JUDGMENT : Dipak Misra, J. - This is an appeal by the defendant against the judgment pasted by the learned 1st Additional District Judge, Berhampur in Title Appeal No. 12 of 1984 affirming the judgment passed by the learned Additional Subordinate Judge. Bethampur in T. M. S. No. 23 of 1981 (T. M. S. No. 50/78 B. S. J. C.) whereby the suit of the plaintiff for declaration that the usfructuery mortgage stands discharged and for recovery of possession of the suit land was decreed. 2. The plaintiff's case is that he had mortgaged the suit land described in Schedules 'A' and 'B' of the plaint with the defendant under rigistered usufructuary mortgage deed dated 31-3-1967 for Rs 4500/- and had put the defendants in possession on the condition that half of the yield of the land would be paid, towards interest and the plaintiff would be entitled to redemption after 3 years. It has been claimed by the plaintiff that the mortgage stood discharged on 31-3-1974 and accordingly, the plaintiff served a registered notice on the defendant but as the defendant did not restore possession and claimed title of the mortgaged properties, the plaintiff has been compelled to institute the suit. 3. The defendant contested the claim of the plaintiff by filing a written statement raising the plea that he has got the suit lend from the plaintiff by way of purchase. It is his case that he is an illiterate man and the plaintiff taking the advantage of this position has executed the deed of mortgage instead of sale though in actuality the transaction was one of sale. The fraud played by the plaintiff was discovered by the defendant much later. The alternative stand of the defendant is that he was a tenant in respect of the suit land and the suit land in question has been settled with him under the Orissa Estates Abolition Act, and his rights to the suit properties are also protected under the provisions of the O.L R. Act and therefore, the Civil Court does not have the jurisdiction to entertain the suit. He has also resisted the claim of the plaintiff on the ground that the suit is bad for non-joinder of necessary parties. He has also resisted the claim of the plaintiff on the ground that the suit is bad for non-joinder of necessary parties. Later on the defendant amended the written statement giving up his claim in respect of 'B' schedule land on the ground that he had never taken possession of the said position of the suit land and further indicating that the plaintiff had no title in respect of 'B' schedule land 4. The trial Court framed eight issues and taking into consideration the evidence on record, came to hold that Ext. A is not a genuine document and the mortgage deed Ext. 6 is a valid document and the plaintiff has not executed any agreement to sell the suit land to the defendant.. The trial Court also, recorded a finding that the defendant had not acquired any, till in respect, of the suit land under the provision Orrisa Estates Abolition Act and further concluded that the defendant was never a tenant in respect of the suit (and. L. The Court below also deal with the exact relief, :if any, the plaintiff,was entitled to and on dession of the materials on record concluded that he was entitled to the mesne profits in respect of the suit properties from 22-12-1975JHI the date, of restoration .possession as the plaintiff was entitled to recover possession without any payment of mortgaged dues. On the basis of the aforesaid, conclusion the trial Court decreed the suit by declaring that the mortgage stood discharged and the plaintiff was entitled to recover possession of the suit properties from the defendant and the plaintiff was entitled to the lawful mesne profits the respect of the suit properties from the period ;cpmrnencing from 23-12-1975 till restoration of the possession. Being aggrieved by the aforesaid judgment the defendant carried an appeal forming the subject matter of title Appeal No.,12/84.(T. A. 38/8i). GDC to the District Judge, Ganjam, Berhampur which was ultimately disposed of by the 1st Additional District Judge, Ganjam. The learned appellate Judge came to hold that Ext 6 is a deed of usufructry mortgage and is not a lease deed. He also affirmed the finding of the trial Judge with regards to the settlement, under the OEA Act and held that the defendant was not a tenant under the plaintiff. After affirming the findings of the learned trial Judge the appellate Court dismissed the appeal. 5. He also affirmed the finding of the trial Judge with regards to the settlement, under the OEA Act and held that the defendant was not a tenant under the plaintiff. After affirming the findings of the learned trial Judge the appellate Court dismissed the appeal. 