JUDGMENT A. K. PARICHHA, J. — This is a defendant’s appeal directed against the judgment and decree dated 16.4.1983 and 25.04.1983 respectively passed by the learned Subordinate Judge, Deogarh in T.S. No.52 of 1980. 2. Deceased-respondent No.1 (Sashi Bhusan Pradhan) as the plaintiff filed the above noted suit for declaration of his right,title and interest over the suit ‘Kata’ (water reservoir) on the plea that his grand-father, Kirtan Behera @ Pradhan, who was then the Gountia of village Chandiposi excavated the suit Kata in the year 1908 enjoyed possession and use of that Kata till his death and after his death, his son and the grand-son (the plaintiff) possessed and enjoyed the Kata to the exclusion of others, and accordingly their names were recorded against the suit Kata in 1927-28 Macfersion Settlement and subsequent settle¬ments. It was further pleaded that the plaintiff had installed one wooden cylinder in the ridge of the Kata through which he used to take water to his lands for irrigation, but in the year 1978 for the first time suddenly the Sarpanch of Tankabir Gram Panchayat informed him that the Sub-Divisional Officer and Taha¬sildar have transferred the suit Kata to Tankabir Gram Panchayat and that the Gram Panchayat would effect improvement in that Kata by excavating the same. It was alleged that despite protest of the plaintiff, the authorities of Reamal Block and Tankabir Gram Panchayat undertook earthwork in the said Kata and constructed a sluice and closed the wooden cylinder, as a result of which some lands of the plaintiff were deprived of getting water from the Kata. Finding no other alternative, the plaintiff served a notice under Section 80, C.P.C. on the defendant nos. 1 to 4 and under Section 138 of the Orissa Gram Panchayat Act on the Sarpanch, Tankabir Gram Panchayat and then filed the suit seeking the relief indicated above. 3. Defendant Nos.1 to 5 in their written statement while denying the claim of the plaintiff over the suit Kata pleaded, inter alia, that the said Kata was already in existence before 1908 and Kirtan Pradhan as Gountia with the active assistance of the villagers only effected some improvement in the Kata. They claimed that the suit tank was community property and the villag¬ers were using the Kata by taking water from it to irrigate their lands and were exercising the right of pisciculture. They claimed that the suit tank was community property and the villag¬ers were using the Kata by taking water from it to irrigate their lands and were exercising the right of pisciculture. It was specifically averred that the plaintiff or his grand-father, Kirtan Pradhan had no exclusive right over the suit Kata and the suit Kata being the property of the State, the same was transferred to Tankabir Gram Panchayat for its maintenance. Defendants further indicated that the suit is not maintainable in view of the bar provided in Section 34 of the Specific Relief Act and want of limitation. Defendant No.6, who is at present the proforma-respondent No.2 did not file any written statement or contest the suit. 4. From the pleadings of the parties, learned trial Court framed as many as 16 issues and accepted evidence of the parties. Plaintiff examined three witnesses including himself as P.W.1 and produced one Parwana issued by the Zamidar dated 30.07.1980, Khatian Nos.5, 6 and 7 of Mouza-Chandiposi, notice to the Collec¬tor dated 27.10.1979, acknowledgements, Gounti Patta, which were marked as Exts. 1 to 7 respectively. Defendants examined the Junior Engineer of Reamal Block as D.W.1, but did not adduce any document. Considering the evidence, both oral and documentary of the parties, learned trial Court came to hold that Kirtan Pradhan, the grand-father of the plaintiff excavated the suit Kata in the year 1908 on his own land after obtaining approval of the Zamidar and also got exemption from payment of revenue for that ‘Jalachar’. It was also held that the plaintiff is recorded as the owner of the suit Kata in the settlement records and is the real owner of the Kata although villagers are using water of that Kata. Further finding was that the Tankabir Gram Panchayat had no right over the suit Kata except to take water from the Kata for the purpose of irrigation. Learned Civil Judge, accord¬ingly, declared the right, title and interest of the plaintiff over the suit Kata and ridge in plot Nos.2 and 3 and directed the defendants to reopen the passage through the wooden cylinder within 30 days. Learned trial Court, however, refused to close the sluice already constructed on the ridge of the suit Kata. Aggrieved by that judgment and decree the present appeal has been filed. 5. Mr. Learned trial Court, however, refused to close the sluice already constructed on the ridge of the suit Kata. Aggrieved by that judgment and decree the present appeal has been filed. 5. Mr. Sangram Das, learned Additional Standing Counsel appearing for the State attacked the judgment and decree of the learned trial Court basically on the ground that the learned trial Court misconstrued the contents of Ext.1 and ignored the admissions of P.Ws.2 and 3 that the suit Kata is a public Kata. He drew the attention of the Court to the evidence of P.Ws.2 and 3 and the contents of Ext.1 6. Mr. S. S. Swain, learned counsel appearing for respond¬ent No.1 while supporting the judgment and decree of the learned trial Court contends that the Parwana, Ext.1, entries of the settlement records, Exts.2, 3 and 4, coupled with the statement of P.Ws. clearly established that the suit Kata was excavated by Kirtan Pradhan on his own land and his successors in interest including the plaintiff all along used the same as the title holder of the suit Kata although as a benevolent gesture they were allowing the villagers to use the water of the Kata. Accord¬ing to him, learned trial Court has properly appreciated the evidence on record and has given its conclusion very much in accordance with the settled position of law. 7. To resolve the above noted controversy raised by the learned counsel for the respective parties, it is necessary to re-examine the evidence both oral and documentary available on record. 