SUDARSAN PANDA Vs. B.D.O. NARASINGHPUR

JUDGEMENT

(1.) BOTH the appeals have been filed against part Judgment & decree passed by the First Additional District Judge, Cuttack in Title Appeal No.91/93 of 1983/1986 arising out of the Judgment & decree dated 26.07.1983 & 30.07.1983 respectively passed by the Sub -Ordinate Judge, Athagarh in Title Suit No.9 of 1980. Therefore, both the appeals were heard analogously & are being disposed of by this common Judgment. The Plaintiffs in the suit are Appellants in Second Appeal No.204 of 1987 whereas as Defendant Nos.5, 6 & 7 are the Appellants in Second Appeal No. 225 of 1988.

(2.) THE Plaintiffs filed the suit in representative capacity for themselves and on behalf of the villagers of their village -Lembo claiming right, title and interest over the suit tank measuring about Ac. 30.00 acres and for confirmation of their possession and for permanent injunction restraining the Defendants from interfering in their possession. It is the case of the Plaintiffs that the suit tank locally knows as 'Gadei Panda Bandha' was excavated by Gadei Panda of village -Lembo, a philanthropist, with the help of other villagers over 'A' schedule land measuring Ac.15.78 decimals in the year 1900. The villagers of Lembo used the water of the tank for the purpose of irrigation, bathing and pisciculture and they have been in possession of the same as of right since then. The suit 'B' schedule land measuring Ac.13.62 decimals belonging to villagers of Badabarana submerged in the water of the suit tank excavated on schedule 'A' land and the villagers of Lembo gave their Stitiban land measuring Ac.13.21 decimals described in schedule 'C' of the plaint in exchange of schedule 'B' land. The subsequent claim of Defendant Nos.5 to 7 of village -Badabarana for getting further land from the Plaintiffs in exchange was turned down by the then Darbar Administration of Narasinghpur State. However, the Plaintiffs paid compensation for the excess land of village -Badabarana to Chinta Naik and others of the said village in Revenue Case No.43 of 1932 -33. Therefore, the suit tank exclusively belongs to the villagers of Lembo and they have got right, title and interest over the same. Alternatively, they have perfected their right, title and interest by adverse possession. The Ex -ruler of Narasinghpur and the Defendants have never interfered in the Plaintiffs' possession over the suit tank. The Plaintiffs have been exercising their right of ownership, possession, bathing, irrigation and pisciculture over the suit tank without any hindrance and maintaining accounts in relation to pisciculture and maintenance of the tank. At the instance of Plaintiff No.1 unauthorised, occupants were evicted from a portion of the suit tank in the year 1951 by Defendant No.3, the Collector, Cuttack. On 05.05.1977 Defendant Nos. 1 and 2, and 2, viz, Sarpanch Alara Grama Panchayat and Block Development Officer, Narasinghpur made paper transactions showing auction of the suit tank in favour of Defendant No.4 which is illegal.

(3.) DEFENDANT Nos.2 and 3, viz, the B.D.O., Narasinghpur and Collector, Cuttack and Defendant Nos. 5, 6 and 7, who are the villagers of Badabarana filed Title Appeal challenging the Judgment and decree passed by the Trial Court. The title appeal was heard and partly allowed by the Learned Additional District Judge, Cuttack vide his Judgment dated 30.04.1987 holding that the Plaintiffs have no right of ownership over the suit tank, but the villagers of Lembo represented through the Plaintiffs have got exclusive right of fishery over the suit tank by prescription and that cannot be interfered with by the state Authorities. In support of his decision, the lower Appellate Court reached the following conclusions in paragraph -17 and 18 of its Judgment.