JUDGMENT : Misra, J. - The disputed land is 34 decimals, of nij-chas land in plot No. 1054 in khata No. 53 under mouza No. 62 in mouza Batapur in the district of Puri. It belonged to the co-sharer land lords Choudhury Gobinda Chandra Das, Choudhury Radhasyam Das, Choudhury Pitambar Das and Choudhury Ram Chandra Das. In the settlement record of rights (1923-1931) the suit was recorded as nij-chas in the name of these 4 co-sharers (see ext. D). Plot No. 1054 with an area of 0.34 acre is one of the plots appertaining to nij-chas khata No. 53. Plaintiff's case is that there was a partition amongst the co-sharers and that the suit land k had fallen to the share of Ram Chandra Das. In execution of a money decree against Ram Chandra, the disputed property was sold. One Bauribandhu Sahu purchased the disputed land amongst other lands and obtained delivery of possession. (See sale certificate ext. 3 and writ of delivery of possession ext. 4). Bauribandhu in his turn, sold the disputed land to Mahanta Narayan Das by a registered sale deed ext. 6 on 1-8-1942. Plaintiff purchased the same from the chela of Narayan Das by a registered sale deed ext. 1 on 22-7-1964. After his purchase. The paid rent to the proprietor Kailash Chandra Samantaray, who admittedly purchased the entire touzi in execution of a mortgage decree before 1940. Prior to the vesting of the estate in 1953 he was all through in possession until he was dispossessed by the Defendant. The suit is for declaration of title, recovery of possession and for damages. 2. Defendant No. 1, father of Defendant No. 2 died during the pendency of the suit. Defendant No. 2 alone contested. His case is that the disputed land was settled on his father in 1935 by co-sharer landlords excluding Ram Chandra by a stamp paper ext. A dated 21-1-1935. Kailash accepted the Defendants as permanent tenants on payment of Rs. 500- as premium. He executed a patta ext. B dated 28-4-1940 in favour of Defendant No. 1. Defendants paid rent all through and even after the abolition of the estate (ext. C series). They denied partition and allotment of the suit land to the share of Ram Chandra. 3. The learned trial Court recorded the following findings: (i) The co-sharer landlords (Choudhury brothers) partitioned amongst themselves long before ext. Defendants paid rent all through and even after the abolition of the estate (ext. C series). They denied partition and allotment of the suit land to the share of Ram Chandra. 3. The learned trial Court recorded the following findings: (i) The co-sharer landlords (Choudhury brothers) partitioned amongst themselves long before ext. 3 and the suit plot fell to the share of Ram Chandra. (ii) Plaintiff acquired valid title to the suit land under ext. I. (iii) Exts. A and B are spurious. They conferred no title on the Defendant. (iv) Exts. C to C5 and C7 have been manufactured for the purpose of the case. (v) It is to be noted that Defendant No. 2 was the gumasta under the Choudhury brothers, the original landlords as also under Kailash Chandra Samantaray. Exts. C6 and C8 do not confer tenancy right on the Defendant. (v) The claim for damage was dismissed. Thus Plaintiff's title as stithiban tenant and for recovery of possession was decreed. 4. The learned lower appellate Court recorded the following findings: (i) Exts. A, B and the rent receipts ext. C series are genuine. They established the tenancy right of the Defendants. (ii) Plaintiff by his purchase of nij-chas land acquired an interest in the proprietary rights. On the abolition of estate in 1953 title to the estate vested in the State of Orissa. Plaintiff having not made any application u/s 7 read with Section 8-A of the Orissa Estates Abolition Act, his right, title and interest in property stood extinguished. He has no subsisting title or right of action. He dismissed the Plaintiff' suit on the aforesaid findings without examination of the Plaintiff's case whether he acquired a tenancy right by payment of rent subsequent to his purchase. 5. Mr. Mohapatra conceded that the first finding of the learned lower appellate Court is not based on discussion of the relevant materials on record and that if the Defendant cannot succeed on the 2nd finding the case must go back on remand to the lower appellate Court for examination of the rival case of the parties whether they acquired tenancy rights. 6. Mr. 6. Mr. Misra contends that the learned Additional Subordinate Judge not having set aside the finding of the trial Court that the Plaintiff had acquired tenancy right on payment of rent he should not have held that an application should have been filed u/s 8-A(1) of the Orissa Estates Abolition Act therein after referred to as the Act. Title of the Plaintiff cannot be extinguished u/s 8-A(3) of the Act. u/s 8(1) of the Act 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. 7. Mr. Mohapatra on the other hand advanced the following contentions: (i) Nij-chas land is proprietor's private land. No occupancy right can accrue therein. (ii) Even if nij-chas land is not proprietor's private land it constitutes a part of the estate. By the purchase of the suit land with proportionate jama (revenue) at Rs. 177 -. Bouribandhu acquired an interest in the proprietary rights and acquired no tenancy rights. (iii) On the purchase of the entire touzi by Kailash Chandra Samantaray sometime before 1940 Bauribandhu ceased to be a proprietor. As his possession at its inception was in respect of a proprietary interest he became a trespasser in the eye of law subsequent to the purchase of the touzi by Kailash. The subsequent purchases by Mohanta Narayan Das and Plaintiff under exts. 6 and 1 merely conferred the status of a trespasser. (iv) Even if the purchasers are not the trespassers they continued to have mere proprietary interest by the subsequent purchases. (v) Defendants acquired tenancy rights under exts. A, B and C series. (vi) Plaintiff never paid rent and did not acquire tenancy rights. Section 8(1) of the Act has no application to the case. As he was an intermediary he should have filed his claim in the prescribed manner u/s 8-A(1) and on his failure of filing his claims the right to make any such claim shall stand extinguished under Sub-section (3) thereof. These contentions may be first examined seriatim. 