JUDGMENT : A.K. Rath, J. This is plaintiffs’ appeal against a reversing judgment in a suit for perpetual injunction. 2. Case of the plaintiffs is that the suit scheduled land, appertaining to Khata No. 71/1/67, Plot No.499/551, Ac.0.12 dec. (Scheduled-Kha) and Khata No.4, Sabik Plot No. 499, Ac.0.14 dec. (Schedule-Ka), village-Bangriposi in the district of Mayurbhanj, originally belonged to Annapurna Dei. She sold Schedule-Kha land to the original plaintiff-Bijayram Mohanty by means of a registered sale deed dated 24.1.1961 for a valid consideration. Thereafter, possession was delivered to the vendee. The plaintiff was in possession of Schedule-Kha as well as Schedule-Ka land by putting green fence. Both the plots are in a compact one. He constructed his residential house over a portion of the plot. After death of Annapurna, her son defendant no.5 executed a sale deed in respect of Ac.0.30 dec. of land and Ac.0.09 dec. of land from plot nos.499 and 498 respectively in favour of defendant no.1 on 20.11.1979. The defendants, who had no semblance of right, title and interest over suit schedule property, created disturbance. With this factual scenario, he filed the suit seeking the reliefs mentioned supra. 3. Defendants 1 to 4 filed a written statement. They admit that the plaintiff had purchased Ac.0.12 dec. of land from Annapurna. The specific case of the defendants is that the purchased land being not suitable for building a house, the plaintiff in the year 1964 made a mutual and oral exchange of Ac.0.05 dec. of his land appertaining to plot no.499 from the east with the defendant no.5. In turn the same extent of land was exchanged to him out of plot no.498, which was an adjacent south of the western portion of his purchased land i.e. plot no.499. Thereafter, he built up a kutcha house, latrine and well in the said area over plot no.498 with a fance on the western boundary of his land. It is further pleaded that defendant no.5 had constructed a thatched house on his exchanged land over plot no.499 and on a portion of plot no.498. The plaintiff, taking advantage of the proceeding under Sec. 144 Cr.P.C., had broken the said house in order to claim the exchanged land. The plaintiff was not in possession of any portion of Schedule-Ka land nor Ac.0.05 dec. of Schedule-Kha land over Plot No.499. 4. The plaintiff, taking advantage of the proceeding under Sec. 144 Cr.P.C., had broken the said house in order to claim the exchanged land. The plaintiff was not in possession of any portion of Schedule-Ka land nor Ac.0.05 dec. of Schedule-Kha land over Plot No.499. 4. Defendant no.5 filed a separate written statement supporting the stand of defendant nos.1 to 4. 5. On the inter se pleadings of the parties, learned trial court has framed seven issues. Both the parties led evidence, oral as well as documentary, to substantiate their case. Learned trial court came to hold that the plaintiffs are in possession of the suit land. Held so, it decreed the suit. Defendants filed appeal before the learned District Judge, which was subsequently transferred to the court of learned Subordinate Judge, Baripada and renumbered as Title Appeal No. 4/21 of 87/88. The same was allowed. It is apt to state here that the original plaintiff died during pendency of the suit. Defendant nos.2, 3, 4, 4(c) and 5 and 5(b) died during pendency of the second appeal, whereafter the legal representatives have been brought on record. 6. The second appeal was admitted on the following substantial questions of law. “1. Whether the suit is maintainable in absence of true owner ? 2. Whether the appellate court was justified in reversing the decree only relying on Ext.C, the Commissioner’s report which is only a piece of evidence ? 3. Whether the judgment of the trial court is based on error of record ?” 7. Heard Mr. Abhijeet Pal, learned counsel for the appellants. None appears for the respondents. 