S.J. Mukhopadhaya, J. - (1.) This letters patent appeal has been preferred by plaintiff -appellant, Leda Mahato against the appellate order and judgment dated 14.3.1997 passed by the learned single Judge in Appeal from the Original Decree No. 225 of 1995 (R). The learned single Judge dismissed the first appeal and affirmed the judgment and decree dated 30th August, 1995/11th September, 1995 passed by learned sub -Judge Ist, Dhanbad in Title Suit No. 26/88.
(2.) The sole plaintiff, Leda Mahato brought the suit in question against the defendant for declaration of his permanent raiyati right in the tank and its ridge forming part of the suit land. The tank is commonly known as Purana Bandh situated in Mauza Telmocha bearing plot No. 1411 area 6.78 acres and plot No. 1413 area 52 decimals having total area 7.30 acres appertaining to Khata No. 133.
(3.) The case of plaintiff -appellant was that the tank Purana Bandh was excavated by his ancestors for the purpose of irrigating the paddy fields contiguous to the aforesaid tank and remained in peaceful possession of the plaintiff. Moti Mahato, father of plaintiff and his co -sharers, Smt. Omia Mahato in and Dandu Mahato inherited the suit property on the death of their ancestors and were in peaceful possession of the suit tank, irrigating paddy fields, repairing the ridge of the tank and desilting the bed of the tank, growing vegetables on the various ridges and also exercising other acts of possession. It was pleaded that during the last survey settlement operation, the suit tank was wrongly included in the Gairbad Khatian No. 33 of the landlord of Mauza Telocho although the aforesaid tank and its ridge was in peaceful possession of his ancestor and co -sharers as evident from irrigation records of right. The aforesaid mistake of wrong entry of the suit tank in Gairbad Khatian No. 33 when detected, it was brought to the notice of the landlord, namely, Raj Kumar Thakur Ram Bahadur Singh, who by deed of relinquishment dated 26th June, 1929 rectified the mistake and released the tank in favour of the father of the plaintiff and other two co -sharers from Gairbad Khatian No. 33 reserving annual rent of Rs. 5/ - more for the tank and its ridge in question. Accordingly, Moti Mahato, father of plaintiff -appellant used to pay rent to the landlord, who granted receipts and Moti Mahato as also plaintiff both remained in peaceful possession of the suit land. Further case of plaintiff -appellant was that two co -sharers, namely, Omia Mahtain and Dando Mahato by Chharpatra dated 20th September, 1930 relinquished their 2/3rd share in the tank in question in favour of Moti Mahato father of plaintiff on receipt of consideration of Rs. 731/ - from Moti Mahato. The landlord accepted the relinquishment to the extent of their 2/3rd share and in acknowledgement, put his signature in the aforesaid Chharpatra whereinafter Moti Mahato, father of plaintiff became exclusive owner to the extent of 16 annas share in the tank in question and remained in peaceful possession thereof exercising various acts of possession in respect of the tank and its ridge. It was further pleaded that after vesting of intermediary interest in the State, Moti Mahato and thereafter the plaintiff approached the C.O., C.I. and Karamachari for acceptance of rent reserved by the ex -landlord but they put off the matter as a result thereof they approached the L.R.D.C., Chas by registered Miscellaneous Case No. 2(b) of 1984 -85. It was contested by Krishna Mohan Singh and B.K. Prasad of village Telmocho, who filed objection whereinafter the L.R.D.C., Chas on perusal of the reports, recommended for acceptance of rent from the plaintiff and forwarded the records to the learned S.D.M. for such acceptance. The S.D.M., Chas after having satisfied regarding the actual physical possession of the plaintiff over the suit tank in question, recommended for removing the suit tank from the list of Sairat maintained by the Circle Officer, Baghmara and recommended for sending the file to the Additional Collector, Dhanbad for needful. It was also recommended by the Additional Collector, Dhanbad but the Deputy Commissioner, Dhanbad rejected all those recommendations and proposals and ordered to put the suit tank to public auction vide order dated 27th October, 1987 though it was a case of acceptance of rent. The plaintiff -appellant took plea that the order of Deputy Commissioner, Dhanbad dated 27th October, 1987 was illegal, ultra vires and without jurisdiction, those defendants having knowledge that the suit tank and its ridge in question being the raiyat property of the plaintiff, who is in uninterrupted peaceful physical possession together with the ancestors for more than 80 years. Altogether six issues were framed as taken into consideration by the learned Single Judge and mentioned hereunder : 1. Whether the suit as framed is maintainable? 2. Whether the plaintiff has got any cause of action for the suit? 3. Whether the suit is barred by law of limitation, waiver, estoppel and acquiescence?;