JUDGMENT 1.The State of Odisha through Collector, Kalahandi has filed Second Appeal Nos. 278 of 2001 and 279 of 2001 challenging the common judgment followed by decree in Title Appeal Nos.4 of 1996 and 6 of 1996 as passed by the learned District Judge, Kalahandi-Nuapada. Also Uchhala Gram Panchayat through its Sarpanch has filed RSA Nos. 259 of 2012 and RSA 30 of 2013 in challenging the same. All the above noted appeals have been heard together and this common judgment is passed which would govern all those. 2.The predecessor-in-interest of Respondent Nos.1 to 4 and other Respondent Nos. 5 to 10 had filed a suit i.e. Title Suit No.41 of 1994 in the Court of learned Civil Judge (Sr.Divn.), Dharamgarh for declaration of their right of fishery and water over the suit tanks and for permanent injunction against the State as also the Sarpanch, Uchhala Grama Panchayat for restraining them from interfering with their exercise of above rights. The suit having been decreed declaring that the plaintiffs have the right over the fish and the water of the suit tanks without any prejudice to the right of the villagers to use water for bathing and domestic purpose and also to the right of the State to make improvements thereto through their agency like Grama Panchayat from time to time with further order of restraint against the appellant-defendants from interfering with the exercise aforesaid rights of the plaintiffs over the suit tanks, two appeals were filed. The plaintiffs filed one appeal which was numbered as Title Appeal No.4 of 1996 when the defendants i.e. State and Panchayat also filed another appeal which was numbered as Title No.6 of 1996.The learned District Judge, Kalahandi having heard both these appeals has allowed the appeal filed by the plaintiffs and dismissed the appeal filed by the State. Therefore, this Court has been moved with the above noted Second Appeals under Section 100 of the Code of Civil Procedure. 3.For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial Court. Therefore, this Court has been moved with the above noted Second Appeals under Section 100 of the Code of Civil Procedure. 3.For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial Court. 4.The plaintiff’s case is that one Banchhanidhi Bhoi was the ancestor and he had excavated the tanks locally known as ‘Badabandha’ and ‘Sanabandha’ at village Uchhala on his rayati land much prior to 1922-23 settlement for the purpose of irrigation of his adjacent lands situated around the suit tanks. It is stated that since that time onwards Banchhanidhi and after him, his successors including the plaintiffs possessed and enjoyed the suit tanks exclusively and they have been making improvements of those tanks from time to time. It is further stated that such right of those persons over the suit tanks have been recognized and recorded in the improvement list of the settlement of the year 1955-56.Thus when they were in possession and enjoyment of said rights over the suit tanks peacefully, the same however got recorded in the name of the State both in the settlement of the year, 1922-23 and 1955-56.They challenge and assert these recordings to be wrong and without any basis. It is stated that despite all these recordings, they have all along been exercising their said rights over the suit tanks exclusively. They have averred to have come to know about such wrong recordings in favour of the State only in the year, 1984 when the Gram Panchayat demanded to take possession of the suit tanks on the ground that the same have been transferred to it by the State. It is stated that the Tahasildar, Dharamgarh intimated defendant No.2 in his letter dated 13.7.1984 along with the order in Irrigation Case No.4 of 1984 that originally Plaintiff No.1 had the right over the fish and water of the suit tanks. In spite of it, as the Defendant No.2 again wanted to take possession of the suit tanks in the month of July, 1985, the plaintiffs filed the suit. In spite of it, as the Defendant No.2 again wanted to take possession of the suit tanks in the month of July, 1985, the plaintiffs filed the suit. It is their specific case that neither the State of Odisha nor the Grama Panchayat has ever possessed and exercised any right over the suit tanks in any manner and the recording of the suit tanks in the name of the State being wholly wrong has never conferred any right, title or any sort of interest in favour of the State at any time. The transfer of the suit tanks in favour of the Panchayat even, if any, is said to be wholly without the authority and as such is nonest. They claim to be in such possession and enjoyment of rights for over a century since the time of their ancestors exercising all their right without any interference from any quarter for all these years. 