GANESH NAYAK Vs. COLLECTOR KALAHANDI

JUDGEMENT

(1.) PLAINTIFFS are the appellants before this Court against the reversing judgment. Case of the plaintiffs is that they are the grandsons and great grandson of late Bhaja Gaountia of village Bhatel. The said Bhaja Gaountia had excavated a tank in the year 1906 on his own expenses and possessed the same till his death. After his death his sons, grandsons and great grandsons were in exclusive enjoyment of -fish and water over the tank by making improvements in the tank. The said tank was recorded as 'Adkata' over plot No. 195 of 1912 settlement, as 'Kusumkata' over plot No. 360 of 1922 -23 settlement, and as 'Sagar' over plot No. 603 with an area of Ac. 24.77 decimals, plot No. 605 with an area of Ac. 0.39 decimals, plot No. 606 with an area of Ac. 0.46 decimals and plot No. 603/614 with an area of Ac. 0.78 decimals in total for an area of Ac. 26.40 decimals in the current settlement 1955 -56. After construction of tank as per the revenue law in practice the tank became rent free and were recorded as "Jalchar" in the name of State of Orissa and rights of owner of the tank were mentioned in a separate portion of Khatian under "Unnatisadan" list of the village. Since 1912 and till 1955 -56 settlement the ancestors of the plaintiffs and their ancestor had remained in possession, and therefore the ownership had been recorded in the name of Bhaja Gaountia and his successors. Taking advantage of the fact that the tank had been recorded in the name of State of Orissa, the Gram Panchayat, Sergad laid claim over the same on the basis of transfer made by the Sub divisional Officer, Bhawanipatna. After such transfer was made the defendants started creating trouble in possession of the tank giving rise to filing of the suit.

(2.) DEFENDANT No. 1, the State of Orissa filed written statement claiming ownership over the tank since 1922 -23. It is stated in the written statement that the plaintiffs as the then Gaountia of the village had been named in the Unnatisadan list as per revenue law of Ex -State of Kalahandi. It is stated that the tank was transferred to Tulapada Gram Panchayat by order of Sub -divisional Officer, Sadar dated 22.7.58 and after bifurcation of the Gram Panchayat in 1967 the tank was transferred to Sergad Gram Panchayat. The fish of the tank were sold in auction by Tulapada Gram Panchayat and Sergad Gram Panchayat and in 1967 -68 one Dhruba Naik took lease of the tank in public auction as highest bidder and in 1969 -70 Rabi Naik brother of plaintiff No. 1 took the suit tank on lease. Therefore possession of Grama Panchayat over the suit tank was admitted by the plaintiffs. Defendant No. 2 who is the Sarpanch of Sergad did not contest the case.

(3.) THIS Court admitted the second appeal on the following substantial questions of law.