JUDGMENT : L. Mohapatra, J. - Plaintiff is the Appellant before this Court against a reversing judgment. 2. The suit was filed for declaration of title, confirmation of possession and for permanent injunction. The case of the Plaintiff is that the suit property measuring Ac. 0.01 dec. appertaining to C.S. Plot No. 122 under C.S. Khata No. 322 corresponding to Hal Plot No. 246 under Hal Khata No. 532 originally belonged to ex Parala Estate which comprised of the Nij Dakhal Khata of the ex intermediary. Since the land was lying fallow and was occasionally being used as Hata, the Plaintiff with the consent of the ex intermediary had built a Kutcha house over the suit land and has started a private homoeopathic clinic sinice the year 1940 and since then he has been in possession of the suit property. He was accepted as a tenant by the ex intermediary and rent was being paid to the ex intermediary till the land vested in the State. After vesting in the year 1953 the Plaintiff continued to occupy the suit land on the same terms and conditions on which he was continuing under the ex intermediary and his tenancy right remained unchanged. The State Government has also realised tax from him through the then Union President and had granted receipts. After vesting, the Suit land was transferred to Sujanapur Gram Panchayat and the said Panchayat being in enjoyment and control of the property, recognised the tenancy right of the Plaintiff in respect of the suit land and collected tax from him. Case of the Plaintiff is that he has acquired occupancy right and cannot he evicted from the suit land. In the year 1978-79 Encroachment Case No. 791 of 1978-79 was initiated against the Petitioner which is being challenged on the ground that since the property does not belong to the State Government, the provisions of the Orissa Prevention of Land Encroachment Act (for short, 'O.P.L.E Act') does not apply and as such the initiation of the proceeding was not sustainable in law. The Plaintiff alternatively also claimed that he had acquired tide by way of adverse possession having occupied the land for more than 30 years peacefully and openly to the knowledge of all concerned. 3. Defendant No. 1. State of Orissa, contested the suit and denied the possession of the Plaintiff in respect of the suit land. The Plaintiff alternatively also claimed that he had acquired tide by way of adverse possession having occupied the land for more than 30 years peacefully and openly to the knowledge of all concerned. 3. Defendant No. 1. State of Orissa, contested the suit and denied the possession of the Plaintiff in respect of the suit land. It is stated in the written statement that the suit land was under the occupation of Parala Estate till vesting and was being used as a Hata and after vesting the State Government has become the owner of the property and the Plaintiff was never in physical possession of. the land nor was recognised as a tenant by the ex- intermediary. After vesting the suit property along with other properties have been transferred to Sujanapur Gram Panchayat for management and development of the Hata during the period 1953 to 1960 and the Plaintiff was not in occupation of the suit land nor he has been recognised as a tenant. Since the Plaintiff constructed a house over the suit property without the permission of the Grama Panchayat,the property being a Government land as defined u/s 2(b) of the O.P.L E. Act, on encroachment proceeding had been started against the Plaintiff. 4. Considering the respective cases of the Plaintiff and Defendants, the trial court framed six issues which run as follows: 1. Is the suit maintainable ? 2. Has the Plaintiff any cause of action? 3. Has the Plaintiff any right, title, interest and possession in the suit property? 4. Was the Plaintiff in possession of the suit property as a tenant under the Ex-Parla Estate prior to vesting and continues to be a tenant under the State? 5. Is the suit property a Government land and is the Encroachment proceeding started against the Plaintiff legal ? 6. To what relief, if any, is the Plaintiff entitled? 5. Issue Nos. 3, 4 and 5 are material issues which were taken up together by the trial court. The trial court while answering these 3 issues held that the suit property originally belonged to the ex Ruler of Parla Estate and merged with the State of Orissa and in view of the Claim of the Plaintiff over the suit property through the Ruler of the ex Parla Estate the said property cannot be held to be the property of the Government. The trial court further held that the Plaintiff was a tenant under the ex intermediary and being in Khas possession of the same prior to vesting has become a tenant under the State Government after vesting u/s 8(1) of the Orissa Estates Abolition Act and the Plaintiff being a statutory tenant the same cannot be extinguished by any action on the part of the State and further held that the plaintiif cannot be evicted frorn the suit property under the provisions of the O.P.L.E. Act. So far as issues 1, 2 and 6 are concerned, the trial court held that there was valid service of notice u/s 80 of the CPC and on these findings the suit was decreed. 