JUDGMENT : Narasimham, C.J. - This is an appeal by the Plaintiff against the appellate judgment of the second Additional Subordinate Judge, Cuttack, reversing the judgment of, the Munsif of Kendrapara, and dismissing the Plaintiff's suit for declaration of title and recovery of possession. The suit property as mentioned in the plaint consisted of two schedules namely 'Ka' and 'Kha'. So far as schedule Kha was concerned the parties concerned compromised and the Plaintiff's title was admitted. The lower appellate court should not have dismissed the Plaintiff's suit in its entirety even on its own finding. 2. The present controversy is limited to the properties described in Schedule Ka only. Here the contest is only between the Plaintiff and Defendant No. 6. The other Defendants excluding Defendant No. 8 compromised with the Plaintiff and did not contest before the lower courts. 3. Schedule 'Ka' lands according to the Plaintiff were the service jagir lands recorded in the name of the ancestor of Defendant No. 6 in the last Settlement, under the Raja of Aul. The said Raja instituted a suit, T.S. No. 352 of 1942 in the Court of the Munsif of Kendrarara for the eviction of the jagirdar and resumption of the jagir lands impleading Defendant No. 6 as a party. He obtained a decree (ext. 6) on 21-4-1943 and also obtained actual delivery of possession on 26-9-1946 (ext. 1). According to the Plaintiff the lands were first orally settled with him by one Shri G. P. Singh, Manager of Aul Estate. Subsequently there was a criminal case between the Plaintiff and the said Manager u/s 406, Indian Penal Code which was eventually compromised arid the suit lands were then settled with the Plaintiff, on 10-10-1949. For sometime he let out the lands on bhag to Defendants 1 and 2 and later on there was a proceeding u/s 145, Code of Criminal Procedure which terminated against the Plaintiff. Hence he filed the suit under appeal for declaration of title and recovery of possession. The contention of Defendant No. 6 was that the lands were not the service jagir lands, but occupancy holdings of his ancestor recorded as such in the last Settlement and that he continued all along in possession of the same. Hence he filed the suit under appeal for declaration of title and recovery of possession. The contention of Defendant No. 6 was that the lands were not the service jagir lands, but occupancy holdings of his ancestor recorded as such in the last Settlement and that he continued all along in possession of the same. Defendant No. 6 however has no clear defence to put forward as regards the decree and delivery of possession obtained against him by the Raja of Aul in T.S. No. 352 of 1942 except to say that the decree was void inasmuch as the holding could not be resumed and that the Civil Court has no jurisdiction to pass such a decree: This argument appears to have found favour with the lower appellate court who held that the decree in title suit No. 352 of 1942 must be held to be null and void and not binding upon Defendant No. 6. 4. The lower appellate court has gone against the well known rule of res judicata. Defendant No. 6 was a party to that litigation. He ought to have objected to the maintainability of that suit in the Court of the Munsif. Again at the time of the execution proceeding also he should have entered appearance and, objected and raised a dispute about the decree being null and void by starting a proceeding u/s 47, Code of Civil Procedure. The Defendant (judgment debtor) who was a party to a previous litigation is bound by the principle of res judicata and cannot be permitted to say in a subsequent litigation that the previous decree is nun and void. It must therefore be held that Defendant No. 6's title to the property was extinguished by the previous litigation which resulted in actual delivery of possession to the Zamindar, viz., the Raja of Aul. 5. But this does not conclude the matter. The Plaintiff having sued for a declaration of title and eviction must prove his title. He claimed occupancy status over the lands, on the basis of a settlement made with him by the then Zamindar of Aul which, according to him, was subsequently ratified, by the Court of Wards who were in possession of Aul Estate for sometime, and also by the Anchal when the Estate was taken over by Government. He claimed occupancy status over the lands, on the basis of a settlement made with him by the then Zamindar of Aul which, according to him, was subsequently ratified, by the Court of Wards who were in possession of Aul Estate for sometime, and also by the Anchal when the Estate was taken over by Government. Admittedly there is no written patta granted to him by the Raja of Aul and his whole case depends on the oral evidence of possession coupled with rent receipts (exts. 2 (e) and 2 (g) ) granted to him by the Court of Wards and by the Anchal and also on the written statement (ext. 4) filed by the ex-proprietor of Aul. The appellate Court's discussion of the evidence of possession is not satisfactory. He observed that mere rent receipts win not show that the Plaintiff became the lessee under the Raja of Aul. Here he was undoubtedly wrong. Payment of rent and acceptance of the same by the landlord and the granting of rent receipts may establish tenancy, provided of course the tenant proves that he was in actual possession of the holding. 6. As regards actual possession, the lower appellate court has stated at one place "There is not an iota of evidence about the Plaintiff's case that he possessed the land at any time". At another place he stated: I further hold that the Plaintiff could not prove that he was in possession of the disputed land within 12 years period of limitation". His discussion of the evidence relating to possession is also very unsatisfactory. Under these circumstances, there is no other alternative but to remand the appeal for re-hearing by the lower appellate court. 7. I would therefore while disagreeing with the lower appellate court and holding that the rights of Defendant No. 6 were completely extinguished by the decree in T.S. No. 352 of 1942 (ext. 6) and that he was also dispossessed and the property came into the Khas possession of the Raja of Aul, in consequence of the delivery of possession-ext. 1 dated 26-9-1946- remand the appeal for re-hearing by that court on the question as to whether the Plaintiff has proved that he is an occupancy tenant in respect of the disputed property, so as to be entitled to a decree for eviction of a trespasser. 1 dated 26-9-1946- remand the appeal for re-hearing by that court on the question as to whether the Plaintiff has proved that he is an occupancy tenant in respect of the disputed property, so as to be entitled to a decree for eviction of a trespasser. In deciding this question, the lower appellate court should give due weight to the rent receipts, the oral evidence of possession, the admission by the landlord and other pieces of evidence-adduced by the parties. But neither party will be permitted to adduce additional evidence, and the appeal must be disposed of on the evidence already on record. The appeal is remanded to the lower appellate court with these observations. Both parties will bear their own costs of this appeal, but the costs of the lower appellate court will abide the result. As regards schedule Kha properties the trial court's declaration of title and confirmation of possession in favour of the Plaintiff is upheld. Appeal remanded. Final Result : Allowed