JUDGMENT : Susanta Chatterji, A.C.J. 1. The present First Appeal arises out of the judgment dated 22-3-1982 and the decree signed on 3-4-1982 made by Sri P.K. Panigrahi, Subordinate Judge. Puri in O.S. No. 93 of 1979-1. The said appeal is at the instance of Plaintiff Appellant Gopabandhu Mohapatra son of Managobinda Mohapatra.. Two suits, namely, O.S. No. 116/78-1 filed by Gopabandhu Mohapatra against Raghunatha Mohapatra and six others and O.S. No, 93/79-1 by Gopabandhu Mohapatra against Smt. Laxmimoni Dibya were disposed of by a comprehensive judgment dated 22.3-1982. The aforesaid suits were heard analogously and disposed of accordingly. Being aggrieved by the decision in O.S. No. 93/79-1, the Plaintiff has preferred the present First Appeal. 2. The controversy in O.S. No.. 93 of 1979 (1) relates to two orchards and residential house, all situate in Puri town. It was held by the trial Court that undisputedly the orchards were the separated ancestral properties of Managobinda. The residential.house which appertains to holding No. 49/52 in Ward No. 3 of Circle No. 4 originally belonged to Rajlaxmi who spend the fag end of her life in the care and custody of Managobinda and Laxmimoni. Prior to her death Rajalaxmi gifted the house to Laxmimoni by means of a registered instrument. It is alleged by the Plaintiff that the deed of gift is a sham document executed by Rajlaxmi at the instance of Managobinda who apprehending trouble from his cosharers preferred to keep the proper in the name of Laxmimoni in shape of a gift, though in fact, the transaction was intended to be one of sale in favour of Managobinda. The Plaintiff claimed half share in all the properties mentioned in Schedule 'Ka', 'Kha' and 'Ga' of the plaint on the footing that he is the adopted, son. Laxmimoni resists the claim on the ground that the Plaintiff is not the adopted son that the lifted house is her separate property over which the Plaintiff has no claim even if he is the adopted son. 3. The other suit 'relates to residential house in Puri town which is the joint ancestral property of Managobinda and his brother Dasarathi. 4. The following issues were framed: (i) Is the suit maintainable? (ii) Has the Plaintiff any cause of action? (iii) Has the Plaintiff any right, title and interest in the suit properties? (iv) Whether the.plaintiff is the adopted son of Managobinda? 4. The following issues were framed: (i) Is the suit maintainable? (ii) Has the Plaintiff any cause of action? (iii) Has the Plaintiff any right, title and interest in the suit properties? (iv) Whether the.plaintiff is the adopted son of Managobinda? (v) Whether the house gifted to Rajalaxmi is the separate property of Laxmimoni or whether it is the self acquisition of Managobinda? (vi) How far is the sale by Laxmimoni of the interest of Managobinda in the ancestral house binding on the Plaintiff? (vii) Whether the Plaintiff is entitled to purchase back the property sold by Laxmimoni in exercise of his preferential right? (viii) To what relief, if any, is the Plaintiff entitled? 5. Ultimately, the trial court decreed O.S. No. 116 of 1978(1) preliminarily on contest against the Defendant without cost. The Sale deed, Ext. A/2 dated ]2-5-1977 was declared to be inoperative and void. The Plaintiff was declared to be the adopted son of Managobinda and Laxmimoni and as such entitled to 4 annas interest in the suit house. He was entitled to purchase 4 annas share sold by Laxmimoni to Defendants 5 to 7. 6. In O.S. No. 93 of 1979(1) a preliminary decree has also been made in part. The Plaintiff and the Defendants had been found to be entitled to 8 annas share each in the Bagayat mentioned in Lot Nos. 1 and 3 of Schedule 'Ka'.. Laxmimoni has been given the exclusive title to the residential house. Being aggrieved by the said exclusive title given to Laxmimoni, the present First Appeal has been preferred. 7. During the pendency of the case Laxmimoni transferred her interest to Smt. Krushna Priya Debi and she is contesting the First Appeal as Respondent. The only point argued by Mr. Mohanty appearing for the Appellant is that admittedly the scope of the present First Appeal is limited to the property described in Lot No. 2 of Schedule 'Ka' in T.S. No. 93 of 1979 where the Plaintiff-appellant's prayer for partition has been refused only on the ground that this property is the exclusive gifted property of the Defendant through the gift deed Ext. 6. It is argued that it is no longer open to the Appellant to establish the benami nature to the transaction. 