6. The lower appellate court reversed the finding of the trial court on the ground that the notice u/s 80 of the CPC was not in accordance with law and there was non-compliance of the requirements of Section 80 notice. The lower appellate court further held that Plaintiff failed to establish his claim of being a tenant in respect of the suit property under the ex landlord on the date of vesting of the estate. It further held that the finding of the civil court in an earlier decree with regard to possession of the Plaintiff is not binding on Defendants as they were not parties in the said suit. On these findings the lower appellate court allowed the appeal and set aside the decree passed in favour of the Plaintiff by the trial court, 7. The Second Appeal has been admitted on the substantial questions of law as mentioned in paragraphs 1 and 2 of the ground of appeal which are as follows: 1 For that there being due service of notice u/s 80, C.P. C. as averred in para 10 of the plaint, and in view of Ext. 4, 4/2 and 4/a which go unchallenged and moreover there being no issue on that score as the same has been admitted by the Defendants, is the lower appellate court justified in holding that the suit is incompetent for noncompliance of notice u/s 80, C.P. C. 2. For that in view of the admitted possession of the Plaintiff over the suit land much prior to vesting and in view of Ext. For that in view of the admitted possession of the Plaintiff over the suit land much prior to vesting and in view of Ext. 1 to 1-c (rent receipts granted by Ex-State of Parala) whether the tenancy right has been created in favour of the Plaintiff relating to the suit land? 8. So far as the first point is concerned with regard to service of notice u/s 80 of the Code of Civil Procedure, the appellate court has held that there was no valid service of notice u/s 80 of the Code on the ground that the plaint does not contain any averment with regard to delivery of notice to the Defendants or anybody on their behalf and there was no mention about compliance of such mandatory provision of law. The lower appellate court disbelieved service of notice on further ground that registration receipts had not been filed which would show actual transmission of the notice stating the cause of action, the name, description and place of residence of the Plaintiff and the relief claimed in the proposed suit and that signatures of the persons receiving the registered letters have not been proved. Learned Counsel for Appellant submits that in paragraph 10 of the plaint there is specific averment that the Defendants were called upon by notice u/s 80 of the Code to recognise the title of the Plaintiff and that although they received the notice on 9-3-70, they did not reply to the same. Attention of the court has also been drawn to the written statement filed by the Defendants and it is stated that there is no denial of the averment made in paragraph 10 of the plaint with regard to service of notice on them. In view of the admitted position with regard to service of notice u/s 80, C.P. C. the trial court did not frame any issue and therefore, the lower appellate court was not justified in taking up the issues which had not been framed by the trial court. As it appears, apart from the averments made in paragraph 10 of the plaint, the copy of the notice has been exhibited as Ext. 4/b and the postal acknowledgments in support of receipt of notice have been exhibited as Exts. As it appears, apart from the averments made in paragraph 10 of the plaint, the copy of the notice has been exhibited as Ext. 4/b and the postal acknowledgments in support of receipt of notice have been exhibited as Exts. 4 and 4/a. The Plaintiff who examined himself as p. w. 3 in his evidence has stated tliat he had sent notice u/s 80, C.P. C. to the Defendants prior to institution of the suit, by registered post, and he has proved the acknowledgment receipts Exts. 4 and 4/a. There is no denial to the averments made in the plaint with regard to service of notice u/s 80, C.P. C. and there is no eftective cross-examination with regard to the