JUDGMENT : K.P. Mohapatra, J. - This is an appeal by the unsuccessful plaintiff in a suit for declaration of title and confirmation of possession. 2. That case of the plaintiff shortly stated is that the suit land with an area-of 16.48 acres appertaining to Sabik Khata No. 242 corresponding to Hal Khata No, 379 situated in mouza Budhibar described in greater detail in the plaint schedule originally belonged to Sk. Akbar Mohammed, Jagirdar and proprietor of the estate which vested in the State Government in 1963 by virtue of the provisions of the Orissa Estates Abolition Act. While Sk. Akbar Mohammed was in possession of the suit land included in his Anabadi holding as Nij-chas, he leased out the same in favour of the plaintiff by virtue of an unregistered deed of lease on 10-4-1935 on receipt of Salami of Rs. 1648/- and on an annual rent of Rs. 16.50 and delivered possession thereof. Since then the plaintiff has been in possession of the suit land on his own right as an occupancy raiyat by raising paddy crops and vegetables thereon. After vesting of the estate with the State Government Ms status as above has been recognised and recorded in public records including the records of the current settlement He approached the Tahasildar of Chilika to accept rents from him. But the Tahasildar instead of accepting rents initiated encroachment case No. 1 of 1970-71 against him and despite objections charged a penalty of Rs. 800/-. Being aggrieved by the procedure adopted by the Tahasildar, the plaintiff served notice on the defendants u/s 80 of the CPC ('Code' for short) and then instituted the suit for declara- tion that he is a raiyat under the defendants in respect of the suit land and for confirmation of possession in respect thereof. 3. Defendant No. 1 in its written statement, inter alia, contended that the plaintiff did not obtain the suit land by way of lease from the ex-intermediary as alleged in the plaint. By virtue of long possession, he did not acquire right of occupancy in respect thereof. He had encroached upon the suit land covering plot No. 362 of Hal Khata No. 379 corresponding to plot No. 489 of Sabik Khata No, 242 in the year 1970 Therefore, encroachment case No. 1 of 1970-71 was started against him. By virtue of long possession, he did not acquire right of occupancy in respect thereof. He had encroached upon the suit land covering plot No. 362 of Hal Khata No. 379 corresponding to plot No. 489 of Sabik Khata No, 242 in the year 1970 Therefore, encroachment case No. 1 of 1970-71 was started against him. He appeared in the Court of the Tahasildar on 19-6-1971 and admitted that he came into possession of the suit land in 1970. He did not produce any document to prove his ownership. In that encroachment case he was directed to pay Rs. 889.92 as assessment and penalty. In the current settlement, an area of 3'64 acres out of Hal Plot No. 362 was recorded in his favour because, the remaining area, namely, the suit land was found not to be plaintiff's possession. On the other hand, in the Hal settlement the suit land has been recorded as Puratan Patita (Abada Jogya Anabadi) therefore the plaintiff having not required and title in respect of the suit land was not entitled to the reliefs prayed for. 4. The only relevant Issue No. 4 framed by the learned Munsif was whether the plaintiff has right, title and interest in the suit land. In answering this issue, the learned Munsif held that the unregistered deed of lease (Ext. 1) was granted in favour of the plaintiff on 10-4-1935, but by virtue of it the plaintiff did not acquire any title as it was an invalid document. On the date of execution of the lease the lessor had no right to grant the lease in respect of the suit land because, he was no longer the proprietor of the Anabadi holding. On the date of the lease the proprietors were the Choudhury family of Bhingarpur. Nij-chas lands follow the proprietory interest and after vesting of the estate they vested with the State Government. The plaintiff did not acquire occupancy right by adverse possession. He, however, proved his continuous possession of the suit land since the date of lease in the year 19.15 In view of the aforesaid findings the learned Munsif held that the plaintiff did not prove his title in respect of the suit land and so he dismissed the suit. The learned Munsif held that the plaintiff did not prove his title in respect of the suit land and so he dismissed the suit. The learned Munsif held that the plaintiff did not prove his title in respect of the suit land and so he dismissed the suit. The learned Subordinate Judge who heard the appeal held that the plaintiff did not set up a case of acquisition of title as an occupancy raiyat by adverse possession. He was not a raiyat under the proprietors, namely, the Choudhury family of Bhingarpur. It was not proved that the suit land was the Mij-chas land of the proprietors. Even if the plaintiff adversely possessed the suit land against the Choudhury family of Bhingarpur since 1935 till 1963, as a consequence of vesting of the estate with the State Government in 1963 he did not mature his title by adverse possession as against the State Government and so he was a rank trespasser. He did not differ with regard to the finding or possession, but as he agreed with the learned Munsif that the plaintiff did not prove his title, he dismissed the appeal, 5. Before considering the merits of the appeal, it is necessary to dispose of a petition under Order 6, Rule 17 of the Code, filed by the plaintiff after hearing of the appeal was closed. The scope of the proposed document is very narrow. In the plaint schedule it has been stated that are suit land with an area of 16.48 acres appertains to plot No. 429 of sabik Khata No, 242 corresponding to plot No. 362 of Hal Khata No 379. paragraph 3 of the written statement it is stated that plot No. 489 of Sabik Khata No. 242 corresponds to plot No 362 of Hal Khata No. 379. From the above it appears that there is no misdescription about the Sabik Kbata and the corresponding Ha! Khata. But there is misdescription