5. Shri B, M. Patnajk, learned.counsel for the appellant assails the judgment by contending that the finding of the Courts below that Ext. 6 is an usufructuary mortgage deed is not correct as the ingredients for holding the document as such mortgage deed are not satisfied. He also contends that the approach of the Courts below while scrutinising Ext. A, the agreement, executed by . the plaintiff on 28-6-1960 is improper as the said document is in actuality a genuine one. He also challenges the judgments on the ground that both the Courts below have erroneously held that the plaintiff-respondent is entitled to the mesne profits from 22-12-1975. The learned counsel for the respondents supports the judgment of the Courts below and submits that the Courts below hive interpreted Ext. 6 and Ext. A correctly and there being no illegality in such Interpretation, this Court should not interfere in exercise of the jurisdiction u/s 100 of the Code of Civil Procedure. With regard to the other findings, the submission of the learned counsel for the respondent is that there has been concurrent findings of fact and such findings being based on materials on record and not being perverse do not call for interference. 6. The questions that fall for consideration in the present second appeal is whether the plaintiff had mortgaged the suit land vide Ext. 6 and the-same stood discharged, or Ext. 6 is a deed of sale/ lease making the defendant a tenant/lessee in respect of the suit property and whether the plaintiff is entitled to maintain the suit for recovery of possession. To establish his case, the plaintiff examined two witnesses including himself and the defendant examined three witnesses. It has been brought on evidence by the plaintiff that he had originally mortgaged the land to the defendant for a loan of Rs. 1, 000/- under a simple deed of mortgage dated 13-7-1964 vide Ext. 5. Subsequently, he mortgaged the suit land alongwith 'B' schedule land under usufructuary deed of mortgage vide Ext. 6 in which there is reference to the earlier mortgage. 1, 000/- under a simple deed of mortgage dated 13-7-1964 vide Ext. 5. Subsequently, he mortgaged the suit land alongwith 'B' schedule land under usufructuary deed of mortgage vide Ext. 6 in which there is reference to the earlier mortgage. The scribe of the deed has also been examined to prove the same. To controvert this evidence, the defendant brought on record Ext. A whereby the plaintiff had executed an agreement to sell the land. I find from the discussions made by the trial Court as well as the appellate Court that they have not believed the plea canvassed by the appellant with regard to Ext. A. The reasons indicated for arriving at such a conclusion are not perverse. They have taken into consideration the' non-mentioning of such plea in the written statement, non-indication of the same in the reply to the plaintiff's notice and non-submission of explanation for not ' taking steps to get his name recorded on the strength of Ext. 6. These factors are germane for the purpose of coming to such a conclusion and are in the realm of appreciation of evidence. As neither the appreciation nor the reasons are perverse, 1 am not persuaded to differ with the findings arrived at by the Courts below. I also find that Ext. 6 is written in unambiguous terms as an usufructuary mortgage deed and not a deed of sale. The burden is cast oh the defendant to prove that it is a deed of sale but he has" not succeeded in discharging the said onus. The Courts below have recorded the finding that the defendant has in fact admitted Ext. 6 to be genuine. Once Ext. A has been disbelieved and Ext. 6 has been regarded as a genuine usufructuary mortgage deed the question of lease as alleged by the defendant does not arise and the finding on that score by the Courts below is unassailable. 7. Let me now deal with the 2nd aspect of the case i. e. whether the plaintiff could have sued for recovery of possession.! have perused the findings of the Courts below with regard to the patta granted in favour of the defendant in 0. E. A. Case No. 627/71 marked as Ext. B. The Courts below have held that there is no distinct proof that Ext. B relates to the suit land. have perused the findings of the Courts below with regard to the patta granted in favour of the defendant in 0. E. A. Case No. 627/71 marked as Ext. B. The Courts below have held that there is no distinct proof that Ext. B relates to the suit land. That apart, they have also recorded a finding that the sttlement in favour of the ' defendant is a nullity. Though these findings have been recorded by the Courts below, there is really no material on record with regard to the vesting of the suit land. If there has been a notification under the 0. E. A. Act the said properties would vest in the State free from all encumbrances. The intermediary is entitled to file an application for settlement under Sections 6 and 7 o' the Act. it is also settled in law that the right of tenancy does not vest but there is no iota of doubt that the title of the intermediary gets extinguished and a new right is created by way of settlement. If there is no settlement in favour of the intermediary, he cannot sue for recovery of possession. If the properties have come under the amount of a notification under the Orissa Estates Abolition Act. the intermediary unless becomes a settlee in accordance with the provisions of the 0. E. A, Act cannot proceed for getting back possession and a suit for recovery of possession at his instance would not be maintainable. 