JUDGMENT : R.N. Misra, J. - The Plaintiff is in appeal against the decision of the learned Fifth Additional Subordinate Judge of Cuttack and asks for the relief of possession which has been denied to him. 2. The Plaintiff who is the ex-Ruler of Narasinghpur sued for title and recovery of possession in regard to about 12 acres of cultivable lands described in four different lots. It was pleaded that the lands belonged to him and had once upon a time been granted as service tenure for the blacksmith to one Madhusudan Bindhanihira. He did not render service. Accordingly the Defendant No. 16 was appointed as the blacksmith and the lands were made over to him. Madhusudan instituted so suit for recovery of possession which ultimately came before this Court in Second Appeal No. 322 of 1952 (Ext. 15). The action of the Ruler in displacing Madhusudan and putting the Defendant No. 16 into possession was upheld and the suit was dismissed. The Defendant No. 16 found it difficult to carry on cultivation and, therefore, on 18.3.1951 surrendered the lands to the Plaintiff and wanted to be paid his wages in the shape of a fixed quantity of paddy per annum. The Plaintiff alleged that he obtained khas possession of the property ever since then and has remained possession. The Defendants 1 to 7 raised disputes. Initially there was a proceeding u/s 145, Code of Criminal Procedure which was dropped because those Defendants started a proceeding under the Orissa Tenants Relief Act. The O.T.R. Collector had no jurisdiction to entertain the dispute, yet he found in favour of the Defendants. The order of the O.T.R. Collector is challenged as being without jurisdiction. The Plaintiff, therefore, sued for declaration of title, recovery of possession 808 also realisation of mesne profits. 3. The Defendant No. 7 individually and the Defendants 8 to 16 together by two separate written statements supported the Plaintiff. The contest came from the Defendants 1 to 6. In paragraph 10 of the written statement they specifically disputed the title of the Plaintiff. In paragraph 18, however, they pleaded, The Plaintiff has no title to the disputed land and even if he is found to have title to the land these Defendants are bhagchasis and the present suit in this Honourable Court is not maintainable. The suit was instituted on 7.3.1962. 4. In paragraph 18, however, they pleaded, The Plaintiff has no title to the disputed land and even if he is found to have title to the land these Defendants are bhagchasis and the present suit in this Honourable Court is not maintainable. The suit was instituted on 7.3.1962. 4. The learned Trial Judge relying upon the previous decision of this Court in the Second Appeal (Ext. 15) upheld the title of the Plaintiff. He, however, found that & decree for possession could not be given in view of the decision of the O.T.R. Collectors (Ext. 17). He accordingly while giving a decree for title dismissed the suit for the relief of possession as also mesne profits. The present appeal is directed against the aforesaid decision. 5. There is no cross-appeal to challenge the decree for title. As such it has become final. This appeal involves the Bole question for determination BS to whether the Plaintiff Appellant would be entitled to a decree for possession and mesne profits. 6. The application made to the O.T.R. Collectors in O.T.R. Case No. 3 of 1959 though not exhibited available on the records of the trial Court having been filed as a part of the plaint. The learned Counsel for both sides agreed that there would be no prejudice if reference is made to this document particularly because it has been filed as a part of the plaint. The O.T.R. proceeding was between the Defendants 1 to 7 on one side as the Petitioners and the Plaintiff and the Defendant No. 16 on the other as the opposite parties. It was stated therein, The Applicants along with 8 others were in possession of the land in question since the year 1947 as sanja tenants under the opposite party No. 1 (Defendant No. 16) and for this there was B Misc. Criminal Proceeding as the Civil suit against the Applicants...It was finally settled and disposed of by the Hon'ble High Court in favour of the Applicant O.P. No. 1. In the last general election the Applicants supported the Congress party against the persuasion of Raja Bahadur (Plaintiff) and the O.P. No. 1 and some cotenants of the Applicants in respect of the disputed land supported the Raja Bahadur. Since then the Raja Bahadur was trying to oust the Applicants from the land in question. In the last general election the Applicants supported the Congress party against the persuasion of Raja Bahadur (Plaintiff) and the O.P. No. 1 and some