JUDGMENT
L. Mohapatra, J.
1. Plaintiffs are the appellants before this Court against the reversing judgment. Case of the plaintiffs is that they are the grandsons and great grandson of late Bhaja Gaountia of village
Bhatel. The said Bhaja Gaountia had excavated a tank in the year 1906 on his own expenses and possessed the same till his death. After his death his sons, grandsons and great grandsons were in exclusive enjoyment of-fish and water over the tank by making improvements in the tank. The said tank was recorded as ‘Adkata’ over plot No. 195 of 1912 settlement, as ‘Kusumkata’ over plot No. 360 of 1922-23 settlement, and as ‘Sagar’ over plot No. 603 with an area of Ac. 24.77 decimals, plot No. 605 with an area of Ac. 0.39 decimals, plot No. 606 with an area of Ac. 0.46 decimals and plot No. 603/614 with an area of Ac. 0.78 decimals in total for an area of Ac. 26.40 decimals in the current settlement 1955-56. After construction of tank as per the revenue law in practice the tank became rent free and were recorded as “Jalchar” in the name of State of Orissa and rights of owner of the tank were mentioned in a separate portion of Khatian under “Unnatisadan” list of the village. Since 1912 and till 1955-56 settlement the ancestors of the plaintiffs and their ancestor had remained in possession, and therefore the ownership had been recorded in the name of Bhaja Gaountia and his successors. Taking advantage of the fact that the tank had been recorded in the name of State of Orissa, the Gram Panchayat, Sergad laid claim over the same on the basis of transfer made by the Sub divisional Officer, Bhawanipatna. After such transfer was made the defendants started creating trouble in possession of the tank giving rise to filing of the suit.
2. Defendant No. 1, the State of Orissa filed written statement claiming ownership over the tank since 1922-23. It is stated in the written statement that the plaintiffs as the then Gaountia of the village had been named in the Unnatisadhan list as per revenue law of Ex-State of Kalahandi. It is stated that the tank was transferred to Tulapada Gram Panchayat by order of Sub-divisional Officer, Sadar dated 22.7.58 and after bifurcation of the Gram Panchayat in 1967 the tank was transferred to Sergad Gram Panchayat. The fish of the tank were sold in auction by Tulapada Gram Panchayat and Sergard Gram Panchayat and in 1967-68 one Dhruba Naik took lease of the tank in public auction as highest bidder and in 1969-70 Rabi Naik brother of plaintiff No. 1 took the suit tank on lease. Therefore possession of Grama Panchayat over the suit tank was admitted by the plaintiffs. Defendant No. 2 who is the Sarpanch of Sergad did not contest the case.
3. On the basis of the pleadings of the parties trial court framed six issues. On consideration of the evidence the trial court found that late Bhaja Gaountia who is the ancestor of the plaintiffs had excavated the tank sometime year 1906 but not on his raiyati land and held that the suit land was excavated on the Government land. On the aforesaid finding the trial court held that since the
State Government is the owner of the tank and the plaintiffs were shown as enjoying fish and water and have proved that they have been taking water to their nearby lands, they have possessory title to use water and catch fish in the tank. He further held that the right of the plaintiffs are not extinguished and their above right has been established and has been continuing from the date of the excavation of the tank and accordingly decreed the suit injucting the defendants permanently from interfering with the rights of the plaintiffs for use of water as well as fishing right over the suit pond. The said judgment was challenged in appeal by the defendant No. 1. The lower appellate court on consideration of the evidence on record reversed the findings of the trial court and relying on the evidence of P.W.1 held that the Panchayat was possession of the suit tank. Having lost in the lower appellate court the plaintiffs have preferred this appeal.
4. This Court admitted the second appeal on the following substantial questions of law.
(i) Whether the appellants and their forefathers being in continuous use and possession of the tanks since 1906 have acquired possessory title and interest over the tanks relying upon presumption of lost grant on the basis of long user under Section 15 of the Easement Act.
(ii) Whether the learned appellate court is justified in coming to the conclusion that the “Unnatisadhan list” is not the part of the record of right list.
