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2018 DIGILAW 619 (ORI)

Pramoda Das (dead) v. Saroj Kanta Misra

2018-06-27

D.P.CHOUDHURY

body2018
JUDGMENT Dr. D.P. CHOUDHURY, J. - This Second Appeal assails the judgment and decree dated 14.8.1989 and 28.8.1989, respectively, passed by the learned Additional District Judge, Bhubaneswar in T.A. No. 2/8/4/ of 1981/80/78 confirming the judgment and decree dated 30.10.1978 and 15.11.1978, respectively, passed by the learned Subordinate Judge, Bhubaneswar in O.S. No. 9 of 1975-I. The parties referred to in the trial Court are also referred in this judgment. FACTS 2. The unfolded story of the case of the plaintiff is that plaintiff Alekha Charan Das had purchased the suit land from defendant No.2 Laxmidhar Maharathi. After death of original plaintiff Alekh, his widow Pramoda Das was substituted and now after her demise the present appellant, being sole legal heir is contesting the appeal. The suit land is a part Plot No. 216 which has original area of 32 acres. Admittedly Lord Sri Lingaraj was the owner of the entire area of 32 acres. On the request of the defendant No.2 in the year 1956, the temple authorities for the benefit and for augmentation of some funds for the institution decided to lease out the plot by making sub-division of the same. Accordingly applications were invited from intending persons. On the application of defendant No.2, suit Plot No. 216/9 lease was granted to defendant No.2 as per the decision of the Executive Officer of the temple on 31.3.1956. 3. Be it stated that the Commissioner of Endowment also allowed to grant lease vide O.A. No. 9/1956-57 under Section 19 of the Odisha Hindu Religious Endowments Act, 1951 (hereinafter called “the OHRE Act”). But the sanction was confined to 100 decimals out of same entire Plot No. 216 which includes the present suit plot. In 1961 defendant No. 2 paid the ‘salami’ on 29.9.1961. Thereafter demarcation and delivery of possession were made by the Temple Administration to defendant No.2 who paid the rent of same to defendant No. 3 till 1966. On 5.11.1966 defendant No.2 sold the suit property to plaintiff by Registered Sale Deed. After purchase, original plaintiff Alekh got the suit land mutated in his favour and obtained receipt on payment of rent. He has also raised a boundary wall around the land and constructed a small hut but occupied same till 1979. During course of possession, he got his name recorded in the settlement R.O.R. 4. After purchase, original plaintiff Alekh got the suit land mutated in his favour and obtained receipt on payment of rent. He has also raised a boundary wall around the land and constructed a small hut but occupied same till 1979. During course of possession, he got his name recorded in the settlement R.O.R. 4. It is the further case of the plaintiff that part Plot No. 216/10 adjoining the present suit Plot No. 216/9 was originally leased out by defendant No. 3 to Mohammed Sirazuddin. The mother-in-law of defendant No. 1 purchased the said Plot No. 216/10 from Mohammed Sirazuddin and possessed the same. It is alleged inter alia that the defendant No.1 being a Judicial Officer, having influenced the Temple authorities and Commissioner of Endowment got the lease in respect of suit plot No. 216/9 and defendant No.1 forcibly occupied both the plots, i.e., Suit Plot Nos. 216/9 and 216/10. 5. Be it stated that the defendant No.1 only allegedly got the leasehold right over the suit Plot No. 216/9 in the year 1972 whereas defendant No.2, the vendor of the plaintiff had got the leasehold right over the said suit land in the year 1956. Thus, the defendant No. 1 has no right thereon as per the allegations made by the plaintiff. It is alleged inter alia that the defendant No. 1 in order to occupy its suit plot demolished the wall and merged his mother-in-law’s land at Suit Plot No. 216/10 with Suit Plot No. 216/9 on 6.1.1974. So, the suit was filed by the original plaintiff against the defendants to declare right, title and interest over the suit property after declaration that defendant No. 1 has no right, title and interest over the said suit property. Similarly it is prayed for confirmation of possession of the plaintiff thereon or in the alternative recovery of possession through the Court. Not only this but also it is prayed to pass a decree of permanent injunction restraining defendant No. 1 and his men from intervening with the peaceful possession of the plaintiff over the suit land. 6. Per contra, the contesting defendant No. 1 filed the written statement refuting the allegation made in the plaint. It is averred in the written statement that there is no cause of action to file the suit. 6. Per contra, the contesting defendant No. 1 filed the written statement refuting the allegation made in the plaint. It is averred in the written statement that there is no cause of action to file the suit. The suit is non-joinder of necessary party by not impleading the Commissioner of Endowment and the State. The suit plot was not leased out legally in favour of defendant No. 2 in 1956. There is no valid sanction for transfer of the suit plot on lease in favour of the defendant No. 2. There was no delivery of possession of suit plot to defendant No. 2 and also to the original plaintiff. Moreover, it is asserted that payment of any ‘salami’ does not confer any right, title and interest over the suit plot. Since the lease was not sanctioned legally in favour of the defendant No. 2, he was no right to transfer the same in favour of the original plaintiff. So, the plaintiff has no right, title and interest over the suit land. 7. It is the further case of the defendant No. 1 that on 15.3.1974 the suit plot along with other plot of Lord Sri Lingaraj was merged with the State under Section 5 of the Orissa Estate Abolition Act (hereinafter called “the Act”). The allegation of the plaintiff that the defendant No.1 has persuaded the competent authority to sanction and to lease out the suit plot in his favour is a false. Rather, due to necessity of a land at Bhubaneswar, the defendant No.1 applied for a plot to the defendant No. 3 to construct a residential house thereon. So, by virtue of Memo No. 1708 dated 23.11.1972, the Commissioner of Endowment granted permission for leasing out permanently Suit Plot No. 216/9 and another Plot No. 216/11 under Khata No. 901 of Mouza Bhubaneswar in favour of the defendant No. 1 under Section 19 of the OHRE Act. The registered lease deed was executed by the Executive Officer of Lord Sri Lingaraj Temple on behalf of the deity on 23.7.1973. Defendant No. 1 took permission from the competent authority and continued to possess the same by constructing a house thereon. 8. The registered lease deed was executed by the Executive Officer of Lord Sri Lingaraj Temple on behalf of the deity on 23.7.1973. Defendant No. 1 took permission from the competent authority and continued to possess the same by constructing a house thereon. 8. It is further averred that since the defendant No. 2 has not valid permanent lease for having no registered lease deed and has no valid lease whereas the defendant No. 1 has got valid lease by execution of registered sale deed, as such the defendant No. 1 has got right, title, interest and possession thereon. So, the plaintiff having no right, title and interest over the suit Plot No. 216/9, the suit should be dismissed. He supports the impugned order. 9. The defendant No. 2 filed separate written statement admitting the case of the plaintiff. It is specifically stated that since defendant No.2 being owner in possession of the suit plot, transferred the same to plaintiff, he has no interest in the suit property. Defendant No.3 did not file any written statement and was set ex parte. 10. After going through the pleadings, learned trial Court framed the following issues: Issues 1. Is the suit maintainable? 2. Has the plaintiff any cause of action? 3. Whether the suit is bad for non-joinder of State of Orissa and other adjacent owners and the Commissioner O.H.R.E.? 4. Whether the description of the suit land is vague and the land alleged to be owned and possessed by the plaintiff appertains to plot No. 216/9 as shown in the sketch map attached to the registered lease deed of defendant No.1? 