JUDGMENT : Pradip Mohanty, J. - The Plaintiff as Appellant files this second appeal assailing the Judgment dated 05.08.1987 & decree dated 20.08.1987 passed by the Learned District Judge, Sambalpur in Title Appeal No. 34 of 1984 confirming the Judgment dated 14.09.1984 & decree dated 17.09.184 passed by the Learned Munisif, Sambalpur in Title Suit No. 1 of 1981. Plaintiff's case is that the suit land measuring 474 square feet appertaining to HS Plot No. 646 in Khata No. 29 corresponding to MS Plot No. 744/2381 originally belonged to one Makardhwaj Behera & his co-sharers Nilambar Behera & others. He purchased the suit land from them for Rs. 200 by a registered sale deed dated 19.06.1967 (Ext.2) & continued to possess it by using as a passage to reach the Sambalpur-Dhama road from his house. In 1978, the Defendants purchased Ac.0.9 decimals adjoining the suit land & caused obstruction to the Plaintiff's passage. On the report of the Plaintiff, the police intervened & removed the obstruction. In July, 1979, the Defendants again encroached upon the suit land & constructed a house partly obstructing the passage. Since the Defendants obstructed the passage without having any right, title or interest on the suit land, the Plaintiff filed the suit for declaration of his title & possession of the suit land. 2. Defendant No. 1 alone filed written statement contending that Makardhwaj & his co-sharers could not pay the land revenue for the suit land & accordingly surrendered the land in favour of Baikuntha Sanbad, the Lambardar Gountia of the village, & Baikuntha in his turn granted a Rayati patta for the suit land in favour of one Chakanayan Panda in the year 1951. Chakanayan Panda sold the suit land to the Defendants by a registered sale deed dated 12.12.1977 (Ext.A). Chakanayan & then the Defendants having possessed it on their own right for a considerable long period by constructing sheds, the Defendants have prescribed adverse title to the suit land. 3. The Trial Court considering the pleadings & the evidence on record came to held that the Plaintiff has not acquired any right or title to the suit land under Ext.2 & that he was never in possession of the suit land & that the Defendants acquired good title to the suit land under Ext.A & accordingly by Judgment dated 14.09.1984 dismissed the suit. The Plaintiff assailed the Judgment & decree of the Trial Court before the Learned District Judge, Sambalpur in Title Appeal No. 34 of 1984. But, the Appellate Court dismissed the appeal by observing that the Central Provinces Tenancy Act forbids sale of an occupancy holding by occupancy Rayat. The transfer can only be effected through the intervention of the Lambardar Gountia. Therefore, execution of Ext.2 by Makardhwaj was in contravention of Section 46 of the Central Provinces Tenancy Act whereas the acquisition of title by the Respondents seems to be in accordance with law. Against the said Judgment, the unsuccessful Plaintiff has preferred this second appeal before this Court. 4. This case was admitted on 11.01.1988 on Ground No. A of the appeal memo which reads as under: Whether the purchase of the suit land by the Plaintiff-Appellant from Makardhwaj by registered sale deed in 1967 is void for contravention of Section 46 of the Central Provinces Tenancy Act when the prohibition contained in Section 46 is no longer in force after the amendment of the said Act in 1953? But since it is the settled principle of law that the substantial question of law should be framed by the Court itself, on perusal of the case record & after hearing the Learned Counsel for both the parties, this Court formulated the following substantial questions of law on 5.01.2010. (i) Whether the Court below misconstrued the provisions of Central Provinces Tenancy Act, more particularly, Section 46 of the Central Provinces Tenancy Act 7 & (ii) Whether the Court below committed gross error by misconstruing the pleadings in the W.S ? 5. Mr. Mishra, Learned Counsel appearing for the Appellant submits that both the Courts below have observed that the sale in favour of the Plaintiff was in contravention of Section 46 of the Central Provinces Tenancy Act. The alienation in contravention of Section 46 cannot be treated as void & such transaction is only voidable & can be avoided by initiating appropriate proceeding. Moreover, such a plea was never taken in the written statement nor was any issue framed before the Trial Court. He further submits that both the Courts below have committed gross error by misconstruing the pleadings in the written statement. Moreover, such a plea was never taken in the written statement nor was any issue framed before the Trial Court. He further submits that both the Courts below have committed gross error by misconstruing the pleadings in the written statement. The question of surrender either by Makaradhwaj or by anybody else to the Gountia was not an issue & in the absence of such a pleading, the finding of the lower Appellate Court that the suit land was surrendered by Makardhwaj to the Gountia is liable to be set aside. In other words, such finding of the lower Appellate Court is contrary to its observation made in para 5 of the Judgment that the Defendants have failed to prove that the suit land was surrendered to the Gountia. He further submits that where the findings of the Court of facts are vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court can re-appreciate evidence in a second appeal. In this connection, reliance has been placed on a decision of the Apex Court in Jagdish Singh Vs. Natthu Singh, . 