The abolition of service tenure does not automatically confer title to the land on the erstwhile service tenure holder. The State has the right to resume the land and settle it on rayati basis.

Judgement

G. K. MISRA, C.J. :- Shorn of irrelevant details the cases of the plaintiff and defendant may be stated in short. The plaintiff s case is as follows:-

One Swarn Bag died in or about 1927 leaving behind his widow Jamuna Bewa and daughter Sabitri. Ukia (plaintiff) is the daughter of Sabitri and Balabhadra. Jamuna died on 19-8-1955. The disputed land with an area of 3.60 acres in khata No. 195 of village Jamankira (in the ex-State of Bamra), now in the district of Sambalpur stood recorded as Nariha Jagir lands in the name of Swarna Bag. The same was recorded in the name of Jamuna Bewa after the death of Swarna Bag. On Jamuna s death defendant was requested by the plaintiff to look after the lands. Defendant belied the trust and stealthily got his name mutated in the Revenue Mutation Case No. 166/32 of 1955-56 falsely alleging that he was the adopted son of both Swarna Bag (Sabitri?) and Balabhadra though, in fact, there was no adoption. Amongst other reliefs, plaintiff asked for declaration of title and recovery of possession. Defence case is that the defendant is the adopted son of Balabhadra and Sabitri, both of whom pre-deceased Jamuna. Jamuna gifted the disputed land to the defendant by a plain paper document on 10-10-54 and since then he is in possession of the suit land in his own right, title and interest. The disputed lands were Nariha Jagir lands and not rayati initially. Nariha Jagir was abolished in the ex-State of Bamra in 1964 and the disputed land was settled by the State on the defendant in Nariha Jagir Land Case No. 5/4 of 1964-65. Plaintiff has no title or possession and the suit was barred by adverse possession.

2. The trial court recorded the following findings-

(i) Defendant is not the adopted son of Balabhadra and Sabitri.

(ii) The suit lands were service tenure lands being Nariha Jagir lands and not rayati lands;

(iii) Plaintiff is the heir of Swarna Bag being daughter s daughter;

(iv) Defendant failed to prove the alleged gift on 10-10-54 by Jamuna in his favour.

(v) The suit is not barred by adverse possession.

(vi) The suit is not bad for non-joinder of the State of Orissa as a party.

(vii) The settlement of the suit land with the defendant in 1964 is not under Section 7 (g) of the Orissa Merged States (Laws) Act, 1950 (hereinafter to be referred to as the 1950 Act).

(viii) The suit land was settled with the defendant in 1964 under Section 8 (2) of the Orissa Estates Abolition Act, 1951 (hereinafter to be referred to as the 1951 Act) and as such the settlement of the Nariha Jagir lands with the defendant on rayati basis by the State cannot be questioned in Civil Court under Section 39 of that Act.

3. Findings (i) and (iii) to (vii) were in favour of the plaintiff. The suit was, however, dismissed on the last finding that Civil Court has no jurisdiction under Section 39 of the 1951 Act to entertain the suit. Plaintiff filed an appeal before the District Judge, Sambalpur, which was heard by the learned Subordinate Judge.

4. Findings (i) to (vii) were not assailed before the lower appellate court on behalf of the defendants and the second finding was not challenged by the plaintiff. Those findings are thus concluded as pure findings of fact. The learned Advocate for the appellant also clearly stated to us that he does not assail those findings.

5. The finding of the trial court that the suit was not bad for non-joinder of the State of Orissa as a party defendant was confirmed by the learned Subordinate Judge. The concurrent conclusion of the courts below on this point has not been rightly assailed before us. The fight is in between the plaintiff and the defendant regarding title to the disputed land and the State of Orissa is not a necessary party.

6. The only contention urged before the lower appellate court was that Section 39 of 1951 Act ousted the jurisdiction of the Civil Court to entertain the suit. The learned Subordinate Judge examined Section 7 (g) of the 1950 Act and Section 8 (2) of the 1951 Act and he