A leasehold interest that is not part of an estate does not vest in the State under the Orissa Estates Abolition Act, and the tenants' title is not affected.

R. N. MISRA, J.

( 1 ) THE plaintiffs are in appeal against the reversing decision of the learned additional District Judge of Berhampur. They had sued for their title and possession of the property which is 19. 37 acres shown in the schedule of the plaint. The learned Trial Judge gave them a decree while the lower appellate court dismissed their suit by reversing the decision of the trial court.

( 2 ) WHEN this Second Appeal was placed before our learned brother Patra, J. , he by order dated 23-9-1971 directed the case to be heard by a Division Bench.

( 3 ) ACCORDING to the case stated in the plaint there are three revenue villages known as Kahakapur, Kaitha Binayakapalli and Khandadevuli. All these were initially one village known as Kahakapur which formed a part of the Biridi estate. The zamindar of Biridi by a zeraiti patta dated 1871 leased out the entire village of kahakapur to one Balabhadra Tripathy, By then all the lands in the village were covered by forest, jungle and bushes. The lease envisaged improvement by the lessee. Balabhadra reclaimed a portion of the property and made it fit for cultivation. In terms of the lease he was to pay a Banjar cist of Rs. 120/- per year to the estate. The zemindar of Biridi being in need of money had usufructuarily mortgaged this property with Balabhadra for a seven year period. In 1913. Balabhadra's son Ballav and other members of Balabhadra's family transferred the village along with all the lands therein to Baishnab Mohapatra under a registered sale deed dated 5-1-1913 for a consideration of Rs. 13,000/ -. Baishnab was the father of the plaintiff No. 1. Baishnab reclaimed some more lands after 1913. He dug up tanks for storing water for cultivation. He also allowed different persons to construct their houses and remain in possession of portions of the property located in the village. Tanks, their bundhs. Dandas and the village site which were not in occupation of the tenants are really the property in suit now. It was alleged that the zamindar of Bobili purchased the Biridi estate and between the purchaser and the father of the plaintiff No. 1 there was a suit on the question of title to the property. On 12-1-1916, there was a compromise in terms whereof the plaintiff no. 1's fattier obtained recognition of his leasehold title to the half of the disputed property as specified in the compromise petition and the map appended thereto. The plaintiffs claimed that they were the exclusive owners in possession of the disputed property. In 1954, the record-of-rights were published wherein these properties were shown as Paramboke. With the vesting of the estate under the orissa Estates Abolition Act (1 of 1952) the State of Orissa and its public officers started interfering with the plaintiff's enjoyment. The record of rights were erroneous and since they did not create any title and the plaintiffs' interest was not immediately in jeopardy, the plaintiffs had not taken any action to rectify the defect until their possession was interfered with by the Orissa Panchayat, the defendant No. 2, to whom it was alleged that the management of the tanks was transferred by the defendant No. 1. The plaintiffs, therefore, filed the suit for the reliefs indicated above.

( 4 ) THE defendants 1 and 2 filed two separate written statements, but adopted almost a similar stand. It was contended that since the lands in dispute were paramboke as per the record-of-rights and the estate vested on 1-6-1953, by operation of law as contained in Section 5 of the Orissa Estates Abolition Act the disputed property vested in the State of Orissa. The plaintiffs have no right, title or interest in the property and their suit is not maintainable. It was next contended that the plaintiff's had acquiesced in the title of the defendant No. 1 by various acts of theirs. It was said that trees on the disputed property were sold in public auction by the defendant No. 1 and no objection was raised against it-For making improve