JUDGMENT : A.K. Rath, J. This appeal at the instance of the plaintiffs' assails the affirming judgment of the learned Addl. District Judge (F.T.C.), Bhawanipatna in Title Appeal No.13/10 of 1993/2003. 2. A tank having an area of Ac.26.10dec. of land appertaining to Plot Nos.241, 249 and 250 of Mouza-Kotagaon in the district of Kalahandi is the subject-matter of dispute. 3. Case of the plaintiffs was that one Rama Chandra Gauntia had excavated the tank over his raiyati land. He sold the tank to Basudev Panda in the year 1911. After his death, his son Pandu, father of plaintiff nos.2 to 4 made improvement of the tank. Thereafter, the names of plaintiffs 2 to 4 along with their elder brother Pyarilal found place in the improvement list. Plaintiffs 2 to 4 are in possession of the tank and rearing fish. While matter stood thus, plaintiff no.1 claiming to be the adopted son of Nilamani Panda along with others instituted Title Suit No.4 of 1975 in the court of the learned Subordinate Judge, Bhawanipatna for declaration of fishery rights over the tank impleading the State of Orissa and plaintiff nos.2 to 4 herein as defendants. Learned trial court rendered a finding that defendants 2, 3, 5 and 6 along with Pyarilal were in possession of the tank. The tank had not been transferred to Mandal Gram Panchayat (in short 'G.P.'). The suit was dismissed on 03.09.1985. Thereafter, Pyarilal sold the tank to plaintiff no.1. The plaintiffs are in possession of the tank. Defendant nos.2 and 3, who have no semblance of right, title and interest over the tank leased out the same to defendant no.4 on 8.2.1991 by way of auction. With this factual scenario, they instituted the suit for declaration of title, lease dtd.8.2.1991 is illegal & permanent injunction. 4. Defendant nos.1, 2 and 3 have filed a joint written statement denying the assertions made in the plaint. The specific case of the defendants was that the ancestors of the plaintiffs were Gauntias of the village during Darbar Administration. The Gauntia had excavated the tank on government land. State is the paramount owner of the tank. The ROR stands in the name of the Revenue Department. Title Suit No.4 of 1975 was dismissed. The state government was not entitled to file appeal against the findings. The findings of the trial court will not operate as res judicata against the State. State is the paramount owner of the tank. The ROR stands in the name of the Revenue Department. Title Suit No.4 of 1975 was dismissed. The state government was not entitled to file appeal against the findings. The findings of the trial court will not operate as res judicata against the State. The instant suit is barred by res judicata. Pyarilal had no saleable interest over the tank. Even if any alienation is made, the same is not binding on the State. It was further pleaded that the Gauntia system was abolished in the district of Kalahandi with effect from 01.04.1956 after coming into effect of the Orissa Estates Abolition Act, 1951 (in short 'the OEA Act'). The Gauntias including the ancestors of the plaintiffs lost their rights over the tank under Section 5 of the OEA Act. Plaintiffs have no title over the same. Unnati Sadhan List, Ext.4, prepared by Government is no help to the plaintiffs. The tank has been transferred to defendant no.3-G.P. The G.P. is in possession of the same. It is apt to state here that during pendency of the first appeal, appellant no.1 died and appellant no.2 died during pendency of this appeal. Their legal heirs have been substituted. 5. Stemming on the pleadings of the parties, learned trial court struck ten issues. Parties led evidence, both oral and documentary. Learned trial court dismissed the suit holding that the plaintiffs have failed to establish that Rama Chandra Gauntia had excavated the tank over his raiyati land. They have not filed any document regarding purchase of the tank by Basudev Panda in the year 1911 for a consideration of Rs.500/-. The ancestors of the plaintiffs were not in continuous possession of the tank. Mere recording of the name of the plaintiffs in Unnati Sadhan List does not confer title. Unsuccessful defendants filed appeal before the learned District Judge, Bhawanipatna, Kalahandi, which was subsequently transferred to the court of learned Ad hoc Addl. District Judge, FTC, Bhawanipatna, Kalahandi. Learned appellate court concurred with the findings of the trial court and held that the principle of res judicata shall not operate against defendant no.1. There is no evidence on record that the ancestors of plaintiffs were in possession of the tank. 6. The appeal was admitted on the following substantial questions of law. "1. District Judge, FTC, Bhawanipatna, Kalahandi. Learned appellate court concurred with the findings of the trial court and held that the principle of res judicata shall not operate against defendant no.1. There is no evidence on record that the ancestors of plaintiffs were in possession of the tank. 6. The appeal was admitted on the following substantial questions of law. "1. Whether the judgment and decree passed by the learned trial court in T.S. No.4 of 1975 will operate as res judicata between the co-defendants? 