JUDGMENT : P.K. Mohanti, A.C.J. 1. The Second Appeal is by Defendant No. 2 against a decree of reversal. The suit was for a declaration of the Plaintiff's sthitiban right over the suit lands on adjudication that neither the Defendants nor their predecessors-in-interest were sikimi tenants under the Plaintiff at any time, for confirmation or in the alternative recovery of possession and also for recovery of a sum of Rs. 350/- as damages. 2. The suit lands appertain to plot Nos. 1106 and 1107 of the Major Settlement of 1966 which correspond to plot Nos. 791 and 792 respectively of the Current Settlement of 1927. In the GS record of rights finally published in 1927 the Plaintiffs father has been recorded as a sthitiban raiyat in respect of plot Nos. 791 and 792. There is a note of possession against plot No. 792 in the remarks column in favour of Saradi Bewa, widow of late Madhu Behera as sikimi mahdar-vide Ext. G. But in the Major Settlement record-of-rights finally published on 21st October, 1966 plot Nos. 1106 and 1107 have been recorded in the name of Padia Behera son of Achyut Behera as sikimi Nisakar vide Ext. 1. In the record-of-rights finally published u/s 22 of the Orissa Consolidation of Holding and Prevention of Fragmentation of Land Act, 1972 plot Nos. 848 and 84 (sic) which correspond to Major Settlement plot Nos. 1106 and 1107 respectively have been recorded in the name of Defendant No. 1 and her sons and daughters as sikimi nisakar. 3. The Plaintiffs case is that he has been in khas possession of the suit lands as a sthitiban raiyat and has been using plot No. 1106 as a cocoanut garden and plot No. 1107 as a Khamar house and that neither the Defendants nor their predecessors-in-interest were sikimi tenants under him at any time. It was alleged that Padia Behera, the predecessor-in-interest of the Defendants got himself fraudulently recorded as a sikimi tenant in respect of the suit lands in the R.O.R. of 1966 and the Plaintiff came to know about such entry in the R.O.R. on 25-1-1967. It was also alleged that taking advantage of the wrong entry in the R.O.R. of 1966 the Defendants, on 8-4-1969, demolished the Plaintiff's house standing on plot No. 207 and carried away the building materials. They also plucked cocoanuts from the trees standing on plot No. 1106. It was also alleged that taking advantage of the wrong entry in the R.O.R. of 1966 the Defendants, on 8-4-1969, demolished the Plaintiff's house standing on plot No. 207 and carried away the building materials. They also plucked cocoanuts from the trees standing on plot No. 1106. The Plaintiff, therefore, claimed a sum of Rs. 350/- as damages from the Defendants. 4. The stand taken by the Defendants is that their ancestor Madhu Behera was in possession of the suit lands as a sikimi tenant and after his death his widow. Saradi Bewa and son Achyut Behera possessed the same as sikimi tenants. After the death of Achyut his son Padia continued to possess the same as a sikimi tenant and after his death the Defendants have been possessing the same as such. The other allegations made in the plaint were denied. 5. The trial court, on a consideration of the evidence led by the parties, held that Defendants have been in possession of the suit lands since the time of their ancestors as sikimi tenants and they have acquired occupancy right in respect of the same by virtue of the provisions of Section 236 of the Orissa Tenancy Act as amended in 1946; that the claim of damages is false; and that the suit was barred by limitation u/s 42 of the Orissa Survey and Settlement Act, 1958. Upon such finding the Plaintiff's suit was dismissed with costs. 6. The appellate court reversed the decision of the trial court on the findings that the Defendants could not be treated as sikimi tenants and they could at best be treated as licensees under the Plaintiff; that the provisions of Section 236 of the Orissa Tenancy Act are not applicable to the facts of the case; and that the suit was not barred by limitation. It, however, agreed with the trial court that the Defendants have been in possession of the suit lands since the time of their ancestors. Upon the above findings, a decree declaring the Plaintiff's title to the suit lands and directing delivery of possession of the same was passed in favour of the Plaintiff, but the claim of damage was disallowed. 7. Upon the above findings, a decree declaring the Plaintiff's title to the suit lands and directing delivery of possession of the same was passed in favour of the Plaintiff, but the claim of damage was disallowed. 