R.N. Misra, J.
1. Defendants 2 to 4 in a suit for declaration of title and confirmation of possession have appealed against the reversing judgment and decree of the learned District Judge of Puri.
2. The disputed property is 62 decimals of Anabadi land in Plot No. 84 and constituted part of an estate which has long vested in the State of Orissa. Plaintiffs alleged that before plaintiff No. 1, his father had taken oral lease of the property from the ex-intermediary and in the year 1947, plaintiff No. 1 obtained written leases and planted trees on the disputed property and continued to be in possession. As the plaintiff No. 1 was a settled raiyat of the village, he acquired occupancy right in the disputed property. Subsequent to vesting of the estate, defendants 2 to 4 made an application to the Estate Abolition Collector against plaintiff No. 1 asserting communal rights of the villagers over the property and on the basis pf the said application of the defendants Miscellaneous Case No. 4 of 1958-59 was registered under Section 5 (i) of the Orissa Estates Abolition Act (hereinafter referred to as the 'Act'). The Estate Abolition Collector set aside the lease and an appeal carried against the said decision was dismissed. During the pendency of the proceeding under Section 5 (i) of the Act, plaintiff No. 1 had sold the property to plaintiffs 2 to 5. All the plaintiffs, therefore, filed the suit on 3-1-1968 asking for the following reliefs:--
(i) to declare that plaintiffs have acquired occupancy right in the disputed property;
(ii) the order of the Estate Abolition Collector under Section 5 (i) of the Act is illegal and ultra vires;
(iii) plaintiffs' possession over the disputed property be confirmed; and
(iv) it be declared that defendants 2 to 4 had, nor have, any right, title or interest or possession over the disputed property.
3. Two separate written statements were filed, one by the State of Orissa (defendant No. 1) and the other by defendants 2 to 4. The first defendant pleaded that the alleged leases were invalid as they had been taken after 1-1-1946 and the allegation of oral lease was without basis; plaintiff No. 1 had not acquired any occupancy right as alleged; the decision of the Estate Abolition Collector was not open to challenge and the suit was not maintainable.
Defendants 2 to 4 in their written statement claimed that plaintiff No. 1 or his father had never taken any oral lease nor had plaintiff No. 1 taken any lease in writing in 1947. The villagers have communal right over the land and on objection of the defendants, a proceeding under Section 5 (i) of the Act had been duly initiated and on enquiry the written leases obtained during 1949 and 1950 had been duly cancelled.
4. The trial Court found that there was no oral lease prior to 1-1-1946 and plaintiff No. 1 had got into possession of the property only subsequent to the leases under Exts. 2 to 5. It found that the cancellation of the leases under Section 5 (i) of the Act was a valid order. The Civil Court's jurisdiction to maintain the suit was barred under Section 39 of the Act. Accordingly it dismissed the suit.
5. On plaintiffs' appeal, the learned District Judge reversed the decree of the trial Court by holding:--
(i) Though no rent receipts prior to 1946 have been adduced, on the evidence of P. W. 4 it is to be held that the lease was prior to 1-1-1946;
(ii) The evidence of P. W. 2 that plaintiff No. 1 came into possession subsequent to the written leases was a confused one and, therefore, evidence of P. W. 4 should be preferred;
(iii) Rent receipts under Exts. 6 and 7 series establish that plaintiff No. 1's father was in possession prior to 1946;
(iv) By acceptance of rent, an agricultural tenancy had been created;
(v) Plaintiff No. 1 had acquired occupancy right prior to vesting of the estate and the Estates Abolition Act did not take away or affect such right. Therefore, the proceeding under Section 5 (i) of the Act was not maintainable.
6. Mr. Pal for defendants 2 to 4 who are appellants contends:--
(1) Plaintiffs have failed to establish any lease in their favour prior to 1-1-1946 and have produced four leases from the co-sharer-ex-intermediaries between 1949 and 1950. In view of the decision of this Court in the case of Benudhar Dalai v. The State, AIR 1958 Orissa 197, the suit was not maintainable and the bar under Section 39 of the Act applies;
(2) In the written statement of the plaintiff No. 1 in the proceeding under Section 5 (i) of the Act which has been marked as Ext. A-1, plaintiff No. 1 did not claim that he had any oral lease prior to the written leases. On the other hand, he alleged that for about fifteen years prior to 1959, when the written statement was filed, he was in permissive occupation and was storing the yield from his lands on the disputed property and on a part of it he had been raising plantains, potatoes and other miscellaneous crops. This was contrary to what is now pleaded;
(3) P. W. 2 had clearly admitted that plaintiff No. 1 was put into possession subsequent to the written leases. The learned Appellate Judge without any justification refused to act on such admission and relied upon the evidence of P. W. 4 which runs counter to the terms of the lease deed. There is a clear admission of P. W. 3 that possession had been delivered after the written leases -- the fact which has been lost sight of by the lower appellate court. P. W. 4 had stated that in the zemidary register there was a note that the disputed property was let out to the father of plaintiff No. 1 on Bhag basis. No such document has ever been produced to support the evidence.
