JUDGMENT : Misra, J. - Defendants 1 and 2 are the Appellants. The suit lands consist of Ka, Kha, and Ga schedules. Ka schedule is Nij-chas land. Kha and Ga schedules are Nij-jot lands (proprietor's private lands). Plaintiff's case is that he was the co-sharer proprietor of Touzi No. 5989 with others who are not parties to the suit. The touzi was sold away in revenue sale on 19-1-1946 and was purchased by Defendant No. 3 who leased out the disputed lands to Defendants 1 and 2 by a permanent lease (ext. D) on 21-12-1946. Defendant No. 3 subsequently sold the touzi to the Plaintiff on 9-8-1952 under ext. 1. The Plaintiff has filed the suit for declaration of title, confirmation of possession and for permanent in junction alleging that the alienation made by Defendant No. 3 in favour of Defendants 1 and 2 under ext. D is hit by Section 4 of the Orissa Communal Forest and Private Lands (prohibition of Alienation) Act, 1948 (Orissa Act 1 of 1948). 2. Defendant No. 3 is ex parte. Defendants 1 and 2 contested the suit on the plea that the registered lease (ext. D) was genuine and for consideration and that they are in possession under the lease since the date of its execution and that ext. D conveyed a valid title. They further took the plea that the touzi vested in the State of Orissa on 1-5-1954 under the Orissa Estates Abolition Act and the Plaintiff has no subsisting title after the vesting and therefore has no right of suit. 3. Both the Courts below concurrently recorded the following findings: (i) Defendants 1 and 2 were in possession of the disputed lands under ext. D ever since the date of the lease. (ii) Schedule Ka being Nij-chas land of the Plaintiff, it could not pass to Defendant No. 3 under the revenue sale, and Defendant No. 3 had no right to lease. (iii) The alienation of Kha and Ga schedule lands is void being hit by Section 4 of Orissa Act 1 of 1948. (iv) Despite the vesting, the suit is maintainable. 4. Mr. Patnaik conceded that schedule Ka being Nij-chas, it did not pass to Defendant No. 3 under the revenue sale. (iii) The alienation of Kha and Ga schedule lands is void being hit by Section 4 of Orissa Act 1 of 1948. (iv) Despite the vesting, the suit is maintainable. 4. Mr. Patnaik conceded that schedule Ka being Nij-chas, it did not pass to Defendant No. 3 under the revenue sale. The position of law is settled by a Bench decision of this Court reported in 17 C.L.T. 298, where their Lordships observed that right or interest acquired by a purchaser proprietor u/s 26(2) of the Orissa Tenancy Act was not a part of the estate itself which he held in common with other co-proprietors, but was one outside it and was held by an independent source of title. Such a right is not comprised in nor is it incidental to co-proprietary interest. The purchaser of the revenue sale is not entitled to get the benefit of the additional right of defaulting proprietor. Under ext. D therefore Defendant could not convey a valid title in respect of Ka schedule land. 5. In respect of Kha and Ga schedule lands the Courts below have recorded the finding that Defendants 1 and 2 are in possession ever since the date of the lease. There is no finding recorded by any of the Courts below that the transaction was not entered into in good faith and for valuable consideration. As they have not recorded any clear finding on the point, I looked into the matter myself and I am satisfied that ext. D is genuine and was entered into in good faith and for valuable consideration. Section 4(1) lays down-- 4. (L) Any transaction of the nature prohibited by Section 3 which took place on or after the 1st day of April, 1946, shall be void and inoperative and shall not confer or take away or be deemed to have conferred or taken away any right whatever on or from any party to the transaction: Provided that nothing contained in this sub-section shall be deemed to invalidate-- (i) xxxx (ii) any such transaction in respect of private land or forest land entered into prior to 30th day of November, 1947, in favour of any person in good faith and for valuable consideration. In this case the lease was granted on 21-12-1946 which is prior to 30th day of November, 1947, and it was entered into in respect of Nij-jot land in good faith and for valuable consideration. Section 4(1) does not hit the transaction which is protected by the proviso (ii). Furthermore u/s 4(2), if the validity of the claim is to be disputed, the forum is the District Judge. u/s 9, Code of Civil Procedure, the Civil Court has jurisdiction to try any suit of civil nature unless its jurisdiction is barred-either expressly of impliedly. When the District Judge has been appointed as the authority competent to determining such disputes, the jurisdiction of the ordinary Civil Courts in this regard is barred. Both the Courts below took an erroneous view of the section and acted contrary to law in holding that ext. D did not convey a valid the in respect of Kha and Ga schedule lands. 6. Both the Courts below have found that the Touzi has vested in the State of Orissa on 1-5-1954. The concurrent finding is that Defendants 1 and 2 are in actual physical possession of the disputed lands ever since the date of the lease. There is no dispute that with the vesting of the estate the Plaintiff has no right of suit with regard to Kha and Ga schedule lands which were proprietor's private lands. In ILR 1963 Cutt 239, I have discussed the entire legal position and come to the conclusion that the Plaintiff cannot maintain his suit for ejectment in respect of the disputed lands which were in possession of the Defendants, and the title to which vested in the State. It is unnecessary to repeat the arguments already dealt with in that case. 7. The controversy, however, centres round Ka schedule property. Admittedly this property was purchased by the Plaintiff's father as co-sharer proprietor in 1902 prior to the passing of the Orissa Tenancy Act. In 16 O.L.T. 85, a Division Bench of this Court discussed the legal status of a co-sharer proprietor in relation to such land. Their Lordships held there was creation of an intermediate status for the purchasing proprietor which was certainly not that of an occupancy ryot nor that of a tenant-at-will. By such a purchase, the co-sharer-proprietor becomes a tenant under the general body of proprietors and is liable to pay rent to them. Their Lordships held there was creation of an intermediate status for the purchasing proprietor which was certainly not that of an occupancy ryot nor that of a tenant-at-will. By such a purchase, the co-sharer-proprietor becomes a tenant under the general body of proprietors and is liable to pay rent to them. In that case also the land had been recorded with the legal incidents u/s 26(2) of the Orissa Tenancy Act. But as the purchase was prior to the passing of the Orissa Tenancy Act, it was construed to carry the incidence as discussed above. 8. On the aforesaid finding, the disputed Ka schedule land does not vest in the State. Section 8(1) of the Orissa Estates Abolition Act runs as follows: Any person who immediately before the date of vesting of an estate in the State Government was in possession of any holding as a tenant under an Intermediary shall, on and from the date of vesting, be deemed to be a tenant of the State Government and such person shall hold the land in the same rights and subject to the same restrictions and liabilities as he was entitled or subject to immediately before the date of vesting. In this case, in respect of the disputed Ka schedule land Plaintiff has the right of a tenant. But the land does not vest in the State as Defendants 1 and 2 are in wrongful possession of the land, Plaintiff is entitled to recovery of possession. The principle lay down in ILR 1963 Cutt 239 that 'right to possession' would not come within the meaning of 'khas possession' has only reference to those lands which vest in the State. 9. In the result, the appeal is allowed in part and the suit is decreed so far as Ka schedule land is concerned and dismissed with regard to Kha and Ga schedule lands. Parties to bear their own costs throughout. Final Result : Allowed