5.The case of the defendants is that the suit tanks are the exclusive property of the State and as such stood recorded in the name of the State both in the settlements of the year, 1922-23 and 1955-56. It is stated that at no point of time prior to the suit the plaintiffs or their predecessors had ever raised any voice over the recordings nor challenged those. It is also their case that Banchhanidhi Bhoi being the then Gauntia of village was enjoying the right of fishery and water of the suit tanks which was not in his personal capacity but in the capacity of being the Gountia, the leader of the village land as the servant of the State being required to perform the duties as such including that of the maintenance of the tanks etc. It is stated that after abolition of Gauntia System with effect from 1.4.1956, the plaintiffs did not carry any rights in so far as the suit tanks are concerned. They never possessed the suit tanks after the vesting. It is stated that after abolition of Gauntia System with effect from 1.4.1956, the plaintiffs did not carry any rights in so far as the suit tanks are concerned. They never possessed the suit tanks after the vesting. The State claims to be the owner of the suit tanks which were excavated on the Government land and accordingly, it is asserted to have been rightly transferred initially to Badachergaon Grama Panchayat in the year 1959 which after bifurcation of the jurisdiction came under Uchhala Grama Panchayat since the year 1972.The transfer has been made for proper maintenance and management of the suit tanks and accordingly Grama Panchayat possessed the suit tanks, leased out the same to the public every year by way of public auction besides carrying out the improvement works over there from time to time at the expenses of the State. Over and above, technical pleas as regards maintainability of the suit being undervalued; being barred by law of limitation as also hit under Section 42 of the Odisha Survey and Settlement Act and to be without the cause of action have been raised. 6.The Trial Court in view of above rival pleadings framed as many as nine issues. Answering the issue as regards the suit’s valuation as it concerns with pecuniary jurisdiction, in favour of the plaintiffs, it has taken for decision the next important issue as to whether Banchhanidhi Bhoi, the ancestor of the plaintiffs had excavated suit tanks on his rayati land prior to 1922-23 as per the case of the plaintiffs or not. The issue has been answered upon evaluation of oral and documentary evidence partly in favour of the plaintiffs holding that it was so excavated by Banchhanidhi prior to 1922-23 but not over his rayati lands and on the lands belonging to the State. 7.Addressing the next issue as regards the competing claims of ownership and possession of the Plaintiffs and Defendants and consequently the validity of the transfer of the tanks by the State to the Panchayat, on assessment of evidence on record in the backdrop of the pleadings, the following conclusions have been arrived at : “ a) that the Plaintiffs are in possession and enjoyment of the fish and the water of the suit tanks for the last 100 years. b) that the State of Odisha continued to be the owner of the suit tanks having valid title thereto; c) that the transfer of the suit tanks in favour of either or Badchergaon Grama Panchayat since the year 1959 or of Uchhala Grama Panchayat since the year 1972 is not proved to have been duly acted upon and valid; and d) that the possession either by Badchergaon Grama Panchayat since the year 1959 to 1971 or by Uchhala Grama Panchayat since the year 1972 till date over the suit tanks is not proved.” On the other issue as regards the wrong recording of the suit tanks in favour of the State as asserted by the Plaintiffs, the Trial Court has come to the conclusion that the wrong recordings as alleged by the Plaintiffs have not been established by evidence. It has been said that the Settlement authorities have omitted to record the names of the Plaintiffs as the potential users being in continuous possession and enjoyment of the suit tanks in the remarks column of the ROR in the line of the improvement list, Exts. 1 and 2 of 1955-56 Settlement. With said conclusion, it has next been held that such omission has not affected the fishery right and the right over the water of the suit tanks. The other issues have been answered in favour of the plaintiffs. In view of above findings, the Plaintiffs have been favoured with the following reliefs:- “(ii) It is hereby decreed that the Plaintiff have the right to the fish and water of the suit tanks without, however, any prejudice to the right of the villagers to use the water thereof for batching and domestic purpose and also without prejudice to the right of the State of Orissa i.e. the Defendant No.1 to make improvements thereto through its agencies like the Defendant No.2 from time to time if the necessity so warrants in the public interest. (iii) The Defendants are hereby restrained permanently from interfering with the aforesaid rights of the Plaintiffs over the suit tanks in any manner what-so-ever.” 8.Appeals being carried under Section 96 of the Code of Civil Procedure, the lower appellate Court formulated the following points for determination :- “i. Whether late Banchhanidhi Bhoi, the common ancestor of