S. Acharya, J.
1. Defendant No. 1 is the appellant in this Second Appeal, preferred against the decision of the Subordinate Judge. Berhampur in Title Appeal No. 203 of 1965-GDC reversing the decision of the Munsil Berhampur in Title Suit No. 221 of 1963, dismissing the plaintiff's suit for declaration of their title to and recovery of possession of the suit lands and for mesne profits and for an order to withdraw a sum of Rs. 400/- kept in deposit towards the price of the crop of the suit lands when the suit lands were involved in a proceeding under Section 145. Cr. P. C.
2. The plaintiff's suit is mostly on the following averments:
The plaintiff No. 1 is the adopted son of Agadhu and the plaintiff No. 2 is the widow of the said Asadhu. The suit lands are Durmila Inam lands under Survey No. 202. The father of the plaintiff No. 1 purchased the suit lands from defendants 1 to 3 the original owners by an unregistered sale deed (Ex. 1) dated 20-1-45. The said document (Ex. 1) was not registered as the parties were very closerelations of each other. After the execution of Ext. 1. Agadhu. father of the plaintiff No. 1, possessed the suit lands for some time, and thereafter he got the same cultivated through one Natabar Das. In that state of affair Agadhu died in or about 1950, after which plaintiffs 1 and 2 continued to possess the suit lands through the above named Natabar and thereafter through one Basu Das. and Sama Ghose (P. W. 31. the brother of the wife of the defendant No. 1. In 1961 trouble started between the parties as the defendant No. 1 started creating disturbance in the possession of the plaintiffs followed by a proceeding under Section 144. Cr. P. C.. later converted into one under Section 145. Cr. P. C.. As the said proceeding terminated in favour of the defendant No. 1 the plaintiffs were forced to file this suit.
It was further averred in the plaint that the surt lands were Durmila Service Inam lands and were given for rendering Paik service to the ex-intermediary of Khallikote estate, which was abolished in or about the year 1953. After vesting of the estate, the plaintiff No. 1 filed petitions. Exts. 5 and 5/a, under Section 8 (3). Orissa Abolition Act. 1951 before the Estate Abolition Collector for settling the lands with him and on those petitions, after due proclamation (Ext. 6) the lands were finally settled and rent assessed in favour of plaintiff No. 1, as per order of the Collector (Ext. 7) dated 7-1-60. This settlement as per Ext. 7 is one of the modes of acquisition of title to the suit property, and also proves the fact that the plaintiffs acquired title suit lands at that time. It is also urged in the plaint that the plaintiffs acquired title to the suit lands by adverse possession by long and continued possession of the suit property for over 12 years after execution of Ext. 1 on 20-1-45.
3. The defendant No. 1 alone entered contest in the suit. The averments in his written statement are to the effect that the suit properties originally belonged to the three defendants, but the defendants. 2 and 3 relinquished their interest in the suit lands in favour of the defendant No. 1 and thus the defendant No. 1, had been in exclusive possession of the suit lands since then. The plaintiff's plea of possession and of acquiring title by adverse possession is denied on the above facts. The above mentioned conveyance of the property by Ext. 1 was denied as a fact and contested on legal grounds. It is averred in the written statement that late Affadhu being a close relation of the defendant No. 1, was managing the affairs of the defendants, and in such state Asadhu might have taken the signatures of thesedefendants on a Piece of blank paper which was subsequently converted into Ext. 1.
With regard to the plaintiff's averment regarding the aforesaid proceeding under the Estates Abolition Act and the settlement as per Ext. 7 in favour of plaintiff No. 1, it is stated that the entire proceeding and the said settlement are all invalid in view of the fact that the estate actually vested in 1961 and not in 1953, as alleged by the plaintiffs. After the vesting of the estate in 1961 the defendant No. 1 got a notice (Ext. D) dated 7-8-62 requiring him to submit the necessary papers relating to the suit lands and later the defendant No. 1 was rightly assessed to rent with respect to the suit lands. Accordingly, it is asserted that as this assessment was done at the proper time after the vesting of the estate the plaintiffs cannot question the title or possession of this defendant in respect to the suit lands. It is also averred that the plaintiff No. 1 is not the adopted son of the above named late Agadhu and hence has no right to institute the suit.
Defendant No. 3 more or less adopted the pleadings of defendant No. 1. Defendant No. 2 has been set ex parte.
