MURARLILAL PATEL Vs. STATE OF ORISSA AND ANOTHER

JUDGEMENT

(1.) This is an appeal by the plaintiff.

(2.) The dispute pertains to a big tank having an area of Ac.36.68 dec. of land appertaining to C.S. Holding No. 184, Khata Nos. 1106, 1107, 1264, 1265, 1302 and 1306 of mouza Sikabahanga in the district of Bolangir.

(3.) The case of the plaintiff is that his great grandfather Pati Sai alias Patel was the Gountia (Thikadar) of village Sikabahenga. Thereafter his grandson Hari Sai (Patel) and after him, his son Dharamsingh Patel was the Gountia of the village till the year 1950. The village was originally a forest. Pati Sai had cleared the forest and settled there. He reclaimed some waste lands and excavated a tank. He was using the water of the tank for irrigation of his land. He was also carrying on pisciculture. On 27.11.1822, the then Superintendent of Patna-State had granted protected status to him over the tank due to his long possession and improvement made over it. In 1894 the tank was recorded in the name of Pati Gountia in 'Jalamagna' khata. During the settlement of the year 1916, the same was recorded in the name of Hari Sai Patel. While the mater stood thus, during the settlement of the year 1936, all the tanks and tanks of Patna-State, whether private or public, were recorded in the name of Patna-State in 'Jalchar' khata. In spite of the same, Hari Sai Patel remained in possession of the same. There was discontentment amongst the subjects of Patna-State due to inclusion of all the water tanks of the State in 'Jalachar' khata. The King of Patna-State issued a proclamation that inclusion of water tanks in Government 'Jalchar' khata would not affect the right of its owner. He invited objection from the persons who had interest on those tanks. Accordingly, Hari Sai Patel filed a petition before the Sub-Divisional Officer, Revenue of the then Patna-State claiming his ownership and fishery right over the suit tank. After merger of Patna-State with the Union of India, the said case was transferred to the Superintendent of Land Records and renumbered as Fishery Case No. 25 of 1950. The Superintendent of Land Records by order dated 14.50/14.9.51 issued Patta of the suit tank in favour of Hari Sai. After Hari Sai his son Dharamsingh Patel became the owner of the tank. The Government of Orissa transferred the same to Saunthpur Gram Panchayat and, thereafter to the Irrigation Department of the Government of Orissa. The transfer was not lawful and binding on him. The defendants have no semblance of right, title, interest and possession over the tank. On 1.7.1994, the defendants objected the plaintiff and his father to do pisciculture. After issuing notice to the Collector, Bolangir under Section 80 of the C.P.C. and the Sarpanch of Saunthpur Gram Panchayat under Section 138 of the Orissa Gram Panchayat Act, he instituted the suit for declaration of right, title and interest over the suit tank, confirmation of his possession with right of pisciculture over it, in alternate delivery possession of the same to him evicting the defendants and permanent injunction restraining the defendants from entering into the tank.