the plaintiffs had excavated the suit tanks on his own rayati land much prior to 1922-23 Settlement and the suit tanks were erroneously recorded in favour of the State such as Defendant No.1 in Jalchar Khatian ? ii. Whether the Plaintiffs or the defendants, the owners in possession in the suit tanks are having valid title thereto and if the plaintiffs have perfected their title by way of adverse possession by possessing the same to the exclusion of others for more than 30 years ? iii. Whether the suit tanks were transferred by the Defendant No.1 in favour of Badachergaon Grama Panchayat in the year 1959 and then to Defendant No.2 Uchhala Grama Panchayat ?” The answers so far as the point nos. 1 and 2 are concerned have been rendered in favour of the Plaintiffs and as such they have been finally held to have perfected their title over the suit tanks by way of adverse possession. In that view of the matter, point No. (iii) has been also answered in their favour and against the Defendants that the transfer of the suit tanks in favour of the Panchayat is of no value and as such not binding upon the plaintiffs and that they have not at all been affected in any way by the same. 9.The second appeals have been admitted on the following substantial question of law :- a)Whether lower appellate Court committed an error of law by declaring right, title and interest of the plaintiffs over the suit tanks when the plaintiffs had only claimed declaration of right of enjoyment of fishery and water in the tank ? b)Whether the lower appellate Court is justified in deciding title in favour of the plaintiff-respondents on ground of adverse possession in absence of any issue being framed to that effect by the Trial Court ? c)After abolition of Gountia system in Kalahandi w.e.f. 1.4.56 and with coming into force of Orissa Estate Abolition Act, whether the right of Gountia to maintain the tank and enjoy fishery right subsists or gets extinguished ? c)After abolition of Gountia system in Kalahandi w.e.f. 1.4.56 and with coming into force of Orissa Estate Abolition Act, whether the right of Gountia to maintain the tank and enjoy fishery right subsists or gets extinguished ? 10.Learned Additional Government Advocate submits that here is a case where not only the judgment and decree passed by the lower appellate Court are wholly illegal and contrary to law but also those passed by the Trial Court. According to him, the finding of the lower Appellate Court that the plaintiff has perfected title by adverse possession of the suit tanks, bereft of any pleading as well as issue to that effect and answer by the Trial Court and also without any specific prayer of declaration of title being laid in the plaint is wholly unsustainable. The finding is otherwise also attacked as suffering from the vice of perversity. He contends that the plaintiffs have no where pleaded their acquisition of title over the suit tanks by adverse possession which is also not their case going without foundation to that effect being laid in the pleading. It is further submitted that right of fisheries and water are corollary to that of the title over the tank and once it is held that the State and Gram Panhayat are the title holders of those tanks covering huge extent of lands, the fishery right and right over water of any other person can never be declared as the same never be acquired by prescription simply by long exercise of the same. He further contends that the right of fisheries cannot be segregated from that of the title as otherwise it becomes mutually inconsistent and self-contradictory. In view of the above, he submits that the plaintiffs are to be simply non-suited. 11.Learned Counsel for the Pancahayat in addition to the above contends that when basic the ingredients with regard to acquisition of title by adverse possession have not been established in the case by the Plaintiffs, surprisingly the lower appellate Court has gone to invent a new case on that score for them even in the absence of any pleading and prayer to that effect. He further contends that the plaintiffs admit that their ancestors were Gountias and therefore, such rights that he was exercising on behalf of the administration stood abolished by operation of provision of OEA Act. He further contends that the plaintiffs admit that their ancestors were Gountias and therefore, such rights that he was exercising on behalf of the administration stood abolished by operation of provision of OEA Act. He contends that the plaintiffs when claim their ancestors to have excavated the land on their raiyati land and it having been found that the tanks is situated over the land of the State when the view to the contrary is based on mere assumption where is unacceptable and untenable, the Courts below ought not to have granted any relief to them in the suit. 12.Learned Counsel for the respondents submits relying upon the decision of this Court reported in Dandapani Naik Vrs. State of Orissa, 1986 (2) OLR 391 that if on construction of pleadings of the parties, a case of acquisition of title