4. The trial court found that the plaintiff No. 1 was the adopted son of Agadhu and that Ext. 1 was a genuine document. It however, arrived at the finding that Agadhu did not set possession of the suit lands on or after the execution of Ext. 1. On that finding, the plaintiff's claim of adverse possession was negatived. It found that the suit was barred by limitation as the plaintiffs could not prove their title or possession within the statutory period prior to the institution of the suit. It also found that Ext. 7 did not create any interest or title in favour of the plaintiff No. 1, inasmuch as the Estates Abolition Collector improperly exercised jurisdiction over the matter, as the estate comprising the suit land had not vested by the time of Ext. 7. On that finding, it concluded that Ext. 7 would neither create any title, nor would it show or prove the fact of possession in favour of the plaintiffs. It further found from the final record of rights (Ext. B) of 1952 that the defendant No. 1 had good title to the suit lands.
5. The appellate court, on appreciation of the evidence on record and the admission of D. W. 3 in paragraph 4 of his examination-in-chief, to the effect that the plaintiff No. 1 is the adopted son of Agadhu. has agreed with the findings of the learned Munsif that the plaintiff No. 1 is the adopted son of Agadhu. It also rightly finds that the question as to whether the plaintiff No. 1 is the adoptedson of Agadhu or not is not of much importance in this suit as Agadhu's widow is one of the plaintiffs in this suit.
On an elaborate consideration and discussion of the relevant evidence on record, both oral and documentary, it has inter alia arrived at the findings that the learned Munsif's finding that Ext. 1 is a genuine document is correct; that the plaintiffs and their predecessors-in-interest have been in possession of the suit lands ever since 1945 on the basis of Ext. 1: that Ext. B of the year 1952 cannot be conclusive evidence of possession in favour of defendant No. 1; that the settlement proceeding under the Estates Abolition Act and the settlement made as per Ext. 7 in favour of plaintiff No. 1 show the conduct of plaintiff No. 1 as early as 1959 that he was treating this property to be his and was claiming possession of the same exclusively: that Ext. 8 dated 4-9-59 by which defendant No. 1 applied for the settlement of some lands without claiming therein the suit Survey No. 202, shows that he was not treating this Property to be his own which militates against defendant No. 1's assertion that he was in possession of the suit plot. No 202; that the plaintiffs have title to the suit lands as seen from Ext. 7. and that the trial court was not justified in holding that the Estates Abolition Collector acted illegally and without -jurisdiction in settling the lands in favour of the plaintiff No. 1. on the incorrect finding that the estate had not vested by 1959.
With regard to Ext. D dated 9-8-62, a notice in form 'C' under Section 5 (i) of the Estates Abolition Act. in the name of the defendants 1, 3 and others, issued by the Estates Abolition Collector, the appellate court finds that the said document has no connection with the vesting of the suit service mam lands as the same was only a notice for the production of the documents specified in the schedule therein; and that there is nothing in Ext. D to show that the suit lands were settled with the defendant No. 1, or that the estate was actually abolished after 1959 as urged by defendant No. 1. It negatived the defendant's contention to the effect that the plaintiff's suit is not maintainable in the Civil Court as it relates to a dispute relating to possession of the property which vested under the Estate Abolition Act. On the above findings, the appellate court has allowed the plaintiff's appeal and set aside the judgment and decree of the trial court. Plaintiff's prayer for mesne profit has been allowed, but there being no evidence on record on that matter, it has been ordered that the same would be examined under Order 20. Rule 12. C. P. C. at a later stage. The plaintiff's prayer to set refund of a sum of Rs. 400/-. admittedly in deposit in a proceeding under Section 145. Cr. P. C. has also been allowed.
6. Mr. Mohanty, the learned counsel for the defendant-appellant urged, on the basis of the provisions of Section 35 of the Indian Stamp Act that the court below acted illegally in considering Ext. 1, which was not admissible for any purpose as the same was not duly stamped. Mr. Mohanty has not been able to satisfy me from anything on record that the contesting defendant in the trial Court specifically objected to the admissibility of Ext. 1 on the basis of the provisions of Section 35 of the Indian Stamp Act. The question that Ext. 1 is inadmissible being insufficiently stamped was not raised in the written statement filed by defendant No. 1. The trial Court's judgment, dealing with issue No. 3 relating to the genuineness and validity etc. of Ext. 1, does not anywhere deal with the admissibility of this document nor is there any indication that its admissibility was opposed and/or challenged at the trial stage. On elaborate discussion on Ext. 1. the trial court found that Ext. 1 was a genuine document, but being an unregistered document it did not pass any title in favour of Agadhu. the vendee. At the appellate stage, however, it appears that the defendant, apart from contesting the genuineness of the document, also challenged its acceptability in evidence on the ground that it was an unregistered document and insufficiently stamped as the amount of stamp used therein was much less than what was required under the law. The appellate Court, however considered that document, holding that such a document could be utilised in evidence for collateral purposes to show the date and nature of possession. It found that the plaintiffs relied upon Ext. 1 for the incidental purpose, namely to satisfy the Court that at a Particular time in 1945 they came to possess the suit lands on the execution of Ext. 1.