5. Whether the suit is barred by limitation? 6. Whether the suit is barred under the provision of the Orissa Hindu Religious Endowment Act? 7. Whether the plaintiff’s vendor acquired right, title, interest and possession over the suit land? And whether the plaintiff has acquired the same? 8. Whether the defendant No. 1 is a bonafide lessee for value without notice? 9. Whether the suit is properly valued and adequate Court fee paid thereon? 10. Whether the alleged permission obtained from the N.A.C. by the plaintiff is fraudulent ? 11. To what relief, the plaintiff is entitled? 11. The plaintiff examined nine witnesses and defendant No.1 examined five witnesses. Both the parties have also adduced respective documents. 9. Whether the suit is properly valued and adequate Court fee paid thereon? 10. Whether the alleged permission obtained from the N.A.C. by the plaintiff is fraudulent ? 11. To what relief, the plaintiff is entitled? 11. The plaintiff examined nine witnesses and defendant No.1 examined five witnesses. Both the parties have also adduced respective documents. After going through same, learned trial Court disposed of the suit by answering the issues in following manner: (a) While deciding Issue No. 4, learned trial Court held that the description of suit land is not vague and it is Suit Plot No. 216/9 as shown in the sketch map attached to the sale deed of the Plaintiff. (b) While deciding Issue No. 7, the learned trial Court gave the finding that the lease over the Suit Plot in favour of the defendant No. 1 being created under registered lease deed and he having proved that he got the delivery of possession over the suit plot, the defendant No.1 has got right, title, interest and possession over the Suit land whereas the Plaintiff and defendant No.2 have no same right over it. (c) While answering Issue No. 8, the learned trial Court decided the issue in favour of the defendant No. 1 by observing that he is a bona fide lessee for value without notice of any lease in favour of defendant No.2 and the Plaintiff. (d) While deciding Issue No. 10, the learned trial Court observed that the erstwhile NAC authorities without being aware of the actual lease in favour of the defendant No. 1 has issued permission to Plaintiff for construction of boundary wall over the suit Plot but again granted permission to defendant No.1 to construct a boundary wall and a house thereon after coming to know about the valid lease in his favour. The learned trial Court did not answer issue Nos. 2, 4, 6 and 9 being not pressed. (e) Learned trial Court while deciding the Issue Nos. 1, 2 and 11 came to hold that the suit is not maintainable and there is no cause of action to file the Suit for which the plaintiff is not entitled to any relief. 12. As such, the learned trial Court dismissed the Suit on contest against defendant No. 1 and without contest against other defendants. 1, 2 and 11 came to hold that the suit is not maintainable and there is no cause of action to file the Suit for which the plaintiff is not entitled to any relief. 12. As such, the learned trial Court dismissed the Suit on contest against defendant No. 1 and without contest against other defendants. Against this order of judgment and decree, the successor of original plaintiff preferred appeal vide Title Appeal No. 2/8/4/ of 1981/80/78. After hearing the appeal, the learned Appellate Court mainly observed that due to registered lease deed of defendant No. 1 followed by valid sanction defendant No. 1 has acquired title over the suit land whereas the Plaintiff has no valid title thereto. The learned Appellate Court also found the possession of defendant No. 1 over the Suit Plot. So, ultimately the learned Additional District Judge, Bhubaneswar dismissed the appeal as the plaintiff has failed to prove his case. 13. Against the aforesaid judgment of the learned Additional District Judge, Bhubaneswar, Second Appeal No. 160 of 1981 was filed before this Court. After hearing the appeal, same was disposed of by the judgment dated 6.12.1988 wherein this Court found deficiencies in the judgment of the lower Appellate Court. While deciding the appeal, this Court has observed that since the proposal of executing lease in favour of defendant No.2 pursuant to the application made by him having been approved by the Commissioner although no lease deed has been executed, the claim of the plaintiff cannot be denied. It is also observed that not only the said approval made but also the defendant No. 2 got delivery of possession after demarcation of the suit land including Suit Plot and he has also paid ‘salami’ (rent) which has been accepted by the defendant No. 3. As such, a leasehold right has been created in favour of defendant No. 2 which has been transferred to plaintiff. The learned Additional District Judge, Bhubaneswar has failed to appreciate this aspect and as such the findings of the learned Courts below were not agreed with by this Court. 14. This Court also in that Second Appeal observed that the learned Additional District Judge has not applied mind to the documents in question vide Exts. 7 and 8 for which the finding of the learned Additional District Judge was perverse being non-application of mind. 15. 14. This Court also in that Second Appeal observed that the learned Additional District Judge has not applied mind to the documents in question vide Exts. 7 and 8 for which the finding of the learned Additional District Judge was perverse being non-application of mind. 15. This Court in the Second Appeal No. 160 of 1981 further observed that the documents of the plaintiff and defendants have not been appreciated with proper perspective by the learned lower appellate Court for which the decision by him has been vitiated. 16. However, while deciding the appeal this Court found that there was further necessity of appreciation of evidence on record by learned lower Appellate Court to come to a final conclusion on documentary evidence as well as the oral evidence. So, this Court set aside the judgment of the lower appellate Court and remitted back the appeal to the learned Additional District Judge, Bhubaneswar for re-hearing and re-disposal of same in accordance with law. So, the matter was remanded to the learned lower appellate Court for de novo hearing. 17. After the matter was remitted back, the learned lower appellate Court after hearing both the parties in Title Appeal No. 2/8/4 of 1981/80/78 came ot hold that there is no valid lease created minus registered document because permanent lease only be effected under registered deed under Section 107 of the Transfer of Property Act. As such, the learned Additional District Judge found that neither the defendant No. 2 nor plaintiff had got any registered lease deed for which the finding of the learned trial Court is correct by holding that the defendant No. 2 and plaintiff have no right, title, interest and possession over the same. 18. The learned Additional District Judge has also come to hold that payment of salami or rent without creation of enforceable right by the defendant No. 3 cannot be taken as a creation of right, title and interest in favour of the plaintiff and or defendant No. 2. On the other hand, the learned lower appellate Court held that the defendant No. 1 having the registered lease deed has got valid lease in his favour and as such the finding of the learned trial Court was correct. 19. On the other hand, the learned lower appellate Court held that the defendant No. 1 having the registered lease deed has got valid lease in his favour and as such the finding of the learned trial Court was correct. 19. Learned Additional District Judge further found that the plaintiff has not proved his possession over the suit plot whereas defendant No. 1 being a bona fide transferee for value without notice has also got delivery of possession of the suit Plot and as such all the findings of the learned trial Court are upheld by the learned lower appellate Court. Accordingly the appeal was dismissed. 