JUDGMENT : Mohapatra, J. - This is a Plaintiff's first appeal against the judgment and decree dated 24th February 1953 of Sri S.K. Mohapatra, Subordinate Judge of Sambalpur, arising out of a suit brought by the Plaintiff for declaration of his title and for recovery of possession in respect of the Bhogra lands described in schedules A and B. The acreage involved in Schedule A is 36.58 acres situated in village Kuruan. Schedule B describes the Bhogra lands situate in village Patrapali with an area 24.80. The Plaintiff also claimed mesne profits for the years 1947-48, 1948.4 and 1949-50. He also has prayed for future mesne profits. The Plaintiff's case is that in execution of a decree against Birendra Singh, the cousin of present Defendant No. 1, the Plaintiff purchased Birendra's two annas eight pies interest in the Gountiai rights with appurtenant Bhogra lands. The execution sale had taken place on 16th June 1934. Be took delivery of possession through court in the year' 1936 in respect of his share of -/2/8 pies. The Defendants are the cosharer-Landlords in respect of the Gountiai rights and own -/13/4 pies. Birendra Singh is not a party to the present suit. After taking delivery of possession through court in respect of his purchase-share, the Plaintiff filed a partition case in the year 1936-37 for partition of his/-/2/8 pies interest and for separate possession in respect of the Bhogra lands in suit. This was in respect of village Kuruan. Subsequently he also filed another case for the same relief in respect of the second village of Patrapali. He obtained the reliefs claimed from the revenue authorities and bad taken separate possession in respect of the Bhogra lands situate in the two villages, which are now in dispute in the present suit, on 12th December 1933 and 10th April 1944 respectively. It may be noted here, in the year 1939 the Plaintiff brought a money suit for mesne profits in respect of village Kuruan for three years 1936 to 1938 a against the present Defendants and obtained a decree where the mesne profits were ascertained as Rs. 1000/-. The cause of action alleged by the Plaintiff for bringing the present suit is the forcible dispossession by the present Defendants in July 1945 in respect of village Kuruan and in 1944 in respect of village Patrapali. 1000/-. The cause of action alleged by the Plaintiff for bringing the present suit is the forcible dispossession by the present Defendants in July 1945 in respect of village Kuruan and in 1944 in respect of village Patrapali. There is no dispute that the present suit is within time and the Plaintiff's claim for mesne profits for three years is also within time. It is Defendant No. 6 alone who contested the suit and the other Defendants was exparte. Defendant No. 6's plea is that he was a minor during the previous proceedings and as such the results of the previous proceedings are not binding on him. This plea has been negatived by the finding of the learned Subordinate Judge and is not challenged before us. Defendant No. 6 had also taken up the plea that the Plaintiff had never obtained Khas possession of the properties in dispute and he never took possession in termination of the proceedings by the revenue authorities where the Plaintiff sued for partition. His main plea was that the Plaintiff was not entitled to Khas possession neither was he entitled to mesne profits as the disputed lands are Sir lands and they are not transferable u/s 45 of the Central Provinces Tenancy Act. On transfer of the Gountiai rights, according to the defence, Birendra had acquired occupancy rights under the provisions of the aforesaid section. 2. The learned Subordinate Judge found that the Plaintiff had in fact purchased two and as eight pies interest of Birendra Singh in execution sale. He had further found that the present Defendant No. 6 being a party to the previous proceedings was bound by the previous proceedings started by the Plaintiff for partition and separate possession in respect of the Bhogra lands which are now in dispute. The learned Subordinate Judge further found that the Plaintiff on the termination of the partition proceedings had taken separate possession through revenue authorities of Bhogra lands of both the villages. The learned Subordinate Judge further found that the Plaintiff on the termination of the partition proceedings had taken separate possession through revenue authorities of Bhogra lands of both the villages. But nevertheless he has dismissed the Plaintiff's prayer for Khas possession accepting the contention of the defence based upon the provisions of Section 45 of the Central Provinces Tenancy Act that the Plaintiff is not entitled to Khas possession as Birendra had acquired occupancy rights on the cessation of his Gountiai rightsIt may be worthwhile to mention the inconsistent position arising from the decree itself that he has allowed the Plaintiff mesne profits for the three years claimed while he has dismissed the Plaintiff's suit for. Khas possession by ejecting the Defendants from the disputed lands. 3. On a perusal of the judgment of the learned Subordinate Judge it appears clear to us that he has made a confusion in construing the provisions of Section 45 of the Central Provinces Tenancy Act. There is no dispute over the position that at the time when the Plaintiff purchased the lands in dispute, in execution sale they had been recorded as Sir lands. It would be worth while to refer to Central Provinces Land Revenue Act, Section 4.A where Sir lands have been defined. Section 4.A(1). Subject to the provisions of Sub-section (2), 'Sir land' (that is to say, the demesne or permanent home-farm land of a proprietor) includes the following, and no other land, namely: (a) land finally recorded u/s 69 as 'Sir land' in the papers of the current settlement; (b) land declared, u/s 132, Clause (j), to be 'Sir-land'; and (c) land in the Sambalpur district recorded as 'Bhogra' in the papers of the current settlement. The important clause which is relevant for our purpose is Clause (c) which says that land in the Sambalpur district recorded as 'bhogra' in the papers of the current settlement. So it is clear that bhogra lands of Sambalpur district are also-included as Sir-land as defined in Section 4.A of the Central Provinces Land Revenue Act. 4. The question remains whether the lands in dispute were recorded as bhogra lands in the current settlement as contemplated u/s 4-A of the Central Provinces Land Revenue Act. The current settlement contemplated under the above section refers to Nethersole's Settlement. 