JUDGMENT : Barman, A.C.J. 1. The State of Orissa, the Collector of Cuttack and the Anchal Adhikari of Jagatsinghpur are the Appellants. This appeal arises out of a suit filed by the Plaintiff for declaration of title and for confirmation of possession of the suit land, measuring 76 decimals in area, out of 2 acres 79 decimals appertaining to plot No. 90, Khata No. 48, in mouza Hariharpur and for recovery of Rs. 100 - as damages as price of fish. 2. The Plaintiff's case, shortly stated, is this Defendant No. 8 was the landlord and Defendant No. 7 was the settled raiyat of the village. On November 2, 1945 the settled raiyat (Defendant No. 7) took lease of 28 decimals out of the said plot No. 9 which is said to be the southwestern portion of a cremation ground. On November 3, 1950 the settled raiyat (Defendant No. 7) took lease of 48 decimals (adjoining the said 28 decimals) and paid rent in respect of the same and obtained rent receipts. On May 15, 1952, the settled raiyat (Defendant No. 7) is said to have lost the lease deed and the rent receipts. There was a publication in the Samaj about the said loss on May 21, 1952. On January 14, 1953, the settled raiyat (Defendant No. 7) executed a sale deed (Ext. 1) in favour of the Plaintiff in respect of the entire 76 decimals of land. On May 8, 1933, Defendants 1 and 2 caught fish from the disputed property, worth Rs. 100/-. There after the Plaintiff was informed that the landlord had leased out 1 acre, 65 decimals including the disputed 76 decimals to Defendants 1 and 2. Then the Plaintiff filed the present suit for the reliefs aforesaid on August 12, 1953. 3. The Appellant-Defendants including the State of Orissa, contested the suit. Their defence is that the suit land was never leased out by the landlord that the settled raiyat (Defendant No. 7) was never in possession, nor was the Plaintiff in possession that the suit land is communal land and therefore the suit is barred by virtue of the provisions of the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act 1948 (herein after referred to as Orissa Act 1 of 1948). It was further contended, on behalf of the Defendants that after the property had vested in the State of Orissa the Anchal Adhikary put the fishery to auction and that the disputed land was never cultivated and that it was in fact unfit for cultivation. 4. The trial Court decreed the Plaintiff's suit, in respect of 28 decimal and awarded proportionate damages of Rs. 37.8.0 on the finding that some rent receipts were filed in respect of the 28 decimals and dismissed the suit with regard to the remaining 48 decimals. The trial Court also found that the leases were for agricultural purpose. The Plaintiff appealed from the decision of the trial Court dismissing his suit in respect of 48 decimals. The Defendants also filed a cross-objection against the decision of the trial Court decreeing the suit in respect of 28 decimals. That cross-objection was dismissed. The Plaintiff's appeal was allowed with the result that he got a decree in full for the entire 76 decimals. Hence this second appeal by the Defendant-Appellants, including the State of Orissa. 5. Admittedly, there is no lease deed. It is said that it was lost. Ext. 5 is the entry in the Samaj showing that immediately after the loss of the document it (fact of loss) was published in the newspapers. Ext. 4 series are the rent receipts from November 10, 1945 to June 5, 1954 showing payment of rent for 28 decimals and 48 decimals of land during this period. These rent receipts were proved by P.W. 2, Khetramohan Sahu who was the Gumastha of the landlord. This witness supports the Plaintiff's case and asserts that the settled raiyat (Defendant No. 7) had taken lease of 7 gunths in the first instance and 12 gunths in the second instance, and that he had delivered possession of the lands to Defendant No. 7. 6. It is the undisputed position in law that it is open to a landlord to create a tenancy by giving possession and accepting rent, and clearly, therefore, such a tenancy can be proved by evidence other than the production of the lease deed. In the present case both the Courts found that the lease was for agricultural purpose. Therefore, none of the formalities required by the provisions of Chapter V of the Transfer of Property Act are applicable to this case. In the present case both the Courts found that the lease was for agricultural purpose. Therefore, none of the formalities required by the provisions of Chapter V of the Transfer of Property Act are applicable to this case. It was therefore open to the Defendant landlord to create a tenancy in the manner he did by issuing rent receipts, accepting rent paid to him, and delivering possession to the lessee. 7. The Defendant-Appellants however, relied on a decision of the Supreme Court in Sheodhari Rai and Others Vs. Suraj Prasad Singh and Others, in support of the proposition that payment of rent does not necessarily establish the relationship of landlord and tenant. Apart from the clearly distinguishing feature that the Supreme Court case was one governed by the Transfer of Property Act and therefore a lease deed in compliance with the formalities required under that Act was absolutely necessary, the decision does not support the Appellants contention. What their Lordships intended to lay down is stated in paragraph 5 of the judgment where they upheld, as well founded, the decision of the High Court that the fact of payment of rent by the Defendants to the superior landlords, as evidenced by the rent receipts, produced by the Defendants from their own custody was quite consistent with their having permissive occupation of the land under an amicable arrangement with the Defendants without there being any relationship of landlord and tenant between the two sets of Defendants. This does not mean that the issue of rent receipts, acknowledgment of receipt of rent by the landlord, and delivery of possession by the landlord to the tenant do not create a tenancy. In the present case, the leases having been for agricultural purpose, there was no necessity for a formal lease deed as required for one governed by the Transfer or Property Act, and it was open to the landlord to create a tenancy in the manner he did, as aforesaid. 8. The Defendant-Appellants also contended that the suit land being communal land, the suit is barred by Act I of 1948. This contention is not tenable in law. 8. The Defendant-Appellants also contended that the suit land being communal land, the suit is barred by Act I of 1948. This contention is not tenable in law. Communal land has been defined in Section 2(a)(ii) to mean in relation to cases governed by the Orissa Tenancy Act 1913, lands recorded as gochar rakshit or sarbasadharan in the record of rights, or wastelands which are either expressly or impliedly set apart for the common use of the villagers, whether recorded as such in the record-of-rights or not. In the present case, the disputed land does not come within this definition. It is the settled view of this Court that in the absence of any mention of the land being communal land in the record-of-right the contention that it is communal land cannot stand if there is no clear evidence to show that it was used as such. It is not sufficient that the land is 'Anabadi' (uncultivated). It is doubtless wasteland but whether it has been act apart for common use of the villagers expressly or impliedly is a matter which must be clearly established by evidence. On this point the finding of the learned lower appellate court is this: In the present case admittedly the land in question has not been recorded as Gochar, Rakshit or Sarbasadharana in the record-of-rights as wasteland which was either expressly or impliedly set apart for the common use of the villagers. No satisfactory evidence has been adduced to prove that the land was set apart impliedly for the common use of the villagers and the villagers use this land for their own benefit. Therefore, it cannot be said that the landlord had got no right to transfer the land as it was communal land. I fully agree with this view. 9. Having regard to the finding by the court below, on his appreciation of the evidence, that it is not communal land within the definition of Act I of 1948, there is no substance in the contention of the Appellant-Defendants. 10. In the view that I have taken of this case, it is unnecessary to deal with the other points raised on behalf of the Defendant-Appellants. In my opinion, there is no merit in this appeal. The decision of the learned lower appellate court is therefore upheld. This appeal is dismissed with costs. Final Result : Dismissed