20. The present Second Appeal is admitted on the following substantial questions of law: “1) Whether the relationship of landlord and tenant has come into existence between defendant No.3 on the one hand and the plaintiff on the other by payment of rent by the plaintiff and acceptance of the same by the defendant No.3? 2) Whether in that case defendant No.3 is competent to lease out the land again to defendant No.1 during the subsistence of plaintiff’s tenancy?” SUBMISSIONS 21. Mr. Budhadev Routray, learned Senior Advocate for the appellants submitted that this Court in S.A. No. 160 of 1981 have given clear finding that the evidence of several official witnesses and the documents have not been properly appreciated by the Courts below for which it was necessary to remand the mater for proper appraisal. The learned lower Appellate Court without accepting the opinion of this Court has done nothing than to concur with the finding of his predecessor. 22. Learned counsel for the appellant submitted that the lower appellate Court has failed to draw proper inference out of proved facts. It is abundantly clear from the evidence on record that after lease being properly sanctioned by the Endowment Commissioner in 1956, the defendant No. 2, who is the vendor of the original plaintiff, was delivered possession of Suit Plot. After possessing same for good number of years defendant NO. 2 sold the land to original plaintiff. The unveiling of documents and chain of facts proved in the case should have been considered by the lower appellate Court with proper perspective. In this regard he has relied on the decision reported in AIR 1954 ORISSA 40; Madhabananda Mohapatra and others v. Rabindranath Misra and others. 23. Mr. 2 sold the land to original plaintiff. The unveiling of documents and chain of facts proved in the case should have been considered by the lower appellate Court with proper perspective. In this regard he has relied on the decision reported in AIR 1954 ORISSA 40; Madhabananda Mohapatra and others v. Rabindranath Misra and others. 23. Mr. Routray, learned Senior Advocate for the appellant submitted that there is evidence vide Ext. 21 and Ext. C to the effect that the lease in favour of the defendant No.2 was duly sanctioned by the Endowment Commissioner but without any rhyme or reason the learned Appellate Court did not appreciate the said evidence. Not only this but also the defendant No. 2 paid salami vide Exts. 1 and 2, paid fee of demarcation and obtained the receipt which ought to have been considered by the learned lower appellate Court. Above all, the defendant No. 3 has granted ownership certificate in respect of the suit land in favour of defendant No. 2 but that has not been also taken to notice by the learned lower Appellate Court appropriately. 24. It is further contended by the learned counsel for the appellant that the learned appellate Court has erred in law to take into consideration the Exts. 11, 12, 13, 18, 19 and 20 to prove his strong possession thereon and has also failed to consider the sale by registered sale deed in favour of Plaintiff by defendant No. 2. It is settled in law that payment of rent by the plaintiff over his purchase vide Exts. 22, 22-A and 22-B is clear incidence of creation of the tenancy of vendor of original plaintiff in the suit land. The learned lower appellate Court has erred in law by unnecessarily going to the question of agricultural lease which was an alternative argument advanced by the plaintiff-appellant. But the fact remains that the Board of Trustees recommended several leases for agricultural purpose but there is no bar under law for such agricultural purpose can be changed to any other purpose. In this regard he relied upon the decision reported in 29 (1963) C.L.T. 409, Dani Sahu v. Brajabandhu Bal. 25. But the fact remains that the Board of Trustees recommended several leases for agricultural purpose but there is no bar under law for such agricultural purpose can be changed to any other purpose. In this regard he relied upon the decision reported in 29 (1963) C.L.T. 409, Dani Sahu v. Brajabandhu Bal. 25. Learned counsel for the appellant further contended that the learned appellate Court has erred in law by not considering that after accepting demarcation fees and rent from defendant No. 2 and plaintiff, the defendant No. 3 is stopped from disputing relationship of landlord and tenant. While submitting so, he relied on the decision reported in AIR 1971 SC 1021 , Century Spinning & Manufacturing Co. Ltd. and another v. The Ulhasnagar Municipal Council and another. 26. Learned counsel for the appellant further argued that the oral evidence with regard to delivery of possession to defendant No.2 by P.Ws. 3 and 2 should have been properly evaluated by learned lower appellate Court because P.Ws. 2 and 3 are non else than the temple Amin and the temple employee respectively. Non-consideration of oral evidence for proper purpose is shrouded with perversity and as such the judgment of the learned lower appellate Court is bad in law which requires interference by this Court. 27. It is second journey of the appellant to this Court and in the earlier Second Appeal No. 160 of 1981 this Court has clearly observed that the documents filed by the plaintiff have not been properly considered because under Section 19 of the OHRE Act, necessary permission has been obtained from the learned Commissioner of Endowment in 1956 and a second permission in respect of defendant No. 1 in 1972 was not required for lease even though this Court has already considered all these documents. But the learned lower appellate Court after remand has failed to appreciate the same in the line of the appreciation made by this Court. However, since this Court has already taken same view on the material on record, that should not be disturbed in the de novo hearing of the appeal by learned lower appellate Court. 28. Mr. Routray, learned Senior Advocate for the appellant further submitted that the view of this Court in S.A. No. 160 of 1981 as to acceptance of the sanction order vide Ext. 28. Mr. Routray, learned Senior Advocate for the appellant further submitted that the view of this Court in S.A. No. 160 of 1981 as to acceptance of the sanction order vide Ext. 21 related to Suit Plot No. 261/9 or to the undivided Plot No. 216 having been decided finally has been set at rest and there the decision of the learned lower appellate Court being contrary, is liable to be quashed because this Court has already taken a view and on certain points only the matter has been remanded to the lower appellate Court. 29. Relying upon the decision in 1974 CLT 888 (D.B.), Jagannath Nanda v. Bishnu Dalei & others, this Court has held that demand, payment and acceptance of rent create relationship between the landlord and tenant as per provisions of Section 116 of the Transfer of Property Act. But the learned Appellate Court has failed to appreciate such evidence. Relying upon the decision reported in 1973 (2) (2) C.W.R. 987, Duryodhan Das v. Collector of Dhenkanal, he submitted that irrespective of any unregistered patta, the relationship of lesser and lessee can be inferred from payment and acceptance of rent. But unfortunately the aforesaid decisions have not been taken into evidence by this Court while deciding the case reported in 2017 (II) ILR-CUT-1064, Lingaraj Mahaprabhu v. State of Orissa & others or 2013 (Sup.II) OLR 689, State of Orissa v. Bidyanath Jena (since dead) represented by his legal heirs and others, wherein it has been held that without a registered document no right of a lease is accrued. It is emphatically submitted that in the administration of Lord Lingaraj there was no practice of granting written leases. But there being leased out under the authority of the order passed under Section 19 of O.H.R.E. Act and by following acceptance of Salami, rent etc. according to him, as per the decision reported in AIR 2017 SC 2141 , Srinivasaiah v. H.R. Channabasappa and AIR 2013 SC 2924 , Vanchalabi Raghunath Ithape v. Shankarrao Baburao Bhilare, the decision of this Court reported in 2017 (II) ILR- CUT-1064, Lingaraj Mahaprabhu v. State of Orissa & others or 2013 (Sup.II) OLR 689, State of Orisa V. Bidyanath Jena (since dead) represented by his legal heirs and others, is per incuriam as they have not taken notice of the earlier judgment of this Court as discussed above. In toto, learned counsel for the appellant submitted that the judgment of the learned lower appellate Court should be set aside and the Suit should be decreed in favour of the Plaintiff. 