2. Whether the finding of the courts below that Rama Chandra Gauntia had not excavated the suit tank and the ancestor of the plaintiffs were not in possession of the same is perverse? 3. Whether the courts below are correct in ignoring the development list (Unnati Sadhan list) published by the State wherein the State has accepted the right, title and interest of the plaintiffs over the suit tank ?" 7. Heard Mr.Rajat Kumar Rath, learned Senior Advocate along with Mrs.Pami Rath, learned Advocate for the appellants and Miss Samapika Mishra, learned ASC for respondent nos.1 and 2 and Mr.Jiban Ranjan Dash, learned counsel for the respondent no.3. None appears for the respondent no.4. 8. Mr.Rath, learned Senior Advocate for the appellants argued with vehemence that Ram Chandra Gauntia had excavated the suit tank over his raiyati land. He sold the same to Basudev in the year 1911. After death of Basudev, his son Pandu father of plaintiff nos.2 to 4 became the owner. Basudev had six sons including Pandu. One son, namely, Maheswar was issueless. He adopted Nilamani, son of another brother Braja. Narsingha son of Nilamani, plaintiff no.1 instituted T.S. No.4 of 1975 in the court of the learned Subordinate Judge, Bhawanipatna for declaration of right, title and interest over the tank against the State of Orissa and the present plaintiff nos.2 to 4. In the suit, it was held that the tank was not excavated on the Government land. Ram Chandra Gauntia had excavated the tank over his raiyati land. Basudev purchased the same. He became the owner of the tank. The State is not the owner of the tank. The tank was not transferred to G.P. The suit was dismissed. The State did not file appeal assailing the judgment or institute a fresh suit. The principle of res judicata shall operate between the codefendants. Basudev purchased the same. He became the owner of the tank. The State is not the owner of the tank. The tank was not transferred to G.P. The suit was dismissed. The State did not file appeal assailing the judgment or institute a fresh suit. The principle of res judicata shall operate between the codefendants. Learned trial court committed patent error in holding that since the suit was dismissed, it will not operate as res judicata. It wrongly adjudicated the issue of res judicata and estoppel. The courts below fell to note the fact that in the earlier suit, it was held that the tank has not been excavated over the government land. In Unnati Sadhan List, Ext.4, it was recorded that Ram Chandra Gauntia had excavated the tank. Since there was conflicting interest between the State and defendant nos.2, 3, 5 and 6, the same shall operate as res judicata between the co-defendants. Issue of estoppel shall apply on public policy. To buttress the submissions, he placed reliance on the decisions of the apex court in the case of P.N.Kesavan v. Lekshmy Amma Madhavi Amma, (1968) AIR Kerala 154, Bar Council of Maharashtra v. Dabholkar, (1975) AIR SC 2092, Pravas Chandra Das v. Srimati Nirupama Dei, 1976 CLT 606, Mahboob Sahab v. Syed Ismail and others, (1995) AIR SC 1205, Hope Plantations Ltd. v. Taluk Land Board, Peermade and another, (1999) 5 SCC 590 , Bhanu Kumar Jain v. Archana Kumar, (2005) AIR SC 626 and M/s.Makhija Construction & Engineering Pvt. Ltd. v. Indore Development Authority, (2005) AIR SC 2499. 9. Per contra, Miss Mishra, learned ASC for the respondent nos.1 and 2 submitted that Ram Chandra was the Gauntia of the village. After abolition of village office, the Gauntia ceased to have the right to hold the Gauntia raiyati land. Gauntias have no right to possess the land. The tank had not been settled in the name of Ram Chandra under the Orissa Merged Territories (Village Offices Abolition) Act, 1962. He had no right to alienate the land to the ancestors of the plaintiffs. The sale deed, value of which exceeds Rs.500/-, requires registration. No title passed. The sale was an invalid one. Since the plaintiffs claimed fishery right, the same is a 'profit a prendre'. The value of property exceeds Rs.500/-. The same requires registration. He had no right to alienate the land to the ancestors of the plaintiffs. The sale deed, value of which exceeds Rs.500/-, requires registration. No title passed. The sale was an invalid one. Since the plaintiffs claimed fishery right, the same is a 'profit a prendre'. The value of property exceeds Rs.500/-. The same requires registration. In Title Suit No.4 of 1975, learned trial court held that parties do not dispute the title over the suit tank. The suit property has been recorded in the name of the State of Orissa in the ROR, Ext.3. The suit was dismissed. A party adversely affected by the judgment may file appeal, but not against any findings. Finding in the suit shall not operate as res judicata against the State. Elaborating submissions, she further submitted that when a party suffers a decree and some of the findings are against him, he need not file appeal. But when an appeal lies, the party against whom there is a finding may file cross-objection. Principle of res judicata will not apply in this case, since there was conflicting interest between the plaintiff and defendant nos.2 to 6 in T.S. No.4 of 1975. Since the plaintiffs have not challenged the decree, the same will operate as res judicata in the instant suit. The suit is not maintainable. She placed reliance on the decisions of the apex Court in the case of Ananda Behera and another v. State of Orissa and another, (1956) AIR SC 17, Bhima Jali v. Nata Jali,1976 2 CWR 590, Jatani Dei v. Udayanath Behera, (1983) AIR Orissa 252, Paramananda Pradhan v. Palau Sahu, (1984) AIR Orissa 57, Ramesh Chandra v. Shiv Charan Dass, (1990) Supp1 SCC 633, Mahboob Sahab v. Syed Ismail and others, (1995) 3 SCC 693 . 