JUDGMENT : Das, J. - This is a Plaintiffs' appeal against the affirming judgment arising out of a suit for restraining the Defendants from entering upon the disputed land and interfering with the cultivation of the Plaintiffs. 2. Defendants Govind Sahu and Debraj Sahu are two minor sons of Rama Sahu who died on 5-12-1961. It is the case of the Plaintiffs that the disputed land was let out to Rama Sahu on the basis of an yearly tenancy, the condition being that he is to cultivate the land, gather the crop on the thrashing floor of the Plaintiff and deliver the Rajbhaga to him before the following Dola Purnima, on which day the tenancy would come to an end, unless a fresh engagement is made for the next year. On the death of Rama Sahu on 5-12-1961, the tenancy came to an end or latest on the following Dolapurnima Day, that is, 21-2-1962. The Plaintiffs gave registered notice to the Defendants saying that the tenancy with Rama had terminated and that they had no manner of right to cultivate the suit-land. The Defendants did not give any reply, but at the instigation of some persons trespassed upon the suit-land. Hence the Plaintiffs filed the suit for eviction of the Defendants and to restrain them enter upon the suit-land and interfering with the cultivation of the Plaintiffs. 3. The minor Defendants appeared through Court guardian. In the written statement filed on their behalf, it is alleged that their father Rama Sahu was not an yearly tenant, but was cultivating the suit-land continuously for about twenty years. The Defendants were also assisting their father and were recognized by the Plaintiffs as their tenants. 4. The trial Court raised several issues, but did not answer any of them. He left them to be decided by the competent revenue Court as he was of the view that the dispute being between the landlord and tenant, it should be decided according to the provisions of the Orissa Tenants Relief Act. 5. 4. The trial Court raised several issues, but did not answer any of them. He left them to be decided by the competent revenue Court as he was of the view that the dispute being between the landlord and tenant, it should be decided according to the provisions of the Orissa Tenants Relief Act. 5. The appellate Court however took the view that Rama Sahu was cultivating the suit-land for more than 20 year and in absence of any papers filed on view of the Plaintiffs, he presumed the land to be raiyati land and Rama Sahu being in continuous possession for more than twenty years has automatically acquired the occupancy right before his death on 5-12-1961 and after his death his sons, the Defendants his heirs were continuing as tenants, cannot be treated as trespassers as alleged by the Plaintiffs. He accordingly dismissed the Plaintiffs suit. Hence this appeal by the Plaintiffs. 6. The decision of the Court below is obviously erroneous and cannot be supported. It is not the case of the Defendant in their written statements that they have acquired the right of occupancy over the disputed land. No issue was frame under that point. On the other hand their specific plea was that the suit is not maintainable in law as they claimed tenancy right under the Orissa Tenants Relief Act, 1955 and the Civil Court had no jurisdiction to try the suit (paras 3 and 4 of the written statement. In para 2 of the written statement, they also took the plea that they are cultivating the suit-land as tenants paying Rajbhag to the Plaintiffs. Thus in substance their plea was that they are continuing as tenants of the Plaintiffs after the death of their father paying Rajbhag, and that their tenancy did not come to an end either on 5-12-1961 on the death of their father or on 21-3-1962 as alleged by the Plaintiff. Further, their specific plea was that it is only the revenue Court which is competent and to deal with the question under the provisions of the Orissa Tenants Relief Act. 7. Further, their specific plea was that it is only the revenue Court which is competent and to deal with the question under the provisions of the Orissa Tenants Relief Act. 7. u/s 2(1)(j) of the said Act the word 'tenant' has been defined to mean a person who under the system generally known as Bhag, Sanja or Kat or such similar expression, or under any other system, law, contract, custom or usage, cultivates the land of another person on payment of rent in cash or in kind or in both, or on condition of delivering to that person either a share in the produce of such land or the estimated value of the portion of the crop raised on the land or a fixed quantity of produce irrespective of the yield from the land or the produce, or its estimated value partly in one of such way and partly in another. From this definition it is clear that there is some sort of a contract between the landlord on one side and the tenant on the other and the contract is of a personal character. There is nothing on the Act itself to indicate that a tenant also includes his heirs or successors. In case the Defendants are not found to be tenants and to have acquired any other right to the land, the only reasonable inference would be that they are trespassers and to evict such persons, the civil Court will have full jurisdiction and such reliefs cannot be had from the revenue courts. 