JUDGMENT : L. Mohapatra, J. - Defendant No. 5 is the appellant before this Court against a reversing judgment. Plaintiff-respondent filed the suit for declaration that they have stitiban status in respect of 'Ka' schedule land and that the defendants have no manner of right, title and interest therein. 2. Case of the plaintiff-respondents is that the suit property originally belonged to the family of late Kalu Charan Mishra and others. In the family partition of late Kalu Charan Mishra the suit properties fell to the share of Kalu Charan Mishra and he granted a permanent lease in respect of Ac. 1.60 decimals of land out of total properties which fell to his share appertaining to plot No. 108, Khata No. 13/'Ka' in mouza Krushna Chandrapur in favour of the ancestors of the plaintiffs. The ancestors of the plaintiffs remained possession of the same on the basis of such permanent lease and were paying rent to Kalu Charan Mishra. It is alleged in the plaint that Kalu Charan Mishra had agreed that the properties in dispute would be recorded in the names of ancestors of the plaintiffs as having stitiban status. Settlement operation started sometime in the year 1962 and father of the plaintiff-respondents took steps for settlement of land in their favour in respect of Ac. 1.50 decimals of land but before final publication of ROR the father of the plaintiffs died. After final publication of the ROR the plaintiffs came to know on 25.3.81 that the land was not recorded in the name of the father of the plaintiff but same has been recorded in the names of father and grand-father of defendants 1 to 4. The suit was therefore, filed for the relief claimed. Defendant No. 5 filed his written statement stating that his father had never granted permanent lease in favour of the ancestors of the plaintiffs in respect of Ac. 1.60 decimals of land appertaining to plot No. 108 as claimed and grand-father and father of the plaintiffs never possessed the said land and were never paying rent to the father of the said defendants. Other plaint allegations were also denied. 1.60 decimals of land appertaining to plot No. 108 as claimed and grand-father and father of the plaintiffs never possessed the said land and were never paying rent to the father of the said defendants. Other plaint allegations were also denied. It is also specifically pleaded by the defendant No. 5 that his father was in physical possession of the suit land and after his death he was in possession of the same, His further case is that the suit land has been wrongly recorded in the settlement in the names of co-sharers of late Kalu Charan Mishra. It is also stated in the written statement that the plaintiffs approached the defendant No. 5 to purchase the land and since the defendant did not accept the proposal the suit was filed to harass him. 3. On the basis of pleadings of the parties the learned Additional Munsif, Puri framed seven issues and dismissed the suit on the following findings. (i) Plaintiffs have not acquired occupancy right over the suit land. (ii) The plaintiffs or their ancestors had never got the disputed property by way of permanent lease from the father of defendant No. 5. (iii) Plaintiffs have got no right, title and interest over the suit land. 4. Appeal preferred by the plaintiffs before the learned Additional Subordinate Judge, Puri was allowed on the following findings : (i) Rent receipts filed on behalf of the plaintiffs strengthen their case and support the fact of their possession over the suit land for a long period continuously. (ii) Claim of the plaintiffs with regard to possession and induction having been accepted, they have occupancy right over the suit land. 5. At the time of admission of the second appeal this Court formulated the following substantial questions of law for adjudication. (1) Whether, in view of Section 67 of the Orissa Land Reforms Act, the Civil Court had jurisdiction to decide the case ? (2) Whether, even assuming that the plaintiffs and their predecessors in interest were bhag tenants, their claim for declaration of occupancy right could be granted in the absence of any proof and finding to the effect that they had acquired occupancy right in accordance with Section 23 and 24 of the Orissa Tenancy Act ? (2) Whether, even assuming that the plaintiffs and their predecessors in interest were bhag tenants, their claim for declaration of occupancy right could be granted in the absence of any proof and finding to the effect that they had acquired occupancy right in accordance with Section 23 and 24 of the Orissa Tenancy Act ? (3) Whether, the lower appellate Court has committed an illegality in holding that the plaintiffs and their predecessors were the bhag tenants merely because their possession was proved ? 