The relationship between a lessor and a lessee in respect of a piece of land situated within Cuttack municipality is governed by the provisions of the Transfer of Property Act, not the Orissa Tenancy Act, unless the lessee comes within the class of any of the 'tenants' described in Section 4, Orissa Tenancy Act.

NARASIMHAM, J.

( 1 ) THIS appeal is by defendants 1 and 2 against the appellate judgment of additional District Judge of Cuttacb confirming the judgment of the Munsif of cuttack decreeing the plaintiff's suit for declaration of title and recovery of possession of a piece of homestead land situated in Cuttack town.

( 2 ) IN the Current Settlement (See Ext. 4) the disputed property was recorded under Khata No. 846 in the names of Haudi Bewa and Dura Bewa, the two widows of one Natha Behera. The said khata consisted of the following two plots; plot No. 1210 having an area of. 035 cents, piot No. 1211 having an area of. 004; the first plot was recorded as 'gharbari' and the second plot as 'dpkan'. The nature of right of the said two widows was recorded as that of 'darpattadar'. Defendants 1 and 2 are admittedly the Pattadars in respect of the two plots under the Khasmahal who is the superior landlord.

( 3 ) THE plaintiff's case was that Natha Behera had a permanent tenancy right in the said two plots and that after his death his two widows Haudi and Dura inherited that right. Haudi died subsequently and Dura thus became the sole surviving heir in respect of the property. On 26-10-1943, she transferred her interest to the plaintiff by a kabala (Ext. 1) for a sum of Rs. 500/ -. As defendants 1 and 2 threatened to evict the plaintiff he was compelled to bring the present suit for declaration of title and other consequential reliefs.

( 4 ) THE main defence of the contesting defendants (Nos. 1 and 2) was that Natha behera had no permanent tenancy right in the disputed plots; that in any case, after his death his widows abandoned the property and that thereupon the defendants as the immediate landlords obtained possession of the same. They also urged that the suit was barred by limitation.

( 5 ) THE learned trial Court held that Natha Behera and after him his two widows held a permanent tenancy right in the disputed plots and that in a previous litigation between the defendants and the two widows in T. S. No. 47 of 1932 this question was finally decided against the defendants and as such was affected by the principle of res judicata. It further negatived the defendants' contention that the relationship between them and Natha Behera was governed by the provisions of the Orissa Tenancy Act and held that it was governed by the provisions of the transfer of Property Act. On the question of limitation, it held that the disputed property was abandoned by the widows within about ten years of the date of the institution of the suit and that consequently the suit was not barred under Article 142, Limitation Act. It rejected the defendants' contention that the kabala (Ext. 1)executed by Dura Bewa in favour of the plaintiff was a collusive document representing a sham transaction and held that it was for consideration and that the plaintiff, therefore, became the successor-in-interest of Natha Behera. The learned appellate Court confirmed the findings of the trial Court on all the points.

( 6 ) THE findings of both the Courts to the effect that the kabala (Ext. 1) obtained by the plaintiff from Dura Bewa was genuine and was for consideration and the further finding that the dispossession of Dura Bewa took place within ten years of the institution of the suit are pure questions of fact and were rightly not pressed in the second appeal. The main points urged by Mr. Das on behalf of the appellants are:

(i) the provisions of the Orissa Tenancy Act would apply to the present case and not the provisions of the Transfer of Property Act;

(ii) the decision in T. S. No. 47 of 1932 would not operate as res judicata and the Darpattadar's right in the disputed property was that of a tenant-at-will; and

(iii) both the Courts committed an error of law in assuming that one of the incidents of a permanent tenancy was transferability.

( 7 ) THE disputed property is situated within Cuttack municipality; but as the said municipality was not excluded from the prov