JUDGMENT : Dr.A.K.RATH, J. Defendant no.1 is the appellant against a confirming judgment. 2. Subodh Chandra Dutta, predecessor-in-interest of respondents 1 to 3, as plaintiff instituted the suit for ejectment of the defendants from the suit house, delivery of possession and realization of Rs.1,044/-towards arrear rent along with P.I. and F.I. The case of the plaintiff was that he purchased the suit house from one Ajayab Singh by means of an unregistered sale deed dated 17.12.1962, vide Ext.1. The defendants were inducted as tenants on the same day on a monthly rent of Rs.29/-. Since the defendants did not pay rent from 13.5.1968, he filed T.S.No.91 of 1972 in the court of the learned Sub Judge, Sambalpur against the defendants for realization of the arrear rent and for eviction. The said suit was dismissed as notice under Section 106 of the Transfer of Property Act was legally defective. Thereafter, he instituted T.S.No.153 of 1980 seeking the relief mentioned supra. 3. Defendant no.1 filed written statement denying the assertions made in the plaint. The case of the defendant was that neither the plaintiff nor his vendors had any manner of right, title and interest over the suit land. The defendants are the owners of the suit house. They are occupying the same since 1962. There was no relationship of landlord and tenant. The description of the suit property including the boundary given in the plaint is wrong. They have perfected title by way of adverse possession. Defendant no.2 was set ex parte. 4. On the inter se pleadings of the parties, learned trial court framed four issues. Parties led evidence, both oral and documentary, to substantiate their case. Learned trial court dismissed the suit holding, inter alia, that plaintiff is the owner of the suit house. The plaintiff is in possession. Defendant no.1 was inducted as a tenant on 17.12.1962. The defendants have not paid any rent since 1968. The plaintiff is entitled to Rs.1,044/-towards arrear rent and damages with pendent lite and future interest @ 6% per annum. The defendants failed to prove its title by way of adverse possession. The unsuccessful defendant no.1 filed appeal before the learned District Judge, Sambalpur, which was transferred to the Court of the learned Additional District Judge, Sambalpur and renumbered as T.A.No.5/9 of 1987/88. The appeal was eventually dismissed. The defendants failed to prove its title by way of adverse possession. The unsuccessful defendant no.1 filed appeal before the learned District Judge, Sambalpur, which was transferred to the Court of the learned Additional District Judge, Sambalpur and renumbered as T.A.No.5/9 of 1987/88. The appeal was eventually dismissed. It is apt to state here that during pendency of the suit, the sole plaintiff died, whereafter his legal heirs had been substituted. Similarly, during pendency of this appeal, defendant no.1-appellant died, whereafter his legal heir has been substituted. 5. This appeal was admitted on the substantial questions of law enumerated in ground nos.1 to 4. The same are: “1) If the plaintiffs are entitled to a decree as prayed for in absence of any pleading and prove relating to their title and if the present suit is governed U/s.64 of the Indian Limitation Act ? (2) If the plaintiffs have failed to prove that Ajayab Singh got the suit land on lease from Zamindar and if such alleged lease is hit under the provisions of Sambalpur Manual in absence of any permission from the Divisional Commissioner ? (3) If Ajayab Singh and Subodha Chandra Dutta have got any manner of right, title and interest over the suit land after the commencement of Orissa Estate Abolition Act and if the plaintiffs are entitled to recovery of possession in absence of any evidence that the suit land was settled in their favour under the Orissa Estate Abolition Act ? (4) If the findings of the Courts below that the defendant was a tenant in respect of the suit house under late Prabodha Chandra Dutta is based on no evidence and if the Exts.8.9 and 13 i.e., the depositions in previous suit are admissible and conclusive to prove the alleged tenancy ?” 6. Heard Miss. Soumya Priyadarshini, learned Advocate on behalf of Mr.Gautam Mukherjee, learned Advocate for the appellant. None appeared for the respondents. 7. Miss. Priyadarshini, learned Advocate for the appellant submitted that in the year 1986, P.W.1 deposed that defendant no.1 was residing in the suit house for the last thirty years. The suit house was constructed by Ajayab Singh, when he was 30 years old. According to him, Ajayab Singh never resided in the suit house. Defendant no.1 is staying in the suit house from the very beginning. He was 75 years old. The suit house was constructed by Ajayab Singh, when he was 30 years old. According to him, Ajayab Singh never resided in the suit house. Defendant no.1 is staying in the suit house from the very beginning. He was 75 years old. If the house was constructed by Ajayab Singh when P.W.1 was 30 years old, the house must have been constructed in 1941 and the defendant is residing in the house since 1941. Thus creation of tenancy on 17.12.1962 as pleaded by the plaintiff cannot be accepted. P.W.2 admitted that the defendants had never paid rent to her. She also admitted that she was not present at the time of purchase of the house by her husband. P.W.3 deposed that the defendant was a tenant since 30-40 years i.e., the tenancy commenced in 1946 or 1956 and not on 17.12.1962. P.W.4 is the brother of P.W.2. He was witness in the earlier title suit. He made a prevaricating statement. P.W.5 stated in the earlier suit that there was no talk between defendant no.1 and the plaintiff for taking the house on rent. If the evidence is taken into consideration, the story of creation of tenancy on 17.12.1962 has to be disbelieved. P.W.4 deposed that he had collected rent from the defendants on two or three occasions and granted receipts. No steps had been taken to call for the receipts from the defendants. The plaintiff in the earlier suit had deposed that he kept a note of rent paid by the defendant in his notebook. His evidence in the previous suit has been marked as Ext.8. The note book had not been produced. Thus adverse inference should be drawn against the plaintiff for non-production of the note book. In Ext.8, the plaintiff stated that he had received rent from the defendants for seven years four months i.e., till April, 1973. In the present suit, the plaintiff claimed that no rent had been paid after 13.4.1968. In Ext.A, the plaintiff stated that there was document of tenancy. The same was scribed by Ajmbar Das and attested by Anwar Ali Rajballabha Ray and Pitambar Singh. The agreement had neither been produced nor any explanation had been given for non-production of the same. There is no relationship of Landlord and Tenant between the parties. 8. In Ext.A, the plaintiff stated that there was document of tenancy. The same was scribed by Ajmbar Das and attested by Anwar Ali Rajballabha Ray and Pitambar Singh. The agreement had neither been produced nor any explanation had been given for non-production of the same. There is no relationship of Landlord and Tenant between the parties. 8. On a cursory perusal of the written statement, it is evident that defendant no.1 has not taken a plea that the lease deed was hit under the provisions of Sambalpur Manual in the absence of any permission from the Divisional Commissioner; Ajayab Singh and Subodh Chandra Dutta have no manner of right, title and interest over the suit land after commencement of the Orissa Estate Abolition Act. For the first time, the said plea has been taken by the tenant in the Second Appeal, which is impermissible. The courts below have concurrently found that defendant no.1 was a tenant. There is no perversity or illegality in the findings of the courts below. The substantial questions of law are answered accordingly. 9. Resultantly, the appeal fails and is dismissed. There shall be no order as to costs.