cotenants of the Applicants in respect of the disputed land supported the Raja Bahadur. Since then the Raja Bahadur was trying to oust the Applicants from the land in question. This year there is a dispute over the land at issue made by the Raja Bahadur against the Applicants in collaboration of the other co-tenants. But it was not known that the O.P No. 1 helped the Raja Bahadur. This was known on 16-1-1959 when the Raja Bahadur filed his W.S. on 16-1-1959. On that day it was revealed to the Applicants that the O.P. No. 1 has surrendered the land in favour of the O.P. No. 2 and the co-tenants supported him. The applications were never disposed in 1958 though force was applied against them till they were restrained by the S.D.M., Athgarh in Misc. Criminal Proceeding No. 90 of 1958. The O.T.R. Collectors by his order dated 2.2.1961 came to hold, According to Section 3(1) of the O.T.R. Act no tenant in lawful cultivation of any land on the 1st day of July, 1954 or at any time thereafter shall be liable to be evicted from such land by the landlord. But the Petitioners were protected from eviction according to the decision of the Hon'ble High Court on 15-3-1956 and they were still continuing in such cultivation. It is also quite inexpedient on the part of this Court to hold anything contrary relying on the facts prior to such decisions. So it is held that the Petitioners were cultivating the land till it was attached to criminal proceedings and they shall not be liable to be evicted from the suit land except by a regular proceeding in the Court of law. The O.T.R. Collector did not go to examine who was the owner of the land the present Plaintiff or the Defendant No. 16 because he was of the view that determination of title and ownership did not come within the purview of his jurisdiction. Admittedly the aforesaid order of the O.T.R. Collectors was allowed to become final and was not challenged in an appropriate proceeding under the Act. There is no dispute that the properties included in this suit were the subject matter of the proceeding of the O.T.R. Collectors. Admittedly the aforesaid order of the O.T.R. Collectors was allowed to become final and was not challenged in an appropriate proceeding under the Act. There is no dispute that the properties included in this suit were the subject matter of the proceeding of the O.T.R. Collectors. The effect of the aforesaid order of the O.T.R. Collector (Ext. 17) on the present suit has now to be considered. Section 10 of the O.T.R. Act provided that all disputes arising between a landlord and a tenant would be cognizable by the Revenue Court and not by a Civil Court. Section 9 of the O.T.R. Act enumerated five kinds of disputes which were required by statute to be decided by the Collector on application by either of the parties. It is true that the existence of relationship of landlord and tenant was not specifically included in any of these named categories of disputes and on that account their Lordship of the Supreme Court in Magiti Sasamal v. Pandab Bisoi 1962 S.C.D. 83, indicated that the civil Court has jurisdiction to decide a dispute about the existence of relationship of landlord and tenant. The decision of their Lordships of the Supreme Court led to the amendment of the Act under Orissa Act, 29 of 1962. Admittedly the order Ext. 17 was passed before the amending Act came into force. Therefore, on the authority of the aforesaid decision of their Lordships of the Supreme Court it has to be held that the Collectors under the Act did not have jurisdiction to decide the existence of relationship of landlord and tenant, though when a dispute touching upon that aspect of the matter came before him he was entitled to examine it as a collateral fact for assumption of jurisdiction in a dispute exclusively within his jurisdiction. I would accordingly conclude that the civil Court was not bound by Ext. 17 and was entitled to decide for itself 0.8 to whether the Defendants 1 to 7 were has tenants under the Plaintiff. The learned Trial Judge did not raise on issue directly on that point. As I find he has decided only two issues, namely (sic) issues 7 and 10. These issues were to the following effect: 7. Has the Court jurisdiction to try this suit? 10. Has the Plaintiff any manner of right, title or interest in the suit property?. The learned Trial Judge did not raise on issue directly on that point. As I find he has decided only two issues, namely (sic) issues 7 and 10. These issues were to the following effect: 7. Has the Court jurisdiction to try this suit? 10. Has the Plaintiff any manner of right, title or interest in the suit property?. Neither of these issues directly relates to the existence of relationship of landlord and tenant. There seems to have been some confusion in the minds of the parties as also the learned Trial Judge about the effect of the order under Ext. 17. That is why the parties as also the learned Trial Judge do not appeal to have pointedly devoted attention to the actual dispute requiring determination and undue importance has been given to the decision of the Collectors under Ext. 17. 