which defendant nos. 2 and 3 were allotted with A0.13 decimals and 5 links of land and the plaintiffs were allotted A0.10 decimals and 5 links of land. After partition, they sold the allotted share to defendant no.1 by means of a registered sale deed dated 17.4.1985 and delivered possession. Thereafter defendant no.1 constructed a residential house over the same and is residing therein. The plaintiffs are not in possession of the suit property. Defendant no.1 took an alternative plea of adverse possession so far as her purchased property is concerned. Thereafter defendant no.1 constructed a residential house over the same and is residing therein. The plaintiffs are not in possession of the suit property. Defendant no.1 took an alternative plea of adverse possession so far as her purchased property is concerned. 4. On the inter se pleadings of the parties, the learned trial court framed seven issues. To substantiate the case, the plaintiffs had examined five witnesses and on their behalf, six documents were exhibited. The defendants had examined seven witnesses and on their behalf, nine documents were examined. 5. The learned trial court held that the suit property is the joint and undivided property of the plaintiffs and defendant nos.2 and 3. It further held that provision of Section 44 of the T.P.Act is applicable only when the share of a dwelling house belonging to an undivided family is transferred to a stranger, who is not a member of the family. Since the suit property is not the dwelling house, Section 44 of the T.P.Act will not come into play. Held so, the learned trial court dismissed the suit. Assailing the judgment and decree of the learned trial court, the plaintiffs filed T.A.No.3 of 1989 before the learned Sub-Judge, Jagatsinghpur. The same was allowed. 6. The Second Appeal was admitted on 24.1.1994 on the following substantial questions of law enumerated in Ground nos.1, 4, 6 and 7 of the appeal memo. They are:- “1. For, that he may sue for perpetual or mandatory injunction the law permits to pass an order of eviction from the suit properties as has been passed by the learned appellate court? 4. Both courts below having held that the defendant no.1 is residing on a portion of the suit property by constructing a house thereon. Whether the reliefs of injunction can be granted with the aid of Sec.44 of T.P.Act ? 6. The findings of the learned Munsif that the suit land was not a dwelling house and the suit land was not being used as the dwelling house having not been disturbed by the learned Sub-Judge, whether a decree for eviction can still be passed applying Sec.44 of T.P.Act ? 7. 6. The findings of the learned Munsif that the suit land was not a dwelling house and the suit land was not being used as the dwelling house having not been disturbed by the learned Sub-Judge, whether a decree for eviction can still be passed applying Sec.44 of T.P.Act ? 7. Whether the partition deed dt.9.7.69 marked as exhibit-8 along with the well founded evidence of separate living an messing and separate execution of documents by the individual members of a family are sufficient to establish the disruption of the joint family status as per the settled principle of the Evidence Act ?” 7. Mr. Das, learned counsel for the appellant submitted that the thatched house standing over the suit schedule land was never used as dwelling house by the plaintiffs or defendant nos.2 and 3 at any point of time. The thatched house was collapsed in the flood. The learned trial court came to a conclusion that it is difficult to come to a conclusion with certainty that the suit land was used as a dwelling house. In view of the same, Section 44 of the T.P.Act has no application. He further submitted that when a co-sharer alienates a portion of the dwelling house in favour of a stranger, Section 4 of the Partition Act can be pressed into service. Even simple suit for permanent injunction without recovery of possession is not maintainable. 8. Per contra, Mr. Mohanty, learned counsel for the respondents submitted that the learned trial court on flimsy ground negatived the plea of the plaintiffs that the suit property is a dwelling house. The learned appellate court came to hold that the suit property is a dwelling house and the same was never partitioned. He further submitted that Section 44 of the T.P.Act and Section 4 of the Partition Act are complementary to each other and the terms ‘undivided family’ and ‘dwelling house’ have the same meaning in both the sections. P.W.1 in his evidence has stated that he intended to construct a house over the suit property. The same is in consistence with the other oral evidence that the house which was standing over the suit property was collapsed during flood. P.W.1 in his evidence has stated that he intended to construct a house over the suit property. The same is in consistence with the other oral evidence that the house which was standing over the suit property was collapsed during flood. He further submitted that a dwelling house does not cease to be a dwelling house merely because of suspension of occupation or for the matter of that absence of the owner there from or because of occupation or terminable occupation thereof by tenants. The court has to decide as to whether the family has abandoned the idea of occupying the house as residential house and not the state in which a house is. A person may not be able to reconstruct his house for a considerably length of time owing to poverty ; but nevertheless continue to be a family residential house if the members of the family intend to use it as such as soon as they can conveniently do so. He further submitted that when a part of the dwelling house has been alienated by the co-sharer in favor of a stranger then co-sharers can maintain the suit for permanent injunction. He relied on the decisions in the case of Bhagirath Vrs. Afaq Rasul and another, A.I.R. (39) 1952 Allahabad 207, Kalipada Ghosh Vrs. Tulsidas Dutt and others, A.I.R. 1960 Calcutta 467 and Udaynath Sahu Vrs. Ratnakar Bej and others, AIR 1967 Ori 139 . 