JUDGMENT : K.P. Mohapatra, J. - This appeal is directed against the judgment and decree passed by the learned Additional District Judge, Bhawanipatna affirming the judgment and decree passed by the learned Subordinate Judge of the same place in a suit for declaration of title and confirmation of possession or in the alternative, recovery of possession of the suit lands described in schedules 'A' and 'B' of the plaint. The Respondent was the Plaintiff and the Appellants were the Defendants in the suit. 2. The case of the Plaintiff is stated in brief with reference to the following genealogy: Labanya Kondh Paikrai Kondh Palsu kondh (dead) (dead) =Draupadi Bewa Ghunu Kondh (dead) (dead) =Kausalya Bewa (Plaintiff) The suit lands belonged to Labanya Kondh belonging to scheduled tribe. After his death his sons Paikrai and Palsu who lived in joint mess cultivated the same jointly till their death in the year 1952, After their death, the Respondent's husband, Ghunu and Draupadi widow of Paikrai who had no children continued to live in joint status as before, Draupadi having died in the year 1959, her share in the suit lands, described specifically in schedule 'A' of the plain devolved on Ghunu who became the owner in possession thereof exclusively. He died in 1961 and thereafter the Respondent remained in possession thereof exclusively in her own title. It was stated that despite jointness the lands in schedules 'A' and 'B' of the plaint were separately recorded in the names of Draupadi and Palsu in the record of rights for the sake of convenience. Ghunu became bedridden for a year before his death in 1961 and lived with his daughter in village Jharbandh along with the Respondent. Taking advantage of their absence, Appellant Krushna fraudulently got his name mutated in respect of the suit lands. Despite such mutation he did not, however, remain in possession of the suit lands. In 1971 Appellant Krushna started a criminal case against the Respondent and others relating to the suit lands and in course of the proceedings thereof she became aware of the fraudulent mutation and thereafter instituted the suit. 3. The Appellants in their written statement denied the relationship stated in the genealogy including the years of death of the persons named therein and stated that the Respondent was not the widow of Ghunu and Palsu and Paikrai had died prior to the year 1950. 3. The Appellants in their written statement denied the relationship stated in the genealogy including the years of death of the persons named therein and stated that the Respondent was not the widow of Ghunu and Palsu and Paikrai had died prior to the year 1950. They bad abandoned the suit holdings in 1943-44 having migrated to village Jharbandh and were not in possession thereof. They were in arrears of land revenue which was paid by the then Gauntia, (landlord) according to the rules of the former Kalahandi State. The Appellants being dose relations of' the Gauntia they also used to pay the land revenue for the suit lands in their names. In the year 1944 the Tahasildar settled the suit lands which were declared as abandoned holding on the Respondent on payment of Salami of Rs. 200/-. Since then they got their names mutated and had been in possession thereof. 4. The learned Sub-Judge held that the suit lands were not abandoned in the year 1943-44. Toe Tahasildar had no authority to settle the same in favour of the Appellants. By such settlement if any, the Appellant, did not acquire a valid title. Further the Appellants were not in possession of the suit lands. On the other hand, the Respondent was in possession thereat although. The learned Additional District Judge on review of the evidence affirmed the aforesaid findings. He further examined the question of adverse possession and held that the Appellants did not even acquire title in respect of the suit lands by such possession. One of the observations made by the learned lower appellate court was that according to the undisputed position, the Central Provinces land Revenue Act, 1881 is applicable to Kalahandi district (former Kalahandi State). Taking the cue from this observation the second appeal was admitted to consider the question as to whether the Central' Provinces land Revenue Act, 1881 applied to the Ex-State of Kalahandi and the present Kalahandi district after merger of the former feudatory State with Orissa State. 5. Since Me. S. Kr. Mohanty, learned Counsel appearing for the Appellants and Mr. S. Misra (2), learned Counsel appearing for the Respondent advanced arguments, particularly as to whether the provisions the Central provinces Land Revenue Act. 5. Since Me. S. Kr. Mohanty, learned Counsel appearing for the Appellants and Mr. S. Misra (2), learned Counsel appearing for the Respondent advanced arguments, particularly as to whether the provisions the Central provinces Land Revenue Act. 1881 were applicable to the Ex-Kalahandi State and are still applicable after its merger with the State of orissa or not, I would take up this point first for consideration. In para 8 of his judgment, the learned Additional district Judge observed that there was no dispute about the proposition that the provisions of the Central Provinces land Revenue Act, 1881 were and are still applicable to Kalahandi, district. He did not, however, specify the course of his information or