10. Before adverting to the contentions raised by the learned counsel for the parties, it is apt to refer to the decisions cited by learned counsel for the parties. 11. In Mahboob Sahab (supra), the apex Court held: "It is true that under Section 11 C.P.C. when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claimed, litigating under the same title, the decree in the former suit would be res judicata between the plaintiff and the defendant or as between the co-plaintiff or co-defendant. But for application of this doctrine between co-defendants four conditions must be satisfied, namely, that (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit." 12. In M/s. Makhija Construction (supra), the apex Court held: "16. The principle of res judicata has been held to bind co-defendants if the relief given or refused by the earlier decision involved a determination of an issue between codefendants for co-respondents as the case may be). This statement of the law has been approved as far back as in 1939 in Munni Bibi v. Trilokinath, 58 IndApp 158, 165, where it has been said that to apply the rule of res judicata as between co-defendants three conditions are requisite. (1) There must be a conflict of interest between the defendants concerned; (2) It must be necessary to decide this conflict in order to give the plaintiff the relief he claims and (3) the question between the defendants must have been finally decided." 13. In Hope Plantations Ltd. (supra), the apex Court held: "26. It is settled law that principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even he demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are 'cause of action estoppel' and 'issue estoppel'. These two terms are of common law origin. Again once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that issue was wrongly determined. their only remedy is to approach the higher forum if available. These two aspects are 'cause of action estoppel' and 'issue estoppel'. These two terms are of common law origin. Again once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that issue was wrongly determined. their only remedy is to approach the higher forum if available. the determination of the issue between the parties gives rise to as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operated in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice." 14. In Bhanu Kumar Jain (supra), the apex Court held: "30. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res-judicata creates a different kind of estoppel viz Estopper By Accord. 31. In a case of this nature, however, the doctrine of 'issue estoppel' as also 'cause of action estoppel' may arise. In Thoday (supra) Lord Diplock held: "...........cause of action estoppel" is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e., judgment was given on it, it is said to be merged in the judgment .If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam." 15. In Ramesh Chandra (supra), it was held that one of the tests to ascertain if a finding operates as res judicata as if the party aggrieved could challenge it. In Ramesh Chandra (supra), it was held that one of the tests to ascertain if a finding operates as res judicata as if the party aggrieved could challenge it. Since the dismissal of appeal or the appellate decree was not against defendants 2 and 3 they could not challenge it by way of appeal. 16. In Bar Council of Maharashtra (supra), the apex court held: "Where a right of appeal to Courts against an administrative or judicial decision is created by statute, the right is invariably confined to a person aggrieved or a person who claims to be aggrieved. The meaning of the words "a person aggrieved" may vary according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". 