JUDGMENT : Misra, J. - Defendant No. 1 is the Appellant against a reversing judgment. Defendants 4 to 6 are the tenants under Defendant No. 1. The Plaintiff's case is that the disputed lands belong to him and were granted to the predecessors-in-interest of Defendants 2 and 3 as inam for doing private Karnam service. The Karnam service was to realise rents on behalf of the Plaintiff. Defendants 2 and 3 surrendered their service inam on 15-6-1950 and the Plaintiff resumed the lands. Defendants 1 and 4 to 6 are the trespassers. The suit was filed on 1-12-1950 for eviction of Defendants 1 and 4 to 6. 2. The suit proceeded exparte against Defendants 2 and 3. Defendants 1 and 4 to 6 filed written statements alleging that the disputed lands do not belong to the math and were being enjoyed by Defendants 2 and 3 and their predecessors as Karnam service inam lands for doing public service for the village. The surrender of the service by Defendants 2 and 3 was collusive. By virious mortgage deeds (Ext. G series) Defendant No. 2 and husband and son of Defendant No. 3 mortgaged the disputed lands in favour of the father of Defendant No. 1. On 2-12-1938 the disputed lands were purchased by the father of Defendant No. 1 under Ext. A for Rs. 3000/-. The right of resumption does not vest in the inamdar but is with the State. 3. The learned trial court negatived all the Plaintiff's contentions and dismissed the suit. The learned lower appellate court found in favour of the Plaintiff and decreed the suit. 4. It may be noted that the village in which the disputed lands are situate is a whole in am village and admittedly it vested in the State on 15-7-1955 under a notification under the Estates Abolition Act. A point was taken before the lower appellate court for the first time that in view of the vesting of the village the Plaintiff had no title in the disputed lands and therefore he had no right of suit. This contention was negatived by the learned lower appellate court on the ground that the suit was not merely for recovery of possession but also for recovery of mesne profits. 5. Mr. This contention was negatived by the learned lower appellate court on the ground that the suit was not merely for recovery of possession but also for recovery of mesne profits. 5. Mr. Ramdas challenges the appellate decree as being contrary to law on two grounds-(l) that the village vested in the State on 15-7-1955 and that the Plaintiff lost all proprietary right in the village, and the suit lands being admittedly in possession of Defendant No. 1 by the date of the suit and by the date of vesting the Plaintiff has no right of action; and (2) that the finding of the learned lower appellate court that the disputed lands were granted for private service of the inamdar is contrary to law and that the Plaintiff has no right of resumption. 6. On the first point the appeal is bound to succeed even on the assumption that the finding of the learned lower appellate court is correct on the second point. It is necessary to review the different provisions of the Orissa Estates Abolition Act to determine the correctness of the first point raised by Mr. Ramdas. Section 5 gives the consequences of vesting of an estate in the State. The relevant portions of Section 5(a) are as follows: 5. 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, or Sub-section (1) of Section 3-A or from the date of the execution of the agreement u/s 4, as the case may be the following consequences shall ensue, namely: (a) subject to the subsequent provisions of this Chapter the entire estate including all communal lands and porambokes, other non-raiyati lands, waste lands, trees, orchards, pasture lands, forests, mines a minerals (whether discovered or undiscovered, or whether being worked or not, inclusive of rights in respect of any lease of mines and minerals) quarries, rivers and streams, tanks and other irrigation works water channels, fisheries, ferries, hats and bazars, 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. It is clear that the intermediary shall cease to have any interest in such estate other than the interests expressly saved by or under the provisions of the Act. Section 7(1)(a) is as follows: 7. (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. Khas possession has been defined in Section 2(j) 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. Clearly the Plaintiff intermediary is not in khas possession of the disputed lands within the meaning of the Act. This matter was directly considered in two Division Bench decisions of this Court reported in Profulla Kumar Dhal v. Kali Panda and Anr. 1961 C.L.T. 17 and Biswanath Naik and Ors. v. Shaik Dilbar and Ors. 1962 C.L.T. 6. In the latter decision Mr. Justice Misra held that 'right to possess' would not come within the meaning of 'khas possession'. The matter is concluded by a decision of the Supreme Court reported in Haji Sk. Subhan v Madhorao 3. Their Lordships observed: This means that no person could acquire any right over such land under a decree passed in his favour subsequent to the vesting of the estate on the notified date and that therefore the Respondent did not acquire the right to possess this land under the decree in his favour. The position has been further clarified in an unreported decision of the Supreme Court in the case of Haji Sk. Subhan Vs. Madhorao. The identical question whether 'right to possess' would come within the definition of 'khas possession' was considered and negatived. Their Lordships observed that the mere fact that a proprietor had a subsisting title to possession over certain land on the date of vesting would not make that land under his khas possession. The Plaintiff cannot therefore maintain his suit for ejectment in respect of the disputed lands, the title to which vested in the State. His suit for ejectment must accordingly fail. 7. The Plaintiff cannot therefore maintain his suit for ejectment in respect of the disputed lands, the title to which vested in the State. His suit for ejectment must accordingly fail. 7. The next question is whether the Plaintiff is entitled to a decree for mesne profits as claimed in the plaint. Mr. Ramdas does not challenge the Plaintiff's claim for mesne profits. In view of such concession it is unnecessary to examine whether the Plaintiff was entitled to mesne profits arising prior to the date of vesting. 8. In the result, the appeal is allowed in part. The prayer for ejectment is dismissed, but the Plaintiff is entitled to a decree for mesne profits against Defendant No. 1 alone. Parties to bear their own costs throughout. Final Result : Allowed