JUDGMENT :

A.K. Rath, J.

Plaintiff is the appellant against a confirming judgment in a suit for declaration of title, confirmation of possession and in the alternative recovery of possession, in the event he is dispossessed from the suit land during pendency of the suit and permanent injunction.

2. Case of the plaintiff was that Bonai was a princely State. K.K.C.Deo Deb was the last ruler of Bonai. He had granted the suit land to the father of the plaintiff for construction of a Kali temple in the year 1952. His father was in possession of the said land and used to pay rent till 1959. Even though the princely State merged with the State of Orissa in the year 1948, the State of Orissa had not taken away the land from the ex-ruler till the matter was regularized. The ex-ruler was enjoying the privileges and the benefits before merger. During the life time, the father of the plaintiff laid foundation for the temple, planted various fruits bearing trees and utilized the land as his kitchen garden and remained in possession. After his death, the plaintiff is in possession of the suit land. During major settlement operation in the year 1975, the A.S.O. detected the encroachment of the suit land and submitted its report to the Tahasildar. The Tahasildar passed the order of eviction on 18.12.1995 in Encroachment Case No.272 of 1981. He preferred Appeal No.3 of 1995 before the Sub-Collector, Bonaigarh, which was dismissed on 16.1.1996. The father of the plaintiff was in peaceful possession of the suit land. Thereafter, the plaintiff is in possession of the suit land peacefully, continuously and with the hostile animus to the defendants and, as such perfected title by way of adverse possession.

3. Defendants 2 and 3 filed written statement pleading inter alia that in the year 1952, there was no feudal chief. He had not granted any patta. Bonai was under the British Government. It was a princely State. It merged with the State of Orissa on 1.1.1948. The father of the plaintiff was in unauthorized possession, for which Encroachment Case No.272 of 1981 was initiated. Order of eviction was passed. K.K.C.Deo Deb was not the ruling chief in the year 1952. He had not granted any land for construction of Kali temple. Before merger of the Bonai State, the ex-ruler was the absolute owner of the State, but not thereafter. The A.S.O. made spot inquiry and visited the spot while demarcating the suit land. He submitted the report to the Tahasildar, Bonai. The case land is a gochar and objectionable. The Tahasildar in encroachment case rejected the prayer of the plaintiff for settlement of the land and passed order of eviction.

4. Stemming on the pleadings of the parties, learned trial court struck seven issues. Parties led evidence, oral and documentary. Learned trial court came to hold that no document had been filed by the plaintiff to show that the ex-ruler had granted patta in respect of the suit land. The rent receipts filed by the plaintiff are of no help. There was no practice in vogue that after merger, the King had granted any land. P.Ws.1 and 2 do not have direct knowledge with regard to the grant of land. The ruling chief was not examined. In remarks column of the R.O.R., the note of possession of the father of the plaintiff has been reflected from the year 1993. The encroachment case was initiated in the year 1981. The plaintiff has not perfected title by way of adverse possession. Unsuccessful plaintiff filed appeal before the learned District Judge, Sundargarh, which was subsequently transferred to the court of the learned Ad hoc Additional District Judge, Sundargarh and registered as T.A.No.9/50 of 1997. The appeal was eventually dismissed. It is apt to state here that during pendency of the appeal, the appellant died, whereafter his legal heirs have been substituted.

5. This appeal was admitted on the following substantial questions of law enumerated in ground nos.(i), (ii), (iii) and (iv) of the appeal memo. The same are:

(i) Whether the i