JUDGMENT :

Dr. A.K.Rath, J.

1. Plaintiffs are the appellants against a confirming judgment in a suit for declaration of right, title and interest and permanent injunction.

2. Brahmananda Jena, predecessor-in-interest of the appellant nos.1(a) to 1(k), and appellant no.2 as plaintiffs instituted Title Suit No.118 of 1992 in the court of the learned Civil Judge (Junior Division), Berhampur. The case of the plaintiffs is that one Udayanath Jena was in possession of the suit schedule land for more than 60 years. It is the Paramboke land of Udayanath. At the time of acquisition of the suit land, Udayanath dug a water channel for taking water to his other land. In course of time, the channel was not used by him. He reclaimed the suit land and made fit for cultivation since 1940. He raised paddy crops over the same. He used to pay rent since 1940. The revenue authorities recognized him and prepared ‘Adangal’ in his favour showing possession over the suit land. While the matter stood thus, Udayanath passed away from the mortal world leaving behind two sons, namely, Brahmananda and Arjuna, elder brother of plaintiff no.1 and father of plaintiff no.2. After death of his father, plaintiffs remained in possession over the suit land and paid rent to the Government. The settlement operation in the area, where the land falls, started. The settlement authorities proposed to record the suit land in the name of the Irrigation Department-defendant no.2. The plaintiffs filed Objection Case No.276 of 1971 before the Assistant Settlement Officer, Berhampur. The report submitted by the R.I in the said case clearly shows that the family of the plaintiffs perfected title in the year 1971 being in possession for more than 30 years. The report further reveals that there was no existence of Khama (Nala) over the suit land. The Assistant Settlement Officer rejected the claim of the plaintiffs on 9.7.1973 and recorded the land in the name of defendant no.2 with a note of forcible possession of the plaintiffs. In the year 1974, there was a partition between the family of the plaintiffs by means of registered deed. The suit land had been allotted equally between the plaintiffs. Since it was not settled in their favour, they used to claim the suit land jointly and appropriate usufructs equally. PLC No.394 of 1976 was started against Bikram, son of plaintiff no.1. A prayer was made for settlement of the land in favour of Jena family. Since the suit land was recorded in the name of defendant no.2, the revenue authorities threatened to evict them from the land forcibly. Having no alternative, Bikram applied for lease of the suit land in his favour. While the matter stood thus, the Tahasildar, Berhampur initiated L.E Case No.322 of 1978. The report of the R.I was called for. The R.I submitted the report stating that the suit land had been recorded as Canal in the ROR. Defendant no.2 had not relinquished the suit land in favour of the Revenue Department. Since the Revenue Department had not taken possession of the land, it had no jurisdiction to lease out the same in favour of any person. In the said case, the Tahasildar, Berhampur sent a letter to defendant no.2 on 21.6.1979 seeking clarification as to whether the suit land belongs to the department or not. The plaintiffs prayed, inter alia, for settlement of the suit land. But then, the Tahasildar expressed his inability. Aggrieved by the final order, plaintiff no.2 initiated L.E Case No.14 of 1979 before the S.D.O., Berhampur. The case was remanded to the Tahasildar for disposal in accordance with law. Thereafter, no notice had been issued to them. It was further pleaded that adjacent to the north of the land, a pani Nala is running which is called ‘Gui Nala’. The same was not a perennial source of water. The water flows from the hill through that Nala. Several persons of the area had converted their cultivable land to house sites. Some persons to facilitate the purchasers tried to make culvert over Pani Nala. The