knowledge. Presumably the learned Counsel for the parties appearing before him conceded the proposition for which he did not make any further probe into the matter. There is no law, regulation, rule notification or executive instructions to show that the provisions of the Land Revenue Act, 1881 were adopted for applicability to the land revenue system of the former Kalahandi State of orissa as would be evident from the provisions of the Orissa Merged State (Laws) Act, 1950. At least no such document could be shown during hearing of the second appeal. Therefore, according to law, the provisions of the Central Province Tenancy Act, 1898 and the Central Provinces Land Revenue Act, 1881 were or are strictly not applicable to the land revenue system of Kalahandi when it was a feudatory State and also after its merger with the State of orissa. Nevertheless, the reports of R.K. Ramadhyani, the Final Report of the Land Revenue Settlement in kalahandi District, 1946-56 (by J. Das) and the District Gazetteer of Kalahandi (prepared by Nilamani Senapati and Durga Charan kuanr) need reference. 6. Ramadhyani in his general report, volume I at page 8 observed: 5. The territorial and Historical Position. Under British suzerainty, the Sambalpur Garjhat States of Bamra, Sonepur, Patna, Rairakhol and Kalahandi were for a long time attached to the Central Provinces, while Surguja, Jashpur, Udaipur, Korea and Changbhakar were for a time regarded as Chota-Nagpur States and attached to Bihar and Orissa along with Gangpur, Bonai, Seraikela and Kharsawan. The whole province of Bihar and Orissa was formerly a part at Bengal and the Bengal Tenancy Act has exerted considerable influence on tenancy legislation in Bihar and Orissa. The whole province of Bihar and Orissa was formerly a part at Bengal and the Bengal Tenancy Act has exerted considerable influence on tenancy legislation in Bihar and Orissa. The Chota-Nagpur Tenancy Act of 1907 is a Bengal Act, and the Orissa Tenancy Act of 1918 is similar to this Act in many ways, While in the absence of their own laws, officers in the States and Superintendents of States under administration have sought guidance in these Acts and the Central Provinces Land Revenue Act and Tenancy Act in the Western States of the Agency, it will be seen later that these laws have not been followed sufficiently closely to mould the revenue system accordingly and the present position in the States is radically different. x x x The Ryots: Recently a number of States have conceded the rights of transfer, and the present position is that in baster. Changbhakar, Chhuikhadan, Jashpur, Kalahandi, Khairagarh, Korea, Bandgaon, Raigarh and Rairakhol transfer of lands is not permitted; x x x .... Thus transfers in the States in which a ban exists have been more or less freely carried out through the collusion of the headman, who has power to accept the surrender of land, and/or reallotment, by a prearranged sale, surrender to the headman, and reallotment by him to the person who has bought the land. x x x 23. Disposal of surrendered or abandoned lands: Village headman in some States (mostly Chhatisgarh States) have the power of accepting the surrender of lands taking possession of abandoned lands-and either reallotting such lands or of cultivating them themselves. In volume III at pages 111 and 114 of Ramadhyani Report relating to Kalahandi it was observed as follows: THE RYOTI TENURE 11. There is no revenue law in the State and relations between the State and the gaontia and ryots is regulated by the terms of the lease granted to the gaontia. According to this document a ryot cannot be ousted from his holding except for non-payment of rent for or transfer of his holding. The rent of the ryots, holding is also fixed for the period of the settlement. There is no clause regarding the inheritance of the holding. Lands abandoned or surrendered (there is nothing in the lease regarding what constitutes abandonment or surrender) are at the disposal of the gaontia: x x x RECOVERY OF LAND REVENUE. The rent of the ryots, holding is also fixed for the period of the settlement. There is no clause regarding the inheritance of the holding. Lands abandoned or surrendered (there is nothing in the lease regarding what constitutes abandonment or surrender) are at the disposal of the gaontia: x x x RECOVERY OF LAND REVENUE. x x x Central Provinces procedure is said to be followed for the recovery of land revenue and there are no separate rules. 7. In the Final Report of the Land Revenue Settlement in Kalahandi district. 1946.56 by J. Das at page 12, it was stated thus: ....No Tenancy Act was in force nor any Tenancy Acts of the old districts had been introduced. In short, all that existed was a Gounti patta which imposed some conditions on the headman and enumerated some rights and liabilities of the roots. The administration reports of the Durbar mention that the spirit of C.P. Tenancy Act and Land Revenue Act was in force but in actual practice it is seen that most of the provisions of these Acts were not followed. As the tract borders M.P. (old C.P. ) and it was in Chhatisgarh Agency it was quite natural to adopt some system of the Central Provinces. As in Central Provinces the revenue administrations was completely based on, the control of the village headman who in return was to furnish a fixed revenue for the