The requirement for notice under Section 80 CPC is waived when leave to file without notice is granted; non-joinder of parties does not invalidate a suit concerning adverse possession.

JUDGMENT :

SASHIKANTA MISHRA, J.

This is a plaintiff’s appeal against a reversing judgment. The judgment and decree passed by the Subordinate Judge, Nawapara on 24.08.1989 followed by decree in Title Appeal No. 12/10 of 1986-88 is under challenge whereby, the judgment and decree dated 23.12.1985 and 08.01.1986 respectively passed by the Munsif in T.S. No. 15 of 1982 was reversed and the plaintiff’s suit for declaration of title and permanent injunction was dismissed.

2. For convenience, the parties are referred to as per their respective status before the trial Court.

3. Plaintiff’s case is that the suit land originally belonged to his ancestor Trilochan Behera, who was a protected Thekadar of village Domjhar. It is pleaded that said Trilochan Behera excavated the suit tanks about 80 years back pursuant to permission granted by the then Deputy Commissioner of Raipur District (C.P. & Berar) and obtained Sanands dated 14.09.1910 and 24.04.1913 in recognition of such excavation and improvement. According to the plaintiff, Trilochan Behera had transferred the Thekadarship to his second son Jagmohan Behera, who predeceased him. After the death of Jagmohan Behera, the Thekadarship and the suit properties devolved upon Kalia Behera, father of the plaintiff, by inheritance. The case of the plaintiff is that the suit tanks having been acquired and improved by Trilochan Behera, continued to remain in possession of his successors, who maintained the same in the form of water reservoirs and utilised them for pisciculture and irrigation purposes.

It is further pleaded that in the year 1964, Kalia Behera partitioned his properties among his three sons, namely Gourishankar Behera (the plaintiff), Jogeswar Behera and Brajamohan Behera and in such partition the suit tanks fell to the share of the plaintiff and his younger brother Jogeswar Behera. The plaintiff pleads that thereafter he remained in exclusive, open, peaceful and uninterrupted possession of the suit tanks, making improvements from time to time and enjoying the usufructs thereof. According to him, neither the State nor the Gram Panchayat ever exercised possession over the suit tanks and his possession, as well as that of his predecessors, continued for more than the statutory period, openly and to the knowledge of the State authorities. In the current settlement operation the suit lands were erroneously recorded in the Government Rakhit Khata without the knowledge and information of the plaintiff or his predecessors. The plaintiff claims that he came to know about such wrong recording only when defendant Nos.1 and 2, without any right, title or authority, leased out the suit tanks in favour of defendant No.3 for pisciculture, despite his protest. Alleging that the defendants had no manner of right, title or interest over the suit properties and that he had perfected his title by long, continuous and adverse possession, the plaintiff instituted the suit seeking declaration of his title and permanent injunction restraining the defendants from interfering with his possession.

4. The defendants contested the suit. Defendant No.3 was set ex parte, but defendant No.1 filed written statement. Defendant no.1 stated that the suit properties are not the private property of the plaintiff or his ancestors and that after abolition of intermediary interest the same vested in the State and were recorded in the Government Rakhit Khata. It is contended that the suit lands are public tanks