17. In Pravas Chandra Das (supra), a contention was raised that since a money appeal was dismissed, there was no necessity for the respondents in the money appeal to challenge the findings of the learned trial court by preferring a second appeal. Therefore, the finding on a question of fact may not operate as res judicata. This Court held: "The true test seems to be that when a finding is rendered against a litigant but he has no right of appeal against that finding because the ultimate decision is in his favour, the finding does not have the protection of res judicata. This rule has also been approved by the Judicial Committee of the Privy Council in the case of Midnapur Zamindari Company v. Naresh Narain Roy. At page 55 of the Reporter, it has been indicated :- "Their Lordships do not consider that this will found an actual plea of res judicata, for the defendants, having succeeded on the other plea, had no occasion to go further as to the finding against them." 18. In P.N.Kesavan (supra), it was held: "In a case where two defendants have a dispute inter se and that dispute has also been decided by the decree, can the defendant affected by the decree file an appeal even if the suit has been dismissed? In P.N.Kesavan (supra), it was held: "In a case where two defendants have a dispute inter se and that dispute has also been decided by the decree, can the defendant affected by the decree file an appeal even if the suit has been dismissed? The law on the subject is clear; and that is that if the decision will be res judicata against the said defendant in a subsequent suit field by him, he can file an appeal. In the first case, since the plaintiff and the defendant who seeks to file the appeal have the same interest, the dismissal of the suit is as much against the plaintiff as it is against him. In such a case the dismissal of the suit will be res judicata against him; and he can file an appeal." 19. In Jatani Dei (supra), this Court in paragraph-9 of the report held: "Order 41, R 22 CPC permits the respondent who may not have appealed from any part of the decree to support the decree and state that the finding against him in respondent supports the decree, he need not file any cross-objection because when the decree is in his favour cross-objection is not maintainable. Cross-objection, in such situation, is inconceivable. Cross-objection is filed against a part of the decree." 20. In Paramananda Pradhan (supra), the question arose before a Full Bench of this Court as to whether Gounti-raiyati lands in the former State of Bamra are the personal property of the Gauntia or he ceases to have the right to hold the same on abolition of the village office. The further question arose as to whether the Civil Court has jurisdiction to entertain the suit for partition of the Gounti-raiyati lands, which have been settled under Sec.6 of the Act. On an in-depth analysis of the Revenue Laws prevailing in ex-State Bamra and the Act, the Full Bench held that the Gauntia used to possess the vacant holdings of the raiyats and to remain in charge of those holdings until they were settled with other raiyats. He was in possession of those lands by virtue of or as incidental to his office. Such lands were called the Gounti-raiyati lands during the tenure of office of the Gauntia. He was in possession of those lands by virtue of or as incidental to his office. Such lands were called the Gounti-raiyati lands during the tenure of office of the Gauntia. After abolition of the village office, the Gauntia shall cease to have the right to hold, the Gounti-raiyati lands as provided under Section 3(g) of the Act. Gounti-raiyati lands in the ex- State of Bamra were not the personal property of the Gauntia. It was further held that the Gounti-raiyati lands in the ex-State of Bamra were not the personal property of Gauntia, but he was in charge of those lands by virtue of or as incidental to his office and according to the provisions of Sec.3(g) of the Act, he ceases to have the right to hold those lands. 21. Taking a cue from Ananda Behera (supra), this Court in the case of Biranchi Pradhan and another v. Collector, Bolangir and others, (2017) AIR Orissa 154 held: "Ananda Behera and another v. State of Orissa and another, (1956) AIR SC 17 is a locus classicus on the subject. The dispute pertained to fishery rights of the plaintiffs over a portion of Chilka lake. The estate was vested in the State of Orissa under the Orissa Estates Abolition Act. Long before vesting of the estate, the petitioners had entered into contracts with the ex proprietor Raja of Parikud and had obtained from the latter, on payment of heavy sums, licences for catching and appropriating all the fish from the fisheries detailed in the schedule of the petition. The State of Orissa refused to recognise the licenses and were about to reauction the rights. At this juncture, the petitioner had approached the apex Court under Article 32 of the Constitution of India on the ground that their fundamental rights enshrined under Articles 19(1)(f) and 31 (I) were infringed. The question arose before the apex Court as to whether the petitioners had acquired any rights or interests in "property" by their several "purchases". The Constitution Bench of the apex Court held that the lake is immoveable property. After promulgation of the Orissa Estate Abolition Act, it vested in the State of Orissa. The question arose before the apex Court as to whether the petitioners had acquired any rights or interests in "property" by their several "purchases". The Constitution Bench of the apex Court held that the lake is immoveable property. After promulgation of the Orissa Estate Abolition Act, it