JUDGMENT :

A.K. Rath, J.

Defendants are the appellants against a confirming judgment.

2. The dispute pertains to one pucca room standing over plot no.368, holding no.371, Ac.0.005 dec. out of Ac.0.50 dec. of mouza-Gurujang, District-Khurda.

3. Plaintiff-respondent instituted the suit for declaration of title and permanent injunction. The case of the plaintiff is that he is the marfatdar of the deity Sri Sri Ramanarayan Ram bije Jujarsingh. His ancestor had constructed a temple and a pucca room. In the year 1970, the plaintiff allowed one Hadibandhu Prusti to prepare bhog for the deity in the room. Hadibandhu was in possession of the room on payment of rent. Two years before his death, he handed over the key of the room to the plaintiff. The room was in his possession. Taking advantage of his absence, the defendants dismantled a portion of the roof of the room and stacked the materials. A proceeding under Sec. 144 Cr.P.C. was initiated. The defendants have no semblance of right, title and interest over the suit land.

4. Defendants filed a written statement stating, inter alia, that the plaintiff is not the owner in possession of the suit land. He is not paying rent. The ancestors of the plaintiff had not built up the pucca room over the suit land. It was further pleaded that the deity was the family deity of Ganesh Ram. The family of Ganesh endowed properties in favour of the plaintiff. In the year 1942, Phuljharia Bewa, marfatdar of the deity, granted permanent lease of the suit land to Hadibandhu on a premium of Rs.20/- and delivered possession. She had executed the document in his favour in the year 1945. Hadibandhu was in possession of the suit land since 1942. He had constructed a room and prepared bhog for the deity. The defendants along with Hadibandhu was in possession of the suit land. Hadibandhu had not handed over the key of the room to the marfatdar of the deity. Hadibandhu was the permanent lessee of the suit land. After death of Hadibandhu, they are in possession of the same. Hadibandhu acquired occupancy right, which is non-evictable. The licence is not revocable, but heritable under Sec.60 of the Indian Easement Act. Hadibandhu was in possession of the suit land from the year 1942 having constructed a room openly, peacefully, continuously and to the knowledge of the true owner for more than the statutory period and as such, perfected title by way of adverse possession.

5. On the inter se pleadings of the parties, learned trial court has framed seventeen issues. Both the parties led evidence, oral and documentary, in support of their case. The learned trial court decreed the suit holding, inter alia, that the defendants have not acquired occupancy right over the suit property. They had not acquired title by way of adverse possession. Defendants have no right, title and interest over the suit properties. The suit is within time. Defendants have not constructed the suit room. As the defendants have not constructed the house, he is not entitled to be protected under Sec. 60 of the Indian Easements Act. Unsuccessful defendants filed Title Appeal No.6 of 1988 before the learned Civil Judge (Senior Division), Khurda, which was eventually dismissed.

6. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos.6(a)(b) and 7 of the appeal memo. The same are -

“a. Whether the unregistered lease deed (Ext.E) is admissible under Section 90 of the Evidence Act ?

b. Whether the contents of unregistered lease deed (Ext.E) can be used as evidence for proving that late Hadibandhu Prusty was in possession over the suit land and had constructed the room on the suit land?

7. For that the judgment and decree passed by the courts below are otherwise bad and are liable to be set aside.”

7. Heard Mr. Alekha Ch. Mohanty, learned counsel for the appellants and Mr. Sidhartha Mishra, learned counsel for the respondent.

8. Mr. Mohanty, learned counsel for the appellants submitted that the unregistered lease deed vide Ex