A civil court has jurisdiction to examine the finding of the Estate Abolition Collector regarding the date of a lease, but if it is found that the lease was subsequent to 1-1-1946 or was made with the object of defeating any object of the Orissa Estates Abolition Act or obtaining higher compensation thereunder, the lease is liable to be set aside under Section 5(i) of the Act.

R. N. MISRA, J.

( 1 ) DEFENDANTS 2 to 4 in a suit for declaration of title and confirmation of possession have appealed against the reversing judgment and decree of the learned District Judge of Puri.

( 2 ) THE disputed property is 62 decimals of Anabadi land in Plot No. 84 and constituted part of an estate which has long vested in the State of Orissa. Plaintiffs alleged that before plaintiff No. 1, his father had taken oral lease of the property from the ex-intermediary and in the year 1947, plaintiff No. 1 obtained written leases and planted trees on the disputed property and continued to be in possession. As the plaintiff No. 1 was a settled raiyat of the village, he acquired occupancy right in the disputed property. Subsequent to vesting of the estate, defendants 2 to 4 made an application to the Estate Abolition Collector against plaintiff No. 1 asserting communal rights of the villagers over the property and on the basis pf the said application of the defendants Miscellaneous Case No. 4 of 1958-59 was registered under Section 5 (i) of the Orissa Estates Abolition Act (hereinafter referred to as the 'act' ). The Estate Abolition Collector set aside the lease and an appeal carried against the said decision was dismissed. During the pendency of the proceeding under section 5 (i) of the Act, plaintiff No. 1 had sold the property to plaintiffs 2 to 5. All the plaintiffs, therefore, filed the suit on 3-1-1968 asking for the following

reliefs:-- (i) to declare that plaintiffs have acquired occupancy right in the disputed property; (ii) the order of the Estate Abolition Collector under Section 5 (i) of the Act is illegal and ultra vires; (iii) plaintiffs' possession over the disputed property be confirmed; and (iv) it be declared that defendants 2 to 4 had, nor have, any right, title or interest or possession over the disputed property.

( 3 ) TWO separate written statements were filed, one by the State of Orissa (defendant No. 1) and the other by defendants 2 to 4. The first defendant pleaded that the alleged leases were invalid as they had been taken after 1-11946 and the allegation of oral lease was without basis; plaintiff No. 1 had not acquired any occupancy right as alleged; the decision of the Estate Abolition collector was not open to challenge and the suit was not maintainable. Defendants 2 to 4 in their written statement claimed that plaintiff No. 1 or his father had never taken any oral lease nor had plaintiff No. 1 taken any lease in writing in 1947. The villagers have communal right over the land and on objection of the defendants, a proceeding under Section 5 (i) of the Act had been duly initiated and on enquiry the written leases obtained during 1949 and 1950 had been duly cancelled.

( 4 ) THE trial Court found that there was no oral lease prior to 1-1-1946 and plaintiff No. 1 had got into possession of the property only subsequent to the leases under Exts. 2 to 5. It found that the cancellation of the leases under section 5 (i) of the Act was a valid order. The Civil Court's jurisdiction to maintain the suit was barred under Section 39 of the Act. Accordingly it dismissed the suit.

( 5 ) ON plaintiffs' appeal, the learned District Judge reversed the decree of the trial Court by holding:-

(i) Though no rent receipts prior to 1946 have been adduced, on the evidence of P. W. 4 it is to be held that the lease was prior to 1-1 1946; (ii) The evidence of P. W. 2 that plaintiff No. 1 came into possession subsequent to the written leases was a confused one and, therefore, evidence of P. W. 4 should be preferred; (iii) Rent receipts under Exts. 6 and 7 series establish that plaintiff no. 1's father was in possession prior to 1946; (iv) By acceptance of rent, an agricultural tenancy had been created; (v) Plaintiff No. 1 had acquired occupancy right prior to vesting of the estate and the Estates Abolition Act did not take away or affect such right. Therefore, the proceeding under Section 5 (i) of the Act was not maintain