6. Sri Pati, learned counsel for the appellant referring to the substantial questions of law formulated by this Court submitted that the evidence on record indicate payment of sanja/bhag by the plaintiffs and their ancestors to the original land holder Kalu Charan Mishra. He further submitted that payment of sanja/bhag is only done under the Orissa Land Reforms Act and therefore, the plaintiffs at best can be said to be tenant under late Kalu Charan Mishra who is father of defendant No. 5. Since the dispute is between the landlord and his tenant, such dispute cannot be decided in a Civil Court and Section 67 of the Orissa Land Reforms Act stands as a bar. Referring to the other two substantial questions of law learned Counsel Sri Pati further submitted that the plaintiffs having failed to prove that they are the settled raiyats as defined under the Orissa Tenancy Act, there was no occasion for the lower appellate Court to declare claim of the plaintiffs as occupancy raiyat in respect of the suit lands, Sri Pati submitted that as per definition of Settled raiyat the respondents were not only required to prove that they were raiyats in the village but also they are to prove possession over the suit land as raiyats for a period of more than 12 years. Referring to different documents placed on behalf of the plaintiffs it was submitted by Sri Pati that there is no iota of evidence to support claim of possession by the plaintiffs over the suit land and therefore, none of the ingredients of settled raiyats having been fulfilled, the lower appellate Court committed illegality in declaring that the plaintiffs are occupancy raiyat in respect of the suit properties. 7. Dr. 7. Dr. Dash, learned Counsel appearing for the contesting plaintiff-respondents, on the other hand, submitted that the lower appellate court was justified in finding possession in favour of the plaintiffs and such finding is based on cogent reasons with reference to oral and documentary evidence adduced on behalf of the respondents and therefore, there is no scope for this Court to disturb such finding of fact in exercise of jurisdiction u/s 100 of the CPC. She further submitted that the lower appellate court having found the plaintiffs to be in possession continuously for a long period and there being evidence on record to show that the plaintiffs were raiyat in village and were in possession of the disputed property for more than 12 years. Undisputably they become settled raiyats and therefore, the lower appellate Court was justified in declaring that the plaintiffs have occupancy right over the suit property. She further submitted that so far as Section 67 of the Orissa Land Reforms Act is concerned, same is not attracted in the present case and the plaintiffs were never tenants under Kalu Charan Mishra and therefore the dispute does not come within the purview of the Orissa Land Reforms Act. 8. In order to appreciate the submissions made by the learned counsel appearing for the parties, I think it appropriate to refer to the pleadings. In the second paragraph of the plaint, case of the plaintiffs, is that the disputed property belonged to late Kalu Charan Mishra who have received the same by way of partition and had put father and grand-father of the plaintiffs in possession of the same for the purpose of cultivation under a permanent lease and was granting receipts. In para-5 of the plaint it is stated that the plaintiffs and their ancestors are in possession of the disputed property for more than 50 years and have become occupancy raiyats. In the written statement the defendant No. 5 disputed the allegation of grant of permanent lease by his father and denied the claim of possession of the plaintiffs over the suit lands for a period of 50 years. From the discussions made by the trial Court with regard to issue No. 5, it appears that P.W. 1 stated to have seen payment of Sanja to the landlord by the plaintiffs. From the discussions made by the trial Court with regard to issue No. 5, it appears that P.W. 1 stated to have seen payment of Sanja to the landlord by the plaintiffs. P.W. 2 has stated that the plaintiffs were paying bhag to the landlord and were cultivating the lands on bhag basis. It also appears that certain rent receipts granted by the Gumastas of landlord Kalu Charan Mishra had been filed before the trial Court which have been exhibited as Exts. 1, 2, 2/a, 2/c, 2/d, 2/e, 2/f, Ext. 5, etc. On the basis of such evidence it was argued by Sri Pati learned counsel appearing for the appellant that the case of the plaintiffs being that they had been inducted as tenants to cultivate the disputed land and in view of the admission of the plaintiffs that they were paying bhag/sanja to the landlord Kalu Charan Mishra they can only be treated as tenants as defined under the Orissa Land Reforms Act and the dispute between the landlord and tenant can only be decided