P. K. MISRA, J. ( 1 ) PLAINTIFFS have filed this second Appeal against confirming decisions of the Courts below. ( 2 ) THE case of the plaintiffs is as follows :-the disputed property relates to plot No. 341 in Khata No. 115 as indicated in the final record-of-Rights published in the year 1981 under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (in short, the "consolidation Act" ). Plot No, 801 in Khata No. 113 with an area of Ac. 0. 06 decimals was recorded in the name of the plaintiff-Deity Mangala Thakurani in the record-of-Rights published in the year 1976. The Bijesthali of the Deity is located in the said plot. The house of defendant No. 1 stands on the adjacent plot No. 802. During the consolidation proceeding, defendant no. 1 encroached upon Ac. 0. 02 decimals of land from the northern portion of plot No. 801 and started constructing a house thereon. Subsequently, in the Consolidation Record-of-Rights plot No. 801 was divided into two sub-plots. Plot No. 801 with an area of Ac. 0. 04 decimals was recorded in the name of the plaintiff-Deity and plot No. 801/327 with an area of ac. 0. 02 decimals of land was recorded in the name of the Deity with note of forcible possession of defendant No. 1. Plot No. 801 with an area of Ac. 0 04 decimals corresponds to consolidation Plot No. 340, whereas the disputed land appertaining to plot No. 801/327 corresponds to Consolidation plot No. 341. Though both the plots have been recorded in the name of the plaintiff-Diety. the note of forcible possession of defendant No. 1 has been recorded in respect of plot No. 341. On the aforesaid allegations, the suit was filed for declaration of title and for recovery of possession. ( 3 ) DEFENDANT No. 1 while denying the allegations made in the plaint claimed that the residential house of defendant No. 1 is located on portion of plot No. 801/327 as well as plot No. 802. Defendant No. 1 also claimed right by way of adverse possession. In the current Settlement Record. of Rights of 1928. plot No. 712 was recorded in the name of lokanath Panigrahi and others. At that time defendant No. 1 and his mother constructed a house about fifty years back on plot No. 712. Defendant No. 1 also claimed right by way of adverse possession. In the current Settlement Record. of Rights of 1928. plot No. 712 was recorded in the name of lokanath Panigrahi and others. At that time defendant No. 1 and his mother constructed a house about fifty years back on plot No. 712. Subsequently, in 1955, defendant No. 1 purchased plot No, 710 measuring Ac. 0. 12 decimals which is to the north of the house of defendant no. 1. After purchasing plot No. 710. defendant No. 1 constructed a kitchen room adjoining to his existing house and dug a well and used the other portion as garden. It is claimed the plot No. 710 of 1928 Settlement corresponds to plot No. 802 and portion of plot No. 801/327 and plot No. 712 of 1928 settlement corresponds to plot No. 801 and portion of plot No. 801/327. It is claimed that the residential house of defendant No 1 stands on plot No. 801/327. ( 4 ) THE trial Court found that the plaintiffs have failed to prove the title of the Diety over the disputed land. It was further found that even though defendant No. 1 had failed to prove adverse possession, since the plaintiffs have failed to prove their title over the disputed land, the suit is to be dismissed. ( 5 ) IN appeal, the lower appellate Court observed :". . . . . BUT the fact that the plaintiff has been recorded as the Stithiban raiyat in both the R. O. Rs. cannot be ignored so far as title to the suit land is concerned "in other words, the lower appellate Court apparently believed that the plaintiffs have proved the title of the Deity over the disputed land. Subsequently, the lower appellate Court held that "the plaintif has to prove not only title but to prove the alleged encroachment on the suit land". However, in spite of such finding, the lower appellate Court dismissed the suit and confirmed the decree of the trial Court on the ground that the plaintiff had failed to prove all the alleged encroachment by defendant no. 1. ( 6 ) AT the time of admission of the appeal on 23. 3. 1988. However, in spite of such finding, the lower appellate Court dismissed the suit and confirmed the decree of the trial Court on the ground that the plaintiff had failed to prove all the alleged encroachment by defendant no. 1. ( 6 ) AT the time of admission of the appeal on 23. 3. 1988. the following substantial question of law was framed : "when a deity is perpetually minor whether the suit for possession can be defeated by long possession of the defendant?" in view of the findings recorded, 1 do not see any justification for framing such a question of law. Neither the trial Court, nor the lower appellate court dismissed the suit on the ground of alleged adverse possession or long possession of the defendant. The trial Court had dismissed the suit on the ground that the plaintiffs had failed to prove title of the Deity, whereas the lower appellate Court appears to have held that the title had been proved, but plaintiffs had failed to prove the cause of action by not proving about the alleged encroachment in fact, keeping in view the various findings of the Courts below, it is necessary to reframe the substantial question of law invoked in the appeal in the following manner : whether the lower appellate Court committed an illegality in dismissing the suit after having found the title of the plaintiff-Deity in respect of the disputed land particularly keeping in view the fact that in respect of the disputed land, the forcible possession of the defendant had been noted in the Record-of-Rights? ( 7 ) THE learned counsel appearing for the contesting respondents submitted that the finding of the trial Court that the plaintiffs had failed to prove the