6. Mr. Khuntia, Learned Counsel appearing for the Respondents submits that the possession is a question of fact & both the Courts have held that the Plaintiff was not in possession. There is no substantial question of law involved in the present second appeal. In paragraph 6 of his deposition the Plaintiff (P.W.2) has categorically admitted that the suit land was surrendered to Gountia. Admission is the best piece of evidence. So, Plaintiffs vendor had no title & therefore he cannot transfer the land as he was a tenant under the C.P. Tenancy Act. As such, no title passed on to the Plaintiff. He also relies on the document under Ext.E under which Chakanayan got title & the contents of the same are admitted. In support of his contention, Mr. Khuntia, Learned Counsel for the Respondents relies on a decision of the Apex Court in the case of Kashmir Singh Vs. Harnam Singh and Another, with regard to maintainability of the second appeal. 7. This Court minutely gone through the Judgments of both the Courts below, plaint, written statement & the exhibited documents. This Court also carefully perused the provisions of the Central Provinces Tenancy Act, more particularly Section 46(3) thereof, which is relevant for the purpose of deciding this case. Harnam Singh and Another, with regard to maintainability of the second appeal. 7. This Court minutely gone through the Judgments of both the Courts below, plaint, written statement & the exhibited documents. This Court also carefully perused the provisions of the Central Provinces Tenancy Act, more particularly Section 46(3) thereof, which is relevant for the purpose of deciding this case. However, for ready reference, Section 46(3) of the C.P. Tenancy Act is quoted hereunder: 46 (3). No occupancy tenant shall be entitled to sell, make a gift of mortgager sub-let (except, for a period not exceeding one year) or otherwise transfer his right in his holding, or in any portion thereof, & every such sale, gift, mortgage, sub-lease (other than for a period not exceeding one year) or transfer shall be voidable in the manner & to the extent provided by the two next following Sections: Provided that an occupancy tenant may transfer his right of occupancy to any person who, if he survived the tenant, would inherit the right of occupancy, or to any person in favour of whom as a co-sharer, the right of occupancy originally arose, or who has become by succession a co-sharer therein. Provided, also, that nothing in this Section affect the right of the Government to sell the right of an occupancy tenant in his holding for the recovery of an advance made to him under the Land Improvement Loans Act, 1883, or the Agriculturists' Loans Act, 1884, or the right of the purchaser at such sale to succeed to the holding. From a bare reading of the above quoted provision, it is clear that Section 46(3) does not totally forbid an occupancy tenant to sell, gift, & mortgage or transfer his right. Such alienation for a period of one year by the occupancy tenant is permissible. Any alienation by the occupancy tenant beyond one year shall be voidable not void. In other words, any alienation in contravention of Section 46 cannot be treated as void & such transaction is only voidable. 8. At this stage, it is worthwhile to discuss the legal meaning of the words 'void' & 'voidable'. Section 2(g) of the Indian Contract Act envisages that a contract, which is not enforceable by law, is a void contract. Void contract is an agreement without any legal effect & is void ab initio or it becomes void subsequently. 8. At this stage, it is worthwhile to discuss the legal meaning of the words 'void' & 'voidable'. Section 2(g) of the Indian Contract Act envisages that a contract, which is not enforceable by law, is a void contract. Void contract is an agreement without any legal effect & is void ab initio or it becomes void subsequently. In other words, such agreement is not admissible in law. Section 2(i) postulates that the voidable contract is an agreement which can be enforceable by law at the option of one or more parties thereto. Either of the parties may file a suit to declare the contract as void. 9. It is relevant to note that the Trial Court while dismissing the Plaintiff's suit observed that Nilambar Behera & Makardhwaj Behera were the occupancy tenants in respect of the suit land & that u/s 46(3) of the C.P. Tenancy Act a prohibition has been imposed on an occupancy tenant on transfer of his occupancy rights. The first Appellate Court while confirming the findings of the Trial Court in paragraph 8 of its Judgment observed as follows: 8. Now it remains to be seen whether the Plaintiff has acquired any tile under Ext.2. The CP. Tenancy Act forbids sale of an occupancy holding by occupancy Rayat. The transfer can only be effected through the intervention of the lambardar gountia. Therefore, execution of Ext-2 by Makardhwaj was in contravention of Sec. 46 of the CP. Tenancy Act whereas the acquisition of title by the Respondent seems to be in accordance with law. 10. As is evident from the impugned Judgments, both the Courts below have misconstrued the provisions of C.P. Tenancy Act, more particularly Section 46(3) thereof, & declared the transaction made under the sale deed (Ext.2) as void. 11. It is settled that even if a void order or decision rendered between the parties cannot be said to be non-existent in all cases & in all situation. The word void conveys the idea that the order is invalid or