9. Before delving deep into the matter, it is apt to refer the decisions cited by Mr. Mohanty, learned counsel for the respondents. In Bhagirath (supra), the Allahabad High Court held that the true principle for deciding such cases has been correctly appreciated by the learned civil judge the question to be decided in each case is whether the family has abandoned all idea of occupying the house as residential house and not the state in which a house is. A person may not be able to reconstruct his house for a considerable length of time owing to poverty or owing as in this case, to disputes with strangers to the family regarding its occupation. The house may fall into a complete state of disrepair owing to these circumstances but it will nevertheless continue to be a family residential house if the members of the family intend to use it as such as soon as they can conveniently do so. 10. The house may fall into a complete state of disrepair owing to these circumstances but it will nevertheless continue to be a family residential house if the members of the family intend to use it as such as soon as they can conveniently do so. 10. In Kalipada Ghosh (supra), the Calcutta High Court held that the terms “house” or “dwelling house” are ambiguous terms and for the purposes of Section 4 of the Partition Act must be liberally construed. The terms should be taken to mean not only the structure or building, but also adjacent buildings, garden, courtyard, orchard, and all that is necessary for the convenient occupation of the house. A dwelling house does not cease to be a dwelling house merely because of suspension of occupation or, for the matter of that absence of the owner therefrom or because of occupation or terminable occupation thereof by tenants. What is important under Section 4 of the Partition Act is that the house concerned should either be actually in use, though not in constant occupation by the owners as a residential house or that conditions should be such that it is still possible for them to return to the occupation of the house at some future date. 11. There is no quarrel over the enunciation of law laid down by the Allahabad and Calcutta High Courts. 12. In Udayanath Sahu (supra), this Court held that all that Section 44 of the T.P.Act says is that the transferee of a share of a dwelling house belonging to an undivided family must not be a member of the family. Whether the family is divided or not must be judged qua the dwelling house. If the transferee gets into possession of a share in the dwelling house, the possession becomes a joint possession and is illegal. Courts cannot countenance or foster illegal possession. The possession of the defendant transferee in such a case becomes illegal. Plaintiffs co-owners are entitled to get a decree for eviction or even for injunction where the transferee threatens to get possession by force. 13. Reliance placed on Udayanath Sahu (supra), by Mr. Mohanty, learned counsel for the respondents, is totally misplaced. In the said case, there was a dwelling house and the same was not partitioned. Plaintiffs co-owners are entitled to get a decree for eviction or even for injunction where the transferee threatens to get possession by force. 13. Reliance placed on Udayanath Sahu (supra), by Mr. Mohanty, learned counsel for the respondents, is totally misplaced. In the said case, there was a dwelling house and the same was not partitioned. The said decision can not be pressed into service when the house was collapsed and the vacant land has been transferred to a stranger, whereafter the stronger transferee constructs a residential building over the same. 14. In Anathula Sudhakar Vrs. P. Buchi Reddy (Dead) By LRs. and others, 2009(II) OLR (SC)-388, the apex Court enumerated the principles of permanent injunction in paragraph-11 of the report. Paragraph-11.2, which is relevant, is quoted hereunder:- “11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.” 15. On the anvil of the decision in the case of Anathula Sudhakar (supra), the appeal may be examined. The case of the plaintiffs is that the suit property described in the schedule ‘A’ of the plaint was acquired by the plaintiffs and defendant nos. 2 and 3 jointly by means of registered sale deed dated 13.3.1953. At the time of purchase, there was a thatched house over the suit property. They used to reside in the said thatched house with their family members due to want of sufficient accommodation in the adjacent house, which was at a very short distance from the suit land. The house was collapsed in the year 1982. While the matter stood thus, defendant nos. 2 and 3 sold the suit schedule property to defendant no.1. Thereafter defendant no.1 constructed a house over the same and is residing thereon with her family. 16. As held by the apex Court in the case of Anathula Sudhakar (supra) that where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. In view of the fact that the defendant no.1 constructed a building over the suit schedule property and is residing thereon and the plaintiffs are not in possession of the suit schedule land, simple suit for permanent injunction is not maintainable. 17. In view of the authoritative pronouncement of the apex Court Anathula Sudhakar (supra), the suit for permanent and mandatory injunction is not maintainable. Accordingly, the appeal is allowed. The judgment and decree passed by the learned lower appellate court is set aside. Consequently, the suit is dismissed. There shall be no order as to costs.