7. The Appellant in this Court canvassed the plea of forfeiture of tenancy because there was denial of the landlordship of the Plaintiff by the contesting Defendants. Reference was made by Mr. Das to certain assertions in the written statement which I have already referred to and the evidence of one of the Defendants who clearly claimed title of the disputed property in the Defendants. But it is well settled that forfeiture cannot be established by a plea in the suit itself. As was held by their Lordships of the Judicial Committee in Maharaja Jeypore v. Rakmani AIR 1919 P.C.I. Denial in the suit will not work a forfeiture of which advantage can be taken in that suit, because the forfeiture must have accrued before the suit was instituted. This view has been approved by their Lordships of the Supreme Court in Mohammad Amir v. Municipal Board Sitapur 1965 S.C.D. 788. In the circumstances no advantage can be taken by the Plaintiff from the plea in the written statement or the evidence at the trial denying the title of the Plaintiff. That apart, forfeiture of tenancy : is provided in Section 111 of the T.P. Act. Section 3 of the O.T.R. Act provides that notwithstanding anything in any law, contract or usage no tenant in lawful cultivation of any land on the 1st day of July, 1954 or at any time thereafter shall be liable to be evicted from such land. That apart, forfeiture of tenancy : is provided in Section 111 of the T.P. Act. Section 3 of the O.T.R. Act provides that notwithstanding anything in any law, contract or usage no tenant in lawful cultivation of any land on the 1st day of July, 1954 or at any time thereafter shall be liable to be evicted from such land. Therefore, the provisions of Section 111(g) of the T.P. Act would not be applicable and the provisions of Section 3 of the O.T.R. Act have to be followed particularly when the latter Act has received the assent of the president. The position, therefore, is that the Plaintiff is not entitled to take advantage of the rule of forfeiture, nor is the determination under Ext. 17 binding on the Court because the O.T.R. Collectors did not have jurisdiction to determine the existence of relationship of landlord and tenant when he decided the matter in 1961 and any collateral findings for assuming jurisdiction in the dispute did not give rise to elements of res-judicata for the subsequent litigation before a competent Court. 8. It is true that there was no issue raised specifically in the trial Court on the question of existence or relationship of landlord and tenant. The conduct of the contesting Defendants however, has to be carefully noticed in this case. An application was made by the Plaintiff for obtaining better particulars from the Defendants on 10-12-1962. At page 74 of the Paper Book the five points upon which better particulars were asked for are indicated in the schedule to the petition. The fourth point was, If they claim to have been inducted as have-tenants of the suit lands by the Plaintiff and if so when and upon what terms. The learned Trial Judge called upon the Defendant to answer the particulars. Order No. 31 dated 7.2.1963 contained the following direction: The Plaintiff's petition dated 10.12.1962 for further particulars is put up. The particulars are necessary for making the contest and defence precise. The Defendants 1 to 6 to furnish the particulars by 21.2.1963. They failed to do so Order No. 35 dated 14.3.1963 reads as follows- Heard lawyers. The Defendant Nos. 1 to 6 have refused to answer the interrogatories. In that case the Defendants 1 to 6 will have to be examined by the Court under order 10 of the Code of Civil Procedure. They failed to do so Order No. 35 dated 14.3.1963 reads as follows- Heard lawyers. The Defendant Nos. 1 to 6 have refused to answer the interrogatories. In that case the Defendants 1 to 6 will have to be examined by the Court under order 10 of the Code of Civil Procedure. Let Defendants 1 to 6 present themselves in Court for such examination on 30-3-1963. On 30-3-1963, one of the contesting Defendants was examined under Order 10, Rule 2, CPC and he stated, I am claiming the land in my own right. I am possessing these lands as a raiyat. I am not 8 bhag-chasis under the Plaintiff. The learned Trial Judge