by adverse possession has been made out and such a plea is not only implicit but the fact remains that the parties are fully conscious of such pleading, even though the expression adverse possession has not been used and specific issue has not been struck, the final Court appeal, on the basis of findings recorded by the Court below is well within its competence to ultimately decide the claim based upon adverse possession and that according to him has been rightly done by the lower appellate Court. He also submits in support of the finding of the Trial Court as regards long exercise of rights of fishery and water over the tanks by the Plaintiff since the time of their ancestors over. He further contends that the findings on factual aspect as rendered by the Trial Court with regard to long exercise of said rights by the Plaintiffs since the time of their ancestors, is the outcome of sound appreciation of evidence, both oral and documentary. 13.The Trial Court upon evaluation of evidence has held that the tanks were excavated by Banchhanidhi prior to 1922-23, but that was not over their rayati land whereas over the lands belonging to the State. The lower appellate Court has found the same to be unsustainable and has negated the same. It has been said that said finding has no basis the reason being based upon the simple fact that when lands around the suit tanks belonged to the plaintiffs ancestors, how can it be that the tanks are on the land of the State. The lower appellate Court has found the same to be unsustainable and has negated the same. It has been said that said finding has no basis the reason being based upon the simple fact that when lands around the suit tanks belonged to the plaintiffs ancestors, how can it be that the tanks are on the land of the State. In view of that, the lower appellate Court has gone ahead to hold the Settlement recording of the year 1922-23 and 1955-56 to be wrong when the fact remains that those were only challenged as such in this suit instituted in the year 1994 and neither the plaintiffs nor their predecessors had never challenged the same nor even raised any grievance over such, recording and thus have allowed the records to stand and hold the field as such for such long period wholly detrimental and prejudicial even to their rights of fishery and water over the suit tanks much less to say as to their ownership. The presumption as regards excavation of tanks over rayati land as drawn by the lower appellate Court for above reason is not at all permissible and tenable as the common experience and reality go to show that tanks belonging to one even if surrounded by cultivable lands of another do not make the tanks the user of the tank/tanks impossible or improbable by its owners or others as the approach to it always remains from all the directions over the ridges of those cultivable land over which all have the right of way of which judicial notice can be well taken. Thus, it cannot lead to conclude in favour of exclusive user of the suit tanks only by the surrounding land owners nor it can leads to a presumption that the tanks are on the land of the surrounding land owner in the absence of any documentary evidence as regards said ownership over the tanks also remaining unrecognized in the old Settlement records going unchallenged and being allowed to stand and hold the field. Therefore, such a finding is erroneous and does not stand to judicial scrutiny. Therefore, such a finding is erroneous and does not stand to judicial scrutiny. The lower Appellate Court has thus grossly erred in law by so holding that the tanks are on the rayati land and that the recordings of the land covered by tanks in the name of State made way back in the year 1922-23 and 1955-56 as wrong and illegal. Admittedly, the ancestors of the plaintiffs were the Gountias. It is well known that for performance of certain duties and works, they are called as Gountias and they are the servants of the State and get the wages towards labour in discharging the duties and performing the works and in lieu of it or enjoy some lands. So, even accepting the factum of excavation of the tank by Banchhanidhi when he was the Gountia of the village that too when the tanks situate over the land of the State, it can very well be said to have been so excavated in that capacity for and on behalf of the State carrying out its order as the servant of the State and the presumption on that score gets attached which in the case having not been satisfactorily rebutted brings down the curtain over that controversy also in that way. Thus, it has to be taken that Banchhanidhi had not excavated the tanks on his own. When tanks do not stand on the land of said Banchhanidhi, the then Gountia and as such he being a servant of the State even accepting the factum of excavation at his instance for a moment, it cannot also be said to have been so excavated on his own denying title of the State over the land which per se is not acceptable in the absence of any positive evidence of assertion of the ownership unto himself