JUDGMENT : The appellants who are two villagers of the village Tahabahali have called in question the judgment and decree passed by the learned Additional District Judge, Sambalpur in Title Appeal No. 12/11 of 1985 -1986. Manika Bewa being the wife of Nanhiyan Pradhan and Kamala Pradhan, wife of Debananda Pradhan had jointly filed the suit numbered as T.S. No. 127 of 1981 against the State, Block Development Officer and Gram Panchayat, Riamal. The villagers of Talabahali and these two appellants had also been arraigned as defendants therein. The suit was for declaration of plaintiffs right, title and interest and confirmation of their possession over the suit property described in schedule –A of the plaint which are Bandha, Kata and Ridges with further prayer for restraining the defendants from going over the suit properties. The suit having been dismissed, an appeal had been filed by the unsuccessful plaintiff Kamala Pradhan with one Saraswati Pradhan who was substituted in place of original plaintiff Manika Bewa. The lower appellate court having set aside the findings of the trial court decreed the suit granting reliefs as prayed for. Therefore, now these two defendants have filed this appeal under section 100 of the Code of Civil Procedure. It may be stated here that during pendency of this appeal, original plaintiff Kamala and substituted plaintiff Saraswati having died, their legal representatives have been brought on record. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff’s case is that Nanhiyan Pradhan who is the husband of plaintiff no. 1 and father of plaintiff no. 2 had excavated one Bandha and Kata of his own land in or about the year 1912-13 spending a sum of Rs. 5,000/-for his own purse at that time. In the record of first cadastral survey settlement of the year 1927-28, the said Bandha and Kata had been assigned with plot no. 352 and 354 and the ridges as plot no. 353 and 356. During the period, the area was under the Bamra State Ruled by Ex-Ruler. It is stated that from the time of Ruler, Raja Basudev Sudhadev, there was a proclamation to be effect that persons excavating Bandha, Kata, Canals etc. 352 and 354 and the ridges as plot no. 353 and 356. During the period, the area was under the Bamra State Ruled by Ex-Ruler. It is stated that from the time of Ruler, Raja Basudev Sudhadev, there was a proclamation to be effect that persons excavating Bandha, Kata, Canals etc. would be entitled to enjoyment of the same conferred with the ownership of the land. During Macpherson of the Settlement in the area, there was no assessment of land in respect of Bandha, Kata, Canal and Garden and accordingly rent was prescribed and paid against the agricultural land. So, it is stated that the Bandhas and Katas were recorded under Anabadi Khata. Since no attestation work was taken in the settlement operation, the plaintiff and their predecessors had no occasion to file any objection. But the fact remains that in the remark column of the khatian, the name of the persons excavating Bandha and carrying out plantation activities in the ridges and accordingly in enjoyment of those found mention. It is also the case of the plaintiff that neither the Ex-Ruler nor the State of Orissa never challenged / questioned the right, title and interest of the plaintiff over the Bandha, Kata and Ridges. The plaintiff and their predecessors maintained the Bandha and Kata incurring expenses, reared fish and remained in enjoyment of other benefits from out of the trees planted by them on the ridges. No claim was laid by the Ex-State either before the merger or by the State thereafter so far as suit lands are concerned. It is next stated that the plaintiffs had agreed to the proposal of the Fishery Department in allowing the said Bandha for the purpose of demonstration under Fish Farming Development Agency Scheme and having incurred loan for the same had renovated Bandha, Kata at an expense of Rs. 10,000/-putting fish fries in the nursery tank. It is alleged that the officials of the State being envious, started threatening the plaintiff and then they said that the said Bandha and Kata etc. had been transferred to Riamal Gram Panchayat. The plaintiffs claim that they were not given any notice of such transfer or vesting of Bandha, Kata and Ridges at any point of time and they had absolutely no knowledge. Thus, they said that the same is of no value and not binding upon them. had been transferred to Riamal Gram Panchayat. The plaintiffs claim that they were not given any notice of such transfer or vesting of Bandha, Kata and Ridges at any point of time and they had absolutely no knowledge. Thus, they said that the same is of no value and not binding upon them. It is their case that by virtue of their open, peaceful and continuous possession of the Bandha, Kata and Ridges exercising all sorts of rights of ownership in all manner for much more than the prescribed period, there has been loss of the right, title and interest of the State if any over the same and those have been extinguished. It is further stated that mere settlement entry recording it under Anabadi Khata cannot destroy their title since Nanhiyan Pradhan had excavated the Bandha on his own land. In view of that when the defendants told the plaintiff about such transfer of the Bandha, Kata and ridges to the Gram Panchayat, it certainly brought cloud over the plaintiff’s right, title and interest over suit Bandha, Kata and Ridges and so the suit has come to be filed. It is worthwhile to mention here that though notice under section 80 of the Code of Civil Procedure was given prior to the suit, being apprehensive of immediate action, the suit was filed before expiry of the period giving the explanation. It may also be stated here that the villagers of Talabahali and these two appellants have come to be arraigned in the suit after its institution. 