P.C. Misra, J.
1. Defendants 1 (Ka) to 1(Ga) in Title Suit No. 29 of 1974 of the Court of Subordinate Judge, Jajpur are the appellants in this appeal against a cinfirming judgment. The suit is one for declaration of title of the plaintiffs and for recovery of possession after setting aside the order passed in a proceeding Under Section 145, Cr. P.C. in respect of Ac. 6.23 decimals of land appertaining to Khata No. 375 in Mauza Markandapur described in detail in Schedule 'A' of the plaint.
2. One Markand Pani was the original proprietor of Tauzi No. 523 comprising the disputed plots appertaining to Khata No. 375. He executed a registered will on 7-12-1930 in favour of one Radhakanta Pani and Kumuduni Dasi (mother of Radhakanta) in respect of the disputed properties and some other undisputed properties, and appointed one Krushna Prasad Singh, Pleader, Jajpur as the executor of the Will. After Markanda's death in 1930, the aforesaid Kumuduni Dasi executed a Will in favour of her son Radhakanta in respect of all her properties including herinterest in the suit Khata. She died in the year 1936 whereafter Radhakanta became the sole owner of the lands covered under the suit khata. Krushna Prasad Singh, the executor of' the Will executed by Markanda was managing the properties covered thereunder during the minority of Radhakanta. When Radhakagta attained majority he possessed the lands in question and cultivated the same by his own plough and bullocks and through his own labourers till 1948. Finding some difficulty in continuing in khas cultivation of the land, Radhakanta inducted defendant No. 1 to cultivate the lands as bhag tenant on a sanja basts. Defendant No. 1 continued to possess the suit lands till some time in 1952 when on the demand of Radhakanta he gave up possession. Thereafter Radhakanta again began to cultivate the same personally through his own labourers. While Radhakanta was in khas possession of the land in dispute, the estate was abolished and Radhakanta made an application Under Section 6 & 7 of the Orissa Estates Abolition Act (hereinafter refered to as the 'Act') for settlement of the lands in his favour by fixing fair and equitable rent. The said application was registered as Claim Case No. 28 of 1957-58. In the said claim case defendant No. 1 appeared and objected to the settlement prayed for by the plaintiffs on the ground that he had obtained a sanja patta on 3-3-1936 from the aforesaid Krushna Prasad and had acquired right of occupancy in course of time. According to the plaintiffs, the same was false plea founded upon a forged document purporting to the sanja patta. The plaintiffs further alleged that defendant No. 1 had never possessed the suit land as a tenant except for the years 1948-52 as earlier stated.
3. According to the plaintiffs, Radhakanta died in the year 1958 during pendency of the claim case referred to above and his son, defendant No. 2, was sbustituted in his place. It has been further alleged that at the time of hearing of the aforesaid claim case No. 28 of 1957-58 one Sri A. C. Prusty, Pleader, who was appearing for defendant No. 1 gave up the claim of occupancy right of the client in respect of the lands covered under the suit khata and admitted that the properties under the suit khata were in khas possession of theintermediary on the date of vesting and consequently the ex-intermediary should be settled with the land as occupancy tenant further admitted that the ex-intermediary did not possess more than 33 acres of land. The Estate Abolition Authorities by order deed 19-8-1969 decided the claim case No. 28 of 1957-58 in favour of Umakanta (defendant No. 2), who is the son of Radhakanta as occupancy tenant. Defendant No. 1, however, preferred O.E.A. Appeal No. 48 of 1959 before the Collector, Cuttack against the aforesaid order in Claim Case No. 28 of 1957-58, which was dismissed by the appellate authority by his judgment dated 17-11-1959. Against the appellate order defendant No. 1 preferred O.J.C. No. 2 of 1960 in this Court which was also dismissed on 3-1-1961. According to the plaintiffs, the aforesaid order of settlement Under Sections 6 & 7 of the Act which became final enures to the benefit of defendant No. 3 (mother of defendant No. 2) and-thus both defendants 2 & 3 became occupancy tenants in respect of Ac. 7.09 decimals of land covered under the suit khata.