30. Mr. R.K. Rath, learned Senior Advocate for the Defendant No.1 without going to the merit of the case submitted that the substantial questions of law as formulated by this Court do not arise for consideration at all and this respondent has got right to submit same in view of the provision under Section 100 (5) of C.P.C. because the Suit is filed against the Defendant No. 1 for declaration of right, title, interest and possession as lessee in respect of disputed property at Schedule-A after holding defendant No. 1 has no manner of right, title and interest in the said property. No relief has been claimed against defendant No.3. So, he submitted that there being no issue with regard to relationship of landlord and tenant between defendant No.3 and Plaintiff, the substantial questions of law that whether the relationship of landlord and tenant has come into existence between defendant No. 3 on the one hand and the plaintiff on the other by payment of rent by the plaintiff and acceptance thereof is not at all a substantial question of law. So, he submitted such question of law should not be formulated so as to answer same by this Court in the judgment. 31. Mr. Rath, learned Senior Advocate for the respondents submitted that the entire case is built up by the plaintiff to show that he has acquired a title over the suit property by virtue of registered sale deed executed by defendant No. 2 who got permanent lease over the suit and from defendant No.3. There is no pleading in the plaint that on payment of rent relationship of landlord and tenant has come to existence. So, the argument of the learned counsel for the plaintiff should be only directed for acquiring of title but not about relationship of landlord and tenant. 32. Mr. There is no pleading in the plaint that on payment of rent relationship of landlord and tenant has come to existence. So, the argument of the learned counsel for the plaintiff should be only directed for acquiring of title but not about relationship of landlord and tenant. 32. Mr. Rath further submitted that no new case can be structured at this stage by the appellant by posing a problem of relationship between the landlord and tenant because their prayer has been rejected by both the Courts below on the ground that defendant No. 2 has not acquired permanent lease and as such the plaintiff is far from acquiring the right, title and interest by virtue of sale deed. He relies upon the decisions reported in AIR 2000 SC 831 , Union of India v. E.I.D. Parry (India) Ltd. AIR 1978 SC 1820 , Raghunath Pradhani v. Damodra Mahapatra; AIR 1998 SC 3021 , Babu Ram v. Indra Pal Singh; AIR 1997 SC 2517 , Kashitish Chandra Purkait v. Santosh Kumar Purkait and others; 2001 (3) SCC 179 , Santosh Hazari V. Purushottam Tiwari; 2008 (2) SCC 741 , Dharmarajan and others v. Valliammal and others and AIR 2017 SC 5494 , Shivaji Balaram Haibatti v. Avinash Maruthi Pawar. 33. Mr. Rath, learned Senior Advocate for the respondent defendant No.1 submitted that none of the evidence either documentary or oral led by the plaintiff has never stated about the creation of any permanent lease deed in favour of the defendant No.2 over the Suit land and both the Courts below clearly of the view that without compliance of Section 107 of the T.P. Act, no permanent lease can be created and as in the instant case no permanent lease deed is proved by the plaintiff and defendant No. 2 was not a permanent lessee and consequently the plaintiff has not acquired any right, title and interest thereon from defendant No.2. 34. Mr. Rath, learned Counsel for the Respondent No.1 vehemently argued that there was no prayer in the plaint to set aside the order of sanction made in favour of the Respondent No. 1/Defendant No.1 for which the sanction granted in favour of the Defendant No. 1 by the Commissioner of Endowment under Section 19 of the OHRE Act for permanent lease cannot be made a subject of challenge. Hence, the argument advanced by the learned counsel for the appellant that the sanction in favour of defendant No. 1 is non est, has no any merit. 35. Mr. Rath, learned Counsel for the respondent No. 1 defendant No. 1 submitted that after due sanction for creating permanent lease over the suit land in favour of the Defendant No. 1/Respondent No. 1 by learned Commissioner of Endowment followed with the execution of the registered lease deed has created absolute title under the leases in favour of Defendant No. 1/Respondent No. 1. Submission of the learned counsel for the appellant that such order is void is untenable because no presumption can arise that such order of sanction is void without any adjudication. Even no question of law was framed in this regard. In this regard, learned counsel for the respondent No. 1 relied on the decisions reported in AIR 1990 SC 325 , Shiv Chander Kapoor; (2011) 3 SCC 363 , Krishnadevi Malchand Kamathia v. Bombay Environmental Act Group; (2009) 9 SCC 173 , P.K. Palanisamy v. N. Environmental Act Group; (2009) 9 SCC 173 , P.K. Palanisamy v. N. Arumugham and another; (2007) 5 SCC 211 , Pune Municipal Corpn. V. State of Maharashtra and (1996) 6 SCC 445 , State of Rajasthan and others v. D.R. Laxmi and others. 36. Learned counsel for the Respondent No.1/Defendant No. 1 further contended that the order of sanction being passed by the Commissioner in favor of the defendant No. 1/Respondent No. 1 and same having not been challenged in the Suit, it has reached finality. Section 73 of the OHRE Act is a bar to the jurisdiction of the jurisdiction of the Civil Court as per the decisions reported in AIR 1983 ORISSA 4, Hadu Mohapatra v. Radha Bewa; AIR 1988 SC 616 , S.T. Muthusami v. K. Natarajan and others and 1978 (46) CLT 30, Mahant Govardhan Das Babaji v. Raghunandan Das Babaji and others. 37. Mr. Rath, learned Counsel for the respondent No.1 defendant No. 1 submitted that the learned Courts below have considered the evidence on record and have clearly observed that the Suit Plot No. 216/9 has not been leased out in favour of defendant No. 2. 37. Mr. Rath, learned Counsel for the respondent No.1 defendant No. 1 submitted that the learned Courts below have considered the evidence on record and have clearly observed that the Suit Plot No. 216/9 has not been leased out in favour of defendant No. 2. When such finding is given by the Courts below on a fact, without any perversity on the appreciation of evidence, the appellant is debarred from challenging such finding of the learned Courts below. So far possession is concerned, the evidence adduced by the plaintiff-appellant is shaky, inconsistent for which no right of the defendant No. 2 and plaintiff has been created over the Suit Plot. Learned Courts below have appropriately discussed the entire evidence led by the plaintiff and the defendant No. 1 and came to a conclusion that the plaintiff has failed to establish the possession over the suit land. So, the finding of the learned lower Court neither goes in favour of the defendant No. 2 nor in favour of the plaintiff. 38. Mr. Rath, learned Senior Advocate for the respondent No.1 defendant No. 1 submitted that the Suit is defective by not making the Endowment Commissioner as party. Therefore, the Suit and appeal both are to be dismissed due to non-joinder of necessary parties. On the whole, he submitted that the appeal should be dismissed with exemplary cost. DISCUSSION 39. The first and foremost point raised in this case to answer the substantial questions of law. Sub-Section (5) of Section 100 of CPC gives a right to the respondent to raise the question whether the substantial questions of law is appropriately framed in this case. The purpose of raising this question is that at the time of framing of substantial questions of law only the appellant is heard under Order 41 Rule 11 of C.P.C. but there the respondent has not appeared. However, in this case the learned counsel for the respondent has vehemently urged that the substantial question of law No. 1 that whether the relationship of landlord and tenant has come into existence between defendant No. 3 on the one hand and the plaintiff or defendant No. 2 and acceptance of the same by the defendant No. 3 is not at all the issue framed in the Suit. 40. 