8. P.W.1 is the plaintiff himself. He has stated that his grand- father Kirtan Pradhan excavated the suit Kata on his own land after obtaining permission from the then Zamidar. He stated that for the work of excavation of the suit Kata and subsequent im¬provements, he and his predecessors used to spend their own fund usually in the shape of non-vegetable feast to the villagers in exchange for their labour. He claimed that taking note of their exclusive right over the suit Kata, the settlement authorities successively recorded the names of his forefathers in the settle¬ment records, Exts. 2, 3 and 4. This statement of P.W.1 was substantially supported by P.Ws.2, and 3 although in cross-examination these witnesses stated that the villagers were using the suit Kata. Defence witness simply stated about the improve¬ment that was effected in the Kata by the Reamal Block in 1978. 2, 3 and 4. This statement of P.W.1 was substantially supported by P.Ws.2, and 3 although in cross-examination these witnesses stated that the villagers were using the suit Kata. Defence witness simply stated about the improve¬ment that was effected in the Kata by the Reamal Block in 1978. He denied to have any knowledge about the maintenance and enjoy¬ment of the Kata prior to 1978. 9. Ext. 1 is titled as ‘Parwana’ issued in favour of Kirtan Pradhan of Chandiposi by Raja Sachidananda Tribhubandev of Bamara State on 30.07.1908. The contents of this document show that Late Kirtan Pradhan, who was the Gountia of village Chandi¬posi applied to the ruler to permit him to excavate the Kata (water reservoir) on his Hatimunde Kiari and after spot visit and enquiry, permission was granted to him and rent and cess for that piece of land which was converted to Jalchar was exempted. This document nowhere indicates that the Kata was excavated on any community land or the Bhogra (service tenure) land of the Goun¬tia. This document also does not indicate that the Kata was allowed to be excavated for the welfare of the people of the locality. The original records of right, which are Exts. 2 to 4, show that the suit Kata along with other lands were recorded in the names of Kirtan Pradhan and his successors and there is no entry in these documents to show that the suit Kata was for the enjoyment of the people of the locality. There was no evidence or document from the side of the defendants to rebut these entries in the settlement records Exts. 2 to 4. There was also no rebut¬tal evidence to show that the suit land had been excavated by someone else other than Kirtan Pradhan or that it was in exist¬ence before 1908. On the other hand, from the evidence of the P.Ws., it is clear that the suit Kata was excavated by Kirtan Pradhan in 1908 on his own land. 10. Ext.7 is the Gounti Patta, which was issued in favour of Kirtan Pradhan. The terms and conditions of Gounti, right and liability of the Gountia have all been enumerated in this docu¬ment. Clause 14 of the Gounti Patta shows tha the Gountia would excavate the tank, ridge, canal, plant trees, orchards, raise pisciculture etc. 10. Ext.7 is the Gounti Patta, which was issued in favour of Kirtan Pradhan. The terms and conditions of Gounti, right and liability of the Gountia have all been enumerated in this docu¬ment. Clause 14 of the Gounti Patta shows tha the Gountia would excavate the tank, ridge, canal, plant trees, orchards, raise pisciculture etc. without the aid of the State Administration and for such developmental work certificate would be granted to the Gountia and villagers and further such developmental works, like tanks, ridge, canal, orchard would be registered as private property. This clause indicates that even if the Gountia would excavate the tank with the aid of the villagers and allow the villagers to use the tank or Kata, yet such property would be registered as private property. In the face of all these docu¬ments and oral evidence of the P.Ws., the stray statement of P.W.3 that the suit Kata is a public property would not have been accepted as the truth. 11. The evidence of P.Ws. 1 to 3 is specific to the extent that Kirtan Pradhan and his successors were enjoying the suit Kata and for the first time in 1978 the Panchayat and Block authorities started staking their claim over the suit Kata. The State is not able to produce any document to show that the suit Kata was ever recorded as a property of the State in any document or record or that the State authorities including the Panchayat ever exercised any authority or control over the Kata before 1978. That being so, when the wooden cylinder through which the plaintiff was taking water to his land was closed in 1978, the plaintiff had every justification to seek a declaration of his title over the suit Kata. 12. Considering the above noted evidence and circumstances one cannot say that the trial Court went wrong in declaring right, title of the plaintiff-respondent No.1 over the suit Kata. Further more, it is the admitted case of the parties that from the days of Kirtan Pradhan the villagers are using the water of the Kata for their day-to-day life as well as for irrigation of their lands and such use of water by villagers was never denied by the plaintiff or his fore-fathers; the learned trial court did not commit any error in rejecting the claim of the plaintiff to close the sluice. However, since there was no prayer for any consequential relief or injunction against the defendants, the direction to the defendants to reopen the wooden cylinder passage within 30 days could not have been legally granted. So, this part of the decree containing the direction to the defendants to reopen the wooden cylinder passage is set aside, but the remain¬ing part of the decree is confirmed. 13. Consequentially, the appeal is partly allowed. No cost. Appeal partly allowed.