(4) All the leases are subsequent to the coming into force of the Orissa Communal, Forest and Private Lands (Prohibition of Alienation) Act, 1948 (Orissa Act 1 of 1948). The Land is communal in character and, therefore, no lease in respect of such land could be created by the ex-intermediaries;
(5) Plaintiff No. 1 claimed that there were written leases in 1947. No such lease has, however, been produced and as already indicated Exts. 2 to 5 are of different dates between 1949 and 1950.
7. When' the appeal came up for hearing before one of us, Mr. Jagadeb Ray for the plaintiff-respondents maintained that the appeal at the instance of defendants 2 to 4 did not lie. The second appeal was referred to a Division Bench for disposal and that is how the matter is now before us.
8. It is appropriate that we dispose of the preliminary objection first. According to Mr. Jagadeb Ray, defendants 2 to 4 have taken the stand that villagers represented by them had communal rights in the disputed property. When the disputed land vested in the State of Orissa free of encumbrances, communal right, if any, was wiped out. Again, when the trial Court negatived the claim of communal right and defendants 2 to 4 did not challenge the finding in appeal before the lower appellate Court, the claim of communal right no more exists to be dealt with in the second appellate court. Reliance is placed on the decision of the Supreme Court in the case of Nirmala Bala v. Balai Chand, AIR 1965 SC 1874 in support of the preliminary objection. The facts of the case as far as relevant are the following: A filed a suit against, two deities represented by B and N, his wife, claiming a declaration that N was his benamidar in respect of the properties purchased in her name and later on dedicated to the two deities and that by the deed of endowment there was no absolute dedication in favour of the two deities. B, in his written statement, denied the claim advanced by A and submitted that the dedication in favour of the deity was absolute. An issue was framed about the character of the endowment and it was held by the Trial Court that the endowment was partial and that the beneficial interest in the property still remained vested in A. The case of the deities that there was an absolute dedication was rejected. The decree was not challenged by B on behalf of the two deities. N alone appealed and contended that there was an absolute dedication in favour of the deities but she did not represent the deities and could not raise that claim unless she got herself formally appointed guardian of the deities by order of the court. The trial Court's decree was confirmed by the High Court subject to certain modifications. When A appealed to the Supreme Court, the two deities were impleaded as respondents, but the deities had not taken any part in the proceedings before the Supreme Court in the same way as they had not in the High Court. The Supreme Court took the view that the decree against the two deities had become final no appeal having been preferred to the High Court and it was not open to N to challenge the decree in so far as it was against the deities because she did not represent them. On the facts of the case, the Court was of the view that the decree in regard to the deities could stand apart from the other and the lis between the two sets of defendants was in substance separate. When the decree of the trial Court is allowed by a party to become final by not being appealed against, the other party to the litigation whose right is not affected by the decree against the deities cannot invoke the power of the appellate court under Order 41, Rule 33 of the Code of Civil Procedure to pass a decree in favour of the party not appealing.
The facts of the reported decision are very different. The plea of communal right was a common one for both the sets of defendants in the litigation before us. The original suit had been dismissed though there was a finding against the defendants in regard to the claim of communal rights. Defendants had no opportunity to appeal because the ultimate decree was in their favour and the order in the proceeding under Section 5 (i) of the Act had not been vacated. In the circumstances, the effect of the decree of the trial Court cannot operate as res judicata so far as the claim of communal right is concerned.
Mr. Jagadeb Ray next contended that the real party to the litigation was the State (defendant No. 1). When it had not chosen to prefer an appeal, defendants 2 to 4 should not be found to have locus standi to disturb the decision of the court by preferring an appeal. We find that defendants 2 to 4 are vitally interested in the litigation. It is true that the plaintiffs had not impleaded them when the suit was filed but there was an application for addition by the defendants themselves and after hearing parties, the trial Court brought these defendants on record and the plaintiffs proceeded to ask for relief against them by amending their plaint. The defendants are thus parties to the litigation and plaintiffs have claimed relief also against them. The decree of the appellate court does affect the defendants and, therefore, it cannot be said that they do not have a right of appeal. The preliminary objection is without force and must accordingly be rejected.
9. Admittedly in a proceeding under Section 5 (i) of the Act, the leases of plaintiff No. 1 (Exts. 2 to 5) have been set aside. The Estate Abolition Collector found that the leases had been created after 1st day of January, 1946. Under that provision, a lease was liable to be set aside if it is made or created at any time after the first day of January, 1946, or if the same is made with the object of defeating any object of the Act or obtaining higher compensation thereunder, in Benudhar Dalai's case, (AIR 1958 Orissa 197), it has been held that the Civil Court has jurisdiction to examine the finding as regards the date of the lease and that jurisdiction would not be ousted by Section 39 of the Act. The decision under Section 5 (i) of the Act is, therefore, open to challenge in so far as it is based upon a finding that the leases were subsequent to 1-1-1946.