8. Mr. Pal, learned counsel for the appellants submitted that the report of the R.I vide Ext.1 was prepared pursuant to the application filed by defendant no.5 for demarcation of the land. Amin (P.W.2) submitted report in a proceeding under Sec. 144 Cr.P.C before the S.D.M., Baripada. In the reports and sketch map, defendant nos.3, 4 and 5 had put their signatures. The report of the civil court commissioner is not conclusive piece of evidence. The same has to be considered along with the evidence adduced by the parties. But then, learned lower appellate court has placed reliance on the report only. No relief has been claimed against the National Highway Authority of India (in short, “NHAI”). Thus NHAI is neither necessary nor proper party to the suit. The same has to be considered along with the evidence adduced by the parties. But then, learned lower appellate court has placed reliance on the report only. No relief has been claimed against the National Highway Authority of India (in short, “NHAI”). Thus NHAI is neither necessary nor proper party to the suit. He relied on the decisions of this Court in Harihar Misra v. Narhari Setti Sitaramiah and another, AIR 1966 Orissa 121, Indramani Behera v. Ghanashyam Behera, 62 (1986) CLT 398, A. Satyanarayana Naidu and another v. Sarbeswar Das, 1966 ILR Cut 412, Gaura Naik v. Arjun Charan Dash and others, AIR 1996 Orissa 180 and the decision of the Madras High Court in Chandranathan v. Esthar Rani and others, AIR 2000 Madras 60. 9. Before proceeding further it is apt to refer to the decisions cited by Mr. Pal. In Harihar Misra (supra), this Court held : “4. Order 26, Rules 9 and 10, C.P.C. prescribed that a Commissioner be appointed for ascertainment of the market value of the property who shall submit his report together with the deposition given before him. Under Rule 9, the Court may issue a commission for ascertainment of the market value of the property. Under Rule 10, the Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence together with his report in writing signed by him to the court. The report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. The court or, with the permission of the court, any of the parties to the suit may examine the Commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he made investigation. It would thus be manifest that Rule 10 does not make the report of the Commissioner as concluding the question of valuation. On the contrary, the rule gives clear indication that the report of the Commissioner is only one of the pieces of evidence amongst other evidence to be led by the parties for determination of the issue on valuation of the suit. When the parties filed no objection to the Commissioner's report, the court rightly accepted the report. On the contrary, the rule gives clear indication that the report of the Commissioner is only one of the pieces of evidence amongst other evidence to be led by the parties for determination of the issue on valuation of the suit. When the parties filed no objection to the Commissioner's report, the court rightly accepted the report. Its acceptance by itself does not, however, mean that parties are precluded from challenging the evidence of the Commissioner or assailing the report by cross-examination of the Commissioner and the witnesses examined by him, or by giving any other evidence to countermand the effect of the Commissioner's report. In AIR 1953 Pat 133 , Ashutosh v. R.C. Dey, a Bench of the Patna High Court held that an order rejecting the objections or confirming the report of the Commissioner did not mean that the Court abdicated its functions and had decided a fact in issue solely on the report of the Commissioner, irrespective of other relevant evidence bearing on the question. The decision lays down the correct law.” 10. The same view has been reiterated in Indramani Behera (supra). 11. In Chandranathan (supra), the dispute which has given rise to the cause of action was only between the plaintiffs and the defendants. It was held that the suit could not be dismissed for non joinder of the Government. 12. In Anathula Sudhakar v. P. Buchi Reddy (dead) by LRs and others, (2008) 4 SCC 594 , the apex Court in para-21 of the report held thus; “21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.” 13. Learned lower appellate court on a threadbare analysis of the evidence on record, both oral as well as documentary, came to hold that Schedule-Ka land was lying fallow. Learned lower appellate court on a threadbare analysis of the evidence on record, both oral as well as documentary, came to hold that Schedule-Ka land was lying fallow. It was a common piece of land over which the plaintiff as well as defendants exercised their right. There is no perversity or illegality in the findings of the learned lower appellate court. 14. In view of the categorical finding of the learned lower appellate court that the plaintiffs are not in possession over the suit property, the simple suit for perpetual injunction is not maintainable. Moreover the suit property belongs to NHAI. In its absence, the suit is not maintainable. The substantial questions of law are answered accordingly. 15. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.