JUDGMENT : A. Misra, J. - This appeal has been preferred by Defendant No. 1, the Collector of Puri representing the State of Orissa. Respondent No. 1 filed the suit for a declaration of his occupancy right in the suit lands measuring about 265 acres. The suit lands appertained to a touzi owned by Defendant No. 2. According to the Plaintiff, Defendant No. 2 inducted him as a tenant on 15-61945 under a lease for agricultural purposes and put him in possession of the properties by accepting premium of Rs. 15,900/- on an annual rental of Rs. 68/12/-. Plaintiff being a settled raiyat of the village claims to have acquired occupancy rights therein. Subsequently, on the vesting of the touzi of Defendant No. 2 in the State of Orissa under the provisions of the Orissa Estates Abolition Act, proceedings were initiated u/s 5(1) on 4-11-1957 by the Deputy Collector who set aside the lease holding that the Flame has been granted subsequent to 1-1-1946 with the object of defeating the provisions of the Act. An appeal by the Plaintiff against this order was dismissed by the Collector on 29-10-1958. Hence, the present suit has been instituted. 2. Defendant No. 2, apart from filing a written statement supporting the Plaintiff's case, did not participate in further proceedings of the suit. The present Appellant resisted the Plaintiff's claim on the grounds that as the lands appertained to the anabadi of the touzi on abolition of the estate, it vested in the State; that Plaintiff was never in possession of the suit lands and Defendant No. 1 took khas possession on 25-1-1959; that the lease in favour of the Plaintiff is not genuine and deliberately ante-dated to defeat the provisions of the Estates Abolition Act; that Plaintiff not being a settled raiyat of the village cannot claim acquisition of occupancy right and that the suit is barred u/s 39 of the Orissa Estates Abolition Act. 3. 3. The trial Court decreed the suit in favour of the Plaintiff on the findings that the lease in his favour was created on 15-6-1945 for agricultural and horticultural purposes; that it is genuine, for consideration and valid in law; that he has been in possession of the suit lands all throughout since 15-6-1945; that the Civil Court has jurisdiction to determine the date of lease and that since the lease was from a date prior to 1-1-1946, the revenue authorities had no jurisdiction u/s 5(1) of the Orissa Estate Abolition Act to set it aside. It also found that Section 39 of the Act is no bar to the maintainability of the present suit. 4. Learned Counsel for Appellant has challenged the judgment and decree of the trial Court on the following grounds : (1) the findings of fact about the lease having been created on 15-6-1945, the lease being for agricultural and horticultural purposes and Plaintiff being in possession of the said lands all throughout since 15-6-1945 are said to be erroneous and not supported by adequate evidence; (2) Plaintiff's specific case being that he acquired title under a written instrument, the trial Court should have held that if the document is found to be invalid and inadmissible in evidence, the title claimed on the basis of it must fail; (3) Plaintiff having claimed to have acquired occupancy right in the suit lands on the allegation that as a settled raiyat of the village he possessed the same, a fact denied by Defendant, the Court below erred in not framing a specific issue as to whether Plaintiff was a settled raiyat and deciding the same before granting the declaration prayed for and (4) the trial Court erred in rejecting the contention of Defendant No. 1 that u/s 39 of the Orissa Estates Abolition Act, the suit is barred. 5. Before dealing with the other contentions, it will be convenient to dispose of the last ground advanced on behalf of the Appellant. The Collector u/s 5(1) of the Act gets jurisdiction to set aside any settlement or lease made by the proprietor of an estate after 1-1.1946 if he is satisfied that the same had been made with the object of defeating any of the provisions of the Act or obtaining higher compensation thereunder. The Collector u/s 5(1) of the Act gets jurisdiction to set aside any settlement or lease made by the proprietor of an estate after 1-1.1946 if he is satisfied that the same had been made with the object of defeating any of the provisions of the Act or obtaining higher compensation thereunder. Thus, though the jurisdiction extends to determining the deed of lease as well as the object, his determination of the former is not conclusive as that is not made subject to the satisfaction of the Collector. Section 39 of the Act only bars the jurisdiction of the Civil Court to investigate into the Collector's findings on essential facts which are subject to his satisfaction, but his decision on collateral facts which are not conclusive cannot operate as res judicate so as to oust the jurisdiction of the Civil Court to examine with a view to satisfy itself