40. On the other hand, learned counsel for the appellant submitted that while the substantial question of law is framed, this Court has gone to the pleading and material on record and after hearing the Court has framed such question of law. It is for the Court to frame the substantial question of law. It appears from the order sheet dated 19.02.1990 that this Court after hearing learned Counsel for the appellants framed the question of law as such. 41. It is reported in AIR 2000 SC 831 , Union of India v. E.I.D. Parry (India) Ltd. where Their Lordships have observed the following: “4. The suit was filed for the recovery of excess demurrage allegedly charged by the appellant from the respondent. The claim depended upon Goods Tariff Rules, specially the Rule quoted above, which authorizes the respondent to claim damages in respect of the entire block of wagons supplied to a party who does not empty those wagons at the siding within the time permitted for the purpose. There was no pleading that the Rule upon which the reliance was placed by the respondent was ultra vires the Railways Act, 1890. In the absence of the pleading to that effect, the trial Court did not frame any issue on that question. The High Court of its own proceeded to consider the validity of the Rule and ultimately held that it was not in consonance with the relevant provisions of the Railways Act, 1890 and consequently held that it was ultra vires. ….” 42. With due regard to the aforesaid decision, it is clear that whenever there is substantial question of law framed, the pleadings of both the parties should be gone through. If there is no issue framed in that regard, the Court should restrain from framing such substantial question of law because no discussion is to be made beyond the pleadings. 43. It is also reported in AIR 1998 SC 3021 , Babu Ram v. Indra Pal Singh, where Their Lordships have observed at paragraphs-15 and 17 of the said judgment in the following manner: “15. Novation under Section 62 of the Contract Act requires a clear plea, issue and evidence. Such a question cannot be raised or accepted under Section 100, CPC for the first time in Second Appeal. Novation under Section 62 of the Contract Act requires a clear plea, issue and evidence. Such a question cannot be raised or accepted under Section 100, CPC for the first time in Second Appeal. There was no such issue in the Courts below and the defendant’s evidence was contrary to such a theory. Xxx xxx xxx 17. For the above reasons, we hold that the High Court in Second Appeal exceeded its jurisdiction under Section 100, CPC in giving a finding on an issue which was not pressed in the trial Court. So far as the finding as to a new contract is concerned, there was no issue or evidence. The evidence was to the contrary. We accordingly set aside these findings. Point 1 is therefore held in favour of the plaintiff and against the defendant. “ 44. It is reported in AIR 1997 SC 2517 , Kashitish Chandra Purkait v. Santosh Kumar Purkait and others, where Their Lordships have observed at paragraphs-7 and 8 in the following manner: “7. ….. Generally speaking, an appellant is not to be allowed to set up a new case in second appeal or raise a new issue (otherwise than a jurisdictional one), not supported by the pleadings or evidence on the record and unless the appeal involves a substantial question of law, a second appeal shall not lie to the High Court under the amended provisions. In the present case, no such question of law was formulated in the memorandum of appeal in the High Court and grounds (6)and (7) in the memorandum of the second appeal only which reliance is placed did not formulate any substantial question of law………” 8. In the light of the legal position stated above we are of the view that the High Court acted illegally and in excess of jurisdiction in entertaining the new plea, as it did, and consequently in allowing the Second Appeal. Even according to the High Court the point urged on behalf of the appellant was only a “legal plea” thought no specific plea was taken or no precise issue were framed in that behalf. The High Court failed to bear in mind that it is not every question of law that could be permitted to be raised in second appeal. Even according to the High Court the point urged on behalf of the appellant was only a “legal plea” thought no specific plea was taken or no precise issue were framed in that behalf. The High Court failed to bear in mind that it is not every question of law that could be permitted to be raised in second appeal. The parameters within which a new legal plea could be permitted to be raised are specifically stated in sub-section (5) of Section 100 C.P.C. Under the proviso, the Court should be “satisfied” that the case involves a “substantial question of law” and not mere “question of law”. The reason for permitted the substantial question of law to be raised, should be “recorded” by the Court. It is implicit there from, that on compliance of the above, the opposite party should be afforded a fair or properly opportunity to meet the same. It is not any legal plea that could be raised at the stage of second appeal. It should be a substantial question of law. The reasons for permitting the plea to be raised should also be recorded. Thereafter, the opposite party should be given a fair or proper opportunity to meet the same. In the present case, as the extracts from the judgment quoted hereinabove would show, the High Court has totally ignored the mandatory provisions of Section 100 C.P.C. The High Court proceeded to entertain the new plea and rendered it decision without following the mandatory provision of Section 100 C.P.C……” 45. It is reported in 2001 (3) SCC 179 , Santosh Hazari v. Purushottam Tiwari, where Their Lordships have observed at paragraph-14 in the following manner: “…………. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter……… “ 46. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter……… “ 46. With due respect to the aforesaid decisions, it is clear that under Section 100 C.P.C. not only the question of law but also substantial question of law should be framed. It is also clear that the Court in the Second Appeal should not allow the appellant to make out a case where is no pleading or issue framed. Any such substantial question of law without having any foundation in the pleading or the issue framed cannot be allowed to be sustained. On the other hand, the appellant should not embark upon such substantial question of law to place a new plea in the Second Appeal. 47. Now adverting to the case of the appellant who is the plaintiff in the Suit has not prayed any relief against Respondent No.3. The specific pleading of the original plaintiff is that he has purchased the Suit land from defendant No.2 who got lease of the same from defendant No.3. Further it has been pleaded that defendant No. 1 has no manner of right, title and interest over the said property but threatens to disposes for which the suit is filed with the following prayer. “That the plaintiff therefore prays:- a. For a decree declaring the plaintiff’s right, title and interest as lessee in respect of the disputed property described in Sch. A below after deciding that the defdt. No. 1 has no manner of right, title or interest in respect of the said property. “ b. For a decree for confirmation of possession and or in the alternative for recovery of the possession through Court. c. For decree for permanent injunction restraining the defdt. 