JUDGMENT : Misra, J. - Shorn of unnecessary details, the facts involved in this suit are that plot No. 28 with an area-18-75 acres, plot No. 27-102-95 acres and plot No. 33-30-30 acres belonged to the Raja of Kanika who was the landlord. Plot Nos. 27 and 33 have been recorded as river in the settlement khatian (ext. A) and in the partition decree (ext., 2) as Tandi patha, Bali and water. Plot No. 28 is recorded as Pala, and in the partition decree as Tandi patha. Plot No. 28 is recorded as the Nijchas land of the ex-proprietors while plot Nos. 27 and 33 have been recorded as Anabadi land Plaintiff claims to have come upon this land before 194::5. Plaintiff's case is that he cultivated about 44 acres of land out of plot Nos. 27 and 33 in the year 1951 on payment of rent and he was reclaiming the other lands where Tandi grass was being grown. The estate vested some time in 1952 or 1953. His further case is that for one year after the vesting he held the land under the Anchal on payment of rent. Next year it was put to auction and Defendant No. 2 was the highest bidder. Plaintiff asked for a declaration of his right of occupancy and for a, permanent injunction to restrain the Defendants from interfering with his possession. Defendant No. 2 did not contest. Defendant No. 1, State of Orissa contested the suit alleging that Plaintiff had no occupancy right and he was evictable. The learned trial Court dismissed the suit on the finding that Plaintiff had no occupancy right and was not in cultivating possession of any portion of the disputed land. He found that the Plaintiff held the land under Raja of Kanika on payment of miscellaneous fees and not on payment of rent. The learned lower appellate Court accepted the Plaintiff's case that he was holding the land on payment of rent and was cultivating 44 acres of undemarcated land in plot Nos 27 and 33. After examination of the law, he came to the conclusion that the Plaintiff had no right of occupancy as he did not hold the land continuously for more than twelve years. After examination of the law, he came to the conclusion that the Plaintiff had no right of occupancy as he did not hold the land continuously for more than twelve years. He ultimately passed the following order: Be it declared that in respect of plot No. 28 which is recorded as Nijchas land of the ex-proprietors the Plaintiff has neither occupancy nor non-occupancy right but he is a temporary tenant having a right to cultivate the land on payment of fair and equitable rent which may be determined by the Collector. In respect of the plots 27 and 33 which are Anabadi in nature he is deemed to be a temporary tenant, with a right to reclaim lands and he has no right of occupancy in the same but in respect of the actual extent of land brought under the plough to be found on measurement by the Collector, he is a non-occupancy raiyat on the footing that the land is Diara land and it is open to the Collector to fix fair and equitable rent in respect of the same. In respect of the remaining extent of plots 27 and 33 of the suit schedule which are still continued to be Tandi patha or partially Char land, the Collector is competent to either terminate the temporary tenancy and take physical possession amicably with the Plaintiff or in accordance with Section 100 of the Orissa Tenancy Act.... 2. The findings of the learned Subordinate Judge are somewhat confused in view of the fact that he did not appreciate the legal position involved in this suit. Essentially his findings are that in respect of the undemarcated 44 acres in plot Nos. 27 and 33, Plaintiff has acquired right of non-occupancy. In respect of the other land Plaintiff has a temporary tenancy right. What is the nature and character of that right the learned Judge does not determine. He merely tenders certain advice to the Collector as to how Plaintiff would be dealt with regard to those lands. This is hardly what a civil Court should do which is concerned with the determination of rights in precise terms. It is, therefore, necessary to examine the entire law on the point and ascertain what exactly is the nature of the right which the Plaintiff has in the disputed lands. 3. This is hardly what a civil Court should do which is concerned with the determination of rights in precise terms. It is, therefore, necessary to examine the entire law on the point and ascertain what exactly is the nature of the right which the Plaintiff has in the disputed lands. 3. The finding is that the Plaintiff has no occupancy right on any portion of the land. This conclusion was reached on the finding that he failed to establish possession of the disputed land continuously for a period of twelve years. No appeal has been filed against this finding. Plaintiff is not therefore entitled to a declaration of his occupancy right in the disputed lands. This part of the learned Subordinate Judge is confirmed. 