Occupancy tenant rights are preserved despite state vesting, and the lack of formal registration for fishing rights does not negate their validity.

JUDGMENT :

SASHIKANTA MISHRA, J.

This is a defendants’ appeal against a partly confirming and partly reversing judgment. The judgment dated 28.09.1991 followed by decree passed by learned Additional District Judge, Balangir in Title Appeal No.3/16 of 1989-90 is under challenge. Said appeal was filed against judgment dated 29.09.1988 followed by decree passed by learned Munsif, Balangir in Title Suit No.169 of 1982. As per the said judgment, the suit of the plaintiffs was decreed and the defendants were injuncted from disturbing their right. The relief of declaration of title and possession was refused. Thus, while the defendants challenged the declaration of the fishery right of the plaintiffs in the above-mentioned appeal, the plaintiffs preferred cross appeal against refusal of the relief of declaration of title and possession.

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

3. The suit in question was filed by the plaintiffs claiming declaration of title, confirmation of possession over the suit land or in alternative, recovery of possession along with permanent injunction.

4. The plaintiffs’ case, briefly stated, is that the suit land was Rayati land belonging to their grandfather, Rushi Patel, who excavated a water reservoir and subsequently made improvements thereon. The plaintiffs being his successors inherited the property and are in exclusive possession of the same, using its water for irrigation and pisciculture. The ex-Patna State decided to record all water reservoirs of the State in Jalchar Khata in 1936 settlement. Since there was mass agitation, the erstwhile Government issued a proclamation inviting objections from tenants. The father of the plaintiffs submitted objection. The Superintendent of Land Records (SLR) considered the objection and recorded the right of the plaintiffs. Subsequently, the Government illegally transferred the land to Bhaler Grama Panchayat for pisciculture ignoring the possession of the plaintiffs. Since the Panchayat interfered with their right, the plaintiffs filed the suit.

5. Defendant No.1, being the State of Odisha and Defendant No.2, being the Bhaler Grama Panchayat contested the suit taking similar stand. It is their case that by order of the Government of the erstwhile Patna State, all water reservoirs were recorded as Jalchar. Subsequently, the tanks were transferred to Grama Panchayats. The SLR had no authority to declare the right of any person. Bhaler Grama Panchayat is under possession of the suit land with fishery rights.

6. The Trial Court framed 12 issues for determination.

7. With regard to issues Nos. 1, 2, 4 and 5, the Trial Court held that there was evidence to show that the plaintiffs’ grandfather was the Rayat in respect of the suit land having excavated the same incurring expenditure but no title was ever acquired by referring to R.K. Ramadyani’s report of Land Tenure and Revenue System of the Odisha and Chhattisgarh States. The Trial Court was inclined to hold that the tanks excavated in Rayati land cannot become the absolute property of the excavators and that after the settlement period they would become public lands. The SLR directed to issue Patta in favour of the plaintiffs’ father in respect of the fishery right. There was evidence to show that the plaintiffs’ father was doing pisciculture. After merger, the fishery right of the plaintiffs was recognized. It was thus held that the plaintiffs’ grandfather is not the title holder of the tank by virtue of his excavation of the same as per the revenue laws prevalent in the State of