JUDGMENT : Misra, J. - Plaintiffs are the Appellants in this Second Appeal against the concurring judgments of the courts below. The suit property, for which the Plaintiffs claim declaration of title and recovery of possession, forms portions of Nijchas and Nijjote holding in touzi No. 5639 in Cuttack Collectorate, which was a temporary settled estate. The said estate previously belonged to the deity Shyamsundar Jew Thakur. On 12-9-1945, the said touzi was put to revenue sale and was purchased by one K.C. Sahu, who took delivery of possession on 4-7-1946. On 14-2-1949, the Plaintiffs purchased the entire touzi from the said auction purchaser. While the estate was with the diety, on 4-1-1938 the father of Defendant No. 1 took permanent lease of a portion of plot No. 537 out of the said touzi from one Narahari, one Adikanda and one Ramkrushna, who were three out of the eleven marfatdara of the deity. The said three marfatdars also leased out portions of plot Nos. 537 and 538 to one Sashi, the wife of marfatdar Ramkrushna, on 12-1-1938. Defendants 2 and 3 are the heirs of Sashi, the original lessee. The said touzi vested in the Government under the Orissa Estates Abolition Act on 1-5-1954. It was on that very date that the Plaintiffs filed their suit against the Defendants for declaration of their title and recovery of possession. Defendant No. 1 was ex parte. The case of the other Defendants was that the suit property was the personal property of the three lessors, and that K.C. Sahu, the auction purchaser in the revenue sale, accepted them as lessees on receiving Rs. 100/- as salami on 29-8-1948. Their further contention was that after the vesting of the estate in the Government the Plaintiffs had lost their right to the property, if any. 2. Both the courts held that the lessors granted the leases in their individual capacity, and not in their capacity as the marfatdars of the deity; and that even if they were marfatdars of the dirty, there were eight other marfatdars, who not having been party to the leases, the leases were inoperative and invalid, and no right could be acquired thereunder. While the trial court considered and rejected the evidence adduced on the Defendants' side to the effect that the three lessors were the managing marfatdars of the deity and that they had granted the leases for legal necessity, the court of appeal rightly observed, "Their definite case is that the suit lands belong to the lessors and they granted the leases for their individual necessities. In view of the pleadings no issue was raised if the leases are for legal necessity and granted on behalf of the diety through its marfatdars Ramakrushna, Narahari and Adikanda. Hence the learned Munsif should not have allowed Defendants 2 and 3 to edduce any evidence on that point and there was no necessity to dilate on these points and give findings thereon." Both the courts below discredited the Defendants' case that the auction purchaser recognised the leases in question by accepting Rs. 100/- as salami. Though it was the Plaintiffs' case that they had come into possession of the disputed land soon after their purchase from the auction purchaser and that they were dispossessed on 15-3-1949, both the courts held that the Defendants continued in possession of the suit land throughout up to the date of the suit. Both the courts also held that by virtue of the operation of Sections 5 and 7 of the Orissa Estate Abolition Act, the Plaintiffs had lost their right in respect of the suit land, and so they dismissed the suit. 3. The main point for consideration in this appeal is whether the Plaintiffs have lost their right to the suit land by virtue of the provisions of the Orissa Estates Abolition Act. The Plaintiffs were not in possession of the suit land by the date they instituted the suit, on which date also the estate vested in the Government. The Defendants, who purported to have come in as lessees continued in their possession throughout from 1938. Since the leases granted in their favour were invalid and inoperative, they had no right whatsoever to be in possession of the suit land, and so they were mere trespassers in the eye of law. The Defendants, who purported to have come in as lessees continued in their possession throughout from 1938. Since the leases granted in their favour were invalid and inoperative, they had no right whatsoever to be in possession of the suit land, and so they were mere trespassers in the eye of law. Their adverse possession up to the date of the auction purohase by K.C. Sahu in 1945 did not mature to any title by way of lease against the previous estate-holder, the dirty, So, they remained as pure trespassers on the suit land when the estate vested in the auction purchaser, and their prior possession did not amount to any encumbrance in the eye of law, and such prior possession could not be tacked against the auction purchaser, who came in his own right, and not through the previous estate-holder. Section 52 of the Act XI of 1859 provides: The purchaser of an estate in a district not permanently settled, sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free from all encumbrances which may have been imposed upon it after the time of settlement, and shall be entitled to avoid and annul all tenures which may have originated with the defaulter or his predecessors, being representatives or assignees of, the original engager, as well as all agreements with raiyats or the like, settled or accredited by the first engager or his representatives, subsequently