4. It has been alleged in the plaint that the defendants 2 & 3 being in need of money sold the suit lands described in Schedule 'A' of the plaint to plaintiffs 1 to 8, one Durga Charan Biswal (predecessor of plaintiffs 9 to 11), one Prahaliad Biswal (father of plaintiff No. 12), plaintiffs 13 and 15 and defendant No. 5 by four different registered sale deeds dated 24-10-1959 on receipt of consideration and the aforesaid purchasers were put in possession whereupon they continued to cultivate the suit land as owners thereof. It has been further pleaded that the aforesaid purchasers had been cultivating the suit land as bhag tenants some time prior to their purchase.
5. The aforesaid purchasers at different times sold portions of the disputed land is favour of other plaintiffs the detail account of which has been given in paragraph 7 of the plaint. Out of the transactions narrated in the said paragraph it has been alleged that the sale deed executed by plaintiff No. 20 in favour of defendant No. 6 was in fact not a safe, bat it was a security for the loan of Rs. 800/- advanced by defendant No. 6 to plaintiffNo. 20 and, therefore, no title did pass thereunder. While continuing in such possession, as alleged by the plaintiffs, defendant No. 1 tried to disturb their possession and a proceeding under Section 145, Cr. P.C. was initiated apprehending breach of peace. The learned Magistrate declared the possession of defendant No. 1 which, according to the plaintiffs, was illegal. Some of the plaintiffs preferred Criminal Revision No. 315 of 1969 in this Court, which was also dismissed. On the basis of these facts, the plaintiffs claim reliefs in mentioned earlier.
6. Defendant No. 1 contested the suit by filing a written statement. He denied all the plaint allegations and stated that the properties under the disputed khata was under the management of the executor Krushna Prasad Singh, who inducted this defendant as a sanja tenant and granted a lease deed in his favour whereafter the defendant has been continuing to possess the suit land on payment of sanja dues. His possession as sanja tenant continued even after Radhakanta became a major. The further case of defendant No. 1 is that while Radhakanta was the proprietor of the Tauxi comprising of the suit khata, the estate vested by virtue of a notification issued under the Orissa Estates Abolition Act whereafter Radhakanta filed a proceeding Under Section 7 of the Act praying for settlement of the suit khata in bis Savour. The said proceeding was contested by this defendant, but it has been simultaneously alleged that no public proclamation was duly served and the Estate Abolition Collector did not duly maintain the order-sheet of the case. According to this defendant, the Estate Abolition Collector had no jurisdiction to settle the land in favour of the plaintiffs, which he did without making any enquiry whatsoever nor did he record any finding as to whether the applicant was in khas possession of the land on the date of vesting or that he was in possession of more than 33 acres of land. It has been admitted by defendant No. 1 that he had engaged Sri A. C. Prusty. Pleader to nontest the proceeding, but had never authorised him to make any admission on his behalf as recorded by the Estate Abolition Collector or to make any statement prejudicial to the interest of thedefendants. The statement of Sri Prusty as recorded by the Estate Abolition Collector is alleged to be the outcome of his being gained over by the claimant in the said case and, therefore, it is asserted by defendant No. 1 that he would not be bound by the said statement. It has been further alleged by the defendants in the written statement that in-spite of the order of settlement passed in favour of ex-intermediary he continued to remain in possession as before and when defendant No. 2, who was settled with the land could not succeed to possess the suit lands despite several attempts in that behalf, he created several documents of transfer making false recitals that the vendees of those documents were bhag tenants in respect of the suit land. It is alleged that defendant No. 1 thus remained in possession of the suit land and has acquired right of occupancy by adverse possession and his possession has been rightly declared in the proceeding Under Section 145 of the Cr. P.C. A further case was set up in the additional written statement filed by defendant No. 1 that since after the statement in favour of defendant No. 2 in the proceeding Under Section 6 & 7 of the Act, the sanja tenancy of defendant No. 1 was terminated and his possession was in denial of the title of defendant No. 2 and thus he has acquired valid title by adverse possession.
