JUDGMENT :

A.K. Rath, J.

Plaintiff is the appellant against a reversing judgment.

2. The case of the plaintiff is that the suit land is the Government Anabadi land. His father reclaimed the same along with him. After death of his father, he is in possession of the suit land and raised crops for more 40 years. He has acquired occupancy right over the same. On the intimation of the R.I. Baideswar, the Tahasildar, Banki, defendant no.2 initiated Encroachment Case No.66 of 1978 against him under the O.P.L.E. Act. Order of eviction was passed. Thereafter he filed an appeal. The same was dismissed. With this factual scenario, he instituted Title Suit No.21 of 1982 in the court of the learned Munsif, Banki for declaration that he is an occupancy raiyat, order of eviction passed in encroachment case as well as appeal is illegal and permanent injunction.

3. Defendant no.2 entered contest and filed a written statement denying the assertions made in the plaint. It is pleaded that the plaintiff had not acquired any occupancy right over the land. Encroachment case was initiated against him. The suit land belongs to the State Government. Neither the plaintiff nor his predecessor-in-interest had possessed the suit land at any point of time. When it was found that the plaintiff has encroached the suit property encroachment proceeding was initiated against him.

4. On the inter se pleadings of the parties, the learned trial framed eight issues, out of which, issue no.5 is pivotal. The same is :

“Whether the plaintiff is in possession of the suit lands once more than 40 years and thereby acquired occupancy right over it ?”

5. To substantiate the case, both parties led evidence oral and documentary. The learned trial court came to hold that the plaintiff is in possession of the suit land for more than 30 years continuously to the knowledge of the State and, as such he has acquired occupancy right over the same. Held so, it decreed the suit. Against the said judgment and decree, the defendants filed Title Appeal No.61 of 1989 before the learned Second Additional District Judge, Cuttack. The appellate court held that there is no pleading that the plaintiff is a settled raiyat within the meaning of Section 23 of the Orissa Tenancy Act. In the absence of strict proof as contemplated under Sections 24 and 25 of the Orissa Tenancy Act, the plaintiff cannot be declared as an occupancy raiyat. Held so, it allowed the appeal. It is apt to state here that during pendency of the second appeal, the sole appellant died, whereafter his legal representatives have been brought on record.

6. The Second Appeal was admitted on the following substantial question of law.

“Whether the appellant is a occupancy raiyat on the facts of this case.”

7. Heard Mr. B.M. Bhuyan, learned Advocate for the appellant and Ms. S. Mishra, learned Additional Standing Counsel for the respondents.

8. Mr. Bhuyan, learned Advocate for the appellant submitted that the suit was lying fallow. The father of the appellant reclaimed the same. He was in possession of the said land and thereafter the appellant is in possession of the land for more than 40 years. He used to grow crops over the same. Initiation of encroachment proceeding against the appellant is bad in law. The plaintiff has acquired occupancy right over the land in question. The learned appellate court without considering the material in its proper perspective set aside the judgment of the learned trial court.

9. Per contra, Ms. Mishra, learned Additional Standing Counsel for the respondents submitted that the plaintiff is a settled raiyat of the village. Since he was an encroacher, a proceeding under the O.P.L.E Act was initiated against him. Order of eviction was passed, which was confirmed in appeal. The learned appellate court has rightly negatived the plea of the plaintiff that he is an occupancy raiyat.

10. Before adverting to the contentions raised by the counsel for both the parties, it will be necessary to set out some provisions of th