6. It is argued that it is no longer open to the Appellant to establish the benami nature to the transaction. Instead of disputing the said aspect it is submitted that the property having vested In the State Government and the property having been settled under Sections 6 and 7 of the Orissa Estates Abolition Act jointly in favour of the Plaintiff and the Defendants and consequently rent Schedule having been prepared as per Ext. 9, a fresh title accrues in favour of the settles and all previous rights stand extinguished. Attention of the Court is drawn to Jogendranath Mohanty and Another Vs. Jagannath Mohanty and Others, and C.W.R 1970 (1) 450 (Ramakrushn Paramaguru v. Murtyurijaya Das and Ors.. It is further argued that whether the Plaintiff was an intermediary and who was in has possession on the date of vesting are questions to be statutorily decided by the authorities under the 0: E.A. Act and their adjudication by the Civil Court-is barred u/s 39 of the O.E. A. Act. Reference has been made to Hemchandra Dansana Vs. Dolamani Dansana and Others. Particular attention has been given to paragraphs 6,7 and 8. Mr. Mohanty has also referred to another decision reported in 33 (l967) C.L.T. 155 (Sri Krushna Chandra Gajapati Narayan Deo v. Atreyaparupu. Apparao and Anr.. According to Mr. Mohanty the trial court committed an error in coinsuring the order of the O.E. A. Collector as void and should have found that the residential house belongs to both Laxmimoni and the adopted son Gopabandhu and there should have a preliminary decree for partition. 8. Mr. A.S. Naidu appearing for the Respondent submits, inter alia, that for appreciation of the materials on record it is undisputed that Dasarathi and Managobinda are two brothers. Dasarathi had three sons whereas Mangobinda died isseuless leaving behind Laxmimoni Dibya, the Defendant Respondent in the present suit as the sole legal heir. Gopabandhu claimed to be the adopted son of Mangovinda and Laxmimoni. He argues that the property in question was the exclusive property of one Rajalaxmi Das. Rajalaxmi by a registered Gift deed dated 1-9-1930 gifted the said property exclusively in favour of Laxmimoni. From the date of purchase Laxmimoni was in exclusive possession of the said property. The property is a part and parcel of the intermediary estate. The same vested with the State Government by operation of Orissa Estates Abolition Act. Rajalaxmi by a registered Gift deed dated 1-9-1930 gifted the said property exclusively in favour of Laxmimoni. From the date of purchase Laxmimoni was in exclusive possession of the said property. The property is a part and parcel of the intermediary estate. The same vested with the State Government by operation of Orissa Estates Abolition Act. The Plaintiff claims that after vesting rent schedules were issued in favour of both Laxmimoni and the Plaintiff. It is submitted that Laxmimoni was the exclusive owner of the property and in consonance with Section 14 of the Hindu Succession Act, the property becomes a part and parcel of her stridhan property and no other person has any right to the said property.. Mr. Naidu further submits that Section 6 of the O.E. A. Act stipulates that with effect from the date of vesting, all homesteads in an estate and being in possession of an intermediary on the date of such vesting, such buildings and structures together with the lands on which they stand shall, notwithstanding anything contained in the Act, be deemed to be settled by the State Government with such intermediary. The word 'intermediary' has been defined u/s 2(h) of the O.E.A. Act and refers to only the proprietor or landlord or land holder. No other person comes with the purview of an intermediary. Section 6 of the O.E:A. Act categorically stipulates that notwithstanding anything contained in the Act, the property shall be deemed to be settled by the State Government with the intermediary. The Civil Court has no jurisdiction to examine the propriety of the decision arrived at by the administrative authorities as per Section 39 of the O.E.A. Act. The Civil Court can, however exercise i.ts jurisdiction and examine the propriety or otherwise with regard to the exercise of powers by the Collector and can examine whether the Collector