The central legal point established in the judgment is the requirement for sufficient evidence to establish occupancy rights over land, as well as the interpretation and application of the provisions of the Orissa Tenancy Act,1913.

JUDGMENT :

A.K. Rath, J.

Plaintiffs are the appellants against a confirming judgment in a suit for declaration of occupancy right over the suit land.

2. Case of the plaintiffs was that Dinabandhu Sahu, original plaintiff no.1, and Gouri Behera were the joint occupancy raiyats in respect of the suit schedule property. Gouri met civil death. Thereafter, Dinabandhu became the exclusive owner in possession of the suit property. In the year 1925, the suit property was wrongly recorded in the name of the Forest Department. The same was cancelled subsequently. Dinabandhu remained in possession of the suit property till death; whereafter his sons are in possession of the same. In 1962 settlement, the suit land was recorded in the name of the State Government-defendant no.1. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.

3. Defendant no.1 filed a written statement denying the assertions made in the plaint. Case of the defendant no.1 was that neither the plaintiffs nor their predecessor-in-interest were in possession of the suit land. In the year 1916, the entire suit land was transferred to Mutation Khata No.1 (Government) in Block No.36. But inadvertently the area mutated in the Government Khata was wrongly reflected. The balance area was again recorded in the Government Khata No.1 by order dated 7.1.1929 of the Collector of the District. After transfer of the entire area to the Government Khata in the year 1916, it was recorded in favour of the Government in 1929-30 settlement. In 1962 settlement, the plot merged with new khata no.388 of the Forest Department forming a big new plot measuring Ac.41.650 dec. with classification "Chhota Jungle". Defendant no.1 is in possession of the suit land since 1916.

4. On the inter se pleadings of the parties, learned trial court framed six issues. Parties led evidence, oral and documentary. Learned trial court dismissed the suit holding that Dinabandu and Gouri were not the occupancy raiyats in respect of the suit land. The plaintiffs and their predecessor-in-interest were not in possession of the suit land. The suit is barred by limitation as the original plaintiffs have not taken any steps to record the land in their favour after 1962. The suit is bad for non-joinder of the legal heirs of Gouri. Unsuccessful plaintiffs filed Title Appeal No.21 of 2001, which was eventually dismissed. It is apt to state here that during pendency of the suit, plaintiff no.1 died, whereafter his legal heirs have been substituted.

5. The second appeal was admitted on the substantial questions of law. The same are -

"1. Whether the courts below were correct in dismissing the plaintiff-appellants' suit on the ground of limitation when the said suit was for declaration of occupancy right and not for correction of ROR as envisaged under Section 42 of the Orissa Survey and Settlement Act ?

2. Whether the courts below were correct in dismissing the plaintiff-appellants' suit on the ground of non-joinder of legal heirs of Gouri Behera when no specific plea of non-joinder of any particular party and the consequential prejudice, if any, have not been either pleaded or proved in this case ?

3. Whether the courts below were correct in dismissing the plaintiff-appellants' suit with a finding that the suit property is a forest land within the meaning of Section 2(C) of the Orissa Survey and Settlement Act, solely on the basis of the ROR which in law neither creates right nor extinguishes the same, without going into any semblance of enquiry/adjudication about the existence of forest from the materials on record ?

4. Whether plaintiffs are the occupancy raiyats over the suit land and institute the suit for declaration ?"

6. Heard Mr.Ramakanta Mohanty, learned Senior Advocate along with Mrs. Sumitra Mohanty, learned counsel for the appellants and Mr. Swayambhu Mishra, learned Addl. Standing Counsel for the State.

7. Mr. Mohanty, learned Senior Advocate for the appellants submitted that the ancestors