7. Learned trial Court framed the issues which arise out of the pleadings and on consideration of the evidence adduced by the parties recorded the following findings :
(i) That the suit land was validly settled with defendant No. 2 in the proceeding Under Section 7 of the Orissa Estates Abolition Act by order passed in that behalf on 19-8-1959. The settlement of the suit land in favour of defendant No. 2 enures to the benefit of defendant No. 3 and has been finally concluded by the competent authorities and confirmed by the High Court and, therefore, there is no scope for reagitating the same matter in the present suit.
(ii) That the plaintiffs acquired valid right, title and interest in respect of the suit land by virtue of their purchases.
(iii) That the contesting defendants did not plea that after cessation of their bhag tenancy they continued in possession of the lands satisfying the elements of adverse possession nor they have established the same by evidence. Hence, their plea of acquisition of title by adverse possession cannot be accepted.
(iv) That the title of the plaintiffs over the suit land was denied for the first time by late defendant No. 1 in the year 1968 and thus he cannot be said to have acquired title by adverse possession by the year 1974 when the suit was filed.
On these findings the suit of the plaintiffs was decreed.
8. The present appellants, who had been substituted in place of original defendant No. 1 after his death, carried up the matter in Title Appeal No. 82 of 1980. The District Judge, Cuttack, who heard the appeal, dismissed the same by judgment impugned in this appeal. He recorded the following findings :--
(i) That the settlement of land by Orissa Estates Abolition Collector with defendant No. 2 on 19-8-1959 under the provision of the Act was unsuccessfully challenged by defendant No. 1 which was finally set at rest by the judgment of the High Court dated 3-1-1961 passed in O.J.C. No. 2/60. That judgment being conclusive between the parties, the same is not available to be challenged in the suit and in that view of the matter, it is unnecessary to examine as to whether the plaintiffs had been in possession prior to the settlement of land as bhag chasi under defendant No. 2.
(ii) That there is overwhelming evidence that despite settlement of land with the plaintiffs' vendor i.e. defendant No. 2 defendant No. 1 continued in possession and his possession has been confirmed in the proceeding Under Section 145, Cr. P.C.
(iii) That defendant No. 1 was in continuous possession of the disputed land from 19-8-59 (date of settlement under the Estates Abolition Act) till 19-12-1974 (the date of institution of the mil) for more than 15 years.But out of the said period he continued to possess the disputed land as tenant till 24-11-1968 during which period he cannot challenge the title of the plaintiffs. Therefore, his possession from 24-11-1968 till 19-10-1974 though adverse in nature falls far short of the requisite period for prescribing title and, therefore, he could not acquire title by adverse possession. Hence this appeal.
9. This second appeal was admitted on the point of law, namely, whether the view taken by the lower appellate Court that the theory of estoppel within the meaning of Section 116 of the Evidence Act shall preclude the defence plea of acquiring adverse possession can be sustained in law? At the hearing the learned counsel appearing for the appellants urged the following points for consideration saying that the same arise out of the substantial question of law certified at the time of admission of this appeal to be examined at the time of hearing.
(i) From the materials on record it is apparent that the original defendant No. 1 possessed the suit land from 19-10-1959 onwards in his own right. But the learned District Judge in appeal has made out a third case in categorising the possession of defendant No. 1 differently during different periods.
(ii) In view of the proposition that a tenant cannot question the title of the landlord before surrendering possession and the plea of estoppel cannot be raised unless such a case was made out by the plaintiffs, the plea of estoppel was inappropriately applied against defendant No. 1 and his successors.
(iii) The case of the plaintiffs being that defendant No. 2 delivered possession to them on 24-10-1959 and that they were in possession till 1968, which is inconsistent with the plea of defendant No. 1 that he did not surrender possession after termination of his tenancy; and that he continued in possession inspite of the transfer made by the defendant No. 2, thereby his possession would be adverse to the purchasers, namely, the plaintiffs, it must be held that they have acquired title by adverse possession.
(iv) If possession of defendant No. 1 isfound to be continuing as a tenant till the date of transfer by defendant No. 2 in favour of the plaintiffs, it must be held to be adverse. Thus the plaintiffs' possession after the transfers in favour of the other plaintiffs must also necessarily be adverse, as it is not the case of the plaintiffs that defendant No. 1 was a tenant under them. Even a tenant continuing in possession cannot ipso facto be a tenant of the transferee-landlord without attornment or without payment of rent to the landlord. Thus, possession of defendant No. 1 must be held to be adverse.