whether the Collector acted within his jurisdiction. This position is already settled by a Division Bench of this Court in the decision reported in Benudhar Dalai Vs. The State of Orissa. Therefore, we find no merit in this contention advanced on behalf of Appellant and reject it. 6. The trial Court, on a consideration of the evidence, has categorically found that the lease in favour of Plaintiff was created by Defendant No. 2 on 15.6.1945 by executing an unregistered deed of lease and accepting premium of Rs. 15,900/- and rent of Re. 68/12/-. It has also found that the lease was created for agricultural and horticultural purposes and that Plaintiff has been in possession of the suit lands throughout since the date. The evidence on those points is practically one-sided in favour of the Plaintiff. Though the Naib Tahasildar (d.w. 1) deposed that on 25-1-1959 he took formal possession of the suit lands on his own identification with the aid of the village settlement map in pursuance of which he gave the report (Ex. A/I), the evidence falls for short of proof that actual and effective possession was taken by him or subsequent to that date Defendant No. 1 exercised any acts of actual possession over the suit lands. As against this, p.w. 1, 2 and 3 have deposed that Plaintiff has been in actual possession of these properties since 15-6-1945 and this evidence finds considerable support from the rent receipts (Exs. As against this, p.w. 1, 2 and 3 have deposed that Plaintiff has been in actual possession of these properties since 15-6-1945 and this evidence finds considerable support from the rent receipts (Exs. 2 to 2/d) showing payment of rent by the Plaintiff on different dates between 1945 and 1956. Besides, d.w. 1 in his evidence has admitted that by the date he took formal possession of the suit lands and gave the report (Ex. A/1), there were about two to three thousands casuarina trees on a part of the suit lands. p.w. 1 has deposed that after taking the lease in 1945 they started planting trees on the suit lands. The existence of casuarina plantation lands considerable support to Plaintiff's possession of the suit lands since the date of Ex. 2 and the purpose for which the lease was taken. Therefore, we agree with the finding of the trial Court that Plaintiff has been in possession of the suit lands all throughout since the date of commencement of the lease and the lands were being utilised for horticultural purposes. 7. The next contention advanced on behalf of Appellant is that though an agricultural tenancy can be created by oral agreement accompanied by delivery of possession, once such a tenancy is alleged to have been acquired on the basis of a written instrument, if the document becomes inadmissible for want of registration, the title, if any, purported to be created under the said document will also fail as no extraneous evidence will be admissible either to prove the terms of the tenancy or the purpose. This argument has been advanced with reference to the averments made in para 3 of the plaint where it has been alleged that Plaintiff acquired the said properties under an unregistered lease deed from Defendant No. 2 on 15.6.45. On the other hand, learned Counsel for Respondent No. 1 contends that though no rights can be acquired under an invalid document like an unregistered lease, it is a settled position of law that tenancies for agricultural and horticultural purposes can be created and can come into existence by oral agreement accompanied by delivery of possession or by acceptance of rent by the landlord from the tenant which amounts to admission of the tenancy. According to him, a perusal of the entire plaint would show that the creation of the tenancy is not claimed exclusively or even mainly under the unregistered lease deed, but claim to such a right has been made on acknowledgment of the tenancy by the landlord and acceptance of rent together with premium on 15-6-45 followed by the subsequent rent receipts marked Exs. 1 and 2 series. He also refers to the acknowledgment of the tenancy by the landlord under the entry serial No. 18 in Ex. 3, jamabandi register filled by the intermediary on the abolition of the estate. In support of his contention, he has referred to the decisions of this Court reported in State of Orissa and Ors. v. Bhakta Charan Naik and Ors. ILR 1965 Cutt 22 : 31 C.L.T. 654; Khema Padhan v. Guna Sahu and Ors. ILR 1966 Cutt 284 : 32 C.L.T. 478, and Bhikari Tripathy v. Kashinath Misra and Ors. ILR 1964 Cutt. 289. In the last mentioned decision, the question whether title of Plaintiff can be declared on the basis of rent receipts establishing relationship of landlord and tenant, was fully examined and it was observed: The position of law is wen settled that the relationship of landlord and tenant in respect of agricultural tenancy can be created by acceptance of rent. This position of law is not seriously disputed by learned Counsel for