STATE OF ORISSA Vs. TARINISEN MAHANTO

JUDGEMENT

(1.) The unsuccessful plaintiff in T. S. No. 1 of 1971 of the Court of the Subordinate Judge, Keonjhar, is the appellant in this appeal. The suit was one for declaration of right, title and interest in respect of the disputed tank and also for a declaration that the order in Cri. Misc. Case No. 18 of 1969 is illegal and inoperative and for recovery of possession of the suit properties described in the schedule appended to the plaint. The plaint describes the suit properties to be a tank comprising of plot No. 397 area A. 2.83 decimals and plot No. 399 area A. 0. 31 decimals, total A. 3. 19 decimals, appertaining to khata No. 61 in mouza Machhagarh in the district of Keonjhar.

(2.) THE case of the plaintiff (State of Orissa) in brief as described in the plaint is as follows : ' During the Darbar administration the grandfather of the first defendant excavated the tank in dispute at his own expenses for the benefit of the villagers after obtaining the permission of the State. It is alleged that the State reserved its owner ship over the tank and the public in general were permitted to use the tank from its very inception. At no point of time, the defendant No. 1 nor his predecessor -in -interest had ever asserted or exercised any tight of ownership over the said tank. In the settlement of the year 1915 the tank .stood recorded in the name of the State. The State of Orissa transferred the tank to Machhagarh Gram Panchayat for a prsclculture in the year 1956. Some time in the year 1968, the first defendant created trouble as regards the possession of the tank with the said Gram Panchayat and for that reason a proceeding under Section 145, Cr. P. C. was initiated. That proceeding, however terminated in favour of defendant No. 1 and his possession over the tank was declared. In the said proceeding under Section 145, Cr. P. C. (Cri. Misc. Case No. 18 of 1969). Having lost - in the said proceeding the plaintiff has filed the suit for the reliefs indicated above.

(3.) THE learned Subordinate Judge after permitting the parties to lead evidence on the issues framed by it recorded the following findings : (a) The plaintiff has failed to prove identity of the disputed tank comprising plots Nos. 397 and 399. (b) Assuming the State was owner of the disputed tank, defendant No. 1 and his co -sharers have acquired valid title by adverse possession. (c) The co -sharers of defendant No. 1 having not been impleaded no effective decree can be passed as prayed for and for that reason the suit must be held to be incompetent for want of necessary parties,