same. Therefore,the lower appellate court was wrong in coming to a conclusion that notice u/s 80, C.P. C had not been served in accordance with law. 9. So far as the second question is concerned, it appears from the evidence on record that the Plaintiff came into occupation of the land in dispute sometime in the year 1940 and opened a private homeopathic clinic with the consent of the ex-intermediary who accepted him as a tenant and received rent from him. The Plaintiff in his evidence has stated that the suit land was lying fallow and with the permission of the then Tahasildar of Parla Estate he constructed a house in the year 1940 and opened a homoeopathic clinic and the Tahsildar of Parla Estate was collecting rent from him and had granted receipts since the year 1946. He has also produced and proved 4 tent receipts Exts. 1 to 1/c relating to the years 1946, 1948, 1949 and 1950. It appears from the evidence that he had applied to the Manager of Parla Estate for permission to construct a house over the disputed land and the Tahsildar had given him permission, but he states that the document has been damaged P. w. 1 is a carpenter who had stated that about 40 to 42 years back he had constructed a thatched shop house for the Plaintiff over the suit property and the Plaintiff had started his homeopathic clinic in the said house since the time of construction and has been in possession of the same. He has also stated that the suit property originally belonged to Parla Estate and Paramananda Mohanty was collecting rent for the suit property on behalf of the ex-intermediary. P. w. 2 has also stated that the suit property originally belonged to Parla Estate and the Plaintiff has been possessing the same and has constructed a house over it to start a homoeopathic clinic. The Plaintiff in his evidence has further stated that after the suit property vested in the State in the year 1953 he continued to possess the suit property and paid choukidary tax to the Union President.There is no dispute that after vesting of the Estate Union President was authorised to collect such tax. Exts 2 to 2/c are the Choukidari tax receipts granted by the Union President from the year 1952 to 1956. It is further stated in the evidence of the Plaintiff that the suit property along with other properties were transferred to Sujanapur Grama Panchayat and the Grama Panchayat collected tax from him. Exts. 2/d to 2/h are the tax receipts granted by the Grama Panchayat. On the basis of such evidence, the trial court came to a conclusion that the Plaintiff being a tenant under the ex-intermediary and being in khas possession of the same prior to the vesting has become a tenant under the State Government u/s 8(1) of the Orissa Estates Abolition Act, 1951 ( O.E.A. Act', for short). He further held that since the Plaintiff had become a statutory tenant u/s 8(1) of the O.E.A. Act his statutory tenancy cannot be extinguished by any inaction on the part of the State. Under Section 8(1) of the O.E.A. Act, any person being in possession of any estate prior to the vesting becomes a tenant after vesting independent of any recognition and he is not required to file any claim case for his recognition as a tenant. Trial Court further held that in an earlier suit for partition, a Vol. competent civil court had held the suit property to be self-acquired property of the Plaintiff and in view of such findings, the trial court ultimately held that the Plaintiff cannot be evicted from the suit property under the provisions of the O.P.L.E. Act. The lower appellate court reversed the said finding on the ground that rent receipts Exts. competent civil court had held the suit property to be self-acquired property of the Plaintiff and in view of such findings, the trial court ultimately held that the Plaintiff cannot be evicted from the suit property under the provisions of the O.P.L.E. Act. The lower appellate court reversed the said finding on the ground that rent receipts Exts. 1 to 1/c granted by Paramananda Mohanty cannot be believed as the said Paramananda Mohanty has not been examined. He disbelieved the claim of the Plaintiff with regard to payment of rent under Exts. 1 to 1/c on further ground that since the documents were challenged by the Defendants as fake ones the Plaintiff should have called for the counter foils and examined the grantor of the same. The claim of the Plaintiff that he occupied the land with the permission of the ex-intermediary was disbelieved on the ground that the ex-intermediary or any of his successor-in-interest has not been examined and he came to hold that the Plaintiff failed to establish his claim of being a tenant in respect of the suit land, under the ex-intermediary on the date of vesting of the estate. 