1 and his men and agents from interfering the peaceful possession of the plaintiff of the disputed property. d. For a decree for the costs of the suit. e. For a decree of any other relief to which the plaintiff is entitled in the eye of law. 48. On the other hand, defendant No. 1 pleaded he has got valid lease from the defendant No.3 and as such the plaintiff has no right, title and interest as lessee over the disputed property described in Schedule-A. 49. e. For a decree of any other relief to which the plaintiff is entitled in the eye of law. 48. On the other hand, defendant No. 1 pleaded he has got valid lease from the defendant No.3 and as such the plaintiff has no right, title and interest as lessee over the disputed property described in Schedule-A. 49. Following the above pleading, the issue was framed as mentioned in the aforesaid para. There is no any issue framed whether there is relationship of landlord and tenant between plaintiff and the defendant No.3 Rather Issue No. 7 was framed that if the plaintiff’s vendor (defendant No.2) acquired right, title, interest and possession over the suit land and if the plaintiff has acquired any. Issue No. 8 has also been framed whether the defendant No. 1 is a bonafide lessee for value without notice. When defendant No.3 is a proforma defendant and mainly the suit for declaration of right, title and interest basing on the lease created by defendant No. 3 in favour of the defendant No. 2 and then with plaintiff, the question of relationship of landlord and tenant is absolutely repugnant to the pleading and the issues are in hand. Also the judgment of the learned Trial Court after going through the same do not at all decide such issue. On the other hand, for the first time the learned counsel for the appellant raised the plea to decide whether there is relationship of landlord and tenant between plaintiff and defendant No. 3. It is true that plaintiff has raised the facts that the rent has been paid by the plaintiff and accepted by the defendant No. 3 and defendant No. 3 has also produced the documents. Here discussion is made whether the documents of the plaintiff are genuine even defendant No. 3 has produced the records. 50. Be that as it may, the substantial question of law about relationship of landlord and tenant being not a substantial question of law in view of pleading and issue and discussion made by the Courts below was not required to be framed. Therefore, such substantial question of law being outside domain of the case is not required to be answered and in the Second Appeal the appellant is not permitted to raise such question of law to be agitated for its solution. Therefore, such substantial question of law being outside domain of the case is not required to be answered and in the Second Appeal the appellant is not permitted to raise such question of law to be agitated for its solution. Now in the Second Appeal the substantial question of law only finds to be substantial question No. 2 whether the defendant No. 3 is competent to lease out the land again to defendant No. 1 during the subsistence of plaintiff’s tenancy. The substantial question of law comes if the Plaintiff succeeds to prove his right, title, interest and possession of the lease of defendant No. 2, then the defendant No. 3 has no competency to grant permanent lease over the suit plot subsequently in favour of the defendant No. 1. If the plaintiff fails to prove the same, the defendant No. 1 succeeds. But there requires to evaluate the evidence of both the parties. Whether the lease granted by defendant No. 3 over the suit Plot is legally valid and there are issue Nos. 7 and 8 as per pleadings of both the parties in this regard. Out of those issues, the substantial question No. 2 has been raised. 51. Here in this case, learned lower appellate Court has analysed the documents and oral evidence adduced by the parties. It is asserted by the learned counsel for the appellant that in the earlier occasion in the Second Appeal this Court has made certain observation which cannot be reopened in this appeal. Particularly he has drawn the attention to the observation of this Court at para-7 where this Court observed in the following manner: “7……. I am of the conclusion that there has been no proper application of mind of Exts. 1 to 6 and, therefore, the ultimate conclusion in this respect cannot be sustained.” And this Court further observed at para-8 that the two documents like Exts. 7 and 8 have been illegally discarded by misleading the same. Further this Court observed in the earlier Second Appeal that while deciding the possession the learned lower appellate Court should appreciate the documentary evidence and oral evidence adduced by the plaintiff and finally the case was remanded with the following observations: “10……………. 7 and 8 have been illegally discarded by misleading the same. Further this Court observed in the earlier Second Appeal that while deciding the possession the learned lower appellate Court should appreciate the documentary evidence and oral evidence adduced by the plaintiff and finally the case was remanded with the following observations: “10……………. Since the conclusions arrived at by the lower appellate Court are vitiated on account of non-consideration of relevant evidence, misreading of important documents, errors of record committed by the Court in respect of some documents and above all, the basic approach with regard to the non-sanction of a specific parcel of plot No. 216, as indicated earlier, the judgment and decree of the lower appellate Court cannot be sustained. I would accordingly set aside the judgment and decree of the learned additional District Judge and remit the title appeal to him for re-hearing and re-disposal in accordance with law. Parties are directed to appear before the Additional District Judge, Bhubaneswar on 20th of December, 1988 to receive appropriate direction from him with regard to the further hearing of the title appeal.” 52. The aforesaid observation of this Court has not given finality to any of the finding by remitting back the appeal to the learned lower appellate Court for de novo hearing of same. Order 41 Rule 23-A and Rule 25 relate to remand of the appeal where appeal is remanded by framing an issue to the lower appellate Court or trial Court as the case may be to decide and to give the finding on the issue and then the records resubmitted to superior Court, therefore, it is a close remand. But where there is remand of the appeal for fresh hearing of same or de novo hearing of the appeal or Suit as the case may be, the lower appellate Court or trial Court as the case may be is allowed to hear the parties again on the material on record and there the finding of the subordinate Court is not confined to the finding of the superior Court as the observation of the superior Court is only to decide the case afresh on the material on record. If on appreciation of evidence on record lower appellate Court or trial Court being the Court of fact and law comes to a conclusion contrary to the observation of the next higher Court, the fresh appeal lies which requires fresh hearing of the matter. It is popularly known as open remand. Since in the instant case the appeal has been remanded being set aside for de novo hearing of the appeal, the observation of this Court is to look afresh basing on the finding of the lower appellate Court. Therefore, the submission of the learned counsel for the appellant that the observation of the Court is already there and same to be retained in this appeal is untenable. 53. The question of application of Section 107 of the Transfer of Property Act has not been discussed in the earlier judgment of this Court while disposing of S.A. No. 160 of 1981. But while hearing the matter afresh by the lower appellate Court, the question with regard to applicability of Section 107 of the T.P. Act was raised. Accordingly learned lower appellate Court in the impugned order has observed on applicability of Section 107 of the Transfer of Property Act and came to hold that due to want of registered lease deed, the compliance of Section 107 of the Transfer of Property Act remained far from proof by plaintiff. 