1. The dispute in this case relates to 5.61 acres of land appertaining to holding No. 601 of village Kharagprasad, described in Schedule B of the plaint. The holding No. 601, of which the land in dispute forms a part originally belonged to two brothers Bana Senapali and Kalia Scnapati. Bana Senapati had four daughters two of whom died long time back. The remaining two daughters have been impleaded in the present suit as defendant No. 1 and defendant No. 2. Defendants Nos. 1 to 8 are the heirs and successors of Kalia Senapali. The case of the plaintiffs (who are the respondents here) is that Bana Senapati had adopted a son Gundicha. This Gundicha was married to one Gava (defendant No. 9) and had by her a son named Kodanda. Therefore, on the death of Bana Senapati his half interest in holding No. 601 was inherited by the adopted son Gundicha. Gundicha died long time back, leaving behind him his widow. Gava (defendant No. 9) and his son Kodanda.
Kodanda is also now dead and, on his death, Gava is said to have re-married herself with one Guntha Senapali who died sometime in 1944. While the land in dispute was in possession of Gava and her son Kodanda, there was some action taken by the landlord for their eviction, on the ground of non-payment of rent, as also on the ground of giving the land in mortgage without the consent of the landlord. It is said that as a result of this action Gava (defendant No. 9) in due course was evicted sometime (31st) in Octboer 1961 and there-after the landlord came in possession thereof. Subsequently, the landlord settled this land with the plaintiffs on 9th September 1952 for a period of three years. As such the plaintiff's remained in possession over it for the period stipulated in the document of settlement. Thereafter that settlement was renewed on 8th February 1957 for a fresh period of another three years under the document Ext. 4. Their grievance is that thereafter defendants 1 and 2 began interfering with their possession. Hence the suit for declaration of title over the land in suit and for permanent injunction restraining defendants 1 and 2 and all other defendants from interfering with their possession in respect to it.
2. The suit was contested mainly by defendants 1 and 2. The defence pleaded that Gundicha was not the adopted son of Bana Senapati, as such, at no point of time, either Gundicha or his widow Gava (defendant No. 9) or his son Kodanda had any interest in the land in suit and that they never came in possession thereof. On the contrary the land came in possession of defendants 1 and 2 on the death of Bana Senapati as his only rightful heirs and successors. Therefore any proceeding taken for eviction against Gundicha or Gava (defendant No. 9) or Kodanda cannot, in the eye of law be binding on defendants 1 and 3: and even if there was any such proceeding taken against the heirs and successors of Gundicha that did not result in any dispossession of defendants 1 and 2. They have been all along in possession of the same as the heirs and successors of their father Bana Senapati and as such the plaintiffs cannot get the decree as prayed for on the basis of the title pleaded in the plaint.
3. Both the Courts below have concurrently found that Gundicha was the adopted son of Bana Senapali. This finding is a finding of fact and is now concluded in second appeal. In fact Mr Misra appearing for the defendants-appellants has not seriously challenged that finding. In that view of the matter there is no escape from the conclusion that, on the death of Bana Senapati, his right, title and interest in the land in dispute was inherited by Gundicha and on his death by his son Kodanda and his widow Gava. The possession, therefore, of defendants 1 and 2 in view of that finding, cannot be any belter than that of trespassers. Further, it is also a concurrent finding given by both the courts below that there was eviction from the land in suit, on 31st October 1951. by the landlord of the holding. The point in controversy was whether this eviction at the instance of the landlord was legal or illegal. The two courts below have found that it was legal and valid; but even if it be said that it was illegal and cannot enure to the advantage of defendants 1 and 2.
The illegality of thai eviction, if any, could be only agitated by the original tenants, that means either Gava or her son Kodanda. It is the admitted case of the parties that at no point of time either Gava or Kodanda raised any challenge against the eviction which was effect ed on the 31st October, 1951. Thnt being so. the title of the landlord became perfect and as such he had the title left in him thereafter to settle the land with the plaintiffs as his new lessees. The two courts, therefore, in our opinion rightly found that, on the facts as stated by the parties, the title of the plaintiffs had been fully established and they are entiled to get a declaration as sought by them.
4. Before us a question has been raised that even if Gundicha was the adopted son of Bana Senapati, the Courts should have further gone into the question as to whether on the death of Kodanda and on the remarriage of Gava that properly came back to defendants Nos. 1 and 2 as the heirs and successors of Kodanda. Unfortunately, this alternative source of title has not been pleaded by the contesting defendants in their written statement, nor was such a plea taken at any stage in the courts below. Therefore, it is now too late for Mr. Misra to raise if for the first time in second appeal.
5. The second contention raised by Mr. Misra is that under the definition of the word 'tenanl' as provided in Orissa Tenants Protection Act, 1948. the landlord has no authority in law to evict Gava or her son Kodanda from the land in suit. In our opinion, this contention is based on a mis-apprehension. The definition of the word 'tenant' as given in Section 3 of the aforesaid Act clearly pre-supposes that the protection as provided therein is for the benefit of the tenant as such. At that point of time the tenants of the holding in dispute were Gava and Kodand and not defendants 1 and 2. Therefore, eviction proceeding could he validly taken by the landlord against Gava and Kodanda. The aforesaid definition, therefore, could not stand in the way of the landlord taking such eviction proceeding.
6. Accordingly, we hold that the appeal as constituted is concluded by concurrent finding of fact. It is therefore dismissed, but in the circumstances of the case there will be no order for costs.
7. I agree.