(iii) Whether the learned appellate court is justified in holding that the tanks in question, was transferred to the Gram Panchayat on the implied basis that Ext. D has been duly proved and admitted into evidence.
5. At the time of hearing Sri Pradhan, learned counsel for the appellants submitted that there is no dispute with regard to the fact that the ancestors of the plaintiffs had excavated the tank and Bhaja Gaountia remained in possession till his death. Thereafter the plaintiffs and their fore-fathers remained possession of the tank and exercised their right with regard to use of water as well as fishing right. In view of such evidence, the lower appellate court should not have reversed the findings of the trial court. Learned counsel for the State, on the other hand, submitted that even, if claim of the plaintiffs that their ancestors excavated the tank and remained in possession continuously for a considerable length of time is accepted, such possession will not give them right to claim title over the same.
6. From the Judgment of the lower appellate court it appears that the evidence of witnesses have been discussed in detail. There is also finding of both the courts below that the ancestors of the plaintiff had excavated the tank on a Government land and not on the raiyati land. The plaintiffs being Goauntias, their names, appear in the list of “Unnatisadhan” list. There is also no dispute that the said land has been recorded in the name of the State Government. The lower appellate Court has clearly recorded the finding that there is no evidence to show that the plaintiffs caught fish or used water of the tank exclusively for irrigation purpose. On the other hand, P.W. 1 in his deposition has practically admitted that the Panchayat is in possession of the suit land. Said evidence has also been taken note of by the lower appellate Court. Even P.W, 3 has stated that the tank is now under the possession of Panchayat, Therefore, there cannot be doubt in mind that the Panchayat given possession of the tank the same was transferred to by the Sub-divisional officer. Even accepting the possession of the plaintiff over the suit land prior to that no occupancy right is created in favour of the plaintiffs. Reference js made in this connection to the decision cited by the learned counsel for the State in the case of Sadananda Sa and Ors. v. Commissioner of Consolidation, Orissa, Cuttack and Ors., 57 (1984) CLT 524. This Court while dealing with such a question decided as follows :
“Coming back to the case in hand, there cannot be any manner of doubt and Mr. Mohapatra for the petitioners also fairly conceded that a raiyati status cannot be conferred merely on the basis of an entry in a Record-of-Rights and the source of acquisition must referable to the revenue laws of the Sonepur State. To find out whether a person by excavating a tank acquires right of occupancy in the tank under any provision of the Sonepur Land Laws, popularly known as the Bhumi-Bidhi, we have carefully examined the provisions, but could not find out any such provision. Mr. Mohapatra for the petitioners also could not point out any provision where by excavating a tank, a person acquires right of occupancy in the tank. On the other hand, Section 55 of Bhumi-Bidhi says that the water reservoirs in the village not owned by any person in the village shall be enjoyed by all persons of the village. The tanks in the present case would not come within the ambit of Section 55. Section 56, the other provision regarding water reservoirs, speaks of tanks constructed by village/ holders on their own Bhogra lands. Admittedly the
petitioners’ ancestor though was a village holder as Gaountia had never constructed the reservoir on his Bhogra land nor was the same constructed on a portion of his land and further nor has it been established that he was an occupancy tenant. These two provisions have no application to the facts of the present case as found out by the tribunals and, therefore, we do not find any provision in the land-laws conferring status of occupancy on the petitioners with respect to the tanks in question. A perusal of the report on land tenures and the Revenue System of the Orissa and Chhatisgarh States by R. K. Ramadhyani shows that so far as Sonepur is concerned, a village headman could not have held raiyati lands in the village (vide paragraph 29 at page 268 of the report). Even in the two Settlement Records-of-Rights (Exts. 1 and 2) “Sri Zamindar” has been recorded as the owner and the fact that petitioners’ ancestor excavated the tank has only been noted. Such act of excavation, under the land-laws referred to earlier, would not confer a right of occupancy on the excavator.”
7. In view of the aforesaid decision and the facts discussed above, I do not find any infirmity in the judgment of the lower appellate Court. Accordingly, the second appeal is devoid of merit and stands dismissed.