about the Sabik plot number. Instead of Sabik plot No. 429, the correct number should be 489. It is a pity that in view of the facts stated in paragraph 3 of the written statement the plaint was not amended either in the Court of the learned Munsif or in the first appellate Court and till the second appeal was heard in this Court. By the proposed amendment the plaintiff wants that Sabik plot No. 429 should be corrected as Sabik Plot No 489. By the proposed amendment the plaintiff wants that Sabik plot No. 429 should be corrected as Sabik Plot No 489. In the counter, defendant No. 1 has stated that the proposed amendment, if allowed, will change the character of the suit and will take away the effect of the admission made by the witnesses with regard to the plaintiff's possession of plot No. 429. After considering the pleadings of the parties, I find that there is no dispute about the identity of the suit land. Both the parties are fully aware of the extent, as well as, the location thereof. There is only a misdescription of the Sabik plot number, although the Hal plot number mentioned in the plaint schedule is correct. "Therefore the apprehension of defendant No 1 that the character of the suit will be changed and the effect of admission will be taken away if the proposed amendment is allowed has no basis. As a matter of fact, the proposed amendment will not at all effect the disposal of the points of controversy between the parties in appeal. Therefore, I find no reason to disallow the proposed amendment. The amendment is accordingly allowed. The plaints be corrected accordingly (See Sheodhyan Singh and Others Vs. Musammat Sanichara Kuer and Others, ). 6. The learned counsel appearing for the plaintiff urged that in view of the concurrent finding of the learned Courts below that the plaintiff has been in continuous possession of the suit land since 10-4-1935, he has acquired the right of an occupancy raiyat by virtue of Sections 23 and 2A of the Orissa Tenancy Act. Even if it is held that the plaintiff's lessor had no title to lease out the suit land because the Choudhury family of Bhingarpur had acquired proprietory interest on the date of the lease, yet the plaintiff has acquired title as an occupancy raiyat by adverse possession. Learned Additional Standing Counsel urged that the plea of adverse possession having not been raised by the plaintiff in his pleadings and no issue having been struck on the score, for the first time in second appeal, such a plea cannot be allowed to be raised nor considered. Learned Additional Standing Counsel urged that the plea of adverse possession having not been raised by the plaintiff in his pleadings and no issue having been struck on the score, for the first time in second appeal, such a plea cannot be allowed to be raised nor considered. In reply to this contention, learned counsel for the plaintiff contended that although in the plaint the specific expression "adverse possession' was not used, a plain reading of the plaint averments will go to show that the basic plea of the plaintiff was acquisition of title as an occupancy raiyat in respect of the suit land by adverse possession Similarly, a plain consideration of the averments made in the written statement will go to show that defendant No. 1 was conscious of the plea. The plea of adverse possession seems to have been raised in the trial Court which was very much conscious of it and made a specific reference thereto in paragraph 6 of its judgment. Similarly, before the first appellate Court, the plea of adverse possession was raised and duly considered in paragraph 7 of the judgment. But the learned Courts below without considering the true nature of the pleadings of the parties came to hold that the plaintiff did not plead acquisition of title as an occupancy raiyat by adverse possession. Therefore, in the Court of last resort, on the pleadings of both parties, the plea of adverse possession cannot only be raised but can also be considered and ultimately decided. It is necessary to examine this point. 7. In Yeswant Deorao Deshmukh Vs. Walchand Ramchand Kothari one of the points which arose for consideration was whether a question of law that a plea of fraud within the meaning of Section 18 of the Limitation Act (old) could be taken for the first time in the Court of last resort The following observation of Lord Watson in (1892) A. C. 473, (Connecticut Fire Insurance Co. v. Kavanagh), was quoted with approval : "When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. v. Kavanagh), was quoted with approval : "When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the Court of ultimate review is placed in a much less advantageous position than the Courts below". It was further held : "If the facts proved and found as established are sufficient to maka our a case of fraud within the meaning of Section 18, objection taken for raising the plea for the first time may not be serious, as the question of applicability of the section will be only a question of law and such a question could be raised at any stage of the case and also in the final Court of appeal". The aforesaid decision was followed in Govind Yadav and Others Vs. Deoki Devi and Others and it was held : "... Where the relevant facts for raising an issue of title by adverse possession are raised in the pleading by a party and the facts were dealt with by the trial Court and the question of adverse possession was implicit in the case made out by the party, the party can succeed on title by adverse possession even though it is not specifically pleaded at the trial stage and no issue had been raised on it and the plea is raised at the first appellate stage." In Bholanath Panigrahi Vs. Shyamsundra Bose and Others a Division Bench of this Court held : " In order that possession may be adverse it must be actual, exclusive and adequate in continuity, in publicity and in extent. It is not necessary that such possession should also be to the knowledge of the person against whom possession is asserted. Shyamsundra Bose and Others a Division Bench of this Court held : " In order that possession may be adverse it must be actual, exclusive and adequate in continuity, in publicity and in extent. It is not necessary that such possession should also be to the knowledge of the person against whom possession is asserted. It is sufficient that the possession be overt and without any attempt at concealment, so that the person against whom time is running out, if he exercised vigilance, to be aware of what is happening." In arriving at the above conclusion, reliance was placed on the decisions reported in (1934) 66 MLJ 134 (Privy Council), and AIR 1935 36 (Privy Council) . In Dula Bewa and Others Vs. Balunki Padhan one of the contentions was that on a reasonable construction of the written statement, it should be held that the defendants had essentially advanced a plea of acquisition of title by adverse possession It was held on consideration of the averments made in paragraphs 4 to 8, 10 and 11 of the written statement that although the defendants did not use the expression "adverse possession", yet they made it clear in the aforesaid paragraphs that they were possessing the suit land since 1940 in their own exclusive and independent right openly to the knowledge of the plaintiff. This was interpreted to be a clear plea of acquisition of title by adverse possession. Law is, therefore, well-settled that, if on construction of the pleadings of the parties a case of adverse possession has been made out and such a plea is not only implicit but also the parties are fully conscious of such a plea, even though the expression "adverse possession" has not been used and a specific issue has not been struck, the final Court of appeal, on the basis of findings recorded by the Courts below, can ultimately decide the question of adverse possession. 8. On consideration of the averments made in the plaint it is patent from paragraphs 3, 4, 5 and 6 that the plaintiff has asserted his possession of the suit land, as well as, acquisition of the right of an occupancy raiyat in respect thereof. In the written statement such possession and acquisition of occupancy right have been denied. 8. On consideration of the averments made in the plaint it is patent from paragraphs 3, 4, 5 and 6 that the plaintiff has asserted his possession of the suit land, as well as, acquisition of the right of an occupancy raiyat in respect thereof. In the written statement such possession and acquisition of occupancy right have been denied. As already referred to above, the trial Court and the first appellate Court were conscious of the fact that the plaintiff could specifically raise a plea of adverse possession. Neither Sk. Akbar Mohammed who executed the unregistered deed of lease (Ext. 1) nor his heirs came forward to dispossess the plaintiff Although there is no documentary proof, but assuming that the Choudhury family of Bhingarpur acquired proprietory interest in respect of the estate which included the suit land, none of them nor their heirs, came forward to claim possession of the suit land after eviction of the plaintiff. Defendant No. 1 came into picture only after abolition of the estate in the year 1963 and took action by starting an encroachment case against the plaintiff In 1970-71 in the aforesaid premises on a true construction of the pleadings and the attending circumstances it can safely be held that substantially the plaintiff's case is acquisition of the right of an occupancy raiyat in respect of the suit land by adverse possession because, indisputably the source of acquisition, namely, the unregistered deed of lease (Ext. 1) was an invalid document which did not confer any title on the plaintiff. Although no specific issue was struck with regard to adverse possession, yet the learned Courts below critically considered the evidence both oral and documentary with regard to the plaintiffs exclusive and open possession of the suit land and came to hold that ever since 1935 the plaintiff has been in exclusive possession of the suit land. This concurrent finding of fact was not challenged before me and rightly so. It is, therefore, proved beyond shadow of doubt that the plaintiff has been in possession of the suit land since 10-4-1935 openly, continuously and exclusively to the knowledge of all. This concurrent finding of fact was not challenged before me and rightly so. It is, therefore, proved beyond shadow of doubt that the plaintiff has been in possession of the suit land since 10-4-1935 openly, continuously and exclusively to the knowledge of all. In an almost identical case it was held in 40(1974) CLT 1152, (Naba Kishore Panda v. Sulendra ' Bulla Das and others), that not only right of an occupancy raiyat, but also that of a settled raiyat u/s 23 of the Orissa Tenancy Act can be acquired by virtue of adverse possession. In Radhamani Dibya and Others Vs. Braja Mohan Biswal and Others a Full Bench of this Court held : "...Thus, on and with effect from 1-4-1954, Pravakar became a non-occupancy raiyat under the State Government. He continued in possession of the lands as before under the State Government until his death on 4-12-1954. As a raiyat he was in continuous possession for a period of twelve years from 17-4-1946 to 17-4-1958. Thus, he became a settled raiyat u/s 23 of the O. T. Act and by virtue of the status, he acquired occupancy right." It is therefore, clear that before defendant No. 1 came into picture after vesting of the estate in the year 1963, the plaintiff by virtue of his long continuous possession of the suit land since 1935 for more than 12 years became a settled raiyat within the meaning of Section 23 and acquired right of an occupancy raiyat u/s 24 of the Orissa Tenancy Act. 9. For the foregoing reasons, the impugned orders of the learned Courts below cannot be sustained and the plaintiff is bound to succeed. The second appeal is allowed and the right, title and interest of the plaintiff as an occupancy raiyat in respect of the plaint schedule land are declared and his possession thereof is confirmed. The plaintiff shall be entitled to costs throughout. Final Result : Allowed