The Amendment of Schedule 36, Orissa Tenancy Act by Act X [10] of 1946 protects all tenants of homesteads from eviction, irrespective of the nature of the holding.

PANIGRAHI, J.

( 1 ) IT is not necessary to reserve judgment and keep back my decision from the parties in this case. The facts giving rise to the appeal are simple but; the law argued at the Bar is not as simple.

( 2 ) THE pltf resp. filed a suit in ejectment out of which this appeal arises-in respect of an extent of 136 of. an acre in C. S. Plot no. 2007 in Cuttack Town, against the defts. alleging that they were darpattadars under him in respect of this property. The pltf. served a notice to quit on 19-4-46 and filed the suit a month later. His case was that the deft, is a tanant-at-will and is liable to be evicted at any time. The deft, pleaded that he had a house on the suit holding for at least 70 years and had acquired permanent occupancy right in the land, that the notice to quit was neither proper nor duly served upon him, and that he is protected from eviction by virtue of the recent amendment to Schedule 36, orissa Tenancy Act, by AOL X [10) of 1946. Exhibit a, the Current Settlement khatian shows that the status of the deft, in respect of the suit land is that of a dar-pattadar and that of the pltf. Madhyasatvadhikar.

( 3 ) THE learned Munsif found that the origin of the tenancy was not known but that the deft, had been in occupation of the land for over 70 years. He also found that the original lease was for building purposes and that it contained permanent structures, that the defts. had been in possession from father to son for three generations, paying a uniform rent throughout. He further found that the documents relied on by the pltf. did not prove that there was any variation in the amount of rent paid and also observed that he was not inclined to place much reliance on the genuineness of the rent receipts. The learned Munsif recorded a further finding that the notice to quit (Ex. 3) was invalid as it had not been signed by or on behalf of the pltf. The pltf's suit was accordingly dismissed.

( 4 ) ON appeal the Addl. Subordinate Judge differed from the finding of the trial ct. that the defts. had acquired a right of occupancy on a permanent basis. In his view the rent had varied at different times, there was no evidence to prove payment of a uniform rent and no formal notice to quit was necessary. He accordingly allowed the pltf's appeal and gave a decree in his favour.

( 5 ) IN second appeal it is urged for the defts. firstly, that the lower appellate Ct. erred in appreciating the evidentiary value to be attached to Ex. 2 and 2-a, Exs. 9 series and Ex. 6 and that the correct inference to be drawn from these documents ought to have been that the pltf. had failed to prove that there had been a variation in the rent paid; secondly that the holding was an agricultural holding, to start with, and though the lease of a portion of the holding was for residential purposes the lease itself should have -been deemed to be a lease of agricultural land only and, as such governed by the provisions of the Orissa Tenancy Act; and thirdly that the recent amendment to Schedule 36 of the Act, by Act X [10] of 1946 affords protection to all tenants of homesteads irrespective of the nature of the holding.

( 6 ) SO far appreciation of the documentary evidence is concerned it is pointed out by Mr. De, learned counsel for the pltf. , that the finding recorded by the Ct. below is conclusive and is not open to challenge in second appeal. The documents relied" on by the pltf. are Exs. 2 and 2/a, being counterfoils of certain rent receipts, Exs. 5, 6/c, being wasilbaki papers, and Ex. 6, the rafa book. The trial ct. critically examined these papers and particularly the manner of their production which seemed suspicions, and held that the father of the plts, was realising a rent of Rs. 2 uniformly. With regard to Exs. 5, 5/b and 5/c, the trial Ct. particularly noticed that the rent of as. 2/4 shown therein appertained to 15 decimals of land-a fact which appears to have been ignored by the lower appellate Ct. The lower appellate At