8. It is settled in law that once a notificafication u/s 3 of the Orissa Estates Abolition Act, 1951, comes into force all right, title and interest of a Proprietor become extinct and therefore, an ex-intermediary cannot maintain a suit for recovery of possession unless he gets setlment under Sections 6 and 7 of the Act. It is well-known that a suit for recovery of possession after the notification u/s 3 of the Act has corns into force is not maintainable inasmuch as the Civil Court would lack inherent jurisdiction having become a corum nun judice. The right to sue for recovery of possession gets extinguished. In this regard, I may refer to the decision rendered in the case of Sabitri Devi and Ors. v. Sarat Chandra Rout and Ors. reported in 1996 (2) Sc 157, wherein their Lordships after referring to a case of Haji Sk. The right to sue for recovery of possession gets extinguished. In this regard, I may refer to the decision rendered in the case of Sabitri Devi and Ors. v. Sarat Chandra Rout and Ors. reported in 1996 (2) Sc 157, wherein their Lordships after referring to a case of Haji Sk. Subhan v. Madhorao, reported in (1962) Supp(1) SCR 123, held as follows : "...The identical provisions of Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 was being considered by this Court.' This Court came to hold that the proprietary rights in an estate specified in the notification passed from the proprietor and became vested in the State free from ail encumbrances and therefore after issue of the notification u/s notwithstanding anything contained in any contract, grant or document or any other law for the time being in force all rights, title and interest which a proprietor possessed on account of his proprietorship of the land within the estate became vested in the State.Consequently the provisions of Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 deprived the proprietor of his proprietary right including the right to recover possession over the land in the suit. This Court also further held that Executing Court has a right to refuse to execute the decree upholding that the decree has become inexecutable on account of the change in law and its effect. What has been stated by this Court in relation to the provision of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 would have full application to the provisions of the Orissa Estates Abolition Act...,"- This being the legal position it is incumbent on the Civil Court to find out whether the suit property has come under the notification under the 0. E. A. Act and whether there has been any settlement or lease in favour of the plaintiff or defendant. In this context, I find, the finding of both the Courts below with regard to settlement under the Act. in favour of the defendant being a nullity is extremely cryptic. E. A. Act and whether there has been any settlement or lease in favour of the plaintiff or defendant. In this context, I find, the finding of both the Courts below with regard to settlement under the Act. in favour of the defendant being a nullity is extremely cryptic. True it is, an issue was framed in that regard and parties were well aware of the controversy but the onus which is heavily cast on the plaintiff to prove that settlement in favour of the successful party is a nullity has really not been discharged.- In this regard, reference mas been made to the case of Krupasindhu Misra and Another Vs. Gobinda Chandra Misra and Others wherein the Full Bench of this Court has expressed in categorical terms that the onus is on the party challenging the settlement.-The Courts befow have not kept this aspect in view and in a cryptic manner have declared the. settlement as a nullity and therefore, the finding on that score is unsustainable. 9. In view of my preceding analysis, the matter has to go back on remand to the trial Court to adjudicate whether the suit land in question has vested and if it has vested whether there has been any settlement in favour of the plaintiff under the provisions of the Act, and whether the settlement in favour of the defendant vide Ext. B is legal and valid or not. The trial Court also should keep in mind, whether the settlement under Ext. B relates to suit land or not. If there is settlement in favour of the plaintiff, in respec.t of the suit land, a suit for recovery of possession and mesne profits would be maintainable and he will be entitled to the relies claimed, and if there is no settlement in his favour, the trial Court would deal with the issue keeping in view the ratio of Sabitri Devi (supra). 10. In the result, the appeal is allowed, the judgments and decrees passed by the Courts below are set aside as far as they relate to the findings in respect of the consequences of vesting under the O, E. A. Act but the findings with regard to construction of Ext. 6'and other issues are confirmed. 11. In the peculiar facts and circumstances of the case, the parties shall bear their costs throughout. Final Result : Allowed