The Collector has exclusive jurisdiction to determine the factum of Khas possession of an Intermediary on the date of vesting.

JUDGMENT :

G.K. Misra, C.J. - Plaintiff's case may be stated in short. S. Pitamber Dora, S. Ramaswami Dora and S. Chakrapani Dora were the intermediaries in Khas possession of the disputed agricultural lands. On 3rd of June, 1946 they sold the disputed lands by a registered sale deed (Ext. 1) for Rs. 2,000/- to Plaintiff No. 2, the Karta of the family of the Plaintiffs and gave delivery of possession. Plaintiffs were thus the intermediaries in Khas possession of the disputed lands. In paragraph 3 of the plaint the Plaintiffs averred that their vendors and after the purchase they themselves were treating the disputed lands as their private lands. First Defendant K. Sitaram Dora is the brother-in-law of the vendors and in collusion with thew he got himself surreptitiously recorded as the tenant of the disputed lands though he was an attester to the sale deed (Ext. 1). Against this entry in the record-of-rights the Plaintiffs filed a revision before the Board of Revenue which was pending by the time the suit was filed in 1961. The Plaintiffs has filed an application on 16-12-1957, after vesting, u/s 8-A(1) of the Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952) (hereinafter to be referred to as the Act) for settlement of fair and equitable rent in respect of the disputed lands which were deemed to be settled with them u/s 7 of the Act. On 19-12-1957 Defendant No. 1 filed a similar application. The Orissa Estates Abolition Collector (hereinafter to be referred to as the Collector) disposed of the application of the Plaintiffs on 9-8-1959 in their absence by reference to the record-of-rights showing that Defendant No. 1 was the occupancy tenant in respect thereof and as such the lands cannot be deemed to have been settled with the Plaintiffs. The Plaintiffs got notice of this order on 4-2-1961 in some other proceeding when a certified copy of the order was filed by Defendant No. 1. They accordingly applied for a certified copy of the same order but it was not supplied to them as the records were said to be untraced. The Plaintiffs could not accordingly file an appeal. They made an application before the Member, Board of Revenue, for directing the Collector to make appropriate enquiry. This application was sent by the Board of Revenue to the Additional District Magistrate, the Appellate authority against the Collector u/s 9 of the Act. The Additional District Magistrate made a thorough enquiry and directed remand of the case on the 13th of September, 1961 by his order Ext. 5. The Additional District Magistrate held that the Collector had disposed of the application of the Plaintiffs behind their back without giving them any opportunity. He treated the application before the Board of Revenue as an appeal and condoned limitation holding that there was sufficient cause. Ext. 5 was filed before the trial Court. As the proceedings before the Collector after remand had not come to a close, the Plaintiffs could not file the final order of the Collector in the trial Court and the same (Ext. 9) dated 14-3-1964 was filed before the Subordinate Judge by way of additional evidence. In Ext. 9 the Collector held that the Plaintiffs successfully established that they were intermediaries of the disputed lands in Khas possession on the date of vesting and as such the suit lands were deemed to be settled with them u/s 7(1) of the Act and that Defendant No. 1 had no occupancy right therein. The suit was filed by the Plaintiffs on account of a proceeding u/s 145, Code of Criminal Procedure which terminated in their favour on 15-10-1960 in the Court of the Magistrate 1st Class but ultimately decided against them in Criminal Revision No. 419 of 1950 wherein the High Court held on 10-5-1961 that Defendant No. 1 was in possession of the disputed lands on the date of the preliminary order. The Plaintiffs accordingly filed the suit for declaration of title and confirmation of possession on the plea that after the High Court passed the order in Crl. R