JUDGMENT :

Dr. A.K.RATH, J.

Defendant nos. 1 and 2 are the appellants against a confirming judgment.

2. Respondent no.1 as plaintiff instituted O.S.No.42 of 1982-I in the court of the learned Addl. Munsif, Balasore for declaration of occupancy right, confirmation of possession and permanent injunction impleading the appellants and respondents 2 and 3 as defendants. The case of the plaintiff is that the suit schedule land was recorded in the name of Kumar Udayanath Birbar in C.S. R.O.R. He was the proprietor of the estate. Jumina Bibi and others were the intermediary of the holding having Bajyapti Madhya Satwadhikary interest over the land. The intermediary abandoned the possession of the suit land just after the C.S. operation was over. Thereafter the proprietor took over the possession of the land in question. The kissam of the land was recorded as Puruna Padia, but in the column meant for recording the name of tenants, the same was recorded as canal, which was obviously a mistake. Though, in fact, there was a canal in the early part of 20th century, but a portion towards south of river Budha Balanga lying unused for more than fifty years. The same was neither used for irrigation nor for navigation purposes. The settlement authorities have mentioned the category of the land as Puruna Padia and recorded it under Bajyapti Madhya Satwadhikari status. While the proprietor was in possession of the land, the plaintiff wanted to cultivate the same in question, whereafter the proprietor permitted him to reclaim the land in the year 1940. The father of the plaintiff was looking after the property of the proprietor for which the proprietor allowed his father to cultivate the land without taking any salami and rent. Before vesting of the estate, his father expired when he was young. His mother cultivated the land through labourers. While the matter stood thus, the Tahasildar, Balasore, defendant no.2 issued public notice to put the land into auction in the year 1968. The plaintiff came forward with a claim for settlement of the land. The defendant no.2 granted temporary lease in his favour in the year 1968 and, thereafter, renewed the lease till 1981. In the year 1982, defendant no.2 issued a notification to put the land into auction. He is a resident of suit mouza. He stacked claim before defendant no.2 to settle the land in his favour as he has acquired right of occupancy over the said land. The prayer was rejected by defendant no.2 on the ground that he was not eligible for settlement. Thereafter defendant no.2 put the land into auction and leased out the same in favour of defendants 3 and 4. His father and thereafter the plaintiff is in possession of the land since 1940 openly, peacefully and uninterruptedly and, as such, he has acquired right, title and interest over the same. He is a settled raiyat of mouza Tundara. He is cultivating the land as tenant under the Government. Although he had taken lease from year to year and the Revenue Officer, Balasore leased out the same either on selection basis or on auction basis annually, the character of the land being the occupancy holding, the act of the Government in leasing out annually under misconception and the act of the plaintiff in taking it lease cannot not operate as an estoppel. The defendants 3 and 4, who were the purchasers in auction sale dated 24.7.1981, tried to take forcible possession of the disputed land. With this factual scenario, he instituted the suit after issuing notice under Section 80 of C.P.C.

3. The defendants 1 and 2 filed a comprehensive written statement denying the assertions made in the plaint. The case of the defendants 1 and 2 is that kissam of the land recorded in C.S.Khatian is canal. The land was under the management of P.W.D. The same was actually utilized for maintenance of canal for navigation purpose till middle part of 20th century. It is a Government land. The same is in possession of the Government as Coast Canal Nayanjori. Neither Kumar Udayanath