for long and user of the tanks as such with hostile animus. Mere user of water and rearing and catching fish etc. even for long period do not come to the aid of the plaintiffs for claiming any such right to the exclusion of true owner so as to extinguish the title of the true owner as also any sort of title of right over it. Mere user of water and rearing and catching fish etc. even for long period do not come to the aid of the plaintiffs for claiming any such right to the exclusion of true owner so as to extinguish the title of the true owner as also any sort of title of right over it. 14.Furthermore, the lower Appellate Court in the present case seems to have committed gross illegality by going to hold the acquisition of title over the suit tanks by the plaintiffs by way of adverse possession, when it is clearly seen that there was neither any foundation to that effect in the plaint nor even advancement of any prayer on that score, much less to say about further pleadings with regard to fulfilment of the ingredients as mandated under the law for the purpose. That apart when the lower Appellate Court has found the tanks to be on the rayati land and not on the land belonging to State and that the recording of the year 1922-23 and 1955-56 vide Exts. U and V to be wrong and illegal, this finding of acquisition of title by the plaintiffs by adverse possession against the State is self-contradictory being in conflict with one another. Having first held that the plaintiffs have the title that too without a scrap of paper in support of the same, next the scope of further proceeding on the assumption that if they have no title, they have so perfected by adverse possession does not at all arise since the assumption in such matter has no place to be legally taken note of or reckoned with. The decision cited by the learned Counsel for the Respondents in case of Dandapani Naik (supra) has no applicability to the case in hand. In the cited case, though the word adverse possession was found to be missing in the pleading yet on construction of pleadings such a case had been found to have been made out and it was thus found that the parties were fully conscious of the pleadings. But that is not the case before us. The plaint in hand being read in its entirety does not lead to arrive at a satisfaction on this score. But that is not the case before us. The plaint in hand being read in its entirety does not lead to arrive at a satisfaction on this score. Moreover, such a relief as granted by the lower Appellate Court is larger than the reliefs claimed by the plaintiffs and therefore the same is wholly impermissible in the eye of law to be granted.The plaintiffs when have claimed the right of fishery and water of the suit tanks situated over the land of the State, the lower Appellate Court having granted the decree declaring their right, title and interest over their suit tanks, the same is also found to be unsustainable by travelling beyond the pleadings and prayer. Furthermore, as per the law laid down by the Apex Court in case of ‘Gurdwara Sahib vs. Gram Panchayat village, Sirthala, (2014) I SCC 669 that even if the plaintiff if found to be in adverse possession, he cannot seek a declaration to the effect that such adverse possession has matured into ownership, grant of relief to the plaintiffs by the lower Appellate Court is indefensible. The Trial Courts finding that the plaintiffs are potential users of the tanks since long by rearing fish in the tanks and using water for irrigation cannot also sustain in view of the admitted case that their predecessors were the Gountias of the village when there remains no further evidence on record that after abolition of said Gountias system with effect from 1.4.1956 they without assuming their position as such and shunning the character as such as also abandoning the earlier nature of possession began to enjoy the rights of fishery and water in denial of the right of the State and thus have been exercising such right on their own claiming as such althrough. This being not proved, mere factum of continuance of exercise of said rights over the tanks places the plaintiffs nowhere in establishing their case as laid. The Trial Court having recorded the finding as above being not conscious of such important aspect, which touches the root, the same is unsustainable. In view of that the Trial Court is also found to have fallen in error in decreeing the suit by granting the reliefs as already stated hereinbefore at paragraph. Thus the judgments and decrees of the Courts below are held unsustainable. 15.Resultantly, the appeals are allowed. In view of that the Trial Court is also found to have fallen in error in decreeing the suit by granting the reliefs as already stated hereinbefore at paragraph. Thus the judgments and decrees of the Courts below are held unsustainable. 15.Resultantly, the appeals are allowed. The judgments and decrees passed by the Courts below are hereby set aside and the plaintiff’s suit stands dismissed. No order as to cost is passed. Appeals allowed.