The burden of proof lies on the Plaintiff to establish their case, and failure to do so can result in the dismissal of the suit.

JUDGMENT :

D.Dash, J.

The State of Orissa and its other functionaries, by filing this Appeal, as the Appellants, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and decree dated 07.07.1997 and 21.07.1997 respectively passed by the learned Civil Judge, Senior Division, Keonjhar in Title Appeal No.36 of 1995.

By the same, the Appeal filed by Respondents 1 to 5 as the unsuccessful Plaintiffs, under section 96 of the Code, has been allowed and thereby the judgment and decree dated 28.10.1995 and 20.11.1995 respectively passed by the learned Civil Judge, Junior Division, Keonjhar in Title Suit No.36 of 1985 have been set aside.

The suit pursued by these Respondents 1 to 5, being the legal representatives of the original Plaintiff, namely, Gourang Mohanta being dismissed by the Trial Court, on Appeal, the same has been decreed.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

3. The Plaintiff’s case is that one Kartika Mohanta is the common ancestor of the Plaintiffs and Defendants.8 to 10. He acquired the suit land in Nayabadi Case No.2167 of 1927-28 and excavated a tank over the same better described in Schedule-B of the plaint. It is stated that after the death of Kartika, his son Anukur Mohanta, the father of the original Plaintiff renovated the suit tank. In an amicable partition, the suit tank had fallen to the share of the Plaintiff and the Plaintiff renovated the same and used it for psciculture. He is stated to have been in possession of the suit tank and nearby lands without any disturbance from any quarter. It is stated that Defendants 1 to 7, in connivance with the Settlement Authorities, managed to record the suit tank in Schedule-B under ‘Sarba Sadharan’ Khata and tried to catch fish forcibly from the said tank. The Plaintiff then filed an application before the Tahasidlar for correction of record of right. The Tahasilar, initiating a miscellaneous case, directed the local Revenue Inspector for enquiry. The report being received, finally the Tahasildar started an Encroachment Proceeding against the Original Plaintiff and it is now questioned as without jurisdiction. The Plaintiff, therefore, filed the suit for declaration of his right, title and interest over the tank in Schedule-B and for confirmation of possession or in the alternative, for recovery of possession and permanent injunction.

4. The Defendants 1 to 7, in their written statement, have averred that Kartik Mohanta, the grandfather of the original Plaintiff had obtained land under Sabik Plot No.90/1, 94/2, 70/1 and 71/2 in total measuring Ac.1.44 decimals and said land is in possession of the Plaintiffs. The rest of the Government land lying vacant, the villagers were in possession of the same. They, in course of time, having excavated the earth and taken those for their use, the area became as like a tank. It is stated that since then, the Defendants have been using the said tank and in the Hal Settlement, therefore, rightly the same has been recorded under ‘Sarba Sadharan’ Khata. The Villagers claim to have acquired the right of using the said tank and the land lying nearby.

The Defendants 11 and 12, i.e., the State of Orissa and other functionaries of the State, in their written statement, pleaded that the tank and the nearby land had never been used by the Plaintiff or his ancestors. It is stated that the villages used water of the suit tank as and when so needed and, therefore, the same has been rightly recorded under ‘Sarba Sadharn’ Khata. It is further asserted that the suit tank as situated was never in possession of the Plaintiff or his family members. The Plaintiff has got his land adjoining to the north and east of the Schedule-B lands. It is alleged that although with some ulterior motive, the Plaintiff had initiated Revenue Misc. Case No.161 of 1985, but when the matter