JUDGMENT : A.K. RATH, J. 1. The defendants are the appellants against a confirming judgment. 2. The respondent and his father as plaintiffs instituted the suit for declaration of title, order passed by the Tahasildar, Bissamcuttack, defendant no. 2 in Encroachment Case No. 22/81 is void and permanent injunction. The case of the plaintiffs was that the Tahasildar, Bissamcuttack settled plot nos. 82, 81/1 and 84 of khata no. 20 measuring an area Ac. 0.75 cent in favour of plaintiff no. 1. Patta was issued in his favour on 4.9.1969, vide Ext.1. Thereafter revenue records were corrected. He paid the rent and cess fixed by defendant no. 2. He was in possession of the suit land. While the matter stood thus, defendant no. 2 initiated Encroachment Case No. 22/81 under the provision of the Orissa Prevention of Land Encroachment Act (O.P.L.E. Act) against plaintiff no. 2. He appeared and contended that he was in possession of the land by virtue of Ext.1. But then the order of eviction was passed. Against the same, he filed O.P.L.E. Appeal No. 10/83 before the Sub-Divisional Officer, Gunupur, which is sub-judice. With this factual scenario, the suit was instituted seeking the relief mentioned supra. 3. The defendants entered appearance and filed written statement denying the assertions made in the plaint. It was pleaded that defendant no. 2 had not settled the land in favour of plaintiff no. 1. The suit plot had been recorded as Government land. The plaintiffs had no semblance of right, title and interest over the same. The suit land had been recorded in the name of Government as ‘Basti’ in Rakhita khata. No rent was collected from the plaintiffs. The plaintiffs had not acquired any rayati right over the suit land. The order passed by defendant no. 2 under the O.P.L.E. Act was legal and valid. 4. On the inter se pleadings of the parties, the learned trial court framed eight issues. Both parties led evidence. The learned trial court came to hold that the suit land was settled in favour of plaintiff no. 1 by means of a valid lease. The plaintiffs acquired right, title and interest over the suit land by virtue of Ext.1. The Revenue Authority received rent from the plaintiffs from the year 1969 till 1985. Encroachment Case No. 22/81 initiated against plaintiff no. 2 is bad in law. Held so, it decreed the suit. 1 by means of a valid lease. The plaintiffs acquired right, title and interest over the suit land by virtue of Ext.1. The Revenue Authority received rent from the plaintiffs from the year 1969 till 1985. Encroachment Case No. 22/81 initiated against plaintiff no. 2 is bad in law. Held so, it decreed the suit. The unsuccessful defendants challenged the judgment and decree of the learned trial court before the learned Additional District Judge, Jeypore in Title Appeal No. 33 of 1989, which was eventually dismissed. 5. The appeal was admitted on the following substantial questions of law:- “(a) Whether in view of the pleading of the plaintiffs claiming their title to Ac. 0.75 cents of land appertaining to plot nos. 82, 83/1 and 84 under khata no. 20 the courts below are justified in accepting the evidence which is in variance with the pleadings and decreeing the suit regarding plot nos. 82, 83/1 and 84 in Jamabandi No. 14/5? (b) Whether the decree is executable in view of the dispute regarding identity of the land? (c) Whether the courts below are correct in holding that Ext.1 is a preliminary patta?” 6. Heard Ms. Samapika Mishra, learned Additional Standing Counsel for the appellants. None appears for the respondent. 7. Ms. Mishra, learned A.S.C. for the appellants submits that there is a variance between the pleadings and proof. The plaintiff claims right, title and interest over an area Ac. 0.75 cents of land appertaining to plot nos. 82, 81/1 and 84 under khata no. 20, but in the evidence, he stated that patta was granted in respect of plot nos. 82, 83/1 and 84 in Jamabandi No. 14/5. The suit land was not identifiable. She further submits that no lease deed was executed nor any patta was granted in favour of plaintiff no. 1. Ext.1 is a notice. The courts below committed a manifest illegality and impropriety in placing reliance on Ext.1. 8. On a cursory perusal of Ext.1, it is evident that defendant no. 2 had issued notice to Nayak Behera Sambaria of village Sitarampur, Ambadala, Bissamcuttack, but the suit was instituted by one Sombaria Behera @ Nayak Behera Sombaria, who furnished the address of his village as Hat-Doikhal, Post-Sibapodar, P.S. Ambadola in the district of Koraput. Ext.1 was a notice to Nayak Behera Sambari. There is no evidence on record that the notice and the plaintiff are same person. Ext.1 was a notice to Nayak Behera Sambari. There is no evidence on record that the notice and the plaintiff are same person. The address given in the noticee and plaint is different. Ext.1 does not reveal under which provision of the statute notice was issued requiring him to pay rent and cess. The courts below fell into patent error in placing reliance on Ext.1. Further, the suit had been filed in respect of plot nos. 82, 81/1 and 84 of khata no. 20, whereas in the evidence, the plaintiffs furnished the suit plot nos. 82, 83/1 and 84 in Jamabandi no. 14/5. The suit plots have been recorded in the name of Government as Basti in Rakhita khata. 9. Both the courts below misconstrued Ext.1 and held that it is a patta. The findings are perverse. The substantial questions of law are answered accordingly. 10. In the wake of the aforesaid, the impugned judgments are set aside. The appeal is allowed. Consequently, the suit is dismissed. No costs.