to the last settlement, as well as all tenures which the first engager may, under the conditions of his settlement have been competent to set aside, alter or renew saving always and except leases of lands. Mere trespass against the prior estate-holder, not having matured to any title by possession for statutory period, does not obviously amount to an encumbrance within the provisions of Section 52 of the Land Revenue Sales Act, which needs to be annulled or avoided. The Defendants continuing as trespassers over the suit land up to the date of the suit, the question for consideration is as to what is the effect of Sections 5 and 7 of the Orissa Estates Abolition Act in such a case. The Defendants continuing as trespassers over the suit land up to the date of the suit, the question for consideration is as to what is the effect of Sections 5 and 7 of the Orissa Estates Abolition Act in such a case. Section 5 of the said Act provides: Notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification in the Gazette under Sub-section (1) of Section 3, the following consequences shall ensue (a) Subject to the subsequent provisions of this chapter the entire estate including all communal lands and porambokes, other non-raiyati lands, waste lands, and buildings or structures together with the land on which they stand shall vest absolutely in the State Government free from all encumbrances and such Intermediary shall cease to have any interest in such estate other than the interests expressly saved by or under the provisions of this Act Explanation-'Encumbrance' means a mortgage of or a charge on any estate or part thereof and includes any rights in land or other immovable property comprised in an estate, but does not include an intermediary interest or the interest of a raiyat or an under-raiyat. Section 7 of the Act provides: (1) On and from the date of vesting. (a) all lands used for agricultural or horticultural purposes which were in khas possession of an Intermediary on the date of such vesting. (b) Lands used for agricultural or horticultural purposes and held by temporary lessee or lessees of an Intermediary who owns either as Intermediary or in any other capacity less than thirty-three acres of land in total extent situated within the State. (c) lands used for agricultural or horticultural purposes and in possession of a mortgagee, which immediately before the execution of the mortgage bond were in khas possession of such Intermediary, shall, notwithstanding anything contained in this Act, be deemed to be settled by the State Government with such Intermediary and with all the shareholders owning the estate and such Intermediary with all the shareholder shall be entitled to retain possession thereof and hold them as raiyats under the State Government, having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner. The expression "khas possession" in Clause (a) of Section 7 has been defined in Section 2, Clause (j) of the Act as follows: 'Khas possession' used with reference to the possession of an Intermediary of any land used for agricultural or horticultural purposes, means the possession of such Intermediary by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock. According to the provisions of Section 5 of the Act, the suit land would absolutely vest in the Government and the Plaintiffs would cease to have any interest therein, unless their interest in such land was expressly saved by the provisions of the Estates Abolition Act. Sections 6 and 7 of the Act are two of the saving provisions in favour of the Intermediary, and Section 6 has no bearing in the present case. As to Section 7, obviously the present case is not covered by clauses (b) and (c) of the said section. The only question is whether it can be covered by clause (a) of Section 7. The interest of the Intermediary could be saved in the present case by clause (a) of Section 7, if the Plaintiffs could be held to be in khas possession of the suit land. As the expression "khas possession" has been defined, it means the actual possession of the Intermediary either by himself or through his servants. The possession of a trespasser does not obviously come within the definition of "khas possession". On the plain reading of the definition of khas possession together with the provision of clause (a) of Section 7, Plaintiffs cannot make out a case that they were in khas possession of the suit land, so as to have their interest saved from the mischief of Section 5 of the Act. The learned Counsel for the Appellants however sought to urge that so long as the Intermediary has a right to possess, even though he was not in actual possession, he can be deemed, in the eye of law, to be in khas possession. When the expression "khas possession" has been defined and the mere right to possess does not come within its definition, the contention appear to have no force. When the expression "khas possession" has been defined and the mere right to possess does not come within its definition, the contention appear to have no force. The definition of "Khas possession" in Section 2(j) is only meant for its application to Section 7 of the Act, and no other section of the Estates Abolition Act has been brought to our notice where the said definition has any relevancy. Mr. Dasgupta sought to say that there might be a case where the Intermediary might have been dispossessed by a trespasser only 2 or 3 days prior to the actual vesting, and the legislature could have never intended to deprive an Intermediary of