4. The State and others having not filed any written statement have remained exparte. The suit has been contested by the villagers and these two appellants. In their written statement, while traversing the plaint averments they have gone to deny the factum of excavation of said Bandha and Kata by Nanhiyan Pradhan way back in the year 1912-13 as pleaded in the plaint. On the contrary, their case is that it is the villagers of Talabahali especially the persons whose lands are situated nearby have in fact excavated the same. The land according to them belongs to different residents of the villagers. It has also been denied that during Macpherson Settlement, there was no recording of Bandha, Kata in the name of private individual. The land according to them belongs to different residents of the villagers. It has also been denied that during Macpherson Settlement, there was no recording of Bandha, Kata in the name of private individual. According to them, in many villages of Ex-Bamra State, the tank, pokhari excavated by private individual at their own cost have been recorded as such in their names showing them as owners in possession and exercising all the rights as such. During Mc. Pherson Settlement in Ex-State of Bamra apart from individual record of right separate records with the title as Anabadi, Raj Sarkar had been prepared for every revenue village. They seriously denied the plaint assertion that no attestation camp was done during 1925-26 settlement. They assert that entry in the remark column as Anabadi Raj Sarakar does not confer any right, title and interest in favour of anybody. The claim of the plaintiffs as regard the regular maintenance of the Bandha, Kata and Ridges and enjoyment of all the benefits attached to those including those from the plantation activities carried out had been denied. It is their, positive case that since time immemorial, the said Bandha, Kata and Ridges are being used by the villagers as it is the only Bandha in the village for bathing, the Kata as such for use for their cattle and washing of clothes. The villagers have been enjoying the fruits from the fruit bearing trees standing on the ridges and embankment of the Bandha and Kata. It is stated that they have been repairing and clearing the silt at regular intervals. It is stated that the plaintiffs have never exercised any right of ownership over the Bandha, Kata and Ridges in any manner at any point of time and as such were never in exclusive possession. They rather pleaded that sometime prior to the suit, plaintiffs for the first time expressed to possess the suit properties denying the interest of all the villagers and when they further pursued in that direction by show of force, a criminal proceeding for no justification reason was initiated against those villagers who had raised their voice. With all these, they prayed to non-suit the plaintiff. 5. With all these, they prayed to non-suit the plaintiff. 5. The trial court on such rival pleadings before it framed six issues including the most important one as regards excavation of Bandha, Kata and renovation of ridges and right, title and interest of the plaintiffs as claimed. Very rightly taking up these two issues first for decision leaving aside those issues on technical aspects, categorical finding has been rendered upon the evaluation of evidence that Nanhiyan Pradhan, the ancestors of the plaintiffs had excavated the Bandha and Kata. But neither said Nanhiyan Pradhan nor the plaintiffs have any right, title and interest over the same. The other technical objections raised by the defendants as regards maintainability of the suit for non-service of notice upon the Gram Panchayat under section 138 of the Act as also for non-compliance of the provision of section 80 of the Code of Civil Procedure of course have been answered in favour of the plaintiffs. For the purpose, the trial court has referred to the Revenue Niyamabali of Ex-State of Bamra promulgated by the then Ruler as also few decisions which would be referred to in course of the discussion to follow. Thus, the plaintiffs have finally been non-suited. In the first appeal carried by the unsuccessful plaintiff, the lower appellate court has set aside the said findings on the vital issues and has answered those in favour of the plaintiffs. That has ultimately favoured the plaintiffs in getting their suit decreed. 