vested in the State of Orissa. Right to catch and carry away fish in specific sections of the lake over a specified future period amounts to licence to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a 'profit a prendre' which has been regarded as a benefit that arises out of the land and, as such, is immoveable property. If 'profit a prendre' is regarded as tangible immoveable property and the property value is more than Rs.100/- it requires registration under Section 54 of the Transfer of Property Act. The same view was followed in the Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh and others, (1977) AIR SC 2149. The apex Court in uncertain terms held that the right to catch and carry away the fish being a 'profit a prendre' i.e. a profit or benefit arising out of the land, it has to be regarded as immovable property within the meaning of the Transfer of Property Act, read in the light of Section 3 (26) of the General Clauses Act. If a 'profit a prendre' is tangible immovable property, its sale has to be by means of a registered instrument in case its value exceeds Rs.100/- because of Section 54 of the Transfer of Property Act. If it is intangible, its sale is required to be effected by a registered instrument whatever its value. Therefore, in either of the two situations, the grant of the 'profit a prendre' has to be by means of a registered instrument. Accordingly, the transaction of sale of the right to catch and carry away the fish if not effected by means of a registered instrument would pass no title or interest." 22. Therefore, in either of the two situations, the grant of the 'profit a prendre' has to be by means of a registered instrument. Accordingly, the transaction of sale of the right to catch and carry away the fish if not effected by means of a registered instrument would pass no title or interest." 22. Reverting to the facts of this case and keeping in view the enunciation of law laid down in the decisions cited supra, this Court finds that Narashingh Panda, plaintiff no.1 along with others instituted T.S. No.4 of 1975 in the court of the learned Subordinate Judge, Bhawanipatna for declaration of their fishery rights and water of the suit tank impleading the State of Orissa and plaintiff nos.2 to 4 herein as defendants. Though in paragraph-7 of the judgment, Ext.2, learned trial court held that Rama Chandra had excavated the tank over the Govt. land and sold the same to Basudev whereafter, Basudev became the owner in possession of the said suit tank, but in paragraph-14 of the judgment, it held that the parties do not dispute the title of the State over the suit tank. It dismissed the suit. The findings of the trial court suffer from internal inconsistencies. 23. The conditions enunciated by the apex Court in Mahboob Sahab (supra) with regard to the applicability of doctrine of res judicata do not satisfy. Thus, findings in T.S. No.4 of 1975 shall not operate as res judicata. 24. In Ganga Bai v. Vijay Kumar, (1974) AIR SC 1126, on construction of the provisions of Sections 96, 100, 104, 105 and Order 43 Rule 1 CPC, the apex Court held that these provisions show that under the Code of Civil Procedure, an appeal lies only as against a decision or as against an order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. 25. In view of the authoritative pronouncement of the judgment in the case of Ganga Bai, the submissions of Mr. Rath, learned Senior Advocate have no legs to stand. 26. Plaintiffs stated that their grandfather had purchased the land from Rama Chandra for a consideration of Rs.500/-. 25. In view of the authoritative pronouncement of the judgment in the case of Ganga Bai, the submissions of Mr. Rath, learned Senior Advocate have no legs to stand. 26. Plaintiffs stated that their grandfather had purchased the land from Rama Chandra for a consideration of Rs.500/-. The apex Court in the case of Ananda Behera (supra), in no uncertain terms, held that the grant of the 'profit a prendre' has to be by means of a registered instrument. Accordingly, the transaction of sale of the right to catch fish and carry away the fish, if not effect by registered instrument, would pass no title or interest. In the instant case, the value of the suit tank exceeds Rs.500/-. There is no sale deed. Thus, no title has been passed. 27. After abolition of village office, the Gauntias shall cease to have the right to hold the Gauntias raiyati land as provided under Section 3(g) of the Orissa Merged Territories (Village Offices Abolition) Act, 1962. The Gauntias raiyati land was not a personal property of Rama Chandra. He was in-charge of the land by virtue of holding the office. In view of the provisions contained in Section 3(g) of the Orissa Merged Territories (Village Office Abolition) Act, 1962, he ceases to have the right to sell the land. 28. Reliance placed on Unnati Sadhan List, Ext.4, is totally misplaced. The same is not a document of title. The substantial questions of law are answered accordingly. 29. In the wake of the aforesaid, the appeal sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to cost.