Appellant. He, however, relies on the Full Bench decision of the Patna High Court reported in Ram Nath Mandal and Others Vs. Jojan Mandal and Others and contends that unless a specific case to that effect has been made out in the plaint, evidence of creation of such an oral tenancy or tenancy by acceptance of rent is not admissible and it is not competent for a Court to give such a finding. In the Patna Full Bench decision, it was held that Under Rule 117 of the T.P. Act, a lease for agricultural purposes is not necessary to be made by a written instrument and it may be effected by an oral agreement in which case the question of registration will not arise. In the Patna Full Bench decision, it was held that Under Rule 117 of the T.P. Act, a lease for agricultural purposes is not necessary to be made by a written instrument and it may be effected by an oral agreement in which case the question of registration will not arise. However, if the transaction is reduced to writing, then in the case of a lease from year to year or for any term exceeding a year or reserving a yearly rent, registration would be required u/s 17 of the Registration Act, and if unregistered the lease will be inadmissible in evidence u/s 49 of the Registration Act and other evidence of its terms will be precluded u/s 91 of the Evidence Act. In that case, the claim of creation of tenancy on the basis of rent receipts in pursuance of an oral agreement was negatived on the ground that no such case had been put forward by the Plaintiff in the plaint. The facts of that case, however, are distinguishable from the facts of the present case. On a perusal of the entire plaint in the present case, it is patent that Plaintiff has not purported to base his claim of tenancy solely on the unregistered lease deed alleged to have been executed on 15-6-1945. In para 1 of the plaint, it is alleged that Plaintiff is the settled raiyat of the village and in paragraph 3, it is alleged that since the creation of the tenancy, Plaintiff is in continuous possession thereof and has been paying rent annually to the landlord. In paragraph 6, it is specifically averred that Plaintiff being in continuous possession of the disputed lands as a settled raiyat of the village has acquired a good and valid title as against everybody including the State of Orissa. In the face of these averments, in the present case, it will not be correct to say that a case of acquisition of tenancy apart from the unregistered lease deed has not been alleged in the plaint. Therefore, as has been rightly held by the trial Court, it is available to the Plaintiff to prove his tenancy by payment and acceptance of rent from him by the landlord. In this case, the rent receipts already referred to prove that the landlord has been accepting rent since 1945. 8. Therefore, as has been rightly held by the trial Court, it is available to the Plaintiff to prove his tenancy by payment and acceptance of rent from him by the landlord. In this case, the rent receipts already referred to prove that the landlord has been accepting rent since 1945. 8. The next point for consideration is whether Plaintiff will be entitled to declaration of his occupancy right as prayed for by merely proof of creation of the tenancy by acceptance of rent. It is not disputed that though creation of a tenancy can be proved by oral agreement or by acceptance of rent, terms of the tenancy relating to the period or tenure contained in the unregistered lease deed cannot be proved by extraneous evidence when the document becomes inadmissible. It is argued by learned Counsel for Appellant that right of occupancy is a creature of the Statute and cannot be claimed apart from its provisions nor can it be created by the landlord by grant either orally or even by a written instrument. In support of this contention, he has referred to Sections 22 to 25 contained in Chapter V of the Orissa Tenancy Act and contended that unless Plaintiff succeeds in proving that he has acquired a right of occupancy in accordance with the aforesaid provisions, the specific declaration sought for cannot be granted. The trial Court, according to him, has failed to take note of these provisions addressed itself to determining, whether Plaintiff can be said to have acquired occupancy right under the statutory provisions. In support of this contention, learned Counsel for Appellant relies on the decision of the Supreme Court reported in Harihar Prasad v. Deo Narayan Prasad AIR 1956 S.C. 305 which was a case under the Bihar Tenancy Act. In the aforesaid decision, it is observed: Turning next to the provisions of the Bihar Tenancy Act, Section 21 confers on settled raiyats a permanent right of occupancy provided the conditions mentioned in that section are satisfied. But this right is a creature of the Statute and cannot be claimed apart from its provisions. Mr. Sinha, learned Counsel for Respondent No. 1 does not dispute that so far as the legal