33. 22.02.2021

Heard Mr. Maheswar Mohanty, learned counsel for

the appellants and Mr. Arun Kumar Mishra, learned

Additional Government Advocate for the State-opposite

party nos.1 to 4.

The appellants in this appeal under Section 100

CPC pray for setting aside the judgment and decree dated

08.04.2002 and 16.04.2002 respectively passed by

learned Additional District Judge, Sonepur in Title Appeal

No.14 of 2001 confirming the judgment and decree dated

19.03.2001 and 04.04.2001 respectively passed by

learned Civil Judge (Senior Division), Sonepur in T.S.

No.76 of 1996, whereby he dismissed the suit.

Before delving into the substantial question of law

involved in this appeal, a short narration of facts is

necessary for proper adjudication.

The plaintiffs-appellants filed T.S.No.76 of 1996

with the following prayer:

<Hence it is prayed that, decreeing the suit of

the plaintiffs:-

1. The suit tank kindly be declared to be the

exclusive property of the plaintiffs and not of the

defendants.

2.

Declaring the preparation of 4^th settlement

R.O.R. Khata No.3, Plot No.460, 489,490 and

consolidation Holding No.488, Plot No.502, 503, 520,

521 prepared in the name of defendants No.1 illegal

and wrong. The exclusive right, title and interest of the

plaintiffs over the suit tank be kindly declared and

possession of the plaintiffs including right of irrigation

be confirmed.

3.

If

the

plaintiffs

are

found

to

be

dispossessed then, the possession of the plaintiffs be

recovered, through proper process.

R.S.A. No.35 of 2002

2

4.

The defendants be permanently injuncted

from taking any step to disposses the plaintiffs from

the suit tanks.

5.

Any other relief which the court deems fit

be declared in favor of the plaintiffs.=

The plaintiffs-appellants in the plaint claimed that

their common ancestor, namely, Srimat Giuntia had

excavated and maintained Badkata and Nimuhiband (the

suit tank). After his death, the plaintiffs stepped into his

shoes and thus, claimed right, title and interest over the

suit tank. Fourth Settlement R.O.R. in respect of the suit

tank was published in the name of Government (Ext.3)

under Holding No.3 and subsequently, Consolidation

R.O.R. of the suit tank in Holding No.488 (Ext.4) was also

published in Government Khata. Both the courts relying

upon the case law in the case of Sadananda Sa &

others 3v-Commissioner of Consolidation, Orissa,

Cuttack; reported in 1984(I) OLR-567 and Biranchi

Kumar Nayak and others 3v- Collector & District

Magistrate; reported in VOL-32 (1990) OJD 289 (Civil)

held that the person, who excavated and maintained the

tank cannot claim any right, title and interest of the suit

tank on such basis. It is also observed that since

consolidation R.O.R. has already been published under

Section 22 of the Orissa Consolidation of Holdings and

Prevention of Fragmentation of Land Act, 1972 (for short

8the Consolidation Act9), the suit for declaration of right,

title and interest in respect of the suit tank is not

3

maintainable in view of bar under Section 51 of the said

Act.

Mr. Mohanty, learned counsel for the appellants,

however, assails the judgment and decree on the

following substantial questions of law, which are as

follows:-

(a)

Whether both the courts below have

misread and misinterpreted the Bhumibidhi of

Sonepur Fiudetary

State

where

specifically

at

Chapter-VI, Rule 42(Kha), the excavator of the Tank

have been given exclusive right, title and interest over

the tank?

(b)

Whether non-filing of W.S. by defendant

nos.1 to 4 and admission of excavation of Tank in

W.S. of defendant no.5 supports the case of the

plaintiffs?

(C) Whether an additional issue to the effect

that the plaintiffs have got right, title and interest

over the suit tank in view of Bhumibidhi law of

Sonepur Fiudetary State with effect from 1907 A.D.