An intermediary whose estate has vested in the State under the Orissa Estates Abolition Act has no right to sue for recovery of possession, even from a trespasser.

G. B. PATNAIK, J.

( 1 ) DEFENDANT No. 1 (a/1) is the appellant against a reversing judgment.

( 2 ) PLAINTIFF, the deity Sri Chandra Se-khar Mahaprabhu represented by the trustee Sri Chaitanya Das, filed the suit, for recovery of possession and for mesne profits with respect to the land covered by T. D. No. 129 on the averment that the deity is the owner of the land and Bairagi Das was the last previous trustee who was cultivating the lands under khas cultivation. After Bairagi, Chaitanya Das continued as the trustee. During survey operation for issue of Patta and fixation of rent, the defendants tried to put forth a fictitious claim and produced some sale deed alleged to have been executed by one Nilapu Kantaru. Nilapu Apudu and others. In the detailed enquiry conducted by the Assistant Settlement Officer, deity's title was declared and the Assistant Settlement Officer further held the defendants to be trespassers. On account of such trespass, the plaintiff had filed the suit. By way of amendment, an additional relief was asked for to the effect that the notification dated 30-9-1965 published in the Orissa Gazette on 1-10-1965 under the provisions of the Orissa Estates Abolition Act did not apply to the suit land as the suit land is not an 'estate' as contemplated in the said Act.

( 3 ) IN the written statement filed by the defendants, the averments in the plaint were denied and further it was asserted that the defendants had perfected their title by remaining in continuous possession over the statutory period.

( 4 ) THE learned Subordinate Judge framed as many as 14 issues and on appreciation of the evidence on record came to hold :--

"to sum up the above discussions, my findings on issue No. 1 is that the suit lands belonged to the plaintiff by the time when the suit was filed, on issue No. 2 is that the plaintiff was in possession of the suit lands within 12 years from the date of the filing of the suit, on issue No. 3 is that the defendants (defendants 1 and 2) trespassed into the suit lands in the year I960, on issue No. 4 is that the defendants have not acquired their title in respect of the suit lands by way of adverse possession and on issue No. 5 is that the suit lands appertain to Parlakhaspa but not to Bada-Khinga. "Issues Nos. 7 and 9 were not pressed at the time of hearing. On issue No. 12, the learned trial court found on admission of all parties :-

"hence my finding on this issue is that the suit lands covered under T. D, No. 129 of Parla-Khaspa are an estate and vested in the State by virtue of the notification of the year 1965 subject to claim and reference preferred and notification made in the year 1974. '' On issue No. 13, the learned trial court found :-- "in view of Ext. 8, it is evident that the claim preferred by the plaintiff was pending when the Act 33 of 1970 came into force. " and on issue No. 14, held:--"in view of this notification (dated 18-3-1974) the suit lands vested in the State free from all encumbrances and the plaintiff cannot maintain the suit. "

On issue No. 10, the learned trial court held that the defendants \ and 2 were liable to pay mesne profits for the period of three years from the date of institution of the suit and also for future mesne profits. The trial court though found that the plaintiff had cause of action, but held that the suit was not maintainable against defendant No. 3 for want of notice under S. 80 of the Civil P. C. Ultimately, on the basis of the findings arrived at on issues Nos. 6, 12 and 14, the suit was dismissed.

( 5 ) ON appeal (Title Appeal No. 8/77 (39/74 GDC), the plaintiff only challenged the findings of the learned Subordinate Judge under issues Nos. 13 and 14. The learned Appellate Judge confirmed the finding so far as issue No. 13 is concerned by holding that the suit land was an 'estate'. He, however, relying on the decision of this Court in the case of Nakula Bisoy v. Jagannath Mahaprabhu, (1976) 1 Cut WR 352, held that the suit was maintainable s