JUDGMENT : Panigrahi, C.J. - This is a Plaintiff's appeal in a suit for declaration of title to and for a permanent injunction restraining the Defendants from interfering with the distribution of waters of, and in the alternative for possession of a tank and tank-bed in village Lavuguda within the Zamindari of Jeypore in Koraput district. The Plaintiff, as the Zamindar of Jeypore instituted the suit, but as the Estate has since been taken over by the State Government under the Orissa Estates Abolition Act, the State of Orissa has been substituted as the Appellant in place of the ex-Zamindar of Jeypore. The Defendants are the tenants of the said village and own lands on the north, east and west and to a small extent in the South of the disputed tank. They claim the tank and the tank-bed to be their ryoti property. Admittedly, the tank is fed by a Gedda or hill-stream which comes from some distance. The area of the tank is about 15 acres. A part of this extent constitutes the tank-bed and is being cultivated by the Defendants. The western portion of the tank which is deep and measures about 6 acres and odd in extent holds rain-water which is used by the Defendants for irrigation purposes. 2. The Plaintiff's case was that several other tenants of the village had easementary right of irrigation in the water of the tank, but latterly the Defendants who purchased most of the surrounding lands asserted their claim to the tank itself. In 1940, there was a dispute between the adjoining tenants owners and the Defendants over the distribution of the water of the tank and the matter was taken to the notice of the Amin posted at Gunupur, in which taluk the disputed tank is situated. The primary issue between the parties, an which they went to trial is issue No. 1, viz Whether the suit tank is the Jeroyati tank of the Plaintiff or the exclusive and private tank of the Defendants' family? There was also another issue raised, relating to the acquisition of a prescriptive right by the Defendants by reason of adverse possession. 3. The Plaintiff examined one L.N. Sahu, an old man aged 110 years and a tenant of the village. He pays Rs. There was also another issue raised, relating to the acquisition of a prescriptive right by the Defendants by reason of adverse possession. 3. The Plaintiff examined one L.N. Sahu, an old man aged 110 years and a tenant of the village. He pays Rs. 2000/- as cist to the Jeypore Estate and is undoubtedly a man of substance His evidence is that the tank belonged to the Maharaja of Jeypore and that it was fed by the Lavuguda Nala, and that the tank irrigates his lands, the lands of Jagannath Panigrahi, Natabaro Panigrahi, Saura Kincho, Ghasi Panigrahi, and several other tenants. The land is known as Hetta Bandho. He further says that the repairs to the tank were being carried out by the Estate and the first Defendant took up repair work as the agent of me Estate. There are admittedly two or three other tanks in the village but the disputed tank is the only one used for irrigation purposes. Two of the tanks in the village belonged to the Defendants, but they are far away. P.W. 2 is a Vakil of Jeypore who was appointed Commissioner to prepare a sketch map of the area, and his evidence is that the tank bed which is now being cultivated is higher in level and that the Defendants' lands on the east of the tank cannot be irrigated by the water of that tank. P.W. 3 is another tenant who owns lands near the tank. This witness corroborates P.W. 1 and says that the tank belongs to the Plaintiff. P.Ws. 4 and 5 are employees of the Jeypore Estate and prove certain papers to show that the tank belongs to the Estate. P.W. 1 has been an employee of the Estate since 1908 and speaks from his personal knowledge, According to him the dispute between the Estate and the 1st Defendant arose in 1940 when he refused to allow water to pass through the lands of the other ryots. P.W. 6 is another tenant of the village who supports the Plaintiff's case and his evidence is that he took water from this tank in his own right without any reference to the Defendants This witness says that the Defendants gradually encroached upon the bed of the tank and completed this encroachment in three or four years. 4. P.W. 6 is another tenant of the village who supports the Plaintiff's case and his evidence is that he took water from this tank in his own right without any reference to the Defendants This witness says that the Defendants gradually encroached upon the bed of the tank and completed this encroachment in three or four years. 