illegal. The erosion of the distinction between jurisdictional errors & non-jurisdictional errors has correspondingly eroded the distinction between void & voidable decisions. In State of Kerala Vs. The word void conveys the idea that the order is invalid or illegal. The erosion of the distinction between jurisdictional errors & non-jurisdictional errors has correspondingly eroded the distinction between void & voidable decisions. In State of Kerala Vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others, the Apex Court have held that even a void order or decision rendered between the parties cannot be said to be non-existent in all cases & in all situation. Ordinarily, such an order will, in fact be effective inter parties until it is successfully avoided or challenged in higher forum. Mere use of the word "void" is not determinative of its legal impact. The word "void" has a relative rather than an absolute meaning. In the said decision it is held that even if a void order rendered between the parties cannot be said to be non-existent in all cases & in ail situation. Ordinarily, the said order in fact be effective between the parties until it is successfully avoided or challenged in higher forum. Mere use of the word "void" is not determinative of its legal impact. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise. It is further held that an order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Even though such an act is wrong & lacking in jurisdiction, however, it subsists & remains fully effective unless & until it is set aside by a Court of competent jurisdiction. Until its validity is challenged, its legality is preserved. The above view has been followed in Velamuri Venkata Sivaprasad (D)By Lrs. Vs. Kothuri Venkateswarlu (D)By Lrs. Ors., . 12. With the above touch stone, this Court examined the matter. The Plaintiff purchased the suit land from the occupancy tenant in the year 1967 under Ext.2 & continued to possess it by using as a passage. When the Defendants encroached upon the suit land & constructed a house partly obstructing the passage, the Plaintiff (present Appellant) filed a suit for declaration of right, title & interest over the suit land. The Plaintiff purchased the suit land from the occupancy tenant in the year 1967 under Ext.2 & continued to possess it by using as a passage. When the Defendants encroached upon the suit land & constructed a house partly obstructing the passage, the Plaintiff (present Appellant) filed a suit for declaration of right, title & interest over the suit land. But, the Defendants in their written statement nowhere contended that Makardhwaj & his co-sharers could not pay the land revenue for the suit land & accordingly surrendered the land in favour of Baikuntha Sanbad, the Lambardar Gountia of the village, & Baikuntha in his turn granted a Rayati Patta for the suit land in favour of one Chakanayan Panda, who sold the suit land to the Defendants in the year 1977. The Courts below held that the Plaintiff had not acquired any right or title over the suit land under Ext.2 & that the Defendants acquired the good title to the suit land under Ext. A. The Appellate Court also dismissed the appeal by observing that the Central Provinces Tenancy Act forbids sale of an occupancy holding by occupancy Rayat. The transfer can only be effected through the intervention of the, Lambardar Gountia. Therefore, Ext.2 was in contravention of Section 46 of the Central Provinces Tenancy Act. There is no dispute that Nilambar Behera & Makardhwaj Behera were the occupancy tenants in respect of the suit land & they sold the land to the Appellant. It is the co-sharers of Makardhwaj Behera who could have filed the suit to declare the document Ext.2 as invalid & the documents even if not made in good faith is still an act capable of legal consequences, unless the necessary proceedings are taken at law to declare the documents as invalid. This is a suit between the Plaintiff (Appellant) with the purchaser of the vendee of the Gountia & the suit has been filed by the vendee of the coparcener tenant. No suit has been filed by the co-sharers of the occupancy tenant (Makardhwaj). The Courts below committed a grave error declaring Ext.2 as invalid by misconstruing the Central Provinces Tenancy Act, more particularly Section 46 of the Central Provinces Tenancy Act. The question of surrender by Makardhwaj or by anybody was not an issue. In absence of such pleadings, the finding of the lower Appellate Court is perverse. The Courts below committed a grave error declaring Ext.2 as invalid by misconstruing the Central Provinces Tenancy Act, more particularly Section 46 of the Central Provinces Tenancy Act. The question of surrender by Makardhwaj or by anybody was not an issue. In absence of such pleadings, the finding of the lower Appellate Court is perverse. The Appellate Court has not discussed a single word with regard to adverse possession. 13. For all the above reasons & since this second appeal is old one, this Court feels it proper to remit the matter to the first Appellate Court for fresh disposal. Accordingly, this Court sets aside the Judgment of the lower Appellate Court & remits the matter to it for fresh disposal, as expeditiously as possible, preferably within a period of six months from the date of receipt of this Judgment. Both the parties have undertaken to co-operate with the proceeding before the lower Appellate Court. The Second Appeal is accordingly allowed. The LCR be sent back forthwith. Final Result : Allowed