JUDGMENT : Mohapatra, A.C.J. 1. Defendants 1 to 3 have come up in Second Appeal against the confirming judgment of the lower appellate court arising out of a suit for declaration of title and for recovery of possession under the following circumstances. Bhagirathi and Jageswar were two brothers. Defendant No. 1 is the son of Jageswar. Defendants 2 and 3 are the grand-sons of Jageswar. Bhagirathi died about 23 years age leaving behind him his widow Rekha who also died in the year 1943. The Plaintiff is the only surviving daughter of Bhagirathi. According the Plaintiff's version, the disputed property fell to the exclusive share of her father Bhagirathi in a family partition by metes and bounds. Plaintiff's further version is that she leased out the disputed land in favour of Defendant No. 1 for cultivation in the year 1944 and it is admitted that possession of the disputed land was not taken by the Plaintiff and that the lease was running till the expiry of the year 1954. The Defendants having defaulted in making payment of the due rent, the Plaintiff has brought this suit treating the Defendants 1 to 3 as trespassers. The defence was that Rekha in fact had surrendered the disputed property in favour of Defendant No. 1's father in the year 1943 before she died and as such the Defendants could not be evicted from the suit land. They had taken a further point of jurisdiction' relying upon the provisions of the Orissa. Tenants Relief Act (Act V of 1955) which came into operation on the 1st of July, 1954. 2. Both the courts below have negatived the defence version of surrender. But the most important point which was pressed before the lower appellate court and which is also argued before me by Sri G.K. Misra is the point of jurisdiction. Sri G.K. Misra has drawn my attention to the several provisions of the Orissa Tenants Relief Act. The pertinent section of the Act is Section 3(1)(a) which runs as follows: (a) No tenant in lawful cultivation of any land on the 1st day of July 1954, or at any time thereafter shall be liable to be evicted from such land by the landlord. The other sections of the Act relate to the jurisdiction of Civil Courts. The pertinent section of the Act is Section 3(1)(a) which runs as follows: (a) No tenant in lawful cultivation of any land on the 1st day of July 1954, or at any time thereafter shall be liable to be evicted from such land by the landlord. The other sections of the Act relate to the jurisdiction of Civil Courts. There is no dispute that if the Defendants are Tenants under the Tenants Relief Act and they are to be taken as being in lawful possession of the land as provided for u/s 3(1)(a), the Civil Court has no jurisdiction. The learned Courts below have, however, found that the civil court has jurisdiction on the basis of the conclusion that the Defendants cannot be taken to be in lawful possession as contemplated by the provisions of Section 3(1)(a) of the Orissa Tenants Relief Act. For coming to this conclusion, they have made use of the provisions of Section 9. Note portion of Sonepur Bhumi Bidhi. It is to be noted that the land is situated in the ex-State of Sonepur to which undoubtedly the Sonepur Bhumi Bidhi applies. The Note portion runs thus: N.B. The cultivating possession of an outsider of the bhogra, lands for a period exceeding the time provided in Section 9, Clause (i), (ii) and (iii), shall be presumed as illegal possession under the rightful bolder of the bhogra lands. Mr. G.K. Misra advances the argument that this note portion of Section 9 of the Act has no application so far as the present case is concerned. He pertinently emphasises on the words "the cultivating possession of an outsider of the bhogra lands" appearing in the Note portion. In my opinion, the contention has force and must be accepted. As I have already indicated above, the Plaintiff's father Bhagirathi and Jageswar were two brothers and they were holding bhogra lands as cosharers. Indeed, according to the Plaintiff's version, in a family partition, the suit land fell to the exclusive share of her father. But nevertheless, it appears to be clear so far as the status in respect of the bhogra land is concerned, that even though the land fell to the s e of the Plaintiff's father in the partition, it cannot be held that Defendants are complete outsiders. But nevertheless, it appears to be clear so far as the status in respect of the bhogra land is concerned, that even though the land fell to the s e of the Plaintiff's father in the partition, it cannot be held that Defendants are complete outsiders. So far as the bhogra land is concerned, it appears to me to be clear that they are still co-sharers and they cannot be taken to be outsiders as contemplated in the note portion. On this interpretation, therefore, Section 9 and the whole of the note portion should be completely thrown out of consideration in order to come to the conclusion whether under the provisions of the Orissa. Tenants Relief Act, the Civil Court's jurisdiction is ousted or not. Mr. R.N. Misra, appearing on behalf of the Plaintiff-Respondents, however, draws my attention to the definition of "tenant" appearing in Section 2(j) of the Orissa Tenants Relief Act. He relies upon the Exceptions to the definition and particularly Exception No. 1. Mr R.N. Misra contends that the Plaintiff is a member of the family of the Defendants. As such the Defendants cannot be taken to be tenants under the Orissa Tenants Relief Act. But the contention is not acceptable to me particularly in view of the definite case of the Plaintiff herself that there was a completed partition between the Plaintiff's father and the father of Defendant No. 1. Since the date of partition they ceased to be the member of a joint family. It has to he made clear that even though she pleased to be a member of the family after completed partition, so far as the bhogra land is concerned, their status can not be taken to be one between the rightful holder of bhogra lands under the Act and outsiders. Under the above circumstances, therefore the conclusion arrived at by the courts below is illegal and is therefore set aside. The court has no 'jurisdiction to entertain the suit under the provisions of the Orissa Tenants Relief Act. 3. The appeal is accordingly allowed and the suit is dismissed. But in the circumstances, the parties should bear their own costs throughout. Appeal allowed. Final Result : Allowed