To acquire occupancy right under Section 236 of the Orissa Tenancy Act, the under-raiyat must lead clear evidence to show that the whole or a specified portion of the plot was reasonably and ordinarily necessary for the enjoyment of the house and that they ordinarily reside in that house.

JUDGMENT :

P.K. Mohanti, A.C.J.

1. The Second Appeal is by Defendant No. 2 against a decree of reversal. The suit was for a declaration of the Plaintiff's sthitiban right over the suit lands on adjudication that neither the Defendants nor their predecessors-in-interest were sikimi tenants under the Plaintiff at any time, for confirmation or in the alternative recovery of possession and also for recovery of a sum of Rs. 350/- as damages.

2. The suit lands appertain to plot Nos. 1106 and 1107 of the Major Settlement of 1966 which correspond to plot Nos. 791 and 792 respectively of the Current Settlement of 1927. In the GS record of rights finally published in 1927 the Plaintiffs father has been recorded as a sthitiban raiyat in respect of plot Nos. 791 and 792. There is a note of possession against plot No. 792 in the remarks column in favour of Saradi Bewa, widow of late Madhu Behera as sikimi mahdar-vide Ext. G. But in the Major Settlement record-of-rights finally published on 21st October, 1966 plot Nos. 1106 and 1107 have been recorded in the name of Padia Behera son of Achyut Behera as sikimi Nisakar vide Ext. 1. In the record-of-rights finally published u/s 22 of the Orissa Consolidation of Holding and Prevention of Fragmentation of Land Act, 1972 plot Nos. 848 and 84 (sic) which correspond to Major Settlement plot Nos. 1106 and 1107 respectively have been recorded in the name of Defendant No. 1 and her sons and daughters as sikimi nisakar.

3. The Plaintiffs case is that he has been in khas possession of the suit lands as a sthitiban raiyat and has been using plot No. 1106 as a cocoanut garden and plot No. 1107 as a Khamar house and that neither the Defendants nor their predecessors-in-interest were sikimi tenants under him at any time. It was alleged that Padia Behera, the predecessor-in-interest of the Defendants got himself fraudulently recorded as a sikimi tenant in respect of the suit lands in the R.O.R. of 1966 and the Plaintiff came to know about such entry in the R.O.R. on 25-1-1967. It was also alleged that taking advantage of the wrong entry in the R.O.R. of 1966 the Defendants, on 8-4-1969, demolished the Plaintiff's house standing on plot No. 207 and carried away the building materials. They also plucked cocoanuts from the trees standing on plot No. 1106. The Plaintiff, therefore, claimed a sum of Rs. 350/- as damages from the Defendants.

4. The stand taken by the Defendants is that their ancestor Madhu Behera was in possession of the suit lands as a sikimi tenant and after his death his widow. Saradi Bewa and son Achyut Behera possessed the same as sikimi tenants. After the death of Achyut his son Padia continued to possess the same as a sikimi tenant and after his death the Defendants have been possessing the same as such. The other allegations made in the plaint were denied.

5. The trial court, on a consideration of the evidence led by the parties, held that Defendants have been in possession of the suit lands since the time of their ancestors as sikimi tenants and they have acquired occupancy right in respect of the same by virtue of the provisions of Section 236 of the Orissa Tenancy Act as amended in 1946; that the claim of damages is false; and that the suit was barred by limitation u/s 42 of the Orissa Survey and Settlement Act, 1958. Upon such finding the Plaintiff's suit was dismissed with costs.

6. The appellate court reversed the decision of the trial court on the findings that the Defendants could not be treated as sikimi tenants and they could at best be treated as licensees under the Plaintiff; that the provisions of Section 236 of the Orissa Tenancy Act are not applicable to the facts of the case; and that the suit was not barred by limitation. It, however, agreed with the trial court that the Defendants have been in possession of the suit lands since the time of their ancestors. Upon the above findings, a decree declaring the Plaintiff's title to the suit lands and directing delivery of possession of