4. The question remains whether the lands in dispute were recorded as bhogra lands in the current settlement as contemplated u/s 4-A of the Central Provinces Land Revenue Act. The current settlement contemplated under the above section refers to Nethersole's Settlement. The learned Subordinate Judge accepts the position and there cannot possibly be any dispute over that and the position is clear by reference to the records which have been filed that in fact the lands in dispute were recorded at bhogra in the Nethersofe's Settlement. 5. Now we shall refer to Section 45 of the Central Provinces Tenancy Act. Sub-section (1) provides that when a proprietor loses his proprietorial interest, on the date of such loss or transfer he becomes an occupancy tenant of that sir land and rent payable by him as such shall be the sum determined at the current settlement as the rental value of such land, unless and until, on the application of either landlord or tenant, the rent is fixed by a Revenue Officer. The position is made clear by reference to Sub-section (8) of the section which excludes operation of this provision of non transferability. Sub-section (8) runs thus: Nothing in this section hall apply to 'bhogra.' Land. As I have already mentioned, sir-lands include bhogra lands of Sambalpur district which were recorded in the Nethofsole's Settlement as bhogra-Iands and on a plain reading of Section 45 it is clear that such bhogra lands of Sambalpur district are excluded from the mischief of the provisions of Section 45. It could be worthwhile to quote Note 8 appearing at page 24 of the Sambalpur Manual, 1928, Vol. I, 1950 Edn: The remaining kind of Sir to be considered is the bhogra land of Sambalpur. With the exception of the zamindars and a few revenue-free grantees who have been declared proprietors of their estates the malguzars, or gaontias (as they are locally termed) of the Sambalpur district are not proprietors of their villages, but only of their bhogra. The bhogra in Sambalpur, is declared to be sir in Clause (c) of Sub-section (1), Section 4-A, is therefore synonymous with proprietary land in the gaontiahi villages of that district. It cannot be increased or diminished. The bhogra in Sambalpur, is declared to be sir in Clause (c) of Sub-section (1), Section 4-A, is therefore synonymous with proprietary land in the gaontiahi villages of that district. It cannot be increased or diminished. If the gaontia cultivates any waste-land or land surrendered by a tenant, he takes it simply as a raiyat and becomes in respect of it a tenant, nominally of himself, 'but in reality as is the case with all tenants in the gaontiahi villages) of Government. The bhogra of Sambalpur is the only kind of Sir to which Section 45 of the Tenancy Act does not apply Sub-section (8) of that section.' I have found it necessary to quote this note which supports my above conclusion, because it was quoted and approved by a Bench decision of this Court reported in State of Orissa Vs. Bharat Chandra Nayak. This was quoted at page 101 of the Report and the principle was accepted that bhogra lands of Sambalpur are the only kind of sir-lands to which Section 45 of the Central Provinces Tenancy Act does not apply The position, therefore, is manifest if Section 45 does not apply to the transferability of the bhogra lands in question and as found by the learned Subordinate Judge that the Plaintiff had taken delivery of possession ever since 1938 and 1944, the Plaintiff was entitled to claim mesne profits and was entitled to claim Khas possession of the lands in dispute as Birendra Singh had no more rights in respect of the disputed lands. The aforesaid findings of the learned Subordinate Judge that the Plaintiff had taken delivery of possession in the partition proceedings in the years 1936.37 and 1941-42 were not challenged before us and the findings seem to be correct in the face of the official records which are in record. We may quote in this connection also that the finding of the learned Subordinate Judge is that the present contesting Defendant had absolutely no right, title or interest whatsoever in respect of the disputed lands. Indeed be has dismissed the Plaintiffs prayer for Khas possession on the ground that Birendra had occupancy rights, but he has come to the conclusion that neither Defendant No. 6 nor any other cosharer bad any rights whatsoever and the contesting Defendant No. 6 was a mere trespasser. Indeed be has dismissed the Plaintiffs prayer for Khas possession on the ground that Birendra had occupancy rights, but he has come to the conclusion that neither Defendant No. 6 nor any other cosharer bad any rights whatsoever and the contesting Defendant No. 6 was a mere trespasser. On the aforesaid reasons therefore we feel-convinced to find that the conclusion of the learned Subordinate Judge that the Plaintiff is not entitled to Khas possession as prayed for must be set aside. 6. We will now take up the question of mesne profits for the past three years 1947 to 1950. The finding of the learned Subordinate Judge in respect of issues 4 and 5 therefore cannot be accepted as in accordance with law and that finding also is to be set aside. 7. In conclusion, therefore, the judgment and decree passed by the learned Subordinate, Judge are partially set aside and the Plaintiff's right as the proprietor of the suit lands is declared. The Plaintiff is entitled to Khas possession of the suit lands. The Plaintiff is entitled to mesne profits but the quantum of mesne profits for the past three years is to be determined by the learned Subordinate Judge of Sambalpur to whom we are sending the case on remand for determination of that question alone. Regarding future mesne profits, the Plaintiff, if so advised, may take steps under the provisions of Order 20, Rule 12, Code of Civil Procedure. The Plaintiff is entitled to full costa of the Court below and he will be entitled to realise the costs of this Court excepting the hearing fees as against Defendant No. 6. The mense profits to be determined by the court below shall bear interest at four percent per annum. The case is sent on remand to the learned Subordinate Judge of Sambalpur for disposal in accordance with law as indicated above, that is, for determination of the quantum of mesne profits for the year 1947 to 1950. Barman, J. 8. I agree.