The main legal point established in the judgment is the interpretation of the legal provisions of the Orissa Estates Abolition Act, 1951 and the Orissa Merged Territories (Village Offices Abolition) Act, 1962, and their application to the conditions for the applicability of res judicata and the requirements for a sale deed to pass title or interest in property.

JUDGMENT :

A.K. Rath, J.

This appeal at the instance of the plaintiffs' assails the affirming judgment of the learned Addl. District Judge (F.T.C.), Bhawanipatna in Title Appeal No.13/10 of 1993/2003.

2. A tank having an area of Ac.26.10dec. of land appertaining to Plot Nos.241, 249 and 250 of Mouza-Kotagaon in the district of Kalahandi is the subject-matter of dispute.

3. Case of the plaintiffs was that one Rama Chandra Gauntia had excavated the tank over his raiyati land. He sold the tank to Basudev Panda in the year 1911. After his death, his son Pandu, father of plaintiff nos.2 to 4 made improvement of the tank. Thereafter, the names of plaintiffs 2 to 4 along with their elder brother Pyarilal found place in the improvement list. Plaintiffs 2 to 4 are in possession of the tank and rearing fish. While matter stood thus, plaintiff no.1 claiming to be the adopted son of Nilamani Panda along with others instituted Title Suit No.4 of 1975 in the court of the learned Subordinate Judge, Bhawanipatna for declaration of fishery rights over the tank impleading the State of Orissa and plaintiff nos.2 to 4 herein as defendants. Learned trial court rendered a finding that defendants 2, 3, 5 and 6 along with Pyarilal were in possession of the tank. The tank had not been transferred to Mandal Gram Panchayat (in short 'G.P.'). The suit was dismissed on 03.09.1985. Thereafter, Pyarilal sold the tank to plaintiff no.1. The plaintiffs are in possession of the tank. Defendant nos.2 and 3, who have no semblance of right, title and interest over the tank leased out the same to defendant no.4 on 8.2.1991 by way of auction. With this factual scenario, they instituted the suit for declaration of title, lease dtd.8.2.1991 is illegal & permanent injunction.

4. Defendant nos.1, 2 and 3 have filed a joint written statement denying the assertions made in the plaint. The specific case of the defendants was that the ancestors of the plaintiffs were Gauntias of the village during Darbar Administration. The Gauntia had excavated the tank on government land. State is the paramount owner of the tank. The ROR stands in the name of the Revenue Department. Title Suit No.4 of 1975 was dismissed. The state government was not entitled to file appeal against the findings. The findings of the trial court will not operate as res judicata against the State. The instant suit is barred by res judicata. Pyarilal had no saleable interest over the tank. Even if any alienation is made, the same is not binding on the State. It was further pleaded that the Gauntia system was abolished in the district of Kalahandi with effect from 01.04.1956 after coming into effect of the Orissa Estates Abolition Act, 1951 (in short 'the OEA Act'). The Gauntias including the ancestors of the plaintiffs lost their rights over the tank under Section 5 of the OEA Act. Plaintiffs have no title over the same. Unnati Sadhan List, Ext.4, prepared by Government is no help to the plaintiffs. The tank has been transferred to defendant no.3-G.P. The G.P. is in possession of the same. It is apt to state here that during pendency of the first appeal, appellant no.1 died and appellant no.2 died during pendency of this appeal. Their legal heirs have been substituted.

5. Stemming on the pleadings of the parties, learned trial court struck ten issues. Parties led evidence, both oral and documentary. Learned trial court dismissed the suit holding that the plaintiffs have failed to establish that Rama Chandra Gauntia had excavated the tank over his raiyati land. They have not filed any document regarding purchase of the tank by Basudev Panda in the year 1911 for a consideration of Rs.500/-. The ancestors of the plaintiffs were not in continuous possession of the tank. Mere recording of the name of the plaintiffs in Unnati Sadhan List does not confer title. Unsuccessful defendants filed appeal before the learned District Judge, Bhawanipatna, Kalahandi, which was subsequently transferred to the court of learned Ad hoc