by the authority under the Orissa Land Reforms Act and the Civil Court has no jurisdiction to decide the same in view of bar u/s 67 of the Act. No doubt the plaintiffs' witnesses have said about payment of sanja/ bhag to the landlord by the plaintiffs, but if the entire case of the plaintiffs is looked into it will be found that their claim is under the Orissa Tenancy Act. In the written statement filed by the defendant No. 5 also no such plea has ever been raised and had such a plea been raised the an issue could have been framed and the parties could have been led evidence in that regard. In absence of any such evidence merely because two of the witnesses said that the plaintiffs were paying sanja/bhag to the landlord it cannot be said that they were tenants as defined under the Orissa Land Reforms Act and therefore, I am unable to agree with the learned counsel for the appellant that the dispute can only be decided by the authorities under the Orissa Land Reforms Act and not by the Civil Court. In my view provisions of the Orissa Land Reforms Act have no application to the present case and therefore bar u/s 67 of the Act does not apply to the facts of the present case. 9. In my view provisions of the Orissa Land Reforms Act have no application to the present case and therefore bar u/s 67 of the Act does not apply to the facts of the present case. 9. Coming to the next question, reference may be made to Section 23 of the Orissa Tenancy Act which is quoted below : "(1) Every person who, for a period of twelve years whether wholly or partially before or after the commencement of this Act, has continuously held as a raiyat land situate in any village, whether under a lease or otherwise, shall be deemed to have become on the expiration of that period, a settled raiyat of that village. (2) A person shall be deemed for the purposes of this Section to have continuously held that in a village, notwithstanding that the particular land held by him has been different at different times. (3) A person shall be deemed, for the purposes of this Section, to have held as a raiyat any land held as a raiyat by a person whose heir he is. (4) Land held by two or more co-sharers as a raiyati-holding shall be deemed, for the purposes of this Section, to have been held as a raiyat by each such co-sharer. (5) A person shall continue to be a settled raiyat of a villager as long as he holds any land as a raiyat in that village and for one year thereafter. (6) If a raiyat recovers possession of land u/s 98, he shall be deemed to have continued to be a settled raiyat, notwithstanding his having been out of possession for more than a year. (7) If, in any suit or other proceeding under this Act, or under any other law, it is proved or admitted that a person holds any land as a raiyat, it shall, as between him and the landlord under whom he holds the land, be presumed, for the purposes of this Section, until the contrary is proved or admitted, that he has for twelve years continuously held that land or some part of it as a raiyat." As per the aforesaid provision, a person claiming to be settled rayat has to prove that not only he is raiyat of the village but also he has remained in possession of the property in question as raiyat for more than 12 years. Only when a person acquires status of settled raiyat, question of occupancy status can be considered. The dispute relates to question as to whether the plaintiffs were at all in possession of the disputed property ? It was contended by the learned counsel for the respondents that finding of possession is a finding of fact and this Court cannot reassess the evidence in exercise of Section 100 of the Civil Procedure Code. Learned Counsel has referred to a decision of this Court in the case of Prakash Chandra Swain Vs. Kusima Bewa and Others, and submitted that while exercising jurisdiction u/s 100, CPC the Court cannot reverse the finding of the lower Court on the ground of erroneous appreciation of evidence and erroneous appreciation of evidence by lower Court is not a substantial question of law to be adjudicated in the second appeal. The relevant portion of the judgment is quoted below : "xxx the two witnesses have been disbelieved by the lower appellate Court on relevant grounds. It may be that another appellate Court possibly would have taken a different view of the matter, but erroneous appreciation of evidence is not a substantial ground on the basis of which the finding of the lower appellate court can be reversed." There is no dispute about the aforesaid proposition of law. Learned counsel for the respondents also does not dispute the position of law but submitted that in the event the Court has taken into consideration evidence which is not admissible, or materials which are not existent on record, it will be open for the second