54. Learned counsel for the appellant submitted that the decision reported in 1974 CLT 888(D.B.), Jagannath Nanda v. Bishnu Dalei & others, where the Division Bench of this Court has held that demand, payment and acceptance of rent creates relationship of landlord and tenant. According to him, as per decision reported in 1973 (2) C.W.R. 987 (D.B.), Durydhan Das v. Collector of Dhenkanal & others, it has been held that irrespective of the unregistered patta, a relationship of lessor and lessee can be inferred from payment and acceptance of rent. On the other hand, learned counsel for the Respondent No. 1 submitted that as per the decision reported in 2017 (II) ILR-CUT-1064, Lingaraj Mahaprabhu v. State of Orissa & Others and 2013 (Supp. II) OLR-689, State of Orissa v. Baidyanath Jena (since dead) represented by his legal heirs and others, without a registered document the appellant or his vendor could not have acquired right of a lessee. II) OLR-689, State of Orissa v. Baidyanath Jena (since dead) represented by his legal heirs and others, without a registered document the appellant or his vendor could not have acquired right of a lessee. But the learned counsel for the appellant submitted that in the administration of Lord Lingaraj there was no practice of granting written leases. Lands were being leased out under the authority of the order passed under Section 19 of the O.H.R.E. Act and by following acceptance of salami and rent etc. 55. It appears from the impugned order of the learned lower appellate Court that the aforesaid argument already has been put up before him and he has discussed at length about this aspect. But the question arises whether the appellant in absence of registered lease deed has acquired the permanent lease to claim title to the suit property. Section 106 and 107 of the Transfer of Property Act is quoted herein below. “106. In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice expiring with the end of a year of the tenancy and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days notice expiring with the end of a month of the tenancy. Every notice under this Section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.” 107. A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only be a registered instrument. All other leases of immoveable property may be either by a registered instrument or by oral agreement accompanied by delivery of possession. A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only be a registered instrument. All other leases of immoveable property may be either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee. Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that lease of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession. 56. The aforesaid provisions are clear to show that Section 106 is applicable if the lease of immovable property is meant for agricultural or manufacturing purposes where the duration should be one year. But for any other kind of lease, the lease is from month to month terminable by giving fifteen days’ notice. Similarly, if the lease is construed as a contract to the contrary as per Section 106 of the Transfer of Property Act (in short “the T.P. Act”) then the lease deed for beyond one year must be registered. On the other hand, a lease for construction of house over an immovable property, the principle of execution of registered document is mandatory. This is also very clear from Section 117 of the T.P. Act because under such provision of law the provision with regard to the lease will not apply in respect of lease for agricultural purposes. The contention of the learned counsel for the appellant is the lease has been made by acceptance of rent and payment of salami. But it is not specifically pleaded whether the lease is made for agricultural purpose. But it is asserted by the appellant that after obtaining the sanction order under Section 19 of the O.H.R.E. Act, the lease was made over the suit land by the defendant No. 3 in favour of defendant No. 2 Section 19 of the OHRE Act speaks the following: “19. But it is asserted by the appellant that after obtaining the sanction order under Section 19 of the O.H.R.E. Act, the lease was made over the suit land by the defendant No. 3 in favour of defendant No. 2 Section 19 of the OHRE Act speaks the following: “19. Alienation of immovable trust property-(1) Notwithstanding anything contained in any law for the time being in force no transfer by exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property; belonging to, or given or endowed for the purpose of, any religious institution, shall be made unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution and no such transfer shall be valid or operative unless it is so sanctioned.” 57. The aforesaid provision is very clear but show that any immovable property beyond five years requires sanction by the Commissioner of Endowment. If the provisions of Section 19 of the OHRE Act read with Sections 106 and 107 of the T.P. Act, it is clear to show that the lease being made beyond one year for the use other than the agricultural use requires registration of lease deed. 58. Learned lower appellate Court has vividly discussed about the evidence on record to show that lease was made for construction of the house. There is no evidence led by the plaintiff-appellant to show that the management of Lord Lingaraj Mahaprabhu never executed the written leases. When custom and ritual is not proved by the appellant to prove such custom prevalent, it must be observed that the contention of the plaintiff is not in accordance with law. It is made clear any usage or custom must be proved under law. Moreover, the provisions of law under the T.P. Act cannot be defeated by mere submission by the learned counsel for the appellant. In this regard also, I agree with the view of the learned lower appellate Court that registered lease deed is necessary for creation of the permanent lease over the suit property. 59. It is also the submission of the learned counsel for the appellant as stated above that by acceptance of salami and delivery of possession, the lease has been validated. 59. It is also the submission of the learned counsel for the appellant as stated above that by acceptance of salami and delivery of possession, the lease has been validated. On perusal of the order of the Commissioner of Endowment plot No. 216/9 has not been specifically approved for lease but under O.A. No. 9/56-57 the proposal of the Board of Trustees for according lease for 32 applications was approved with certain modification. The order does not disclose the names of those 32 persons. In this regard, the learned lower appellate Court has discussed in detail. 60. The statement of P.W. 1 shows that he was the Executive Officer from 1961 till 1963 of the institution. He has noticed Defendant No. 2 to deposit salami vide Ext. 1. Accordingly on 23.09.1961 Defendant No. 2 deposited salami and in cross-examination he has admitted that possession was delivered to defendant No. 2 after realization of salami from him. The sketch map was supplied to him after he paid the salami. In cross-examination he could not say whether the Executive Officer signed on the notice. Also he admitted that he has not seen any paper showing Plot No. 216/9 by the Commissioner of Endowment in favour of Defendant No. 2. So, when he has not seen any paper of sanctioning a particular plot, the question of grant of notice or ownership Certificate or any rent receipt showing the part Suit Plot number are only issued mechanically. When salami was paid in 1961, it is clear that the possession of Defendant No. 2 over the Suit land was not from 1956 to 1961. But P.W. 3 being Defendant No. 2 while examined on behalf of the plaintiff clearly stated that he took possession of the land in 1956 and put Amari fence. His evidence as to possession is not probable when his evidence clearly shows that he was working as the teacher at Khadagpur from 1956 to 1961. It is also available from his evidence that P.W. 2 has again measured Suit land in 1961 and identified the same to him which is identified by Bairagi Rath. But Bairagi Rath has not been examined by the Plaintiff to support him. It is also available from his evidence that P.W. 2 has again measured Suit land in 1961 and identified the same to him which is identified by Bairagi Rath. But Bairagi Rath has not been examined by the Plaintiff to support him. So, the evidence of P.W. 3 is not clear to prove that in 1961 he got possession of the suit plot except identification of same by P.W. 2 P.W.2 also confirms said fact by stating that he has not enquired since then Defendant No. 2 was there. He has only prepared the map Ext. 6 as Amin. Only he says Amari fence and