JUDGMENT :

A.K. Rath, J.

This is an appeal by the defendants against a reversing judgment.

2. The case of the plaintiff is that the suit schedule property appertaining to khata no.262, C.S. Plot nos.987 and 988, area Ac.2.36 dec. of mouza Nirmala is a tank with embankment. It was the intermediary estate of Gopinath Panda and others. The tank situates at a distance from the village and not used by the public. His father was a farmer. For irrigation facility, he got the suit tank by means of permanent lease on 2.4.1942 and 28.4.1942. His father was in possession of the suit tank and used to pay rent. The intermediary estate vested in the State in the year 1953-54. After vesting, his father remained in possession of the tank. Thereafter he is in possession of the same. He approached the local Tahasildar for fixation of rent. The Tahasildar settled the tank in his favour on fixation of rent. The Tahasildar also issued intimation slip and the rent schedule in respect of the suit tank. He paid salami and rent as per the order of the Tahasildar. The record was also corrected accordingly. When some of the villagers threatened him to dispossess, he instituted T.S.No.105 of 1988 in the court of the learned Munsif, Puri for declaration of occupancy right and for permanent injunction.

3. The defendant no.1 filed written statement denying the assertions made in the plaint. The specific case of defendant no.1 is that the suit tank had been settled in favour of the father of the plaintiff by the Tahasildar under misconception of law. After the decision of this Court in O.J.C.No.1058 of 1978, instruction was issued to the Tahasildar that such settlement was without jurisdiction. He was instructed not to realize rent. The tank was used by the villagers. The villagers exercise their right over the same. Later the tank was transferred to Teisipur Gram Panchayat for pisciculture. Every year it was put to auction by the Gram Panchayat. The plaintiff had neither acquired occupancy right over the suit tank, nor in possession of the same at any point of time. Further the suit is not maintainable for want of notice under Sec. 80 C.P.C. against defendant no.2.

4. Stemming on the pleadings of the parties, the learned trial court framed eight issues. Both the parties led evidence, oral and documentary, to substantiate their case. Learned trial court recorded all the findings in favour of the plaintiff, but dismissed the suit for non-compliance of mandatory provisions contained in Sec. 80 C.P.C. on the Tahasildar-defendant no.2. Felt aggrieved, the plaintiff filed appeal before the learned District Judge, Puri, which was subsequently transferred to the court of the learned Civil Judge, Puri and renumbered as Title Appeal No.2/77 of 1994/93. The learned appellate court came to hold that service of notice on the Collector under Sec. 80 C.P.C. shall be treated sufficient on the Tahasildar-defendant no.2 and allowed the appeal.

5. The Second Appeal was admitted on the following substantial questions of law enumerated in ground nos.5(a) and (b) of the appeal memo. The same are:-

“5(a) Whether the suit is maintainable for want of Sec. 80 C.P.C. notice to Tahasildar-defendant no.2?

(b) Whether the suit is entertainable for declaration of right of occupancy right in view of consolidation records of right?”

6. Heard Mr. P.C. Panda, learned A.G.A. along with Mr. S. Mishra, learned A.S.C. for the appellants. None appears for the respondent in spite of valid service of notice.

7. Mr. Panda, learned A.G.A. for the appellants submits that the suit property is a big tank. In the consolidation proceeding, the plaintiff filed objection case under Sec. 9 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as “O.C.H. & P.F.L. Act”) before the Consolidation Officer. The same was rejected. The plaintiff, in his cross-examination, had admitted that the objection case filed by him was rejected by the Consolidation Officer. He