JUDGMENT :

L. Rath, J. - The appellants who were respectively defendants 1 and 2 in the suit have preferred this appeal against the confirming judgment of the Additional District Judge, Canjam-Boudh decreeing the plaintiff's suit so far as item No. 2 of the suit scheduled properties are concerned. The suit was instituted by Iswar Adhikari who having died has been substituted by respondent Nos. 1/a to 1/i. Appellant No. 2 has been deleted from being a party by order No. 16 dated 17-4-1985 passed in Misc. Case No. 44/85. The respondent No. 1 who was the plaintiff in the trial Court instituted the suit for two Items of properties for relief that the judgment of the Executive Magistrate, Chatrapur, u/s 145, Cr. P. C. in M C No. 65/78 in respect of item No. 1 of the suit property is not binding upon him and for recovery of possession so far as both item Nos. 1 & 2 of the suit properties are concerned. The suit was dismissed with regard to item No. 1 of the suit property. So far as item No. 2 of the suit property is concerned, the plaintiff's case is that S. No. 47/3 was Banjar land in the ex Estate of Khalikote and that on 3-7-1950 he got a Banjar Patta in respect of that property. i.e.. for AO. 80 cents of land and was in possession of the same. After abolition of the Estate he has also paid 'Taram Assessment' which is the penalty levied in' encroachment cases. Subsequently a 145 Cr. P. C. proceeding was started against item No. 1 of the suit property to which he was not a party but however the proceeding ended in favour of defendants 1 and 2 in pursuance of which; those defendants dispossessed the plaintiff not only from item No. 1 of the property but also from item No. 2 of the properties in 1971 The defendants 1 and 2 who contested the suit jointly contended so far as item No. 2 of the suit property is concerned that they have encroached upon No. 61 cents of land out of the Banjar land and were assessed with Taram assessment. Their case is that the plaintiff never possessed the land.

After stating the contentions of counsel and other findings which are not necessary, His Lordship observed:

5. Mr. Mohanty next contended that the suit of the plaintiff was liable to be dismissed since he came with a case of title and possession in respect of the suit property, but however his title having not been proved, the decree passed by the Courts below only on the basis of the prior possession of fhe plaintiff is misconceived and that the suit is liable to have been dismissed As stated above, it was found by the Courts below that Ext. 2, the patta granted by the ex-jamindar of Khalikote in respect of item No. 2 of the property was a genuine document and that the patta was also followed by payment of rest and plaintiff was paying Taram assessment upto 1963 and that the receipts covered a period of more than 12 years. The learned lower appellate Court thus held that claim to item No. 2 of the suit property was really a competition between two trespassers and hence in such event a prior trespasser is bound to succeed. Accordingly, he dismissed the appeal of the defendants 1 and 2 and decreed the suit in respect of that item of the property.

6. The submission made by Mr. Mohanty that a suit originally brought on the. basis of possession based on title is bound to fail if title is not proved, is wholly untenable. There is no authority for such a proposition. Reliance was placed on Smt. Raj Rani and Another Vs. Kailash Chand and Another, (46) 1978 CLT 287 (Budhi Mahal and Ors. v. Gangadhar Das and others) and 1974 (I) CWR 46 (Gobinda Pradhan and Ors. v. Chaturbhuja Parida and others). On a perusal of these decisions, the least that can be said is that they have no application to the case, Smt. Raj Rani and Another Vs. Kailash Chand and Another, was a case where the scope of Arts, 64 and 65 of the Limitation Act vis-a-vis Arts. 142 and 144 of the Old Limitation Act were discussed and the change in the law was indicated. (46) 1976 CLT 287 is a decision