The settlement record (R.O.R.) creates a presumption of title and possession in favor of the person recorded, which can be rebutted by evidence to the contrary.

JUDGMENT :

D.M. Patnaik, J. - This second appeal at the instance of the State is against the reversing judgment of the lower appellate court decreeing the Plaintiff's suit for declaration of title and confirmation of possession.

2. The dispute relates to plot No. 110/667 under the last settlement Khata No. 60 of village Birakishorepur in the district of Cuttack measuring an area of Ac. 0.08 decimals. The cause of action for the suit arose when the Defendants, some of the villagers started constructing a road on the disputed land in respect of which the Plaintiff claims his right, title and interest and possession on the basis of, a gift made in his favour by the recorded holder one Padmanava Tripathy. It is not disputed that the plaitiff happens to be the nephew of said Padmanava Tripathy on the patternal side.

Defendant No. 1 is the Executive Officer of the Athagarh N.A.C., Defendant No. 2 is the State through the Collector, Cuttack and Defendants 3 to 8 are some of die villagers. All have filed separate written statements disputing the title and possession' of the Plaintiff.

3. The lower court framed the following issues:

1. Is the suit maineainable ?

2. Is there any cause of action to file the suit?

3. Is the suit barred by limitation ?

4. Is the, suit bad for misjoinder and nonjoinder of necessary parties?

5. Is the Plaintiff the rightful owner of the suit property?,

6. Since when does the road over the suit property continue to exist? Who uses the road and how? Have the general public acquired a right, title, if any, thereby?

7. Are the current settlement entry and map with regard to the suit property correct? What does the dotted line, appearing on the settlement map in respect of the suit property, mean and represent?

8. Who was in possession of the suit property prior to 30-7-1978, when the alleged earliest cause of action arose, and in what manner? Have the Defendants or any of them acquired title to the suit property by way of adverse possession?

9. what relief?

10. Whether the suit is hit u/s 80 of the C.P.C.?

4. The crux of the point for decision before the two courts below was whether the Plaintiff had title to the property as well as possession and whether the recording of the name of the Plaintiff under Ext. 8, i. e. R.O. R. of the last settlement is correct.

5. Mr. A. Das, learned Counsel for the State having taken this Court to the judgments of the courts below and the written statements of the State with particular reference to Ext. 8 and other materials on record strenuously urges that the lower appellate court committed gross error in giving a finding tap the Plaintiff had a little inasmuch as, according to Mr. Das, it was for the Plaintiff to prove his case by satisfactory evidence on record that he had title and possession on the basis of the gift and secondly,.so far as the R.O. R. (Ext. 8) is concerned, it is strenuously urged that such a record was obviously wrong since this could not have been done by the settlement authorities wenn a admittedly there was no registered dee 'of gift in favour of the Plaintiff executed by Padmanava Tripathy. Further, such a gift has to be proved u/s 123 of the Transfer of Property Act. According to the learned Counsel, since no oral gift is permissible in law, the lower appellate court went wrong in giving finding in favour of the Plaintiff.

6. Mr. B.H. Mohanty, learned Counsel for the Plaintiff while supporting the judgment of the lower appellate court has taken me to the wtitten statements of the State, the Defendants 3 to 8 and the finding of the lower court and that of the lower appellate court.

7. There is no dispute with regard to the factual aspect that the Plaintiff has been recorded in the last settlement record of-right in respect of the suit plot. No material was placed before the trial court as to how and in what manner the preparation of such a R.O.R. in favour of the Plaintiff was done or was the result of the gross error and/or fraud committed by the settlement authorities