10. From the evidence of the witnesses examined on behalf of the Plaintiff as discussed in the judgment of the trial court as well as on perusal of the same it appears that the case of the Plaintiff that he came into occupation of the land with the permission of the ex-intermediary and constructed a house over the suit property to start a private homoeopathic clinic is well established. From the evidence it is also established that the Plaintiff has been in occupation of the suit land since 1940 by constructing a house thereon.. The question is as to whether after vesting of the suit land in 1952 under the O.E.A. Act, the Plaintiff continued as a statutory tenant under the State or not. Evidence has been led on behalf of the Plaintiff to show that after 1940 till vesting he was paying rent to the ex-intermediary and Exts. 1 to 1/c are the rent receipts granted by the Tahsildar of Parla Estate to the Plaintiff. These rent receipts are disbelieved by the lower appellate court only on the ground that the grantor of the said receipts has not been examined. There is no material in cross-examination to disbelieve the rent receipts Exts. 1 to 1/c are the rent receipts granted by the Tahsildar of Parla Estate to the Plaintiff. These rent receipts are disbelieved by the lower appellate court only on the ground that the grantor of the said receipts has not been examined. There is no material in cross-examination to disbelieve the rent receipts Exts. 1 to l/c. Though there is some misstatement with regard to the year in relation to such rent receipts but such misstatement is not very much material in view of evidence available on record to show that the Plaintiff continued as a tenant under the ex-intermediary and was paying rent. The Plaintiff has also successfully proved that after vesting of the estate the Union President was authorised to collect tax and was collecting Choukidari tax from the Plaintiff and Exts, 2 to 2/b are documents in proof of the same. The Plaintiff has also proved that after the Union Board was dissolved the property was transferred to Sujanapur Grama Panchayat and the Grama Panchayat was collecting tax from him till 1956. The evidence as stated above, clearly indicates that the Plaintiff was a tenant under the exintermediary till the date of vesting and that after vesting he continued as a tenant and paid tax to Sujanapur Grama Panchayat.An objection is raised by the learned Counsel for the State that the Plaintiff has not produced any document to show that the ex-intermediary had submitted Ekpadia in favour of. the Plaintiff at the time of vesting and therefore, the case of the Plaintiff should be disbelieved. Section 8(1) of the O.E.A. Act provides that any person who immediately before the date of vesting of an estate in the State Government was in possession of any building as a tenant under the intermediary shall, on and from the date of vesting, be deemed to be a tenant of the State Government and such person shall hold the land in the same rights and subject to the same restrictions and liabilities as he was entitled or subjected to, immediately before the date of vesting. This Court in the decision reported in 57 (l984) C.L T. 1 (F.B.): Radhamani Dibya and Ors. v. Braja Mohan Biswal and Ors., has held that Section 8(1) of the O.E.A Act makes no provision for an application. This Court in the decision reported in 57 (l984) C.L T. 1 (F.B.): Radhamani Dibya and Ors. v. Braja Mohan Biswal and Ors., has held that Section 8(1) of the O.E.A Act makes no provision for an application. No inquiry is contemplated under this section.The section is merely declaratory of the continuity of the tenure of tenants as it was immediately before the date of vesting. In view of such position of law and in view of the evidence adduced on behalf of the Plaintiff that he had occupied the land with the permission of the ex-intermediary and was paying tax till the land vested in the State Government and that thereafter he has also paid rent and had constructed a house over the suit property in the year 1940 immediately after occupying the same, I am of the view that the Plaintiff continued as a tenant under the State after vesting u/s 8(1) of the O.E.A. Act and there was no necessity for filing an application for a declaration that he is a tenant under the State. 11. I, therefore, set aside the judgment arid decree passed by the lower appellate court and confirm the judgment and decree passed by the trial court. The appeal is accordingly allowed. No costs. Appeal allowed. Final Result : Allowed