4. On behalf of the Defendants, Defendant No. 2 examined himself as well as his clerk D.W. 1. Although it was his case that he put up the tank on his own ryoti land no evidence has been let in to show that the tank bed was ever ryoti land at all, Nor did he produce any accounts to show that any money was spent by him either for excavation or for repairs to the tank, He even pretended that he did not know whether his lands to the east of the tank were higher or lower than the bed of the tank. He also pretended that he did not know when the tank was repaired. He said that he could not identify his father's hand-writing in Ext, 4 the receipt filed by the Plaintiff. The learned Subordinate Judge who tried the suit rightly rejected the testimony of this witness as wholly insufficient and unreliable. The learned Judge also felt that the evidence on the side of the Plaintiff was not very satisfactory, but held that there was a presumption that the tank belonged to the Defendants as a ryot under the Madras Estates Land Act is entitled to effect improvements upon his land and excavation of tanks is in the nature of an improvement to land. This reasoning does not appeal to us as sound. 5. Having regard to the terms of the Permanent Settlement Regulation XXV of 1802 there can be no doubt that all these rivers, river-beds, tanks and tank-beds within an estate are vested in the proprietor. There night have been some doubts with regard to the ownership of tank-beds and river-beds as between the zamindar and the Government at one time. But since the decision of the Privy Council in Urlam's case ILR 40 Mad. 886 (P.C.) the law is well-settled, and the proprietor must be held to be the absolute owner of tanks and tank-beds situated within the ambit of his zamindari. But since the decision of the Privy Council in Urlam's case ILR 40 Mad. 886 (P.C.) the law is well-settled, and the proprietor must be held to be the absolute owner of tanks and tank-beds situated within the ambit of his zamindari. All that a tenant can claim is the right of grazing of the tank-bed or of fishing in the tank, besides the right to take water for irrigation purposes. If he claims any higher right than these customary rights the onus is heavily upon him to show that he excavated a tank upon land which was his. According to the Defendants' case the tank was dug by their ancestors 80 years ago. There is no evidence either of the digging or that the Defendants owned any lands in that village 80 years ago. Nor can it be said that they had owned the ryoti right as such in those lands prior to the passing of the Madras Estates Land Act in 1908. In these circumstances, we have no option but to hold that the Defendants have signally failed to establish the case they had set up in their defence. The learned Subordinate Judge was in error in casting the onus upon the Plaintiff to establish that the tank was dug by him. 6. The second point on which some argument was addressed is whether the Defendants can be said to have acquired any right by adverse possession by reason of their having cultivated a portion of the tank bed. It is well established that once it is proved that a land is a part of the tank bed it cannot be held to be ryoti by the mere accident of its being cultivated. Land within an Estate is either ryoti or tank-bed, and unless the tank-bed is converted into ryoti under the provisions of the Madras Estates Land Act, it does not cease to retain its character of a tank-bed irrespective of the number of years for which it is cultivated. It is certainly open to the landholder to assign the tank-bed for cultivation and Section 20 reserves the right to him, but mere assignment does not alter the character of the land and make it ryoti. It is certainly open to the landholder to assign the tank-bed for cultivation and Section 20 reserves the right to him, but mere assignment does not alter the character of the land and make it ryoti. Secondly, the learned Subordinate Judge seems to have ignored the fact that, in order to constitute adverse possession against the zamindar, it is not enough to prove that the Defendant has been cultivating the land. In large estates like the Jeypore Estate, it is impossible for the landholder to keep a watch over every fugitive act of encroachment upon waste lands or unoccupied lands lying within the estate. What the law therefore requires is that there should be not only possession, but it must also be shown that the possession was adversely to the interests of the landholder then only it can constitute adverse possession. There is no evidence in this case that the proprietor knew of the alleged cultivation of the tank-bed by the Defendants for 15 or 16 years as has been held. The evidence, on the contrary, is definite that for the first time in 1940 it was brought to the notice of the Estate authorities that the Defendant refused to allow the water to flow to the lands of other tenants and claimed exclusive right to distribute the water himself. The possession of the Defendants, as proved in the case, is neither adequate nor hostile so as to constitute adverse possession as contemplated in law. 7. We would accordingly set aside the judgment of the learned Agency Subordinate Judge and grant a decree to the Plaintiff as prayed for. The Appeal is' allowed with costs. Mohapatra, J. 8. I agree. Final Result : Allowed