10. Plaintiffs have produced, four lease deeds being Exts. 2, 3, 4 and 5. Exts. 2 and 5 are dated 30th of August, 1949. while Ext. 3 is dated 16-9-1949 and Ext. 4 is dated 11-4-1950. These are all unregistered Hukumnamas issued by different co-sharer landlords. There is no mention in any of these documents that the lessee was in possession of the property under a prior lease -- oral or written. If really plaintiff No. 1 or before him his father had obtained oral leases as claimed in the plaint, it is natural to expect a statement in that behalf in the lease deeds. Again, though it is claimed that there are documents in existence prior to the leases evidencing possession of the plaintiff No. 1, no such document has been produced. While it is the plaintiffs' case that rent was being paid to the intermediaries, no rent receipt prior to the written leases has been forthcoming. The two witnesses for the plaintiffs have categorically admitted that possession of the plaintiffs commenced subsequent to the written leases. The lower appellate court noticed the evidence of P.W. 2, but did not act upon it by labelling it as a confused statement and chose to rely upon P.W. 4. It lost sight of the separate admission of P.W. 3 which runs thus:--
'After execution of the lease deeds the Tahsildar of the landlord delivered possession of the suit land to the father of plaintiff No. 1. In my presence the landlord directed the Tahsildar to deliver possession of the suit land.' If the lower appellate court had referred to the evidence of P.W. 3, there would have been no occasion to hold that P.W. 2's statement was a confused one and P.W. 4 was to be relied upon. Though in paragraph 4 of the plaint the plaintiffs have alleged that leases in writing have been taken in the year 1947, the written leases produced before the court, as already indicated, are of the years 1949 and 1950. Plaintiffs must have known when exactly the written leases had been taken and no explanation is forthcoming for pleading differently.
11. Issue No. 5 in the suit was in regard to communal right of the villagers. The learned munsif dealt with this issue by saying:--
' 'Communal land' as defined in Section 2 (a) (ii) of Orissa Act I of 1948 means-
'in relation to cases governed by the Orissa Tenancy Act, II of 1913, lands recorded as gochar, rakshit or sarbasadharan in the record-of-rights or waste lands which are either expressly or impliedly set apart for the common use of the villagers, whether recorded as such in the record-of-rights or not.'
The record-of-right in respect of the suit land has not been proved in this case. Therefore, there is no evidence that the suit plot has been recorded as Gochara, Rakshit or sarbasadharana in the record-of-rights. A case of express or implied grant or dedication in favour of the public has not been pleaded in the written statement. Accordingly this issue is answered in the negative.' We have already held that the finding of the learned munsif would not operate as res judicata, Therefore, the appellants are entitled to canvass that the finding of the Trial Court is erroneous. In paragraphs 11 and 12 of the written statement, specific plea has been raised about the communal character of the land. The State of Orissa has conceded in its written statement that disputed property is communal. The Estate Abolition Collector did record a finding in that regard. The- learned trial Judge refused to examine the claim of communal right by saying that defendants had failed to plead express or implied setting apart of the land for communal use. In order to sustain a claim of communal character of a land, it is not necessary to establish that in the Record-of-Rights, the land has been go recorded. Implied setting apart can be gathered from the materials on record. It is not correct, as held by the trial Court, that implied setting apart has not been pleaded. Paragraphs 11 and 12 of the written statement of defendants 2 to 4 contain adequate averments for raising a claim of implied setting apart. Witnesses examined for defendants 2 to 4 have supported the plea of communal right. On the evidence on record, we think the claim of communal right has been sufficiently established and the learned Trial Judge was not right in finding against the defendants.
12. Alternatively, even if the plea of communal right does not succeed, the final order in the proceeding under Section 5 (i) of the Act was not open to challenge in the Civil Court once it is held that plaintiffs have failed to establish that their leases were prior to 1-1-1946. The bar under Section 39 of the Act operates and the present suit must be found to be not maintainable.
13. Once it is held that the land was communal in character, a lease thereof without permission of the Collector by the ex-intermediaries was prohibited under Orissa Act 1 of 1948 and the leases are void as provided under the said Act.
14. On the analysis indicated, the decision of the lower appellate court is liable to be set aside. We would accordingly allow the appeal, set aside the judgment and decree of the lower appellate court and restore those of the trial Court subject to the modification in regard to the communal character of the land which we find defendants have been able to establish. The appellants shall be entitled to their costs throughout from the plaintiffs.
15. I agree.