JUDGMENT : A. Misra, J. - Defendant No. 1 is the Appellant against a confirming judgment. Respondents 1 and 2 filed the suit claiming declaration of title as tenants of the lands described in Schedules Ka, Kha and Ga, confirmation of possession respect of schedule Kha and recovery of possession in respect of the rest. According to them, the suit lands were their tenancy holdings under the ex-proprietors Respondents Nos. 3 to 5. The ex-proprietors obtained a decree for arrears of rent, put the lands to sale in execution of the decree and purchased the same. After this purchase, Plaintiffs allege that they obtained are-settlement of the lands by paying salami of Rs. 270/-, besides annual rent of Rs. 10/- under an unregistered patta and continued in possession. After abolition of the estate, the ex-proprietors by mistake mentioned the name of Defendant No. 1 as tenant of the suit lands in the rafa submitted to the State. Thereafter, disputes about possession arise which resulted in a proceeding u/s 145, Code of Criminal Procedure in respect of a portion of the Ka schedule lands which terminated in favour of Defendant No. 1. Hence, the present suit was filed for the aforementioned reliefs. 2. The ex-proprietors who were impleaded as proforma Defendants supported the Plaintiffs' case in their written statement The present Appellant who was Defendant No. 1 resisted the claim alleging that he got settlement of the lands from the ex-proprietors Defendants 2 to 4 in 1951 under an unregistered patta and continued in possession by paying rent to the Anchal. 3. The suit was decreed by the trial Court and confirmed by the first appellate Court on the following concurrent findings: (1) Plaintiffs have acquired tenancy rights from the expropriators; (2) they were in possession of the disputed lands till the date of the preliminary order in the proceeding u/s 145, Code of Criminal Procedure between the parties and (3) Defendant No. 1 has not acquired any tenancy right to the lands and was not in possession prior to the date of the preliminary order in the proceeding u/s 145, Code of Criminal Procedure. 4. 4. Learned Counsel for Appellant assails the judgment and decree passed by the Courts below on the following grounds: (1) Plaintiffs are not entitled to declaration of any tenancy right in the suit properties without making the State, the present landlord, a party to the litigation (2) acquisition of tenancy right under an oral agreement will not be valid, unless it is accompanied by delivery of possession, and in this case, delivery of possession has not been proved; (3) by mere acceptance of rent, permanent tenancy right cannot be acquired and (4) the admission of Defendant No. 1 as tenant by the ex-proprietors in the rafa submitted to Government is sufficient to create tenancy right in his favour. 5. There is no dispute between the parties that the suit lands originally constituted tenancy holdings of Plaintiffs under the ex-proprietors; that the ex-proprietors obtained a decree for arrears of rent in Rent Suit No. 5161 of 1945-46 and in the execution sale purchased the entire Kha schedule lands, besides 3.40 acres out of the Ka schedule. It is also an admitted fact that the proprietary interest of the ex-proprietors came to an end on abolition of the touzi under the Orissa Estates Abolition Act sometime in 1954. 6. Each contesting party claims to have obtained settlement from the ex-proprietors and thereby acquired title to the suit lands. The Courts below, on a consideration of the evidence, have come to the concurrent findings that Plaintiffs have acquired tenancy rights under the ex-proprietors and were in possession till the date of the preliminary order in the proceeding u/s 145, Code of Criminal Procedure, while Defendant No. 1 has not acquired any such right, nor was he in possession of the suit properties prior to that date. These findings being on questions of fact, are not available to be assailed in second appeal. 7. The first contention of learned Counsel for Appellant is that Plaintiffs are not entitled to the declaration of the tenancy right without impleading the State as a party as the State happens to be the present landlord which has recognised Defendant No. 1 as tenant on the basis of the rafa submitted by the ex-proprietors. On the other hand for Respondents relying on the decisions reported in Badshah Moti Bhanmata and Others Vs. Board of Revenue and Others and Narasingh Tarasia and Anr. v. Doli Padhan and Ors. On the other hand for Respondents relying on the decisions reported in Badshah Moti Bhanmata and Others Vs. Board of Revenue and Others and Narasingh Tarasia and Anr. v. Doli Padhan and Ors. ILR 1966 Cutt. 139, it is contended that non-impleading of the landlord cannot be fatal to a suit for declaration of right to and recovery of possession of an agricultural holding. I agree with the contention advanced on behalf of Respondents that non-impleading of the State cannot be fatal to the Emit as no specific relief is sought against the landlord. 8. It is next urged for Appellant that as Ext. 2, the unregistered lease deed is inadmissible and Plaintiffs cannot claim to have acquired any rights thereunder, the only other manner by which acquisition of agricultural tenancy rights is possible is an oral agreement accompanied by actual delivery of possession. In this case, it is argued that there is no proof that the oral agreement was accompanied by delivery of possession. In the absence, of such proof, mere acceptance of rent by the ex-proprietors even if believed, cannot confer tenancy rights on the Plaintiffs. In support of this contention, reliance is placed on the, following observations at page 590 of the decision reported in Mohammad Hanif and Another Vs. Khairat Ali and Others, . In my opinion, upon the facts stated and specially when it is found that the Plaintiff came to Court with a specific case that there was a written lease in his favour, the case cannot be decided upon the assumption that there was also an oral lease. Assuming however, that such an assumption could be made, we have still got to remember the distinction between a completed lease and an agreement to lease. If the Rani, notwithstanding the fact that she was in possession at the time of the lease and, therefore, could easily put her lessee in possession, did not give him possession, it is difficult to hold that the transaction was anything more than a mere agreement to lease. It is urged that at best it can be said that there was an agreement to lease but not a completed lease which will entitle the, Plaintiffs to the declaration prayed for. In my opinion, this contention has no merit. 9. It is urged that at best it can be said that there was an agreement to lease but not a completed lease which will entitle the, Plaintiffs to the declaration prayed for. In my opinion, this contention has no merit. 9. The facts of the Patna case are clearly distinguishable, inasmuch as, it was conceded that the lessor never delivered possession of the property to the alleged lessee. In the present case, on the other hand, the con our rent finding of the Courts below is that Plaintiffs were in continuous possession of the disputed properties till the date of the preliminary order in the proceeding u/s 145, Code of Criminal Procedure. In the decision of, this Court reported in Khema Padhan v. Guna Sahu 1966 C.L.T. 478, it has been held that an unregistered agricultural lease deed is admissible as evidence of any collateral transaction, such as, nature and character of possession and the date from which the Plaintiff came into possession of the land as lessee. In view of the concurrent finding about possession it follows that delivery of possession had taken place and even if the unregistered lease deed is inadmissible as evidence of creation of tenancy rights, it shows the character of possession as lessee. Therefore, Plaintiffs have acquired agricultural tenancy rights as obviously the oral agreement was accompanied by delivery of possession. 10. The last contention of learned Counsel for Appellant is that the mention of Defendant No. 1's name in the rafa submitted by the ex-proprietors is sufficient to create tenancy right in favour of Defendant No. 1. Whether the mention of Defendant No. 1's name in the rafa was an inadvertent mistake or otherwise motivated, there can be hardly any doubt that this act of the ex-proprietors cannot create rights in favour of any party or extinguish rights of others. If by that date, as has been found, Plaintiffs were already in possession of the lands as tenants under an oral tenancy accompanied by delivery of possession, the landlords had no right to confer such tenancy right on Defendant No. 1 and that too, by merely mentioning his name in the rafa submitted to the State. 11. In the result, the appeal fails and is accordingly dismissed with costs. Final Result : Dismissed