(v) Assuming for the sake of argument that the finding of the District Judge that defendant No. 1 was a tenant under the plaintiffs from 24-10-1959 onwards is correct, his possession would continue till the date of suit in such capacity and, therefore, the suit for eviction filed by the plaintiffs against defendant No. 1 and his successors is not maintainable in a civil Court.
10. Learned counsel appearing for the respondents on the other hand, argued that in the additional written statement filed by defendant No. 1 it was clearly mentioned that since after the settlement the sanja tenancy of defendant No. 1 stood terminated and his possession thereafter having been continued for more than 12 years, the same matured to be valid title. On the basis of the aforesaid plea taken in the written statement, it was argued by the learned counsel for the respondents that his continuance as a tenant as alleged must be disbelieved. Replying to the character of possession, if at all, of defendant No. I after the date of settlement as alleged, it was argued that such possession cannot be that of a trespasser, as he may at best be a tenant at sufferance and such possession does not mature to be that of a trespasser until hostile title is set up by him. In this view of the matter, it was urged that assuming that defendant No. 1 was in possession after 1959, he could not prescribe title by adverse possession. Basing on the aforesaid theory it was submitted by the learned counsel for the respondents that the plea of adverse possession cannot be accepted by any stretch of imagination. On the question of jurisdictionof the civil Court it was argued that the relationship of landlord and tenant having come to an end, it is the civil Court alone, who can evict defendant No. 1 and his successors and not the revenue Court. He has further argued that the period prescribed under Article 67 of the Limitation Act cannot be computed from the year 1959 as tenancy was not determined in 1959, but stands terminated as per the defendants' own plea in the written statement and, therefore, it would be a suit governed by Article 65 of the Limitation Act and the limitation is to be computed from the date when the defendants asserted title adverse to that of the plaintiffs. Though lot of time was consumed by the respective counsel in analysing the character of possession of a tenant after the termination of tenancy, referring to different provisions contained in the Transfer of Property Act, the same was ultimately found to be inapplicable in the facts of the present case which I would presently deal with.
11. The case of the plaintiffs as pleaded in the plaint is that the suit land belonged to and stood recorded in the name of one Narkanda Pani, who was the proprietor of the Tauzi to which it appertains. That Radhakanta Pani ultimately became the proprietor of the suit khatais not disputed. It is also admitted in the plaint that some time in the year 1948 Radhakanta inducted defendant No. 1 as a tenant in respect of the suit land to cultivate the same as a bhag tenant. The plaintiffs's case is that he continued to cultivate the lands in such capacity till 1952 whereafter Radhakanta brought the lands to his khas possession and his possession continued till the date of vesting of the estate under the Orissa Estates Abolition Act. The case of defendant No. 1, however, is that Radhakanta never possessed the land in Khas and he was cultivating the suit land as a bhag tenant till the date of vesting and even till the order of settlement passed under Sections 6 & 7 of the Act. In the original written statement it was pleaded that in spite of the order of settlement defendant No. 1 continued in possession of the disputed land denying the title of the ex-intermediary in his own right and in the additional written statement it was suited that sanja tenancy having been terminated since after settlement,the possession of defendant No. 1 thereafter became adverse and matured to title after lapse of the requisite period. Though a plea was taken in the written statement that the proceeding under Section 7 of the Act was without jurisdiction and vitiated for want of public proclamation and some other defects in the proceeding itself, the said plea was practically abandoned at the hearing. This plea implies: admission of title of the vendor of the plaintiffs and it was rightly held by the learned Courts below that by virtue of the settlement Under Section 7 of the Act, the vendor of the plaintiffs acquired the right of a raiyat in respect of the disputed land. The learned Courts below also came to the same conclusion and in my opinion rightly so as the settlement Under Section 7 having been challenged by defendant No. 1 in all possible forums including the High Court in O.J.C. No. 2 of 1960 and all the Courts having upheld the settlement, the same is beyond the scope of challenge in the present suit. Thus, I would proceed on the basis that the defendant No. 2, the vendor of plaintiffs had acquired the right of occupancy in respect of the disputed land by virtue of the order of the Estate Abolition Collector dated 19-8-1959 which stood merged with the order passed by the High Court on 3-1-1961 in O.J.C. No. 2 of 1960.