his interest in the property, because he was not in actual possession justo on the day of vesting. Such cases may, no doubt, be hard cases, and the legislature could have well provided to leave the interest of the Intermediary in cases where their dispossession had been of very short durations. But when the legislature purports to have taken away all rights of the Intermediary unless it is expressly saved by the provisions of the Act, there is no room fur consideration as to how the enactment acts hardship on the Intermediary. It may be incidentally noted that even in such hard cases, that is, cases of trespass shortly prior to the vesting, when the land vests in the Government, it is open to the Government to consider the hardship that might have been caused to the Intermediary, and to settle the land, so vested in the Government, with the Intermediary as an act of grace and humanitarian consideration. The trespasser gets no right in the land so trespassed upon under any of the provisions of the Estates Abolition Act, and the land vests absolutely in the Government, which is free to settle the same in any manner. So Mr. Dasgupt's contention that, in between the Intermediary and the trespasser, the Intermediary deserves better consideration than the other, when interpreting the provisions of the Act is of no weight. Mr. Dasgupta however relied on two decisions of the Patna High Court which appear to have taken the view in support of his contention that the expression "khas possession" also includes the right to possess, even though the Intermediary has no physical possession, as defined by the expression "khas possession". Mr. Dasgupta however relied on two decisions of the Patna High Court which appear to have taken the view in support of his contention that the expression "khas possession" also includes the right to possess, even though the Intermediary has no physical possession, as defined by the expression "khas possession". One of them is Mahanth Sukhdeo Das and Another Vs. Kashi Prasad Tiwari and Others. This case related to a suit for partition. The Plaintiffs claimed to be owners of 8 annas interest in the suit Jagir lands, the remaining 8 annas belonging to the Defendants. The defence was that the disputed land compromised in Jagir were recorded lands of tenants, and the Defendants acquired tenancy right by purchase long before accuistion of the Jagir, and that inspite of acquisition of the property they continued to hold the land as raiyats, and, since the Plaintiffs were not in possession, they had no right Their Lordships held, '(Khas possession' in Section 6 (the Bihar Land Reforms Act (considered in the light of the above definitions therefore does not mean the possession of the intermediary who was actually in possession on the date of the vesting to the exclusion of the co-intermediaries. Obviously, 'khas possession' of the intermediary means the possession of the intermediary who was cultivating land either for his benefit or in trust for others. That being so the words 'khas possession' of an intermediary do not exclude constructive possession. There Lordships further observed: Apart from the construction of Section 6 (the Bihar Land Reforms Act) in the light of the definition of proprietor, tenure-holder and the intermediary, under the existing law by virtue of Section 90 of the Trusts Act also the possession of a co-owner will enure to the benefit of the other co-owners wherever the co-owner by virtue of his position as such has gained any advantage in derogation of the interests of the other co-owners. While considering the question of possession as between the co-owner intermediaries their Lordships also discussed the question of possession of a trespasser as against the Intermediary, which question did not strictly arise on the facts of the case. So, this Full Bench case is clearly distinguishable on facts. Apart from that,what their Lordships have substantially held is that actual possession of one co-owner is constructive possession of the other,and such constructive possession comes within the definition of 'khas possession'. So, this Full Bench case is clearly distinguishable on facts. Apart from that,what their Lordships have substantially held is that actual possession of one co-owner is constructive possession of the other,and such constructive possession comes within the definition of 'khas possession'. Their Lordships do not say that the actual possession of a trespasser is also the constructive possession of the real owner, though they have incidentally observed that an Intermediary should get protection over the land in trespasser's possession. The other case is Mahabir Pandey Vs. Ram Narain Singh and Others. This was a case between an Intermediary and a trespasser, and their Lordships held that the Intermediary, though he was not in possession, could still beside to be in "khas possession" so long he has a right to eject the trespasser. In this decision the equations as between the trespasser and the Intermediary appear to have influenced the consideration of their Lordships. As I have previously observed, under the Orissa Estates Abolition Act, if the suit land does not remain with the intermediary, it wests in the Government, and the trespasser acquires no right under the said Act to remain over that land, and so there is no room for consideration as to who has got a better claim, as between the Intermediary and the trespasser. In the Bihar Land reforms Act, while the expression "khas' possession has been defined