The main legal point established in the judgment is the consequences of vesting of an estate in the State under Sec. 5 of the OEA Act, and the significance of the absence of a prayer for declaration of title.

JUDGMENT :

A.K. RATH, J.

1. This appeal, at the instance of the defendants, assails the reversing judgment of the learned 1st Addl. District Judge, Ganjam, Berhampur in T.A No. 22/1987 (38/86-GDC).

2. The dispute pertains to a tank having an area of Ac.1.41 dec. of land appertaining to Khata No.389, Sl. No.51 of village-Polosora in the district of Ganjam.

3. Respondent no.1 and predecessor-in-interest of respondents 2 to 7, as plaintiffs instituted T.S.No.57 of 1981 before the learned Subordinate Judge, Aska for confirmation of possession and permanent injunction. Case of the plaintiffs was that the father of plaintiff no.1 and plaintiffs 2 and 3 were brothers. They were separated in the year 1948, but the suit land was kept joint. The suit land originally belonged to ex-intermediary of Khallikote. It was lying fallow. It was locally known as 'Kendugadia'. Father of plaintiff no.1 applied to the ex-intermediary of Khallikote for allotment of land. The ex-intermediary issued Banjar patta in his favour on 21.12.1938 for a period of twenty years from 1948 to 1968 subject to payment of cist of Rs.2.13 ps. and 1 pie per year. He reclaimed the land and converted the same to a tank. Plaintiffs used to pay cist, land tax, cess to the ex-intermediary. The suit land is the rayati land. The estate vested in the State after coming into operation of the Orissa Estates Abolition Act ('OEA Act'). But the suit plot had not vested in the State. They are the absolute owners of the suit plot. They used to rear fish in the tank and irrigate their land from the water of the tank. Since Kasinath Sahu and others disturbed their possession, they instituted Title Suit No.160 of 1960 in the court of Munsif, Aska. The suit was decreed. In the settlement ROR, the suit land has been wrongly recorded as Paramboka in the name of Executive Officer, NAC, Polosora, defendant no.3. ROR neither creates title nor extinguishes title. Defendants 1 and 2 have no semblance of right, title and interest over the same. Defendant no.3 has taken possession of the tank. While matter stood thus, the Tahasildar, Kodala, defendant no.2, initiated LE Case No.6944 of 1972 under the Orissa Prevention of Land Encroachment Act, 1972 ('OPLE Act') and passed an order of eviction. Order of eviction is illegal. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.

4. Defendants 1 and 2 filed a written statement denying the assertions made in the plaint. It was pleaded that the alleged Banjar patta is not genuine. The ex-intermediary had no right to issue Banjar patta in the year 1948. The same is not binding on the State. In the remarks column of the ROR, it is reflected that the plaintiffs were in possession of the tank unauthorisedly with the help of the ex-intermediary. Father of plaintiff no.1 had not excavated the tank. Plaintiffs were in unauthorised occupation of the land for which a proceeding under the OPLE Act was initiated against them. No rent had been paid by the plaintiffs to the State. Defendants were not aware of any suit filed by the plaintiffs. The suit tank is not the raiyati land of the plaintiff. It vested in the State. The suit land had been transferred in favour of defendant no.3. Cause of action arose when the ROR was published in the year 1962-63, but the suit was instituted after lapse of twenty years.

5. Defendant no.3 filed a written statement pleading, inter alia, that the suit tank is a public tank. After abolition of the estate, the suit land vested in the State. When Polosora G.P. was converted to NAC, the entire properties including the suit tank vested in the NAC. Defendant no.3 is in possession of the tank.

6. Stemming on the pleadings of the parties, learned trial court struck four issues. Parties led evidence, oral and documentary. Learned trial court dismissed the suit holding that Banjar patta dated 21.12.1938, Ext.2, reveals that originally the suit land is a tank. The tank was not in possession of the ex-intermediar