8. A similar contention, as pointed out by Mr. Murty was raised in a case reported in Tedepalli Sivaramayya and Anr. v. Bharato Parida 26 C.L.T. 245. Mohapatra, J held that neither the Transfer of Property Act nor the Tenants Relief Act makes any provision for making the annual tenancy right, which is purely of personal character, heritable or transferable. It is a personal privilege given to the tenant himself and even a servant or an assistant of a tenant cannot claim the status of a tenant within the meaning of the said Act and that the position of such persons being that, of a trespasser, the civil Court has full jurisdiction to evict them and to give relief to the Plaintiff. 9. Mr. 9. Mr. Misra, learned Counsel for the Respondents, contended that this being a case of an yearly tenancy the revenue court alone is competent to deal with the matter as the question involved is one of determination of the relationship of the landlord and tenant. His argument in the alternative was that if Rama Sahu was in continuing possession for more than 12 years, he had acquired an occupancy right over the suit-Land under the Madras Estates Land Act. None of these contentious, can, however, prevail 10. The Supreme Court in the well-known case of Magiti Sasamal Vs. Pandab Bissoi held that under the scuttle of the Orissa Tenants Relief Act, the Civil Court has the jurisdiction to decide a dispute as regards the existence, of the relationship of landlord and tenant. After this decision; the Orissa Legislature with a view to confer on the Revenue Court of the exclusive jurisdiction to decide such questions, inserted a per Section 11-A in the Orissa Tenants Relief Act. This section came into force on 30-10-1962. Section 11-A(1) says that notwithstanding, anything to the contrary in any of the other provisions of the Act, the Collector shall decide all disputes regarding the existence of relationship of landlord and tenant arising in court of any proceeding under this Act. Sub-section (2) of Section 11-A however, laid down that if a dispute of the nature specified in Sub-section (1) is raised or is pending before the Collector, no proceeding relating to such dispute shall be maintainable or be continued in any civil Court and the decision of the Collector shall be final, subject to the provisions of Sub-sections (4) and (5), that is, subject to the decision of the appellate Court. 11. The present suit was pending in the Civil Court for when the new provision came into force. Admittedly also no such dispute regarding the existence of relationship of landlord and tenant was raised or was pending before the Collector so as to attract the provision of Section 11-A (2). The next question is whether the new provision is retrospective in character so as to affect the suits pending in the civil Courts. Admittedly also no such dispute regarding the existence of relationship of landlord and tenant was raised or was pending before the Collector so as to attract the provision of Section 11-A (2). The next question is whether the new provision is retrospective in character so as to affect the suits pending in the civil Courts. In a decision of this Court in Radha Charan Das Babaji v. Bhima Patra 31 C.L.T. 996, it was held that the retrospective operation in the new provision is all confined only to such a dispute of the class as "is raised or is pending before the Collector. In other words, the provision made therein that no proceeding relating to such dispute will be maintainable or be continued in any civil Court is to apply only to such a dispute as "is raised or is pending" before the Collector. As we have already seen, so far as this case is concerned, no such dispute was raised or pending before, the Collector. That being so, the civil Court has full jurisdiction to decide the dispute. 12. Coming to the next contention, it is well-settled by authorities that the onus of proving the acquisition of permanent occupancy interest under the provisions of the Madras Estates Land Act is on the tenant. In Naina Pillai v. Rama Nathan AIR 1924 P.C. 65 , it was held that in a suit by his landlord to evict a tenant, it the latter sets up a defence that he has a right of permanent tenancy in the land, the onus of proving that he has such right, is upon the tenant and proof of long occupation does not satisfy that onus. In the present case the Defendants have not examined a single witness to discharge that onus. As I have said already, they have not taken even a specific plea that they have acquired a right of occupancy on the disputed land. On the other hand their case as far as it is ascertainable from the written statement, is that they are continuing as tenant in the same manner as their father and the revenue Court is the proper Court to decide the dispute. 13. In view of this position in law, the Plaintiffs must succeed. The Defendants are restrained from interfering with the possession of the Plaintiffs. Mr. 13. In view of this position in law, the Plaintiffs must succeed. The Defendants are restrained from interfering with the possession of the Plaintiffs. Mr. Murty, learned Counsel for the Appellants fairly conceded that he would not claim for any previous rent or rinsing profits from the Defendants. In the result, the appeal is allowed and in view of the circumstances of the case; each party has to bear his own cost throughout. Final Result : Allowed