The Gounti land rights ceased on the abolition of The Orissa Offices of Village Police (Abolition) Act, 1964, and adverse possession requires peaceful, open, and continuous possession, which the plaintiffs failed to establish.

JUDGMENT :

A.K.Rath, J. - The plaintiffs are the appellants against a confirming judgment in a suit for declaration of title, permanent injunction and that the order passed by the Tahasildar correcting the 4th settlement R.O.R. is without jurisdiction.

2. The case of the plaintiffs was that the suit property had been recorded in the name of their common ancestorDukhiram Gountia in the 3rd settlement operation. He was in possession of the same. After him, the plaintiffs are in possession of the suit property. During 4th settlement operation, the suit property had been recorded in the name of plaintiff no.1 and other co-sharers. They used to pay rent to the State. The State had no title and possession over the suit property. The Tahasildar had no jurisdiction to correct the record of rights. With this factual scenario, they instituted the suit seeking the relief mentioned supra.

3. Defendant no.1 is the State Government. The other defendants except defendant no.5 are the villagers of village Sannupalli. Defendant no.5 is the Chinajuri Gram Panchayat. The case of the defendants is that the tank in question over the suit land was excavated by the Government over the Government land, which was Bhogra land. The same was recorded as Jalamagna Khata. The water of the tank is being used for irrigation, drinking, bathing and other purposes. The State Government is the paramount owner of the tank. The plaintiffs had no right, title, interest and possession over the suit land. The plaintiffs managed to get the name of plaintiff no.1 recorded in the R.O.R. A revision was filed before the Board of Revenue, Orissa for correction of R.O.R. The Board of Revenue set aside the order of the Assistant Settlement Officer and directed correction of R.O.R. On the basis of the order passed by the Board of Revenue, the Tahasildar corrected the R.O.R.

4. On the inter se pleadings of the parties, learned trial court framed six issues. Parties led evidence. Learned trial court dismissed the suit holding inter alia that the suit tank belongs to the State. The tank had been excavated for use of the villagers. The plaintiffs were not in possession of the tank. Unsuccessful plaintiffs filed appeal before the learned District Judge, Sonepur, which was subsequently transferred to the court of the learned Additional District Judge, Sonepur and renumbered as Title Appeal No.36/32 of 1994-99. The appeal was eventually dismissed.

5. Heard Mr.L.K.Moharana, learned Advocate on behalf of Mr.S.P.Mishra, learned Senior Advocate for the appellants and Mr.R.P.Mohapatra, learned Additional Government Advocate for respondent no.1.

6. Learned Advocate for the appellants submitted that the civil court has jurisdiction to entertain the suit, consider and decide whether the statutory tribunal has acted within the ambit of powers, even if the jurisdiction is excluded. The courts below committed a patent error in not examining the tenability of the order of the Tahasildar, Sonepur on the ground that the Tahasildar, Sonepur has complied with the direction of the Member, Board of Revenue passed vide Ext.A/1. The consolidation authorities have no power to adjudicate the right, title and interest of non-consolidable lands. Recording the name of the State in the consolidation R.O.R. will not operate as res judicata. Gountia right is heritable. After coming into force of The Orissa Offices of Village Police (Abolition) Act, 1964 the property, which was in possession of Gountia, ought to have been settled in his name in stitiban status. The plaintiffs are in possession of the suit tank peacefully, continuously and with the hostile animus to the true owner and, as such, perfected title by way of adverse possession. He further submitted that the suit tank had been recorded in the name of the ancestor of the plaintiffs in the 3rd and 4th settlement operation. Thus, the land ought to have settled in favour of the plaintiffs. Though no prayer has been made to set aside the order passed by the Memb