village to the Government. The Ruler was the real proprietor and all lands and water comprising in the tract belonged to him. x x x Occupancy tenant: All the tenants of ex-State of Kalahandi holding cultivable land in the village (except service tenants and temporary lease holders) and paying rent are occupancy tenants. Occupancy right accrues from the moment a land is settled with a tenant. There is no old custom or practice regarding any period after which he acquired occupancy right. Until the merger of the State with the province of orissa a tenant had no right to transfer nor could he cut prohibited class of trees standing on his lands. He could only surrender the land to the Gountia who in his turn settled it with others. The rule regarding restriction to transfer could be evaded by the method of surrender and resettlement with the connivance of the gountia who was satisfied if a good Salami was paid. He could only surrender the land to the Gountia who in his turn settled it with others. The rule regarding restriction to transfer could be evaded by the method of surrender and resettlement with the connivance of the gountia who was satisfied if a good Salami was paid. An occupancy royat was ousted from his holding for non-payment of rent or for transfer of his holding. The rent of his holding was fixed for the period of settlement. Royati land abandoned or surrendered was at the disposal of the Gountia but what constituted abandonment was no where laid down. It is said that proclamation was being issued asking the abandoning royat or his heirs to claim the holding but how far this procedure was followed and whether the Gountia was taken to task when he had done mischief in this matter cannot be stated with emphasis. Surrendered and abandoned holdings belonging to aboriginals and certain low caste raiyats were bound to be reallotted to persons of that class and Gountia was not allowed to cultivate them himself or give them to his relatives. 8. At page 268 of the Orissa District Gazetteers for Kalahandi, it was reported: .... There was no tenancy law in the ex-State of Kalahandi during the princely rule though it is said that, in spirit the Central Provinces Land Revenue Act, and the Central Provinces Tenancy Act were being followed. At page 269 it was observed; ....No Tenancy Act was in force. The Gounti patta which imposed some conditions on the headman and enumerated some rights and liabilities of the raiyats is the only record that existed today.... As mentioned earlier, the spirit of the Central Provinces Tenancy Act, and the Land Revenue Act was said to be in force but in actual practice most of the provisions of these Acts were not followed. Due to the proximity to the Central Provinces certain provisions of the system prevailing in that province continued. At page 272 dealing with the rights of the Gountia it was reported: At page 274 describing the rights of occupancy tenant it was stated: ... He had absolute control over the village waste and he could also settle surrendered and abandoned lands with others. Although he had no right to transfer the raiyati lands, yet through him transfer could be effected in the shape of surrender and resettlement. He had absolute control over the village waste and he could also settle surrendered and abandoned lands with others. Although he had no right to transfer the raiyati lands, yet through him transfer could be effected in the shape of surrender and resettlement. In this ex-State all the tenants holding cultivable and in the village (except service tenants and temporary lease holders) and paying rent were occupancy tenants. Occupancy right accrued from the moment a land was settled with a tenant There was no old custom or practice regarding any period after which the tenant acquired occupancy right. Till the ex-State merged with Orissa, a tenant had no right to transfer his holding by sale, mortgage or otherwise nor could he cut prohibited classes of trees standing on his land. He could, however, surrender his land to the Gauntia who in his turn settled it with others. An occupancy raiyat could be ousted from his holding for non-payment of rent or for transfer of his holding. Raiyati land abandoned or surrendered was at the disposal of the Gountia but what constituted abandonment was no where laid down, Surrendered and abandoned holdings belonging to the aboriginals and certain low caste raiyats were bound to be re-allotted to persons of that class. Gountia was not allowed to cultivate these holdings himself or give them to his relatives. At page 288 it was further observed: .... There was no codified revenue law for the guidance of the Revenue Courts in the ex-State of Kalahandi. The Central Provinces Land Revenue Act and the Central Provinces Tenancy Act were followed in some cases. Mostly the Gounti patta issued in the settlements and customs and practices played an important role in the revenue administration of the area. 9. Section 7, Clauses (a) to (c) of the Orissa Merged States (Laws) Act, 1950 which ace relevant are quoted below for easy reference: 7. Modification of Tenancy laws in force in the merged States. Notwithstanding anything contained in the tenancy laws of the merged States as continued in force by virtue of Article 4 of the States Merger (Governor's Provinces) Order. 