BIRANCHI PADHAN Vs. COLLECTOR, BOLANGIR

JUDGEMENT

(1.) This is a plaintiffs' appeal against the confirming judgment.

(2.) The case of the plaintiffs is that one Karmau Gountia, Thikadar of village Solabandh, had allotted a portion of cultivable 'Bhogra' land in favour of Bairagi Padhan, the ancestor of the plaintiffs, for construction of a tank. In the year 1916 patta was issued to him. Thereafter he excavated a tank over the said land. He was in possession of the same and exercising his fishery right over the same till his death. In 1916 settlement, since his possession was recorded unauthorized, the matter was agitated before the then 'Darbar' of Patna State. The Dewan declared the suit tank to be a public tank, but did not deprive him from his fishery right. After his death, the plaintiffs were in possession of the suit tank. In the year 1984, when the suit tank was transferred to Solabandh Gram Panchayat by the Government, they instituted the suit for declaration of their rights over the suit tank.

(3.) The defendants entered contest and filed a written statement denying the assertions made in the plaint. The stand of the defendants was that State was the paramount owner of suit tank. In the year 1936 the suit tank was recorded as "Jalchar'. In 1976 Settlement, the tank was recorded as 'Rakhit'. Originally the suit tank was transferred to Pandamunda Gram Panchayat for its management on 17.4.1962. Subsequently the Gram Panchayat was divided. In the year 1967, Solbandh Gram Panchayat was reconstituted. The suit tank, which was originally transferred to Pandamunda Gram Panchayat, came under Solabandh Gram Panchayat for its management. When the public tanks of different Gram Panchayats were put to auction, plaintiff no.2, who was present at the time of auction, insisted the authority to lease out the suit tank in his favour. But then the suit tank could not be leased out since the Gram Panchayat had resolved to carry on pisciculture in the said tank in its meeting dated 19.6.1984.