more or less in the exact words as under the Orissa Estates Abolition Act, u/s 6 of the Bihar Land Reforms Act, the scope of the expression "khas possession" has been sought to be widened, Section 6 of the Bihar Land Reforms Act lands as follows: (1) On and from the date of vesting, all lands used for agricultural or horticultural purposes, which were in khas possession of a proprietor or tenure-holder on the date of such vesting, including. (a)(i) proprietors' private lands let out under a lease for a term of years. (ii) landlords ' privileged lands let out under a registered lease. (b) lands used for agricultural or porticultural purposes and held in the direct possession of a temporary lessee. (c)lands used for agricultural or horticultural purposes and in the possession of a mortgagee. (a)(i) proprietors' private lands let out under a lease for a term of years. (ii) landlords ' privileged lands let out under a registered lease. (b) lands used for agricultural or porticultural purposes and held in the direct possession of a temporary lessee. (c)lands used for agricultural or horticultural purposes and in the possession of a mortgagee. x x x x In the corresponding Section 7 of the Orissa Act, the land in khas possession of the Intermediary does not include clauses (b) and (c) u/s 7, as compared with clauses (a), (b) and (c) u/s 6 of the Bihar Land Reforms Act. Because of the inclusive clause in Section 6 of the Bihar Land Reforms Act, their Lordships of the Patna High Court sought to widen the scope of the definition of the expression "khas possession", though it had been defined by the Act itself in a limited manner; but Section 7 of the Orissa Act does not enlarge the scope of the definition of the expression "khas possession" as defined by the Act itself. As observed, by Mr. Jagadish Swarup in the Interpretation of Indian Statutes at page 160. "When a word or phrase is defined as having a particular meaning in an enactment, it is that meaning and that meaning alone which must be given to it in interpreting a Section of the Act, unless there be anything repugnant in the context." Relying on AIR 1929 P.C. 181 , the learned author further observed at page 161 of the book. It is always unsatisfactory and unsafe to see the meaning of words used in an Act, in the definition clauses of other statutes dealing with matters more or less cognate, even when enacted by the same legislature. A fortiori must it be so when resort is had for this purpose to the enactments of other legislatures. Since Mahabir Pandey Vs. Ram Narain Singh and Others, was construing the meaning of the expression "khas possession' under the Bihar Land Reforms Act, under which a wider scope has been given to that expression by Section 6 of the Act, irrespective of its earlier definition in the Act, the said decision cannot be relied upon in the present case. Since Mahabir Pandey Vs. Ram Narain Singh and Others, was construing the meaning of the expression "khas possession' under the Bihar Land Reforms Act, under which a wider scope has been given to that expression by Section 6 of the Act, irrespective of its earlier definition in the Act, the said decision cannot be relied upon in the present case. The plain reading of Section 2(j) of the Orissa Act clearly excludes the possession of a trespasser from the benefit of Section 7 (a) of the Act, and so the Plaintiffs ceased to have any interest from date of vesting, and consequentially they had no cause of action against the Defendants. 4. The learned Counsel for the Respondents sought to contend that even if the Plaintiffs had any interest saved by Section 7 of the Orissa Estates Abolition Act, since they did not file any claim in the manner prescribed by Section 8(a) of the Act within the stipulated period, their right to make any such claim stood extinguished u/s 8(A)(3) of the said Act. It may be noted that while the Estates Abolition Act came into force long earlier, Section 8(A) of the Act was enacted while the suit was pending. By the time the suit was instituted, there was no such provision that the Intermediary should file a claim petition within a prescribed time to enforce his right u/s 6 or Section 7 of the Act, and that if he did not, his right would be barred; he acquired a statutory right under the law itself. If, after the institution of the suit an amendment come in, under which the Plaintiffs' right to the suit property was made to lapse if not enforced in a particular manner, it was open to Defendants to plead the same while the suit was pending and after the amendment came in. The Defendants could have even taken up this point in the first appellate court. The point raised was not pure point of law. It necessitated enquiry into certain facts as to when the Appellants filed their claim petition after the amendment came in, and if so, whether it was within the time prescribed. The Defendants could have even taken up this point in the first appellate court. The point raised was not pure point of law. It necessitated enquiry into certain facts as to when the Appellants filed their claim petition after the amendment came in, and if so, whether it was within the time prescribed. Since there was no such move on the part of the Defendants at any earlier stage, the question now raised, that the Plaintiffs filed their claim petition u/s 8(A) after the period prescribed had elapsed, cannot be investigated, and so not entertainable. 5. In the result, the appeal is dismissed with costs. Barman, J. 6. I agree. Final Result : Dismissed