8. The contention that nij-chas land constitutes proprietor's private land is not correct. Section 164 of the Orissa Tenancy Act, 1913 prescribes special rules for determination of the proprietors' private lands in temporarily settled estates. These contentions may be first examined seriatim. 8. The contention that nij-chas land constitutes proprietor's private land is not correct. Section 164 of the Orissa Tenancy Act, 1913 prescribes special rules for determination of the proprietors' private lands in temporarily settled estates. The entire section may be quoted: 154.(1) In temporarily-settled estates for which a record- of-rights has been prepared and finally published under Chapter X of the Bengal Tenancy Act, 1885, between the years 1891 and 1900 inclusive, and again between the years 1906 and 1912 inclusive, a proprietor's private land shall include (a) land which has been recorded as nij-jote in the record- of-rights prepared between the years 1906 and 1912, and (b) land recorded as the nij-chas of a proprietor or sub- proprietor (other than a sub-proprietor referred to in Sub-clause (i) of Clause (21) of Section 3) in the record-of-rights prepared between the years 1891 and 1900, which has again been recorded as his nij-chas in the record-of rights prepared between the years 1906 and 1912. (2) Any land, recorded as nij-chas in a record-of-rights finally published between the years 1906 and 19l2, which falls within the category of proprietor's private land under the provisions of Clause (b) of Sub-section (1), shall be deemed to have become proprietor's private land with effect from the date of the final publication of such record. (3) No land in a temporarily-settled estate which is not covered by Sub-section (1) shall be held to be a proprietor's private land. It would thus appear that those lands which have been recorded as nij-chas both in the Provincial and Revisional settlements would alone be regarded as proprietor's private land. In this case there were no materials on record to show that the disputed nij-chas land was so recorded in the Provincial and Revisional settlements. It is recorded as nij-chas only in the current settlement records of 1-28-1931. Para 67 of the Settlement Report by Dalziel explains 'nij-chas' as follows: The term nij-chas was used for lands in cultivating possession of the proprietors, when these lands are not proprietors' private lands as defined in Sections 153 and 154 of the Orissa Tenancy Act. Separate nij-chas khatians were prepared. The disputed lands are not proprietor's private land. Para 67 of the Settlement Report by Dalziel explains 'nij-chas' as follows: The term nij-chas was used for lands in cultivating possession of the proprietors, when these lands are not proprietors' private lands as defined in Sections 153 and 154 of the Orissa Tenancy Act. Separate nij-chas khatians were prepared. The disputed lands are not proprietor's private land. Section 55(a) of the Orissa Tenancy Act prohibits accrual of occupancy rights in a proprietor's private lands when they were held by a tenant on a lease for a term of years or on a lease from year to year. As the disputed lands are not proprietor's private lands, a tenant can acquire occupancy rights in it. 9. Even if the nij-chas land is not proprietor's private land it constitutes an interest in the proprietary rights. The sale certificate ext. 3 and writ of delivery of possession ext. 4 would indicate that Bauribandhu purchased the disputed land with a proportionate jama (revenue) at Rs. 177-. No tenancy right was created by the purchase and no rent was fixed of paid. Mr. Misra does not dispute the proposition that nij-chas lands constitute an interest in the proprietary right. Para 146 of Dalziel's Settlement Report deals with the proportion of assets taken as revenue. For calculating the assets of states certain principles were laid down. In para 147, the mode of determining the valuation of nij-jote and nij-chas lands was indicated. The valuation of nij-chas lands have been taken into consideration in calculating the assets of the estates. This shows that nij-chas lands constitute an interest in the proprietary right. Mr. Misra, rightly did not dispute this position. By purchase, Bauribandhu acquired an interest in the proprietary right. 10. On the purchase of the entire touzi by Kailash Chandra sometime before 1940 Bauribandhu's interest in the proprietary rights became extinguished. His possession of the disputed land at its inception was with the animus of a proprietor and not that of a tenant. His possession subsequent to the purchase by Kailash becomes that of a trespasser of the proprietary interest. The subsequent purchases by exts. 6 and 1 merely confer the status of a trespasser. This conclusion is on the assumption that Defendant was not in possession of the disputed land on the strength of exts. A, Band C series. 