A suit for declaration of occupancy right in suit lands appertaining to a touzi owned by Defendant No. 2 was filed by Respondent No. 1. The trial Court decreed the suit in favor of the Plaintiff. On appeal, the High Court held that the Plaintiff cannot acquire the status of an occupancy right unless it is proved that he is a settled raiyat as claimed by him in the plaint and in that capacity continued in possession.

JUDGMENT :

A. Misra, J. - This appeal has been preferred by Defendant No. 1, the Collector of Puri representing the State of Orissa. Respondent No. 1 filed the suit for a declaration of his occupancy right in the suit lands measuring about 265 acres. The suit lands appertained to a touzi owned by Defendant No. 2. According to the Plaintiff, Defendant No. 2 inducted him as a tenant on 15-61945 under a lease for agricultural purposes and put him in possession of the properties by accepting premium of Rs. 15,900/- on an annual rental of Rs. 68/12/-. Plaintiff being a settled raiyat of the village claims to have acquired occupancy rights therein. Subsequently, on the vesting of the touzi of Defendant No. 2 in the State of Orissa under the provisions of the Orissa Estates Abolition Act, proceedings were initiated u/s 5(1) on 4-11-1957 by the Deputy Collector who set aside the lease holding that the Flame has been granted subsequent to 1-1-1946 with the object of defeating the provisions of the Act. An appeal by the Plaintiff against this order was dismissed by the Collector on 29-10-1958. Hence, the present suit has been instituted.

2. Defendant No. 2, apart from filing a written statement supporting the Plaintiff's case, did not participate in further proceedings of the suit. The present Appellant resisted the Plaintiff's claim on the grounds that as the lands appertained to the anabadi of the touzi on abolition of the estate, it vested in the State; that Plaintiff was never in possession of the suit lands and Defendant No. 1 took khas possession on 25-1-1959; that the lease in favour of the Plaintiff is not genuine and deliberately ante-dated to defeat the provisions of the Estates Abolition Act; that Plaintiff not being a settled raiyat of the village cannot claim acquisition of occupancy right and that the suit is barred u/s 39 of the Orissa Estates Abolition Act.

3. The trial Court decreed the suit in favour of the Plaintiff on the findings that the lease in his favour was created on 15-6-1945 for agricultural and horticultural purposes; that it is genuine, for consideration and valid in law; that he has been in possession of the suit lands all throughout since 15-6-1945; that the Civil Court has jurisdiction to determine the date of lease and that since the lease was from a date prior to 1-1-1946, the revenue authorities had no jurisdiction u/s 5(1) of the Orissa Estate Abolition Act to set it aside. It also found that Section 39 of the Act is no bar to the maintainability of the present suit.

4. Learned Counsel for Appellant has challenged the judgment and decree of the trial Court on the following grounds : (1) the findings of fact about the lease having been created on 15-6-1945, the lease being for agricultural and horticultural purposes and Plaintiff being in possession of the said lands all throughout since 15-6-1945 are said to be erroneous and not supported by adequate evidence; (2) Plaintiff's specific case being that he acquired title under a written instrument, the trial Court should have held that if the document is found to be invalid and inadmissible in evidence, the title claimed on the basis of it must fail; (3) Plaintiff having claimed to have acquired occupancy right in the suit lands on the allegation that as a settled raiyat of the village he possessed the same, a fact denied by Defendant, the Court below erred in not framing a specific issue as to whether Plaintiff was a settled raiyat and deciding the same before granting the declaration prayed for and (4) the trial Court erred in rejecting the contention of Defendant No. 1 that u/s 39 of the Orissa Estates Abolition Act, the suit is barred.

5. Before dealing with the other contentions, it will be convenient to dispose of the last ground advanced on behalf of the Appellant. The Collector u/s 5(1) of the Act gets jurisdiction to set aside any settlement or lease made by the proprietor of an estate after 1-1.1946 if he is satisfied that the same had been made w