1949. Modification of Tenancy laws in force in the merged States. Notwithstanding anything contained in the tenancy laws of the merged States as continued in force by virtue of Article 4 of the States Merger (Governor's Provinces) Order. 1949. (a) all suits and proceedings between landlord and tenants as such shall be instituted and tried in revenue courts, Explanation x x x (b) an occupancy tenant shall be entitled (i) to freely transfer his holding (ii) to have full right over all kinds of trees standing on his holding; (iii) to use the land comprised in the holding in as manner which does not materially impair the value of the land or render it unfit for the purposes of the tenancy; (iv) to the benefit of the presumption by any Court that the rent for the time being payable by him is fair and equitable until the contrary is proved. Explanation-(i) An 'occupancy tenant' means a tenant or a raiyat having occupancy Tight in his holding under the tenancy laws continued in force in the merged States; (ii) an 'aboriginal tribe' means any tribe that may from time to time be notified as such by the State Government. (c) where a rent of an occupancy tenant is payable in cash it shall not be liable to be enhanced except in accordance with the tenancy Jaws continued in force in the merged State concerned: (d) an occupancy ternate shall not be liable to eviction from his holding except in execution of a decree for ejectment passed on the ground that: (i) be has used the land comprised in his holding in a manner which renders it unfit for the purposes of the tenancy; or (ii) be has broken a condition consistent with the provisions of the tenancy laws in force in the merged State concerned and on breach of which be is under the terms of contract between himself and his landlord, liable to be ejected; (e) the interest of an occupancy tenant in his holding shall on his death pass by inheritance or survivor ship in accordance with his personal law; x x x It will appear from the aforesaid reports that there were no codified tenancy and revenue laws in the former Kalahandi State. In spirit and in some cases, some of the provisions of the Central Provinces Tenancy Act 1898 and the Central Provinces Land Revenue Act 1881 were being followed. But which of the provisions thereof were being, followed are neither specified nor clear from an, executive instruction or report. Raiyats had occupancy rights in respect of the lands held by them and could be evicted only for non-payment of rent. Abandoned raiyati holdings belonging to aborigines and low caste raiyats were bound to be re-allotted to persons of those classes. The Gountia was not allowed to cultivate those holdings himself or give them to his relatives. It is not known if the provisions of the revenue Jaws of the neighbouring areas with regard to abandonment of holdings were followed or not. There is no evidence worth the name to arrive at a conclusion departing from the concurrent finding of facts that Ghunu and his wife Kausalya abandoned the suit holdings and went away to live in some other village. Even if it is assumed that the holdings were abandoned, as they were aborigine, the lands could only be settled by the Gountia on aborigine and not on the Appellants who were the relations of the Gountia. Draupadi having died in the year 1959, Ghunu, the only surviving male heir succeeded to her share in the suit property described in schedule 'A' of the plaint. He acquired the right of an occupancy tenant with all the incidents attached thereto according to Section 7 of the Orissa Merged States (Laws) Act and could not be evicted therefrom. After his death, his wife Kausala succeeded to the occupancy right in respect of the plaint schedule lands. There was no deed of transfer in favour of the Appellants in respect thereof duly executed and registered by her. It is therefore, not understood on what basis in Mutation Case Nos. 3580 and 3581 of 1959-60, the suit lands were mutated in favour of the Appellants. As a matter of fact, except the mutation orders there was no document to show how the Appellants acquired the suit lands. Mutation record-of-rights and tent receipts which have been produced and proved by the Appellants did' not ipso facto create title in respect of the suit lands in their favour. They did not also plead acquisition of title by adverse possession. Mutation record-of-rights and tent receipts which have been produced and proved by the Appellants did' not ipso facto create title in respect of the suit lands in their favour. They did not also plead acquisition of title by adverse possession. Even if they had pleaded acquisition of title by adverse possession, the documentary evidence in their favour would at best show that they Came into possession some time in the year 1960 and the suit having been filed in the year 1972, a clear case of acquisition of title by adverse possession could not be established. 10. For the reasons aforesaid, particularly in view of the concurrent finding of facts, there is no scope to hold that the Appellants acquired title in respect of the suit lands by displacing the occupancy right of the Respondent in respect thereof. The appeal is therefore, bound to fail. 11. In the result the appeal is dismissed with costs and the judgments and decrees of the learned lower Courts are affirmed. Advocate's fee at Rs. 250/-. Appeal dismissed. Final Result : Dismissed