JOGINATH SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) PLAINTIFFS are the appellants before this Court. They had filed the suit for declaration of right, title, and possession over the suit lands which includes a tank and for permanent injunction against the defendants restraining them from interfering with the possession of the plaintiffs over the said tank. Learned Sub Judge, Aska decreed the suit in part and possession of the plaintiffs was declared only for the limited purpose of irrigation and prayer for declaration of title and permanent injunction were refused. Appeal filed by the plaintiffs before the learned Additional District Judge, Ganjam was partly allowed and title of the plaintiffs over a portion of the suit tank appertaining to Survey Nos. 9/103 of Asinapur and Survey Nos. 1023, 1022/2, 1022/3 and 1020 of Sunapalli was declared. However, claim of the plaintiffs over Survey No. 30 was not allowed. Challenging that portion of the judgment and decree passed by the lower appellate Court the plaintiffs have filed the present appeal.

(2.) CASE of the plaintiffs is that the suit tank namely 'Nuabandha' in village Asinapur is in possession of the plaintiffs since the time of their fore fathers. The said village was a pre settlement whole inam village. The fore fathers of the plaintiffs had acquired agricultural lands to the tune of near about 120 acres and for the purpose of irrigation the suit tank was excavated by the great grand father of the plaintiffs. The tank adjoins to boundary of Sunapalli village and about six acres of land of Asinapur and four acres of land of Sunapalli village of the plaintiffs are irrigated. In the settlement operation between 1948 to 1952 a portion of the tank was recorded in Paramboke khata though it is not an agricultural land. The jnam of village Asinapur was abolished in the year 1954 after coming into force of the Estate Abolition Act and a portion of the suit tank got vested with the State Government. The total extent of tank is Ac. 2.65 cents out of which Ac. 1.60 cents are paramboke lands and Ac. 1.02 cents are zeraiti land. The said Ac. 1.02 cents zaraiti land is a portion of Survey No. 9/103 of Asinapur village and portions of Survey No. 1023, 1022/2, 1022/3 and 1020 are in village Sunapalli. Further case of the plaintiffs is that the lands comprising in Survey No. 30 measuring 1.60 cents has been recorded as Nuabandha which has been amalgamated along with 1.02 cents zeraiti lands. Case of the plaintiffs is that them came to know that B.D.O., Kabisuryanagar had leased out the said tank on 20.5.81 to the defendant Nos. 3 and 4 for the purpose of pisciculture and the said defendants were declaring to rear fish in the said tank. Coming to know about the aforesaid fact the suit was filed for the reliefs claimed.

(3.) ON the pleadings of the parties as stated above, the learned Sub Judge framed six issues. While answering issue No. 2 the learned Sub Judge came to conclusion that the evidence adduced indicates that the lands which have been mixed up with Survey. No. 30 have all been shown as rayati lands and there is not hard and fast rule that the nature of the rayati land will be changed in case a tank over the rayati lands is excavated. While answering issue No. 3 the learned Sub Judge held that admittedly Nalu Ghai is covered in Survey No. 30 and the plaintiffs are in possession of Nalu Ghai since their fore fathers. While answering issue No. 4, learned Sub Judge held that claim of title by adverse possession is not acceptable and the plaintiffs are to be treated as encroachers. On the above findings, the learned Sub Judge declined to allow the prayer for declaration of right, title and interest or permanent injunction, but decreed the suit declaring possession of the plaintiffs over the tank for the limited purpose of irrigation. The lower appellants Court on consideration of the evidence found that a part of the suit tank is covered by rayati lands appertaining to Survey plot Nos. 1023, 1022/2, 1022/3 and 1020 of village Sunapalli and Survey No. 9/103 of Asinapur under occupation of the plaintiffs and accordingly declared their title in respect of the same. So far as other part of Survey No. 30 is concerned, the lower appellate Court held that the same having been recorded as paramboke and in view of the admission made in the plaint, the relief for declaration of right, title and interest in respect of said survey number cannot be allowed.