The learned counsel appearing for the respondents, on the basis of the provisions of Section 36 of the Indian Stamp Act contends that Ext. I having been admitted in evidence at the trial stage without any such objection its admissibility cannot be called in question at any stage of the suit, on the ground that the said document has not been duly stamped. The effect of the provisions of Sections 35 and 36 of the Stamp Act has been well laid down by their Lordships of the Supreme Court in paragraph 4 of the decision in Javer Chand v. Pukhraj Surana, (AIR 1961 SC 1655) which should be profitably quoted below.
'That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by Section 61, which is not material to the present controversy-Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there where the document is tendered in evidence. Once the Court rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is marked as an exhibit in the case.
* * *Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses. Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.'
On the above authoritative view of the Supreme Court and fact that the admissibility of Ext. 1 was not specifically challenged in the trial Court, it is not necessary for me to delve any further into the above contention of Mr. Mohanty and I reiect the same as being without any substance and/or weisht.
7. Mr. Mohanty next contended that the suit land being admittedly Durmilla Inam land was itself an estate, and though the parent estate of Khallikote was abolished in the year 1953, the estate comprising the suit lands vested only in 1961, and accordingly the aforesaid order of the Estates Abolition Collector as Per Ext. 7 dated 7-1-60 in favour of the plaintiff No. 1 was passed at a time when the said Collector had no jurisdiction over the matter. The above contention is based on the factual assumptions that the lands comprising the suit lands formed a separate estate which vested only in 1961. The appellate court, on a very thorough, cogent and convincing consideration of the evidence on record, both oral and documentary, has in effect arrived at the finding that the estate in respect of the suit lands, had vested by 1959. In arriving at the above finding, the appellate court, apart from other evidence, took into consideration the specific averments in Ext. 9 on which the defendant No. I himself asked for the cancellation of the settlement made under Ext. 7 in favour of the plaintiff No. 1. In Ext. 9 it is merely stated that at the time when the plaintiff No. 1 filed his application for the settlement of the suit lands in the year 1959, and the said land was settled and assessed to rent in favour of the plaintiff as per Ext. 7, he (defendant No. 1) could not prefer his objections as he was not in the village at that time. In that petition Ext. 9, the jurisdiction of the Collector to pass the aforesaid order in favour of the plaintiff was not challenged on any ground, much less on the ground that by the time the aforesaid order was passed in favour of the plaintiff, the estate had not vested in the State. The learned Collector, however, rejected the aforesaid application by his order contained in Ext. 10.
The Court below, on a consideration of the various facts appearing on the evidence on record, has arrived at the finding of fact that the estate in respect of the suit lands had vested by 1959. That finding of fact was not successfully assailed on any convincing ground. That being so, the above contention of Mr. Mohanty becomes unacceptable for consideration, as the above finding of fact which is binding on me in this second appeal, is contrary to the facts on which Mr. Mohanty based and/or founded his contention. The above contention accordingly fails.
8. Mr. Mohanty at the reply stage took up a new point to the effect that in the absence on record of the official notification of vesting the court below was not legally competent to consider and/or arrive at the finding that the estate vested in the State by 1959. Apart from the legality and/or the propriety of raising such a new plea for the first time in reply and that too in the second appeal. Mr. Mohanty could not support his above contention either on any specific legal provision and/or any case law to the above effect. As stated above, the court below, on a consideration of the evidence on record both oral and documentary arrived at the conclusion that the estate vested in the State by 1959. The above finding of fact was not assailed on any convincing legal ground. In my opinion only because of the fact that the official notification of vesting is not on record it cannot be said that the court was precluded from considering the fact on other evidence on record, as to whether there was vesting of the estate by a particular time. I do not find any merit in this contention also.
9. On the above considerations I do not find any merit in this second appeal which is hereby dismissed with costs.