position is concerned, there is no difference between the provisions contained in the Bihar Tenancy Act and the Orissa Tenancy Act. But this right is a creature of the Statute and cannot be claimed apart from its provisions. Mr. Sinha, learned Counsel for Respondent No. 1 does not dispute that so far as the legal position is concerned, there is no difference between the provisions contained in the Bihar Tenancy Act and the Orissa Tenancy Act. The expression 'raiyat' has been defined in Section 5(2) of the O.T. Act to mean primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family. Section 23 defines the expression 'settled raiyat'. Section 24 lays down that every person who is a settled raiyat of a village within the meaning of Section 23 shall have a right of occupancy in all land for the time being held by him as a raiyat in that village and Section 25 provides for acquisition of occupancy rights in an area not included in a village. For the present purpose, Section 24 is the only relevant provision. The right of occupancy claimed by Plaintiff being a creature of the Statute, he can be entitled to get the declaration prayed for only if he proves that he has acquired the same in accordance with the statutory provisions, i.e. Section 24 of the O.T. Act. Mr. Sinha concedes the position that the right of occupancy being a creature of the Statute can be acquired only u/s 24 and apart, from it, Plaintiff will not be entitled to the declaration prayed for either on the ground that the landlord has conferred it by agreement or otherwise even on proof of creation of a tenancy in his favour by acceptance of rent. 9. To acquire a right of occupancy u/s 24, it is incumbent on the Plaintiff to establish that he is a settled raiyat as defined in Section 23. Defendant No. 1 in his written statement categorically controverter the averment made in the plaint that Plaintiff was a settled raiyat. All that the trial Court has found is that Plaintiff is possessing the suit lands all through since the date of Ex. 2, i.e 15-6-1945 under a tenancy created for agricultural and horticultural purposes. This finding does not and cannot in law confer the status of an occupancy right on the Plaintiff. All that the trial Court has found is that Plaintiff is possessing the suit lands all through since the date of Ex. 2, i.e 15-6-1945 under a tenancy created for agricultural and horticultural purposes. This finding does not and cannot in law confer the status of an occupancy right on the Plaintiff. Plaintiff cannot acquire the status of an occupancy right unless it is proved that he is a settled raiyat as claimed by him in the plaint and in that capacity continued in possession. Though this point specifically arose on the pleadings and a finding thereon is Essential to determine the right claimed by the Plaintiff, no specific issue has been framed nor evidence adduced on this aspect. Learned Counsel for Appellant referring to an isolated statement of p.w. 1 that Plaintiff has no other lands besides suit lands in Supasurubili has argued that on this evidence, a finding can be given by the appellate Court. p.w. 1 has stated that his father has separate lands in that village, and on his death, Plaintiff and himself would inherit them. The definition of the expression 'settled raiyat' is wide enough in certain circumstances to include heirs of settled raiyats. Similarly, a person also can continue to be a settled raiyat of a village not only as long as he holds any land as a raiyat, but also for one year thereafter. Therefore, on the isolated statement of p.w. 1 referred to above, it will not be correct to give a finding that he was not a settled raiyat. Further, when such an issue was not framed, the attention of the parties could not have been focused on this aspect and necessarily evidence has not been offered. Without determining whether Plaintiff was a settled raiyat, the decision of the trial Court in declaring the Plaintiff to have acquired occupancy right in the suit lands is obviously erroneous. 10. Hence, we allow the appeal, Bet aside the judgment ad decree of the Court below and direct that the suit be remanded for fresh disposal after framing a proper issue as to whether Plaintiff was a settled raiyat of the village, and as such, acquired the occupancy right in the suit lands, declaration of which, is prayed for by him. Hence, we allow the appeal, Bet aside the judgment ad decree of the Court below and direct that the suit be remanded for fresh disposal after framing a proper issue as to whether Plaintiff was a settled raiyat of the village, and as such, acquired the occupancy right in the suit lands, declaration of which, is prayed for by him. The parties will be at liberty to adduce additional evidence, if they so choose, only on the question relating to Plaintiff being a settled raiyat of the village. Costs of the appeal will abide the final result. Acharya. J. 11. I agree. Final Result : Allowed