a thatched house over the Suit plot. The evidence of P.W. 4 shows that he was the Executive Officer from 1951 till 1956. It appears from his evidence that he as the Executive Officer of the Board sent the proposal to the Endowment Commissioner to lease out some land. By the time of sanction of the receipt, he has already been relieved. P.W. 4 could not say the area of the plot for which Laxmidhar Maharathi, Defendant No. 2 has applied for taking lease. It is also revealed from his evidence that one Bali Rath was Amin in his office at that time. He also admitted that during his tenure he has not executed any patta in favour of Defendant No. 2 nor delivered possession of the Suit Plot No. 216/9. Statement of P.W. 5 shows that he was the Tahasildar. On 23.9.1961 he has realized Rs. 150/- from Defendant No. 2 towards salami and also received demarcation fee. His evidence is not clear to prove that he created all documents in respect of plot No. 216/9 after verifying records because he expressed his ignorance as to who has made entry of plot No. 216/9 in the lease register allotted in favour of Defendant No. 2 because the Commissioner had only allotted 100 decimals out of Plot No. 216 in favour of Defendant No. 2. From his evidence, it is clear that in Ext. 13, the patta has been issued with the nothing “Hastantara Sunya Pattadar” “ha. Su.pa.” By that, it appears that person cannot transfer his right. 61. The statement of P.W. 6 shows that he has got a plot nearby but he has not supported the plaintiff. From his evidence, it is clear that in Ext. 13, the patta has been issued with the nothing “Hastantara Sunya Pattadar” “ha. Su.pa.” By that, it appears that person cannot transfer his right. 61. The statement of P.W. 6 shows that he has got a plot nearby but he has not supported the plaintiff. P.W. 7, the original plaintiff stated for himself but his evidence only comes after 1966 as he purportedly pleaded to have purchased the suit land from P.W. 3 (Defendant o. 2) in 1966. It is revealed from his evidence that he came to know about the possession, sanction and all material from Defendant No. 2 only. The evidence of P.W. 8 shows that he is working as Executive Officer since 12.6.1975. So, his evidence is not so material for this case. 62. On perusal of the documents produced on behalf of the plaintiff and Defendant No. 2, it appears that they are all documents after 1961. The aforesaid discussion clearly shows as to how the plot No. 216/9 was not allotted to Defendant No. 2 by the order of the Commissioner of Endowment, except a list is attached to the order of the Commissioner to show that Defendant No. 2 is given lease in respect of part Plot No. 216 but not Plot No. 216/9. From the above discussion, it is not proved that following the order of the Endowment Commissioner the delivery of possession was made to the plaintiff except realization of salami and some rent in 1961 and afterwards. The evidence with regard to delivery of possession thus is not proved by cogent, clear and unimpeachable evidence by the plaintiff. The issuance of patta is also creates doubt because the patta was granted by the settlement authority in 1989 vide Ext. 28. But there is Column 2 where the name of the original plaintiff Alekh Chandra Das is noted along with the forcible note of possession of Defendant No. 1. Moreover, the issuance of patta does not show the name of the zamidar as Lord Lingaraj but it has been written as State Government of Orissa. Thus, the settlement R.O.R. does not show any possession in favour of the plaintiff. 63. In terms of the above discussion, the creation right by way of lease by management of Lord Lingaraj Mahaprabhu in favour of Defendant No. 2 has not been proved by preponderance of probability. Thus, the settlement R.O.R. does not show any possession in favour of the plaintiff. 63. In terms of the above discussion, the creation right by way of lease by management of Lord Lingaraj Mahaprabhu in favour of Defendant No. 2 has not been proved by preponderance of probability. Since the right is not created in favour of Defendant No. 2, the transfer of same by way of registered sale deed under Ext. 16 cannot prove any transfer of right, title and interest over the Suit land in favour of the original plaintiff and also on his LRs. The sale deed is also in dispute because when evidence is forthcoming by the plaintiff that the patta is issued to Defendant no. 2 where it is indicated that he has no right to transfer as per discussion made above, he has no right to sell it to the plaintiff. In any way the right, title, interest and possession in favour of the plaintiff is not proved. After remand of the case, the learned lower appellate Court has vividly discussed the documentary and oral evidence on record produced by the Plaintiff and has categorically come to a conclusion that the plaintiff has not proved the right, title, interest and possession thereon either by delivery of possession or acceptance of rent by the Management of the Temple Authority. This Court also agrees with his view. 64. When the plaintiff has not succeeded to prove his plea of create of permanent lease in his favour, the evidence of Defendant No. 1 also requires discussion. The evidence of Defendant No. 1 clearly shows that he has applied in 1972 to allot Suit Plot No. 216/9 and after obtaining necessary permission from the Commissioner of Endowment, Defendant No. 3 executed registered lease deed in his favour on 23.7.1973. In this regard, the documentary evidence adduced by defendant No. 1 requires discussion. Exts. M and J clearly show that Suit land pertaining to part plot No. 9 of plot No. 216 under Khata No. 901 measuring 100 decimals has been sanctioned for permanent lease in favour of Defendant No. 1 because the Board of Trustees have requested for execution of permanent lease in favour of several persons against different plots and out of that list sanction was made upon particular Suit Plot for creating permanent lease in favour of Defendant No. 1 under Section 19 of the Act. that order was passed on 15.11.1972. Pursuant to that the lease deed was executed on 23.7.1973 by Defendant No. 3 in favour of Defendant No. 1 The further documents show that NAC and Special Planning Authority, Bhubaneswar have allowed for construction of house by Defendant No. 1 thereon. Defendant No. 1 is also found to have paid the rent to Defendant No. 3 regularly. The evidence of D.Ws. 1 to 5 also established that Defendant No. 1 has got permanent lease over the Suit Plot and he is in possession of the same. The discussion of the learned lower Appellate Court also shows that Defendant No. 1 has got valid lease under Section 107 of the T.P. Act and right, title and interest of Defendant No. 1 under permanent lease has been created. Such finding of the learned lower Appellate Court is also concurred with. 65. In view the aforesaid discussion, then the plaintiff is not found to have succeeded acquiring the right, title and interest and possession under permanent lease from defendant NO. 3, the question of continuance of such tenancy by Defendant No. 2 and after him by Plaintiff does not arise. Rather in view of positive, clear, consistent and unequivocable evidence adduced by Defendant No. 1, the permanent lease in favour of Defendant No. 1 is well proved. Hence, the substantial question of law is answered accordingly. CONCLUSION 66. Consequently, this Court is of the view that the learned lower Appellate Court after threadbare discussion on evidence on record has come to correct finding and accordingly its finding is concurred herewith. On the other hand, the finding of the learned lower Appellate Court based on the evidence of both the parties being well discussed has not left any room to be interfered or to opine with the said finding as perverse. Hence, the submission of the learned counsel for the appellant fails and submission of the learned counsel for the respondent No. 1 is accepted. Thus, the impugned judgment and decree passed by the learned Additional District Judge, Bhubaneswar are confirmed. 67. In the result, the Second Appeal being devoid of merit stands dismissed. The parties are directed to bear their own cost. Appeal dismissed.