7. It is urged in this appeal that the appellate court could not make out a new case by holding that the Defendants were mere licencees in respect of the suit lands and that on the facts proved the appellate court should have held that Defendants are sikimi tenants in respect of the suit lands and by virtue of Section 236 of the Orissa Tenancy Act they have acquired right of occupancy in respect of the same. 8. The Defendants filed an application on 21-10-1981 for admitting as additional evidence the record-of-rights prepared u/s 22 of Act 21 of 1972. This record-of-rights could not be produced before the Court below as it was finally published on 29th March, 1980, that is, after disposal of the appeal by the lower appellate court. It is necessary for a just decision of' the case that the record-of-rights should be admitted as additional evidence. It is, therefore, marked as Ext. G. 9. The Plaintiff came to Court on the allegation that he has been in khas possession of the suit lands as a sthitiban raiyat and neither the Defendants nor their predecessors-in-interest were ever in possession of the same as sikimi tenants. His further contention was that Padia Behera, the ancestor of the Defendants fraudulently got his name recorded in the Major Settlement record-of-rights finally published in the year 1966 and that the Plaintiff came to know about such fraudulent entry on 25-1-1967. Both the courts below concurrently found that the Defendants have been in possession of the suit lands since the time of their ancestors and that the Plaintiff was not in khas possession of the same as alleged. According to the trial court the Defendants were in possession as sikimi tenants and they acquired occupancy right over the same, whereas according to the appellate court the Defendants were in possession as mere licensees under the Plaintiff. It is nobody 5 case that the Defendants were licensees in respect of the suit lands. The appellate court erred in law in making out a new case. It is nobody 5 case that the Defendants were licensees in respect of the suit lands. The appellate court erred in law in making out a new case. The record-of-rights of the Major Settlement clearly shows that Padia Behera, the ancestor of the Defendants was in possession of the suit lands as a sikimi tenant under the Plaintiff. The record-of-rights was finally published on 21-10-1966. The suit was filed on 7-11-1969. that is, after expiry of the period of limitation of three years prescribed by Section 42 of the Orissa Survey and Settlement Act. The Plaintiff did not file the suit within the period of limitation for correction of the record-of-rights though he admitted to have come to know about the settlement entry on 25-1-1967. Similarly it appears that the suit lands came under consolidation operation and after confirmation of the provisional consolidation scheme the record-of-rights was prepared u/s 22 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. Therein the suit lands were recorded in the names of the Defendants as sikimi niskar. This record-of-rights was finally published on 29th March, 1980. There is nothing to show that the Plaintiff raised any objection before the consolidation authorities disputing the correctness of the entries made in the record-of-rights (Ext. G). Thus, it is clear that the Defendants are in possession of the suit lands as sikimi tenants and the Plaintiffs contention that he has been in khas possession of the same is false. 10. In their written statement the Defendants did not take the plea that they had acquired occupancy light by virtue of Section 236 of the Orissa Tenancy Act as amended in 1946. Neither any issue was raised nor the parties led any evidence on the facts which are necessary to attract the applicability of Section 236 of the Orissa Tenancy Act. The trial court tried to make an inference that the Defendants have acquired occupancy right by virtue of Section 236 of the Orissa Tenancy Act, but that inference is not supported by sufficient evidence on the record. When a plea is taken u/s 236, the under-raiyat should lead clear evidence to show that the whole or a specified portion of the plot was reasonably and ordinarily necessary for the enjoyment of the house which according to him is standing on the plot. When a plea is taken u/s 236, the under-raiyat should lead clear evidence to show that the whole or a specified portion of the plot was reasonably and ordinarily necessary for the enjoyment of the house which according to him is standing on the plot. He must further show that he ordinarily resides in that house. Such evidence is lacking in the present case. It cannot, therefore, be held that the Defendants have acquired occupancy right by virtue of the provisions of Section 236 of the Orissa Tenancy Act. 11. In view of the above findings the appeal is allowed and the decision of the appellate court is set aside. The Plaintiffs suit be dismissed. The Defendants are entitled to costs throughout. Final Result : Allowed