12. As already indicated the submission of the learned counsel for the appellants is based on the claim of adverse possession, which, according to him, started with effect from the date of settlement. The learned counsel appearing for the respondents has vehemently argued that defendant No. 1 has failed to prove his continuance of possession, as a fact, but assuming for the sake of argument that he is found to be in possession of the land, it must be taken to be the possession of a tenant at sufferance and, according to him, such possession is not adverse to the landlord until hostile title is set up. In support of the aforesaid rival contentions, the learned counsel for both parties referred to various provisions contained in the Transfer of Property Act. But in my view, the provisions of the said Act would not at all apply to determine the nature and character of possession of defendant No. 1 in thepresent case, the reason being that admittedly, defendant No. 1 was inducted in the suit land as a bhag tenant and such tenancy was to be governed by the tenancy laws then in force and not by the Transfer of Property Act. Chapter V of the Transfer of Property Act deals with lease of immovable property. 'Lease' has been defined in Section 105 of the Transfer of Property Act as a transfer of a right to enjoy such property made for certain time expressed or implied or in perpetuity for some consideration. In case of a lease the transfaror is called the lessor and the transferee is called the lessee. By creation of a lease an interest in the immovable property is transferred to the lessee by lessor, which is distinguishable from a licence as in the latter it is only a permission to use the land by the licensee without any interest in the land being transferred in his favour. In case of a lease, the lessor is very often called as a landlord and the lessee as a tenant. But a 'tenant' as defined in various temporary legislations is somewhat different. Though the word 'tenant' was defined in the Orissa Tenancy Act to mean 'a person who holds land under another person and is or but for a special contract would be liable to pay rent for that land to that person' and the said Act has further classified tenants into four classes, namely, tenure holders, raiyats, under-raiyats and chanduadars. The said definition and classes of tenants did not recognise the status and rights of a bhag tenant who was the tiller of the soil and was cultivating the land under any of the aforesaid categories of tenants and provided no protection to them. This necessitated the enactment of Orissa Tenants Protection Act, 1948 followed by Orissa Tenants Relief Act, 1955. A progressive legislation relating to agrarian reforms and land tenures on the gradual abolition of intermediary estates was provided for in Orissa Land Reforms Act to confer' better rights on agriculturists with which we are not presently concerned. But it being the admitted case of both parties that defendant No. 1 was inducted as a tenant, to cultivate the lands, his rights are to be worked out in accordance with definition of the word 'tenant' as given in the aforesaid temporary tenancy legislations, namely, the OrissaTenants Protection Act, 1948 and the Orissa Tenants Relief Act, 1955. Both the aforesaid Acts give the same definition of a 'tenant' which means 'a person who under the system generally known as bhag sanja kata or such similar expression cultivates the lands of another person on condition of delivering to that person :--
(i) either a share of produce of such land, or
(ii) the remitted value of a portion of the crop raised on the land, or;
(iii) a fixed quantity of produce irrespective of the yield from the land, or;
(iv) produce or its estimated value partly in any one of the ways described above and partly in another.
13. The aforesaid tenants have no abiding interest in the land though they enjoy the privilege of being in cultivation of the land and their right to continue cultivation is protected by these temporary legislations. The difference between the 'tenant' under the Orissa Tenancy Act and a 'tenant' under these temporary legislations has been indicated by a Bench decision of this Court reported in 1972(1) CWR 381 (State of Orissa represented by the Collector, Puri v. Narendra Kumar Routray), in which their Lordships have highlighted the distinction in the following words:
'The real distinction is that the tenant under the Tenancy Act has an abiding interest while the tenant under the temporary legislation is the cultivator without such interest.'
