RAGHUNATH BEHERA Vs. PURNA CHANDRA MAHANTA

JUDGEMENT

(1.) THE petitioners are members of the first party in a proceeding under Section 145, Cr. P. C. The dispute is over the possession of a tank with an area 2. 77 acres. It stands on plots Nos. 317, 318, 390, 391, 374 and 375 appertaining to khata No. 19 in village Chutiaposi in the district of Keonjhar. Admittedly these plots stand recorded in the name of the Government The case of the first party is that their fore-fathers excavated the tank at their own expenses and that they are in possession of cultivable lands surrounding it which arc irrigable by its waters. They claim fishery right in it. In their written statement they allege that sometime in 1942, the ex-Stale of Keonjhar recognised their rights in it Without any semblance of right the second party members wanted to create disturbance in their possession and accordingly the present proceeding has been started

(2.) THE second party members are mostly villagers of Chutiaposi. They allege that the disputed tank belongs to the State and that the Slate had transferred the same to the Kapundi Gram Punchayat (hereinafter referred to as the Punchayat ). From 1961 onwards the fishery right of the tank is being put to auction sale by the punchayat and the money so realised is deposited in the Punchayat Fund. From 1964 the Punchayat is doing pisciculture in the tank. Before its transfer by the state to the Punchayat, the villagers were looking after it and were repairing its embankments Cattle of the villagers were being washed in it and they were exercising fishery right in it In para 8 of their written statement, they state that the members of the first party, in order to enforce their rights, posted signboard in april 1964 prohibiting other persons from taking their hath or using the tank in any manner. The signboard was taken away after an enquiry by the Tahsildar. In the current year, the Punchayat has put in fish fries in the tank. They deny that the members of the first party had any right in the lank.

(3.) THE preliminary order in this case was passed on 22-8-1904. On the same day the tank itself was attached. The learned Magistrate also made the following direction :