The main legal point established in the judgment is that a suit for declaration of title by way of adverse possession is not maintainable, and the mandatory nature of Section 138 of the Orissa Gram Panchayats Act, requiring notice to be issued to the Gram Panchayat.

JUDGMENT :

A.K. Rath, J.

This appeal at the instance of the plaintiffs' assail the affirming judgment of the learned District Judge, Sundargarh, in Title Appeal No.6 of 1994 in a suit for declaration of title, confirmation of possession and recovery of possession, if they are dispossessed from the suit property during pendency of the suit.

2. The dispute pertains to a tank admeasuring an area of Ac.6.39 dec. appertaining to Sabik Plot Nos.173, 174 and 271, Sabik Khata No.33 of village Nandapada.

3. The case of the plaintiffs was that Sunaram Mahanta, grandfather of the plaintiffs had excavated the tank over the suit land prior to 1944. He was in possession of the tank. He used water of the tank for irrigation and raising pisciculture purposes. After his death, Parikshit Mahanta, father of the plaintiffs, was in possession of the tank. But in the major settlement, the tank stood recorded in Rakhit Khata No.57. Their father was not aware of the wrong recording of the ROR. Neither the government, nor the then Lahunipara Grama Panchayat were in possession of the tank. In the year 1986, the Sarpanch of Sankhaposh Gram Panchayat-defendant no.2 raised a dispute with regard to fishing right over the tank on the ground that the tank had been transferred to it. Their father resisted the same. A proceeding u/s.107 Cr.P.C. was initiated by the S.D.O., Bonai. The case was dropped on 1.7.1986. Thereafter, their father filed Mutation Case No.237 of 1987 before the Tahasildar to mutate the land in his favour. The R.I. submitted a report stating that Sunaram Mahanta was in possession of the land since 1945. After death of their father, the plaintiffs are in possession of the tank. The mutation case was dismissed on the ground that the tank has been recorded in rakhit khata. While matter stood thus, the Tahasildar initiated Encroachment Case No.241 of 1987. The case was dropped treating the tank to be a public tank and the same has been transferred to Sankhaposh Gram Panchayat, defendant no.2. They filed Encroachment Appeal No.12 of 1988 before the Sub-Collector, Bonai. The same having been dismissed, they filed Encroachment Revision Case No.2 of 1990 before the A.D.M., Sundargarh. The revision met with the same fate. The alleged transfer of suit tank to Sankhaposh Gram Panchayat, defendant no.2 is a misnomer. They have renovated the tank. The person, who had excavated the tank on the govt. land with or without permission, was recognized as a tenant by the ex-State Government of Bonai. They are in possession of the suit land peacefully, continuously and hostile animus to the defendant no.1 for more than thirty years and as such, perfected title by way of adverse possession.

4. Defendant no.1 was set ex parte. Defendant no.2 filed written statement pleading inter alia that the suit is not maintainable for non-joinder of necessary parties, i.e. Sankhaposh Gram Panchayat as well as the Tahasildar, Bonai and for none service of notice on Sankhaposh Gram Panchayat, defendant no.2 under Section 138(1) of the Orissa Gram Panchayats Act. Sunaram Mahanta was not in possession of the suit tank. The villagers are using the tank for bathing and other purposes. The suit tank was transferred to Lahunipada Gram Panchayat by the SDO, Bonai, vide letter No.621, dated 6.2.1944. After creation of Sankhaposh Gram Panchayat, the tank was transferred to Sankhaposh Gram Panchayat. The Gram Panchayat was putting the tank to auction for pisciculture. Parikshit Mahanta, father of the plaintiffs had taken the tank on lease from 1957-58 and 1959-60. He acknowledged that Shankhaposh Gram Panchayat was the owner in possession of the suit tank. During ex-State of Bonai, gauntias provided water to the villagers. They were not the owner of the tanks. The plaintiffs have not perfected title by way of adverse possession.

5. On the inter se pleadings of the parties, learned trial court framed six issues. Parties led evidence, oral and documentary. Learned trial court came to hold that