6. The appeal has been admitted on the following substantial question of law:- Whether digging of tank in a waste land belonging to the sovereign power would give any right to the person digging a tank and his successor? 7. Learned counsel for the appellants submits that the lower appellate court had completely erred in law in holding that simply because a person has excavated the tank and it finds mention in the R.O.R., the same is not enough to clothe him with the title in respect of the said tank when the same is being used by villagers and that there arises no scope for acquiring right over the same by prescription. It is the next submission that when admittedly Nanhiyan Pradhan was the Gountia of the village, he has the moral responsibility to the look after the interest of the villagers being appointed as such by the Ruler of Ex-State. It is the next submission that when admittedly Nanhiyan Pradhan was the Gountia of the village, he has the moral responsibility to the look after the interest of the villagers being appointed as such by the Ruler of Ex-State. So, accepting for a moment that he had excavated the tank, it has to be taken that it was in his such capacity as Gountia when facts stand that the villagers had put their hands in such excavation of the tank and that too in the absence of any evidence that Nanhiyan Pradhan has spent his own money for such excavation. So according to him, the lower appellate court’s finding is vulnerable. His next submission is that the evidence let in by the plaintiffs is that they have been using the water of the tank for bathing, feeding cattle, fishing and all others, such purpose including the user of the water for irrigation of their lands and those are not sufficient to accept the case of the plaintiffs that it is their exclusive property. According to him, the lower appellate court has missed this point. It is further submitted that Nanhiyan Pradhan being the Gountia of the village and the leader, the excavation of the tank even if finds mention to have been made by him, when it is over the land under the Anabadi Khata in the name of Raj Sarakar such excavation even if accepted for a moment to have been done by Nanhiyan Pradhan still he cannot be said to have acquired right, title and interest over the said property. He also contends that as per Rule – 1 of Revenue Niyamabali of the Ex-State of Bamra, certificate having not been issued by the State as required there under and when the plaintiffs have failed to prove by evidence regarding compliance of provision of those Niyamabalis which were having the force of law at the time, their claim ought not to have been entertained at all. According to him, the lower appellate court’s approach in the matter has been completely from a wrong angle and thus the end-result has also been faulty. Also the rules according to him have been misquoted and mis-interpreted by the lower appellate court while recording the findings in favour of the plaintiff. 8. The learned counsel appearing on behalf of the respondents no. Also the rules according to him have been misquoted and mis-interpreted by the lower appellate court while recording the findings in favour of the plaintiff. 8. The learned counsel appearing on behalf of the respondents no. 1 and 2 in response submits that mere user of the water from the Bandha and Kata by the villagers for different purpose does not clothe them without any right and therefore, the lower appellate court has rightly not given so much emphasis to it in recording its finding viewing it as the common feature that almost in every village a tank of an individual even is also used by the villagers for the different purposes. He next contends that the suit Bandha and Kata being excavated by Nanhiyan Pradhan which has been established by evidence and as it finds mention in the remark column of Ext. 6 coupled with the oral evidence of P.W. 1, when nothing is shown that compliance of the provision of Revenue Niyamabali of the Ex-State of Bamra was mandatory for accrual of the title in favour of the excavator, the lower appellate court did commit no mistake in whittling down the said contention as regards the non-compliance of the Revenue Niyamabali in the matter as standing in the way of the claim of right, title and interest by the plaintiffs. According to him, the lower appellate court has rendered the findings upon threadbare analysis of the evidence on record in the touchstone of the rival pleadings keeping in view the legal position in respect of the points it formulated. Therefore, his contention is that the judgment and decree of the lower appellate court needs no interference in this second appeal. 9. Before going to answer the substantial question of law by addressing the rival contentions, let the specific finding with the reasons assigned by the trial court as well as lower appellate Court be taken note of:- TRIAL COURT:- (i) The oral evidence and admission of the plaintiff as also Ext. 6 go to show that the suit plots are Anabadi land standing recorded in the name of Raj Sarakar and villagers use to bath and catch fish from the tank and also in enjoyment of the fruits from the trees standing on the embankment. 