An application under Section 36-A of the OLR Act for tenancy right is not maintainable after a final decree in a civil suit declaring the applicant as a trespasser.

( 1 ) PETITIONERS are successors-in-interest of Bhagabat Kundu. Bhaga-bat Kundu had filed a civil suit (O. W. No. 217 of 1966) in the court of the Munsif, Balasore against opposite party No. 4 for declaration of title and for eviction of opposite party No. 4 on the ground that opposite party No. 4 had trespassed upon the suit land. The defence of opposite party No. 4 was that the vendor of Bhagabat Kundu had contracted to sell the suit land to him and had delivered possession thereof. He claimed that he was entitled to protection under Section 53-A of the Transfer of Property Act. The learned Munsil held that Bhagabat had title to the suit property and opposite party No. 4 was a trespasser and hence decreed the suit. Opposite Party No. 4 preferred an appeal against the decree of the learned Munsif, but the same was dismissed. He thereafter preferred Second Appeal No. 272 of 1979 which was decided on 12-2-1974 and the decree of the trial court was upheld. After disposal of the Second Appeal, the petitioners who are the legal representatives of Bhaga-bat Kundu levied execution of the decree for delivery of possession, but opposite party No. 4 filed O. L. R Case No. 51 of 1974 under Section 36-A of the Orissa Land Reforms Act claiming tenancy right in respect of the suit property. The Tahasildar held that possession had been taken in the execution case levied by the petitioners after the disposal of Second Appeal and that opposite party No. 4 was not a tenant. As against the said order of the Tahsilaar, opposite party No. 4 preferred O. L. R. Appeal No. 86 of 1975. The appellate authority set aside the decision of the Tahsildar holding that the revenue court is the proper court to hold whether there was relationship of landlord and tenant and remanded the case to the Tahsildar. As against the said order, the petitioners preferred O. L. R. Revision Case No. 20 of 1976 before the Additional District Magistrate who was the authority under the Land Reforms Act. The revisional authority confirmed the findings of the appellate authority and dismissed the revision. It further held that the revenue officer can suo motu make a case to confer the tenancy right under Sections 3, 61 and 67 read with Section 36-A of the O. L. R. Act and the Civil Court has no jurisdiction to give a finding about the relationship of landlord and tenant. Ultimately, the revisional authority held that opposite party No. 4 is the tenant and directed to fix the fair rent. This writ petition is directed against the decision of the re-visional authority. In the return, it is asserted that the proper authority under the O. L. R. Act is the revenue court and the Civil Court has no jurisdiction to record the finding as to relationship of landlord and tenant and, as such, the decision of the civil court culminating in the Second Appeal is not binding against opposite party No. 4.

( 2 ) ADMITTEDLY, application under Section 36-A of the O. L. R. Act was filed after disposal of the Second Appeal and during the pendency of the execution case. In the Second Appeal, it was held that opposite party No. 4 failed to establish his claim as Bhagchasi and he was not in possession of the property, but was a trespasser. The claim for specific performance of contract made by opposite party No. 4 in the civil suit was barred by limitation. Opposite party No. 4 had taken a stand in the civil suit that he came into possession of the disputed property by virtue of an agreement for sale by the vendor of the predecessor of the petitioners and he was in possession. As such, he also claimed protection under Section 53-A of the T. P. Act. The stand taken by opposite party No. 4 was negatived by the civil court. He never took the stand in the civil suit that he was a tenant under the O. L. R. Act even though the Second Appeal was finally disposed of in 1974. Being defeated in the litigation in the civil court, while the petitioners levied execution for taking possession of the suit property an