R.N. Misra, J.
1. This is a judgment-debtor's appeal against the affirming appellate order of the learned Subordinate Judge of Nayagarh.
2. The decree-holder-respondent obtained a decree in Title Suit No. 14/51 of 1972/71 in the court of the Munsif, Nayagarh for recovery of possession of the disputed property by evicting the judgment-debtor and for recovery of mesne profits. It levied execution of the said decree in Execution Case No. 18 of 1974. On notice, the judgment-debtor challenged the executability of the decree by filing an application under Section 47 of the Civil P. C, which came to be registered as M.J.C. No. 2 of 1975. The executing court dismissed the objection. On appeal, the learned Subordinate Judge upheld the dismissal. Hence this second appeal.
3. The sole contention of Mr. Pal for the judgment-debtor-appellant is that the lands from which the judgment-debtor was to be evicted constituted an estate and the same having already vested in the State of Orissa under the Orissa Estates Abolition Act (hereinafter referrred to as the 'Act'), the decree-holder was not entitled to execute the decree.
4. The brief facts to appreciate the point are these: The decree of the trial court as already noted is dated 10-12-1972. The judgment-debtor carried an appeal which was dismissed on 25-3-1974. He preferred a second appeal which was dismissed at the stage of hearing under Order 41, Rule 11 of the Civil P. C. on 9-7-1974. The estate vested on 18th of March, 1974. The question of loss of title of the decree-holder had not been canvassed in the appeals. The application of the decree-holder was registered as Vesting Case No. 214 of 1974-75 and on 24-1-1976, the Collector under the Act directed settlement of the property in dispute with the decree-holder and the status of the decree-holder has been treated to be that of an occupancy tenant, Mr. Pal maintains that the decree-holder had obtained the decree in the status of an estate holder against the judgment-debtor who has been found to be a trespasser. The decree-holder is, therefore, not entitled to proceed with the execution on the basis of the settlement obtained from the Estates Abolition Collector. Mr. Pal places reliance on certain Supreme Court decisions in support of his stand. See Haji Sk. Subhan v. Madharao, AIR 1962 SC 1230; Ahmad Hafiz Khan v.Mohammad Hasan Khan, AIR 1967 SC 354; Shivashankar Prasad Sah v. Bai-kunth Nath Singh, AIR 1969 SC 971 and Vidya Sagar v. Smt. Sudesh Kumari, AIR 1975 SC 2295, The ratio of none of these cases is applicable to the facts of the present case. In most of the decisions of the Supreme Court, the title of the decree-holder was lost by abolition and there was no fresh settlement; whereas here, admittedly there has been a settlement in favour of the decree-holder. The relevant provisions of the Act may now be referred to. The consequences of vesting are provided in Section 5, which reads:--
'Notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification in the Gazette under Sub-section (1) of Section 3 or Sub-section (1) of Section 3-A or from the date of the execution of the agreement under Section 4, as the case may be, the following consequences shall ensue, namely.-
(a) subject to the subsequent provisions of this Chapter the entire estate including all communal lands and porambokes, other non-raiy ati lands,.....shall vest absolutely in the State Government free from all encumbrances and such intermediary shall cease to have any interest in such estate other than the interests expressly saved by or tinder the provisions of this Act;
Section 7, which is a subsequent provision of the same Chap. II, provides;--
(1) On and from the date of vesting:--
(a) All lands used for agricultural or horticultural purposes which were in Khas possession of an intermediary on the date of such vesting,
(b) lands used for agricultural or horticultural purposes and held by a temporary lessee or lessees or an intermediary who owns either as intermediary or in any other capacity less than thirtythree acres of land in total extent situated within the State,
shall notwithstanding anything contained in this Act, be deemed to be settled by the State Government with such Intermediary and with all the shareholders owning the estate and such intermediary with all the shareholders shall be entitled to retain possession thereof and hold them as raiyats under the State Government having occupancy rights in respect of such lands subjectto the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner.'
Section 7-A which was inserted by President's Act 3 of 1974 made a specific provision for Trust Estates and provides:--
'If the State Government are. of the opinion that any land or building (being part of a trust estate) vested in the State Government is needed for carrying out the purposes of the trust efficiently, then, notwithstanding anything contained in any other law for the time being in force or in any other provision of this Act, the State Government may settle such land or building with the person who immediately before such vesting was an intermediary in respect of such land or building, subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner and subject to such other terms and conditions as may be prescribed:
Since the judgment-debtor was a trespasser, Section 8 of the Act which protected tenancies is not relevant to be referred to. Section 8-A lays down the procedure for filing of claims and Sub-section (3) thereof provides:--
'On the failure of filing the claims within the period specified under this section the provisions of Clause (h) of Section 5 shall, notwithstanding anything to the contrary in Section 6, 7 and 8, apply as if the right to possession of the lands or buildings or structures, as the case may be, had vested in the State Government by the operation of this Act and thereupon the right to make any such claim as aforesaid shall stand extinguished.
A harmonious reading of the aforesaid provisions gives the clear impression that the statutory scheme is that when a vesting notification is made, an ex-intermediary to whom Section 7 applies is not evicted and he is entitled to hold the land and remain in possession unaffected by the vesting on the basis of a 'deemed settlement'. His right to possession terminates if he fails to make a claim within the prescribed period in terms of Section 8-A, Sub-section (3) whereof provides that such a defaulting ex-intermediary becomes liable for eviction in terms of Section 5 (h) of the Act.
On a reference to the relevant provisions of the Act, therefore, it is manifestly clear that notwithstanding thevesting and until settlement was made, the ex-intermediary was entitled to remain in possession and such possession has been protected by statute. The appellant being a trespasser was liable to be evicted and the decree-holder on the basis of the decree for eviction was certainly entitled to keep him out. In my opinion, the appellant is not entitled to contend on the ratio of the aforesaid Supreme Court decisions that notwithstanding the fact that the statute protected the possession of the ex-intermediary on the basis of a deemed settlement and as a fact in due course there has been a settlement, the decree becomes unexecutable on account of the vesting and the decree-holder must now be asked to go to a fresh suit on the basis of his new title as per the settlement.
5. There is also some force in the submission of Mr, Ram for the decree-holder that the question of loss of title had not been argued in the title appeal or in second appeal though the vesting took place prior to the disposal of the title appeal. In execution, the judgment-debtor was precluded from raising the point. The observation made by the Madhya Pradesh High Court in the case of Bherusingh v. Ramgopal, AIR 1972 Madh Pra 217 supports this submission.
6. There is no merit in the appeal and it must accordingly be dismissed. As no costs were decreed in the courts below, I would also direct that parties will bear their own costs here.