The Orissa Land Reforms Act which later on came to the field and deals with such category of tenants has defined the word 'tenant' to mean 'a person, who has no rights in the land of another but under the system generally known as Bhag, Sanja or Kata or such similar expression as under any other system, law, contract, custom or usage personally cultivates such land on payment of rent in cash or in kind or in both etc.' Thus defendant No. 1, who was inducted as a bhag tenant had no abiding interest in the land, but was given the right to cultivate. He was not evictable except on the grounds permissible under the saidActs. It is the admitted case of the parties that no proceeding under any of the aforesaid temporary Acts had ever been taken. The plaintiffs' case is that defendant No. 1 gaveup possession in the year 1952 in favour of Radhakanta whereafter Radhakanta continued to possess the land in khas, whereas it is the case of defendant No. 1 that he did not give up possession as alleged by the plaintiffs and continued to possess the suit land as a bhag tenant till 1959. Thereafter the sanja tenancy stood terminated and his possession became adverse to the landlord. In this context, it is unnecessary to discuss as to whether the plaintiffs version that defendant No. 1 gave up possession in 1952 or defendant No. 1's version that he continued tilt 1959 as bhag tenant is correct, as admittedly the bhag tenancy did not continue after 1959. The question, therefore, arises for consideration as to what would be the nature of possession, if at all, of defendant No. 1 after 1959, as according to his own case, the bhag tenancy did not subsist thereafter.
14. Under the general law, if a lessee governed by the Transfer of Property Act more often called a tenant, continues in possession of the lease-hold, after the tenancy is terminated, he may be called a 'tenant holding over', if the lessor or his legal representative accepts rent from him or otherwise assents to his continuing in possession. But if it is not so i.e. if his continuance is not by the assent of the lessor, he is merely a 'tenant at sufference', which expression is merely a fiction to distinguish him from a trespasser. A trespasser's possession is wrongful both in its inception as well as in its continuance whereas in case of 'tenant at sufferance' his possession was rightful in its inception, but became wrongful in its continuance after termination of tenancy. There exists no relationship between a 'landlord' and 'tenant at sufference' as lessor and lessee and a suit for his eviction was not necessary to be preceded by a notice Under Section 106 of the Transfer of Property Act. A lease of immovable property validly created under law can come to an end by various modes as enumerated under Section 111 of the aforesaid Act. Thus 'tenancy at sufferance' is not aright at all. Continuance of possession of a 'tenant at sufferance' though wrongful, such possession by itself does not become adverse to the lessor. His character of possession in the past no doubt was that of a lessee, but not after determination of the lease by any of the modes given in Section 111 of the Transfer of Property Act. Continuance of possession with the assent of the landlord could make him a 'tenant holding over', but without landlord's assent his possession is attributable to the inaction of the lessor in taking steps for his eviction. In such a position the landlord at any time is entitled to enter upon the land without notice to him and put an end to his continuance in possession. Therefore, a tenant at sufferance must establish some overt act in defiance of the title of the landlord, so as to change the character of his possession to the possession of a trespasser to enable him to prescribe title against his landlord. That is why, a tenancy at sufferance comes to an end by the demand for possession or by entry by the landlord without notice or by the tenant's quitting. If the landlord demands and the tenant instead of giving up possession still continues to possess his possession thereafter may be sufficient to be categorised as adverse to the landlord.
15. As already stated the defendant No. 11 being a tenant as defined under the temporary tenancy legislations had no abiding interest in the land unlike a lessee governed by the Transfer of Property Act. His rights after termination of the tenancy cannot stand on a better footing than that of a tenant at sufferance. His character of possession after termination of the lease may be said to be akin to a 'tenant at sufferance' and such possession not being adverse to the landlord cannot clothe him with title irrespective of the length of time. I would, therefore, conclude that neither defendant No. 1 nor his successors have acquired title to the disputed property by adverse possession.
16. By the discussions made in the preceding paragraphs all the points which were raised with reference to the judgment of the lower appellate Court and mentioned in paragraph 8 above, stand answered. Thepoints which have not been specifically dealt with are not necessary to be discussed after determining the true nature of possession of defendant No. 1.
17. In the result, this appeal is devoid of any merit and is accordingly dismissed. But in the facts and circumstances of the case, there shall be no order as to costs.