acted within his juricdiction. Reference has been made to the decision reported in ILR 1969 Cut. 716 (Collector, Puri v. Budhinath Samantray and Anr.. Mr. Naidu further argues that under the provisions of Sections 6 and 7 of the O.E.A. Act. the authorities have no jurisdiction to settle the land in favour of the Plaintiff. In view of the settled principle of law the settlement made in favour of the Plaintiff is ab initial void and the Civil Court has jurisdiction to.decide such dispute. Mr. Naidu further argues that under the provisions of Sections 6 and 7 of the O.E.A. Act. the authorities have no jurisdiction to settle the land in favour of the Plaintiff. In view of the settled principle of law the settlement made in favour of the Plaintiff is ab initial void and the Civil Court has jurisdiction to.decide such dispute. In this regard reference has been made to a,reported decision in Prasana Kumar Patnaik Vs. State of Orissa and Others. Mr. Naidu further referred to a decision reported in Krupasindhu Misra and Another Vs. Gobinda Chandra Misra and Others, where it has been held that a suit' would lie to examine the validity of the, decision of the O.E.A. Collector when the order is challenged for not complying with the statutory provisions in making of it. It is argued by Mr. Naidu that Section 39 of the O.E.A. Act is not a bar for declaration that the settlement made on the application of a co-sharer will ensure to the benefit of the entire party of cosharers-intermediaries. Mr. Naidu has developed his argument that the learned trial Judge has rightly dismissed die suit and in view of the settled position of law the Plaintiff not being a cosharer cannot claim any interest in the property in view of the fact that he was never an intermediary and Laxmimoni was admittedly the sale intermediary. The settlement made under Sections 6 and 7,of the, O.E.A. Act is void ab initio and otherwise do not confer any right on the Plaintiff. 9. Having heard Mr. Mohanty for the Appellant. Mr. Naidu for the Respondent at length and on perusal of the pleadings of the parties and materials on record. this Court finds that the point of dispute is limited to the extent as whether the Plaintiff-appellant can claim for partition of the residential house. The status of the Plaintiff-appellant as adopted son of Managobinda and Laxmimoni is not disputed. Mr. Mohanty has conceded that even assuming that the question of Benami may not be gone into but after the vesting of the estate under the provisions of the Orissa Estate Abolition Act new settlement stands in the joint names of Laxmimoni and Gopabandhu. On the same footing the partition by metes and bound can be asked. In the case of Jogendranath Mohanty and Another Vs. On the same footing the partition by metes and bound can be asked. In the case of Jogendranath Mohanty and Another Vs. Jagannath Mohanty and Others it has been held that when the intermediary interest was abolished, the previously existing rights of the intermediaries with whomsoever it rested came to an end; by the settlement, the Plaintiffs must be deemed to have acquired a new and independent title which is not in any manner connected-with or dependent on passing of title or otherwise that might have occurred. Sections 6, 7 and 8-A of the O.E. A. Act, 1951 were interpreted. Similarly in the case of Ramakrushna Paramaguru v. Murtyunjaya Das and Ors. reported in C.W.R 1970 (1) 450 it has been held that settlement made in favour of the Plaintiff u/s 39 of the O.E. A. Act. 1951 has become final and any defect in the Plaintiff's title prior to the settlement need not be enquired into. 10. In the case of Manmohan Rout (and after him) Sundari Devi and Others Vs. State of Orissa and Others, it has been held that due to acceptance of rent from the tenants by the revenue authority, the consolidation authorities are duty bound to accept the Petitioners as tenants under the State and to give- respect to the decision of the authority under the O.E. A. Act. Admittedly, in the present case there is vesting. After vesting rent roll is prepared. Settlement stands both in the name of Laxmimoni and Gopabandhu, Both are admittedly in possession of the property also. Upon vesting if the previous right if any in favour of Laxmimoni has ceased to exist, the rent settled in favour of Laxmimoni and Gopabandhu conferred right and it cannot be said that Gopabandhu has no title to the property. The question comes whether - Gopabandhu was an intermediary. In the case of Hemchandra Dansana Vs. Dolamani Dansana and Others, it has been held that though the Defendant was in Khas possession on the date of the vesting u/s 7(1)(a) the entire disputed lands shall be deemed to have been settled by the Government both with the Defendant who was in Kha s possession and with, the Plaintiffs were share-holders of the Defendant. The concept of Khas possession has been interpreted in the case of Sri Krishna Chandra Gajapati Narayan Deo Vs. Atreyaparupu Apparao and Another, . 