JUDGMENT :

A.K. Rath, J.

Defendants are the appellants against a confirming judgment in the suit for permanent injunction.

2. The case of the plaintiffs is that originally suit property belonged to one Radhashyam Dutta. His name was recorded in 1930 settlement ROR. After his death, his widow, Sundarmani Dasi transferred her share in property measuring Ac.1.76 dec. 2½ kadies of land along with other plots in favour of Sri Sri Durgadevi Thakurani marfatdar Ananta Kumar Bose, son-in-law of the plaintiff’s father’s brother and Atul Chandra Ray, plaintiff’s father by means of registered sale deed dated 19.11.1958 and delivered possession. Sri Sri Durgadevi Thakurani is the private deity of the vendee. Similarly, one Jyotshna Rani Dutta, wife of Subodha Kumar Dutta, transferred her share of property in favour of the deity by means of registered sale deed dated 24.7.1959 and delivered possession. Thus the plaintiffs’ family became owner in possession of Ac.1.88 dec. of land appertaining to plot No.259. To press the legal necessity, the marfatdar of the deity sold the land to the plaintiffs by means of registered sale deed dated 7.7.1961 for a valid consideration and delivered possession. Thereafter, plaintiffs planted coconut trees and other fruit bearing trees over the same and enjoyed the usufructs. Towards the north of the land, there exists a branch canal. The suit land along with other lands of the plaintiffs measuring Ac.0.12 dec., which are five feet away from the embankment, are used as Bari. A thatched house and a pond exist over the same. The suit land along with other land admeasuring Ac.1.43 dec. appertaining to Khata No.34, Plot Nos.566 and 507 has been recorded in favour of the plaintiffs in 1977 settlement ROR. In the consolidation proceeding, the suit land has not been recorded in the consolidation ROR. The consolidation ROR has been prepared in respect of Ac.1.33 dec. appertaining to Khata No.352 instead of Ac.1.43 dec. The rest Ac.0.10 dec. has been recorded as Government land wrongly. Basing on the wrong recording in the consolidation record-of-right, the Tahasildar, Salipur, defendant no.4, initiated Encroachment Case No.24 of 1984 against the plaintiffs in respect of Ac.0.07 dec. of land on the ground that they have encroached upon the land since 1981-82. The father of the plaintiffs was an old man and looking after the property. Under a bona fide belief that the rent has not been paid and the authorities settled the land in their favour, they paid rent for the year 1985-86 also. The initiation of encroachment case is a nullity. Defendants 1 and 2 have no semblance of right, title and interest over the property in question. They intended to put the coconut trees standing over the suit plot into auction. The plaintiffs are the settled raiyats in the village. They have right, title and interest and occupancy raiyats over the suit land.

3. The case of the defendants is that in the consolidation proceedings, the suit land has been recorded as Government land. Encroachment proceeding was initiated against the plaintiffs for their occupation of the Government land in the year 1981-82. The plaintiffs admitted the encroachment and paid the back rent and penalty. The suit land was leased out temporarily to the plaintiffs for cultivation purpose by way of auction. It belongs to Irrigation Department. The right, title and interest have been decided by the consolidation authorities and as such, the suit is hit under the principle of res judicata.

4. Stemming on the pleadings of the parties, learned trial court struck seven issues. To substantiate the case, the plaintiffs had examined four witnesses and on their behalf, ten documents had been exhibited. On behalf of the defendants, two witnesses had been examined and two documents exhibited. Learned trial court came to hold that in the consolidation proceeding, the suit land had been recorded in the name of Irrigation Department. Though D.W.1 has stated that objection was filed by