6 go to show that the suit plots are Anabadi land standing recorded in the name of Raj Sarakar and villagers use to bath and catch fish from the tank and also in enjoyment of the fruits from the trees standing on the embankment. Thus, when there remains no record that the land belongs to Nanhiyan Pradhan, the assertion of the plaintiff that it is their private property is not acceptable. (ii) The suit Bandha and Kata is on Government land and that being also used by the villagers. In view of non-compliance of the provision of Burma Revenue Rules more importantly Rule -1, 2 and 14, neither the plaintiffs nor their predecessors can be said to have acquired any right, title and interest over the same and it is villagers who have got the right to use the water for bathing, irrigation and fishing which they have been doing. Nanhiyan Pradhan having excavated the tank in the capacity of Gountia that too over the land belonging to the State, he can never have been said to be having the right, title and interest over the same to have been succeeded by the plaintiffs. LOWER APPELLATE COURT:- (1) The record of Macpherson Settlement in the Bamra State, Ext. 6 certified copy of khatian published during the said settlement shows that the suit Bandha, Kata and Embankment notes the name of Nanhiyan Pradhan as the excavator in possession. Therefore, when the defendants have not shown their possession of the suit Bandh, Kata and Embankment as adverse to the plaintiffs, the right of the plaintiffs over the same cannot get extinguished. (2) Nanhiyan Pradhan as the Gountia of the Talabahali village having excavated the suit Bandha, Kata and constructed its embankment prior to Macpherson Settlement of the year 192728 and was in possession of the same. When the provision of Revenue Niyamabali of Ex-State of Bamra have not been shown to be mandatory so that its non-compliance would adversely affect the right of person who had excavated the Bandha and Kata and Embankment, the same can never be extinguished and that too on the face of the settled normal practice everywhere that everywhere villagers use the water of the Bandha as also use Kata and Embankment even though those are private property and for that they cannot acquire any interest on the Bandha, Kata and Embankment as such. 10. 10. In the instant case, the plaintiffs have claimed that such Bandha, Kata and embankment are on private land of Nanhiyan Pradhan. But that appears to have been given a goodbye during the suit, when they have placed reliance upon Ext. 5 and 6. It is the settled legal position that when the land belongs to the State, a person who claims to have any right over the said land must establish that such recording is erroneous which is not the case here. Ext. 6 goes to show that the suit plots have been recorded in 1926-27 in Macpherson Settlement as Anabadi land standing in the name of Raj Sarkar with note that Nanhiyan Pradhan had excavated the same over plot no. 355 and Kata and Embankment have been so done by him. However, there it does not find mention that it was from out of his own funds. Therefore, nothing wrong is found with the view taken by the trial court that the excavation was prior to 1925-26 and by Nanhiyan Pradhan. This Ext. 6 itself destroys the case of the plaintiffs that it was on their private land. They having proved the documents now cannot again wriggle out of it. So, the case of the plaintiffs is simply based on the entry in the remark column of the said Ext. 6 and that is said to be the basis of their right, title and interest. Admittedly Nanhiyan Pradhan was Gountia of the village. Revenue Niyamabali of Ex-State of Bamra finding place in the book titled as Orissa Merged (Laws) Act and the Central Merged (Laws) Act along with the Tenancy Laws of Ex-State of Athagarh-Athamallik, Bamra-Baramba, Banai-Boudh, Dasapalla-Dhenkanal and Gangpur complied by Mr. R.N. Dash, Advocate, at page 102, finds mention the description of “Satwadhikar of Gountias”. It has been stated therein that for performance of certain duties and works they are called as Gountias and they are servants of the State and get the wages towards labour in discharging the duty and performing the work and in lieu of it or enjoy some lands. It has been stated therein that for performance of certain duties and works they are called as Gountias and they are servants of the State and get the wages towards labour in discharging the duty and performing the work and in lieu of it or enjoy some lands. So, viewing that, even accepting the factum of excavation of the tank by Nanhiyan Pradhan who was then the Gountia of the village, it can very well be said to have been so performed then in that capacity for and on behalf of the State carrying out its order as the servant of the State and a presumption in the line gets attached which having not been satisfactorily rebutted puts an end to that controversy. Thus it has to be taken that Nanhiyan Pradhan had not excavated the tank on his own. When the Bandha, Kata and Embankment stand on the land of the State; Nanhiyan Pradhan, the then Gountia and as such being a servant of the State to have excavated the tank on his own denying the title of the State is per se not acceptable, in the absence of positive evidence of assertion of ownership unto himself. 