BHAGABAT JENA Vs. GOBARDHAN PATNAIK

JUDGEMENT

(1.) The second appeal is by the plaintiffs against a reversing decree. The plaintiffs brought the suit as representatives of the villagers of Beruan for correction of the entries in the finally published record-of-rights of the year 1965 in respect of plot Nos. 290 and 178 under Khata No. 340 and for a declaration that the villagers of Bairanga represented by the defendants have no right over the said plots and for some consequential reliefs.

(2.) The plaintiffs' case was that the suit plots were the Gochar lands of their village and were used as such since time immemorial. They have acquired right to use the suit plots as Gochar lands either by lost grant or by custom. The suit plots correspond to plot Nos. 74 and 97 under Khata No. 175/1 of the Provincial Settlement and plot No. 362 under khata No. 232 of the Current Settlement. In the year 1912, the then Zamindar of the village leased out plot Nos. 74 and 97 to one Rama Chandra Paltasingh and some others. The villagers of Beruan filed O.S. No. 690/1912-I which was decreed and the suit lands were declared to be the Gochar lands and the lease was set aside. Thereafter, the villagers used the said plots as a water reservoir by constructing a cross-bundh. The lands in the plaintiffs' village are irrigated by water of this reservoir and the surplus water flows to the lands of the villagers at Bairanga. The plaintiffs have been maintaining and repairing the cross-bundh. The villagers of Bairanga raised a dispute which led to initiation of a proceeding under Section 147, Cr. P. C. and that proceeding was dropped on 11-11-1915. The plaintiffs' contention is that the defendants have no manner of right, title or interest in the reservoir and its cross-bundh and that they have never taken part in maintaining and repairing the cross-bundh. In the remarks column of the settlement record of rights of 1965, it has been mentioned against plot No. 290 that the villagers of Bairanga have the right of irrigation from the reservoir subject to the condition that they would maintain and repair the cross-bundh. Plot No. 179 has been recorded as a tank. The plaintiffs assert that these entries are wrong and accordingly they filed the suit for correction of the same.

(3.) The defendants' contention was that although the suit land stood recorded as Gochar it was never used for grazing of cattle as the same always remained submerged under water. It was alleged that the cross-bundh was constructed by the inhabitants of both the villages Beruan and Bairanga and was also being maintained and repaired by them. There is a water channel from the said reservoir to a tank situated on the south of village Bairanga and water from the reservoir goes to that tank through the channel and the lands of that village are irrigated from that tank. According to the defendants, the entries in the record- of-rights of the year 1965 are correct. The defendants also contended that the suit was barred by limitation and was bad for non-joinder of the State Government.