11. Even if the purchasers under exts. The subsequent purchases by exts. 6 and 1 merely confer the status of a trespasser. This conclusion is on the assumption that Defendant was not in possession of the disputed land on the strength of exts. A, Band C series. 11. Even if the purchasers under exts. 3, 6 and 1 were not trespassers in respect of the proprietary right they continued to have mere proprietary interest which Bauribandhu initially purchased before the purchase of the entire touzi by Kailash Chandra. Even if the possession of Bauribandhu and Mahanta Narayan Das is accepted as true no case has been set up by the Plaintiff that they were in possession as tenants. There are no materials on record in proof of the fact that Bauribandhu and Mahanta Narayan Das were paying rent to the landlords. It is thus manifest that the Plaintiff did not acquire tenancy right by his purchase under the registered sale deed ext. 1 on 22-7-1946. If the Plaintiff relied on his title on the strength of ext. 1 alone it would either be one of a trespasser or a proprietor. If on the date of vesting in 1953 Plaintiff's title was of the either category, then his interest becomes extinguished on the date of vesting. In Biswanath v. S.k. Dilbhar 28 C.L.T. 6 (D.B.), a Division Bench of Court held that the interest of a trespasser does not come within the definition of an incumbrance and must vest in the estate u/s 7 of the Act. If the interest is merely that of a proprietor, then the intermediary (Plaintiff) was to file his claim in the prescribed manner for settlement of fair and equitable rent within the period of limitation. On the failure of filing of the claims within the period specified the land vested in the estate and thereupon the right to make any such claim as afore said shall stand extinguished. Thus assuming that Bauribandhu, Mohanta Narayan Das and the Plaintiff were in continuous possession of the suit land for a period of less than 12 years so as not to acquire the prescriptive title of proprietor, the title in the suit land vested in the State in 1953 admittedly there being no claim u/s 8-A(I) of the Act. The same consequence emerges even if the Plaintiff had a proprietary interest on the date of vesting. 12. The same consequence emerges even if the Plaintiff had a proprietary interest on the date of vesting. 12. To get over the difficulty arises out of the aforesaid adverse consequence the Plaintiff set up a case of acquisition of tenancy right on payment of rent to Kailash Chandra, the proprietor of the touzi. Defendants on the other hand advance a rival contention that they had acquired tenancy right under exts. A, Band C series. The learned trial Court accepted the Plaintiff's case of tenancy and rejected the defence version of their tenancy. If the Plaintiff's case of tenancy is accepted the suit is to be decreed as u/s 8(1) of the Act 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 of 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. The learned lower appellate Court shirked his responsibility in not carefully determining the rival case regarding accrual of tenancy rights. It dealt with exts. A, Band C series in a slipshod manner without taking into consideration the adverse comment made thereon by the learned trial Court, He should have equally examined whether the Plaintiff's version of acquisition of tenancy is acceptable. On behalf of the Plaintiff a single rent receipt (ext. 2) dated 8-1-1953 has been filed. The receipt is clearly subsequent to the vesting of the estate. The body of the receipt, however, shows that it reports to be a payment for 4 years 1358, 1359, 1360 and 1361 sales). Some of these years are prior to the date of vesting. The Appellant relies on Section 49(1)(iii) to show that the Act does not affect the right of intermediary to recover any arrears of rent which accrued from the date of vesting. If the Plaintiff's story of tenancy is true, Section 49 enables realisation of rent for a period anterior to the date of vesting. If, however, there was no tenancy before vesting a receipt granted subsequent to the vesting to prove the creation of an earlier tenancy may be looked down upon with suspicion. If the Plaintiff's story of tenancy is true, Section 49 enables realisation of rent for a period anterior to the date of vesting. If, however, there was no tenancy before vesting a receipt granted subsequent to the vesting to prove the creation of an earlier tenancy may be looked down upon with suspicion. There are, however, questions which the Court of facts must go into. 13. On the aforesaid discussion only one question is to be decided by the Court of facts. All other questions are concluded by this judgment. The sole question after remand to be decided by the lower appellate Court is as to which version regarding accrual of tenancy is to be accepted. If it is found that Plaintiff has successfully established accrual of tenancy right by payment of rent in between his purchase in 1946 and the date of vesting, the suit for declaration of title and recovery of possession must succeed. If, Plaintiff fails to establish his tenancy right, the suit is to be dismissed even if the Defendants fail to establish their tenancy rights under ext B. A, Band C series. If on the other hand, the Defendants succeed in establishing their tenancy right under the aforesaid documents, Plaintiff's tenancy right cannot be believed and the suit is to be dismissed. The Court of facts is to go into the question and dispose of the case. 14. In the result, the Second Appeal is allowed and the case is remanded to the lower appellate Court for disposal in accordance with law and observations made above. The costs to abide the result. Final Result : Allowed