JUDGMENT : Acharya, J. - The decree passed by the trial Court in favour of the Plaintiffs having been reversed in appeal they have preferred this second appeal. 2. The Plaintiffs' case, in brief, is as follows: A major portion of plot No. 259 and the whole of plot No. 260 comprised the homestead of the Plaintiffs. Plaintiff No. 1 and his brother Purusottam, since 1935, possessed portions of Anabadi plot Nos. 568 and 569 belonging to the ex-proprietor, which after the abolition of the estate vested in Defendant No. 1. The said portions described in Schedules Ka and Kha of the plaint, and the Plaintiffs' contiguous portions of plot Nos. 259 and 260, were enclosed by a fence forming one homestead compound for Plaintiff No. 1 and his brother, and they possessed the same by digging a tank for rearing fish on one portion and by growing vegetables on the rest of it. The Plaintiffs thus were openly and publicly in possession of the suit land since 1935, in assertion of their own right, and to the knowledge of the ex-landlord, his employees and the villagers, and as such acquired a right to the suit land by adverse possession. Defendant No. 2, on being instigated by some of the villagers, inimically disposed towards the Plaintiffs, filed a case under the Prevention of land Encroachment Act (Misc. Case No. 292/58-59) against the Plaintiffs in respect of the suit land, in which the Plaintiffs, in utter disregard of their legitimate objections, were ordered to be evicted from the suit land and hence they filed the suit. 3. Defendants 1 and 2 being respectively the Collector of Cuttack and the Subdivisional Officer of Kendrapara, were the principal contesting Defendants in this case. Some of the villagers being Defendant Nos. 6 to 10 filed written statement in the case, but were later set ex parte. Defendants 1 and 2 contested the suit mainly on the ground that the suit land was 'Rakhit' and communal land set apart for the benefit of the villagers; and that the Plaintiffs recently encroached upon the suit property secretly, and as such acquired no right, title or interest in the suit land. Their other grounds of contest not being material for consideration are not stated here in detail. 4. Their other grounds of contest not being material for consideration are not stated here in detail. 4. The Plaintiffs' suit was decreed by the learned Munsif on the ground that the Plaintiffs proved their possession for more then twelve years, and the suit lands being Anabadi lands of the ex-proprietor, the Plaintiffs acquired title by adverse possession to the same. The aforesaid decree was reversed by the first appellate Court on an appeal preferred by Defendants 1 and 2, and hence this second appeal. 5. In course of bearing of this appeal, a petition was filed on behalf of the Appellants seeking amendment of paragraph 4 of the plaint by inserting the following sentence at the end of the said paragraph: That the encroached portion is an accretion to the tenancy right of the Plaintiffs by adverse possession against the same landlord under whom the Plaintiffs are tenants in respect of their homestead plots namely plot No. 259 and 250 as it would appear from the certified copy of the record of rights annexed hereto. Another petition was filed by them praying for admitting some public documents as additional evidence in this appeal. Counter affidavits opposing both the above petitions were filed on behalf of the Respondents (Defendants 1 and 2). 6. The Plaintiffs instituted the Emit on the simple and specific assertion that they perfected their right to the suit lands, which were the Anabadi lands of the ex-proprietor, by adverse possession. The Defendants filed their written statements to controvert the above stand of the Plaintiffs. On that footing, issues were framed and evidence adduced; and the suit was decided both in the trial Court as well as in the lower appellate Court mainly on that basis of the Plaintiffs' claim. Acquisition of tenancy right by the Plaintiffs over the disputed land on the basis of the facts now asserted by the Plaintiffs, was not their case till now. If that was really so then such a case was available to them when they instituted the suit, and the Plaintiffs should not have instituted and/or allowed the suit to proceed merely on the ground that they acquired right to the suit lands by adverse possession. If that was really so then such a case was available to them when they instituted the suit, and the Plaintiffs should not have instituted and/or allowed the suit to proceed merely on the ground that they acquired right to the suit lands by adverse possession. The amendment sought for at this stage would inevitably ring within its wake investigation and considerations of several new facts, and as such the case cannot be decided at this stage on the issues framed and on the evidence on record. The amendment also would affect the nature of the suit, as the scope of the suit would be entirely changed because of the new facts which are sought to be introduced through this amendment. Moreover, this being a second appeal this Court cannot grant relief on the basis of the new claim now set out by the Plaintiffs which had no foundation in the pleadings nor raised in the first two Courts, and the other side was not called upon or had an opportunity to meet (See Krishnapasuba Rao Kundapur v. Dattatraya Krishnaji Karani AIR 1966 S.C. 1024 ; Gundicha Rautho v. Eswara Rautho 31 C.L.T. 272; Dula Dei and Others Vs. Jadi Bewa and Others. I am therefore of the opinion that the amendment sought for, and the consideration of the case on that basis, cannot be permitted at this belated stage in this second appeal. 7. The finding of the lower appellate Court on adverse possession being based purely on assessment and appreciation of the evidence on record, I cannot interfere with the conclusions arrived at on that matter by the said Court. 8. It was also contended by Mr. Mohapatra, the learned Counsel for the Respondents, that even accepting that the Plaintiffs perfected their right to the suit land by adverse possession, they prescribed only against the intermediary's interest in the suit land, and as the Plaintiffs did not take any steps for settlement of fair and equitable rent with respect to the suit land within the prescribed period after the vesting of the estate under the Estates Abolition Act, their right to possess, if any, extinguished under the Estates Abolition Act, and as such they had no subsisting right or title to the suit land on the date of filing of the suit. This contention of Mr. This contention of Mr. Mohapatra appears to be of substance ; but the Plaintiffs' claim of adverse possession having been negatived by the Court below this contention need not be discussed or decided. 9. The Plaintiffs' right to the suit land by adverse possession being found against them, and the new plea advanced by them in this Court being rejected out of consideration for reasons stated above, the Plaintiff-Appellants could not successfully assail the findings of the Court below on other grounds. 10. In the result, therefore, the appeal fails and is here by dismissed; but in the circumstance of this case the parties to bear their own costs throughout. Final Result : Dismissed