11. In that very Revenue Niyamabali of the Ex-State of Bamra which were having the force of law in the State, there remains dedicated chapter for such type of developmental work being carried out in the State. These Niyamabali’s read as under:- (i) Any person or persons jointly or individually, spending money from their own sources if have done any such developmental works, he or they are to make a prayer to the State authority by stating the type and place of work indicating expenses, dimension of the work as also naming the persons who had encouraged and responsible for the work and date of order for carrying out such works, for grant of a certificate to that effect and the copy would be given to him and it would be entered in the register maintained in the Sub-Registrar’s Office in respect of each pragana and mouza and in that event the copy of the same would be given to the person concerned on receipt of cost. It is next stated that if such developmental work has been done during the period of one Settlement, its rent will not be increased during the period of the coming settlement. It is next stated that if such developmental work has been done during the period of one Settlement, its rent will not be increased during the period of the coming settlement. The developmental works include excavation of Tank, Well, Bandha and Canal for irrigation, Orchard, Plantation and Pisci-culture.” It also finds mention in the other rules that those person or persons who have excavated the tank after they take water for irrigation of their lands, the excess water would be taken by the villagers and the record will remain that as Sarva Sadharana Satwa. In the present case, admittedly nothing has been shown that any certificate was either applied for or granted to that effect. Rule 14 of the Hakiyati Gounti Patta at page – 105 of the book (supra) states that for encouragement of Gountia and tenants of the village to construct tank, Bandh, Kata and Canal, Orchards for improvement of village without help of the State ultimately said certificate has to be granted in his favour and then it would be the private property finding mention as such in the important register. In view of above, it is not necessary that the rule must state that as to what would happen in the event of their non-compliance. Once it lays down the procedure for recognition, the same if not followed, certificate if not taken and entry in the register if not made, the consequence is that claim as such is not entertainable at any subsequent time. The settled principle always remains that when the law prescribes something to be done following procedure laid down, those if not followed, the purpose for which those aim cannot be achieved. In my conserved view, it is a question of recognition that the developmental activities to have been so carried out by the person as also the Gountia out of their own funds over the land of the State and as such it has to be so mentioned in the register of the State to avoid any other claim for all times to come and to finally conclude that controversy once for all. The objectives clearly appears to be two folds; one to clothe the persons who have spent their own funds in doing such development activities for the good of the public of the State with the required right in recognition of their generous acts and the other one to prevent any false or frivolous claim to come up in future and to put a stop to it forever. So, once that has not been done, the question of claiming any such right at future time does not arise. In that view of the matter, the factum of excavation of the suit Bandha, Kata and Ridges by Nanhiyan Pradhan when has never been recognized by the State as such as required under the Revenue Rules and having not been so entered in the relevant register, by grant of certificate to that effect, the same squarely stands as a bar for advancement of the claim as made by the plaintiffs. Thus, here in the absence of above recognition as required under the Revenue Rules of the Ex-State of Bamra State which was then having the force of law simply digging of the Tank at the instance of Nanhiyan even if accepted does not come to the aid of the plaintiffs in establishing any right over that Bandha, Kata and Embankment. This Court in case of ‘State of Orissa Vrs. Anuchhaya Patel and Others (S.A. No. 80 of 1978)’ has dismissed the appeal on ground of limitation and the Court having found the appeal to be barred by limitation ought not to have proceeded further touching merit. Therefore, the decision does not come to the aid of the plaintiffs. Aforesaid discussion and reasons provide answers to the substantial questions of law which goes in favour of the appellants. Therefore, the judgment and decree of the lower appellate court are bound to be held to be unsustainable. 12. In the result, the appeal stands allowed. The judgment and decree of lower appellate court are hereby set aside and those passed by the trial court stand restored. There would however be no order as to cost.