appellate Court to interfere in such finding which is based on inadmissible evidence or materials not existent on record considering the same as substantial question of law. So far as the present case is concerned, case of the plaintiffs is based on evidence of three witnesses and certain rent receipts. Plaintiff No. 1 examined himself as P.W. 3. In his evidence he has stated that he had heard from his father that the suit land had been leased out in favour of his grand-father by the ex-landlord, which is stated to be an unregistered one and the said lease deed was never produced before the Court and plea was taken that the same had been destroyed by fire. In his evidence he has stated that he had heard from his father that the suit land had been leased out in favour of his grand-father by the ex-landlord, which is stated to be an unregistered one and the said lease deed was never produced before the Court and plea was taken that the same had been destroyed by fire. Certain rent receipts were proved by these witnesses which are stated to have been granted by different Gumastas of ex-landlord to prove possession over the suit land. But in cross-examination this witness has stated that he has not seen Gumastas, such as Natabar, Bairagi and Raghu and he was not present when receipts were granted by them. This witnesses also could not say the quantity of paddy given by him to the landlord in the years 1976, 1977 and 1978 even though the suit was filed in the year 1983. So far as P.W. 2 is concerned, in cross-examination he has admitted that he does not know plot number and khata number of the suit lands. Coming to the documentary evidence it will be seen that most of the rent receipts excepting Ext. 2.a do not indicate plot number in respect of which rent receipts had been granted. So far as area of the disputed properties is concerned, in Ext. 1 it is written as four acres, in Ext. 2 it is written two acres, in Ext. 2/b it is written as Ac. 2.20 acres, in Ext. 2/c it is written as Ac. 2.40 decimals and in Ext. 2/2 and 2/f the area has been mentioned in Ac. 1.60 decimals each. In absence of the plot numbers in the rent receipts it is difficult to accept the plaintiffs case that the same relates to the disputed property. Much reliance was placed on Ext. 5 which is said to have been granted by defendant No. 5 in the year 1982-83. Said receipts also do not indicate plot numbers and in absence of plot numbers, it is difficult to accept such documents as rent receipts in respect of the lands in dispute and therefore on the basis of the same plaintiffs cannot claim possession over the disputed property. Trial Court though has not given any finding with regard to possession has taken note of the above deficiencies. Trial Court though has not given any finding with regard to possession has taken note of the above deficiencies. However, the lower appellate Court accepted the rent receipts in favour of the plaintiffs for the purpose of possession and also observed that the Ex-landlord Kalu Charan Mishra having not filed any petition under the Orissa Estate Abolition Act, it is presumed that he was not in possession and the plaintiffs were in possession of the suit land. There is no pleading or evidence with regard to conduct of the parties in the Orissa Estate Abolition preceding, if any. In absence of any material at all in this regard, I fail to understand as to how the lower appellate Court could make such observation in order to find possession in favour of the plaintiffs. It may also be noted that so far as rent receipts are concerned, except Ext. 5, all other, rent receipts are admitted to have been granted by Gumastas or authorised agents of landlord Kalu Charan Mishra. In this connection, a decision of this Court reported in (1977) CLT 65 (Magu Sahu v. Bhramarabara Behera and Ors.) be referred to. This Court in the aforesaid decision observed as follows : "Landlord and tenant -- Acceptance of rent by agent -- If sufficient to establish tenancy -- Acceptance of rent by an agent is not sufficient to establish a tenancy against the landlord unless the agent was specially authorised to grant leases in addition to recover rents." There is no pleading or evidence to show that Kalu Charan Mishra had either authorised his agents to collect rent or grant receipts. In absence of any evidence with regard to such authorisation, mere issuance of rent receipts by agents is not sufficient to establish tenancy. I, therefore, disagree with the finding of the lower appellate court that the plaintiffs were possessing the disputed property. Accordingly, their claim of occupancy status cannot be allowed. 10. In view of the reasons stated above and findings arrived at, the appeal is allowed. Judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial Court are confirmed. Final Result : Allowed