4. In paragraph 15 of his judgment the learned Subordinate Judge has come to a conclusion that Plaintiff is a settled raiyat of the village. As a raiyat, he held the disputed land. Admittedly, the disputed lands constitute Char lands. The law on the point is found in Section 234 of the Orissa Tenancy Act. The relevant portions of this section run thus: 234(1) Notwithstanding anything in this Act, a raiyat ... ... ... (b) who holds land of the kind known as Char or Diara, shall not acquire a right of occupancy in case (b) in the Char or Diara land, until he has held the land in question for twelve continuous years; and, until he acquires a right of occupancy in the land, he shall be liable to pay such rent for his holding as may be agreed on between him and his landlord. Sub-section (2) of this section lays down that Chapter VI shall not apply to raiyats holding land under the custom of utbandi in respect of land held by them under that custom. 5. Plaintiff though a raiyat, did not hold the land for twelve continuous years, he did not acquire right of occupancy in the Char land. The italicised expression, however, furnishes the key to the solution of the problem whether Plaintiff has acquired a right of non-occupancy and cannot be evicted from the disputed land so long as he agrees to pay the rent settled between him and the landlord. It confers the right to continue on the land until he acquires the right of occupancy. The italicised expression, however, furnishes the key to the solution of the problem whether Plaintiff has acquired a right of non-occupancy and cannot be evicted from the disputed land so long as he agrees to pay the rent settled between him and the landlord. It confers the right to continue on the land until he acquires the right of occupancy. In other words, if the tenant is willing to pay the rent as settled between him and the landlord, he has a right to continue on the land. If the conditions are fulfilled the landlord has no right of eviction. It has to be noted that the section emphasises upon the payment of rent, agreed to between the landlord and the tenant and not on the right of continuance of balding the land on payment of rent. The matter is made clearer by Sub-section (2) whereby Chapter VI dealing with the non-occupancy rights is made non-applicable to utbandi lands and not to Chara lands. It follows that Chapter VI: is fully applicable to the case of Chara lands. In this case, Plaintiff, a settled raiyat of the village, admittedly held the Chara land prior to the vesting. His right to continue on the land as a non-occupancy raiyat cannot be affected in any manner unless he does not agree to pay the rent as settled between the landlord and the tenant. 6. The aforesaid discussion flows from the plain reading of the section. The same view has been consistently taken in the Calcutta High Court under the Bengal Tenancy Act on the model of which the Orissa Tenancy Act has been framed. Reference may be made to Jahander Baksh Mallik v. Ram Lal Hazrah ILR Cal. 449 and Satis Chandra Basu and Ors. v. Nitya Gopal Haldar and Ors. AIR 1918 Cal. 699. Ram Bujhawan Singh and Others Vs. Ram Ranvijoy Prasad Singh, has also taken the same view. 7. The result of the aforesaid discussion is that no difference in the incidents of the tenancy can be made merely because a part of land is cultivated and the other part had not been reclaimed till now. The fact remains that the Plaintiff held the disputed lands as a raiyat part of which is cultivated and the rest are yet to be reclaimed. The fact remains that the Plaintiff held the disputed lands as a raiyat part of which is cultivated and the rest are yet to be reclaimed. In either case he has acquired non occupancy right under Chapter VI subject to the conditions described in Section 234 of the Orissa Tenancy Act. The learned subordinate Judge brought in a confusion of thought by laying down that he had acquired non-occupancy right only in respect of cultivable land and temporary tenancy in respect of other lands. 8. In the result, the Plaintiff's suit in so far as it has asked for declaration of occupancy right must fail. He is entitled to a declaration that he has a non-occupancy right over the disputed lands and is liable to pay rent to be determined on agreement between himself and the Collector. A permanent injunction be issued against the Collector not to evict him from the disputed land unless he fails to pay the rent as settled and that also in accordance with law. 9. In the ultimate result, the second appeal fails subject to the observations made above, but, in the circumstances, parties to bear their own costs throughout. Final Result : Dismissed