11. Mr. The concept of Khas possession has been interpreted in the case of Sri Krishna Chandra Gajapati Narayan Deo Vs. Atreyaparupu Apparao and Another, . 11. Mr. Naidu has however, argued that the Plaintiff Appellant was not a co-sharer nor he was an intermediary to the disputed property. The settlement made under Sections 6 and 7 of the O.E.A. Act has to be held to be void ab initio. He has relied on a decision reported in Krupasindhu Misra and Another Vs. Gobinda Chandra Misra and Others, where it has been held that a suit, would lie to examine the validity of the decision of the O.E.A. Collector when the order is challenged for not complying' with the statutory provisions in making of it and it has also been held that Section 39 is not a bar for declaration that the settlement made on the application of a co-sharer will enure to the benefit of the entire party of co-sharer intermediaries. 12. Undisputedly Laxmimoni has never filed any suit to challenge the settlement made both in the names of Gopabandhu and' Laxmimoni after vesting. There is no question to doubt that Gopabandhu was not an intermediary and the settlement standing in his name is void ab initio. By way of operation of law the vesting had taken place and the State acquired the property free from encumbrances. If fresh settlement is granted after vesting and rent roll is prepared and rent is accepted the settlement in favour of both the settees is presumed to exist. Any presumption under law and fact may be rebutted by challenge and/or by adducing evidence to the contrary. Both Laxmimoni and Gopabandhu after settlement jointly possessed the property by exercising overtacts of owner ship and possession. There is no bar and/or impediment for Gopabandhu to ask for 'partition of residential house. Laxmimoni, only resisted by claiming exclusive title on the, basis of earlier deed of gift. The said deed of gift has lost all its consequences as to the title after vesting. This Court finds sufficient merit in the contentment of Mr. Mohanty for the Appellant supported by the reported discussed as discussed above. 13. The submission of Mr. Naidu that such settlement is void ab into is found to be not convincing. 14. The said deed of gift has lost all its consequences as to the title after vesting. This Court finds sufficient merit in the contentment of Mr. Mohanty for the Appellant supported by the reported discussed as discussed above. 13. The submission of Mr. Naidu that such settlement is void ab into is found to be not convincing. 14. For the aforesaid reasons, this Court finds that the learned trial 'Judge has committed an error in holding.that Laxmimoni had exclusive title to the residential house dismissing the Plaintiff's claim to the same! This Court does not appreciate such reasoning and finds merit in the Plaintiff's appeal and the sa me succeeds. 15. It transpires that Laxmimoni transferred her interest to the said suit property during the pendency of the case. This Court also finds that as the Plaintiff has half share in the said property, he can sustain the claim for partition. Accordingly the First Appeal succeeds and the same is allowed. The judgment and decree of the trial court denying the Plaintiff's claim to the residential house ate set aside and instead it is declared that the Plaintiff's suit succeeds in preliminary form and it is open for the trial court to draw final decree accordingly. It is also open to the Plaintiff to ask for such relief for pre-emption to purchase the share of stranger-purchaser and prefer such relief before the trial court in accordance with law. The trial court would consider such prayer on its own merit without being influenced by any observation made by this Court. There is no order as to cost. Appeal allowed. Final Result : Allowed