title of the Deity appears to be correct and the observation of the lower appellate Court should not be taken to. be a finding regarding title of the plaintiffs. In this connection, it has to be noted that during the consolidation operation, the disputed land appertaining to consolidation plot No. 341 has been recorded in the name of the deity and forcible possession of the defendant has been noted in respect of the said plot. The disputed land is definitely homestead in nature. In this connection, it has to be noted that during the consolidation operation, the disputed land appertaining to consolidation plot No. 341 has been recorded in the name of the deity and forcible possession of the defendant has been noted in respect of the said plot. The disputed land is definitely homestead in nature. As such, though the consolidation authorities were empowered to consider about the right, title and interest of the contestants, they have no authority to consolidate the land and consequently, they had no authority to effect delivery of possession of non-consolidable land. This is evident keeping in view of the provisions contained in Section 25 of the Consolidation act, as well as other provisions. However, they had every authority to decide about the right. title and interest of a particular person even in respect of homstead land. This position is clear in view of the amendment to the Consolidation A ct. In other words, the very fact that the disputed land was recorded in the name of the deity' can be taken to be a determination of the title of the Deity over the disputed land. Even prior to the consolidation operation, the disputed land was recorded in the name of the diety. which is evident from Ext. 4. In the absence of any other document relating to title to the contrary, the Record-of-Rights also can be considered to be a document evidencing title under certain circumstances. For the afore said reason, the conclusion of the lower appellate Court that the plaintiffs apparently had proved the title of the Diety in respect of the disputed land appears to be correct. ( 8 ) IN respect of the disputed land recorded in. the name of the Diety. note of forcible possession of defendant No. 1 had been made in the remarks column. This itself can be taken to be a cause of action for filing the suit. The lower appellate Court committed an illegality in observing that the plaintiffs had failed to prove the cause of action for filing the suit, as they had failed to prove the encroachment. This itself can be taken to be a cause of action for filing the suit. The lower appellate Court committed an illegality in observing that the plaintiffs had failed to prove the cause of action for filing the suit, as they had failed to prove the encroachment. Even assuming that defendants had not encroached, since prayer for recovery of posses sion was made The Tower appellate Court should have either granted a decree for confirmation of possession or a decree for recovery of possession, but could not have dismissed the suit on the ground that cause of action had not been proved. ( 9 ) ONCE the title of the Diety is established, prayer for recovery of possession is to be granted unless the defendant proves acquisition of title by adverse possession. It appears that such a specific plea had been taken by the defendant. From the evidence adduced on the side of the plaintiffs, it appears that they were not claiming the portion on which the house of defendant stood. Though the defendant claimed that the house stood on part of plot no. 801 and part of plot No, 802, there is no categorical material on record to demarcate the land on which the house stood. Defendant claimed that the house is in existence for about fifty years. The trial Court did not discuss the materials on record on the ground that plaintiffs had failed to prove the title of the Diety. Similarly, the lower appellate Court has also not considered the question of adverse possession. Since question of adverse possession is a mixed question of fact and law and it is necessary to discuss the evidence on record, it is required that the matter should be re-considered. ' ( 10 ) AS already indicated, the witnesses of the plaintiffs stated that the plaintiffs do not claim the land on which the house stands. Thus, it is necessary that Survey knowing Commissioner should be deputed to demarcate the land on which the house stands. If the trial Court comes to a conclusion that the defendant has perfected title by adverse possession over the disputed land, the suit is to be dismissed. Thus, it is necessary that Survey knowing Commissioner should be deputed to demarcate the land on which the house stands. If the trial Court comes to a conclusion that the defendant has perfected title by adverse possession over the disputed land, the suit is to be dismissed. Similarly, if on demarcation it is found that the house of the defendant or any portion thereof stands on any part of the disputed land, that portion should be demarcated and the suit should be dismissed in respect of that portion irrespective of the question as to whether adverse possession has been proved or not. This direction has been given keeping in view the statement made on behalf of the plaintiffs that they do not claim the land on which the house of the defendant exists. ( 11 ) THE Second Appeal is accordingly allowed. The matter is now remitted to the trial court to depute a Survey-knowing Commissioner to demarcate the portion on which the house of the defendant exists and to decide the matter in accordance with the observations made above. The parties are directed to appear before the trial Court on 15th December. 1999. The matter should be disposed of as expeditiously as possible preferably by end of april, 2000. There would be no order as to costs. Appeal allowed. Matter remanded.