that day passed the following order: Defendants 1 to 6 are present in Court. The statement under Order 10, Rule 2, CPC of Defendant 1 has been taken down by the Court. The petition of Plaintiff dated 28-2-1963 is put up today and pressed by the learned Advocate that the written statement filed by the Defendants be rejected for non-compliance of order dated 7.2.1963. I have perused the order of my predecessor in office dated 14-3-1963 and when Defendant 1 made a statement on oath in Court, so I find no reason to strike out the W.S. The learned Advocate for Defendants 2 to 6 urge that the statement of Defendant 1 is the statement of Defendants 2 to 6. At the trial the Defendant No. 1 was examined as d.w. 1. He stated in cross-examination, I have correctly stated in the written statement that I along with the Defendants 2 to 8. I am in possession of the suit land in our own right. In the O.T.R. case we stated that the Plaintiff had no interest in the suit lands. In the suit we are claiming exclusive title over the suit land. We also say that the Plaintiff has not title over the land. I stated in this Court earlier that I claimed exclusive title over the suit lands. Thus the Defendants never claimed that they were bhag-chasis and did not want relief on that ground. In view of the definite position taken by the Defendants in the suit there is no point in considering the claim of the Defendants as bhag-chasis. The learned Trial Judge assumed the binding nature of the order of the O.T.R. Collector (Ext. Thus the Defendants never claimed that they were bhag-chasis and did not want relief on that ground. In view of the definite position taken by the Defendants in the suit there is no point in considering the claim of the Defendants as bhag-chasis. The learned Trial Judge assumed the binding nature of the order of the O.T.R. Collector (Ext. 17) and, therefore, came to hold that there had been an adjudication of the existence of tenancy. I have already indicated the reasons for not attaching any importance to Ext. 17. Once Ext. 17 is discarded as not throwing any conclusive light on the litigation in view of the positive stand of the Defendants there is no scope to deal with the matter on the basis of the tenancy. In fact it would be reasonable to hold that there was a claim and a counter claim over the title to the property. I have already indicated that the question of the Plaintiff's title has become final. In such premises the question of the tenancy of the Defendants did not fall for decision in the Iitigation. Mr. Mohanty for the Defendants-Respondents stated that while it was true that the Defendants made a false claim relating to title, there was scope for them to be bewildered by the various claims relating to title-firstly of the Plaintiff, secondly of the Defendant No. 16, and thirdly of Madhusudan Bindhanihira, as evidenced by Exts. A, B and C. This fact cannot land any support for the conduct of the Defendants. The Defendants certainly always knew that they were not the owners whoever the owner may have been. Therefore, it was never open to them to raise a contest relating to the title of the property by asserting that the title inhered in them. 9. The net result of the aforesaid discussion, therefore, is that the Defendants are not entitled to take advantage of the plea of tenancy. The sole reason given in the judgment of the trial Court to negative relief of possession to the Plaintiff was the tenancy of the Defendants. For the reasons already indicated I would reverse the decision of the learned Trial Judge and hold that the Defendants are not the tenants of the disputed property and they never claimed that right. In view of the concluded finding about the Plaintiff's title he must succeed for recovery of possession. For the reasons already indicated I would reverse the decision of the learned Trial Judge and hold that the Defendants are not the tenants of the disputed property and they never claimed that right. In view of the concluded finding about the Plaintiff's title he must succeed for recovery of possession. I would accordingly allow the appeal, modify the judgment of the trial Court and direct that the Plaintiff shall also be entitled to recovery of possession of the disputed property through Court. There was a prayer for mesne profits. This matter has not been examined by the trial Court. The proper course. to adopt regarding mesne profits would be to direct an independent enquiry to be taken and the Plaintiff would be entitled to recover mesne profits that may be bound due only on payment of proper Court fee thereupon. In the facts of this case I would direct both the parties to bear their own costs throughout.