B.N.Misra, J. - (1.)The defendants have carried this appeal against the reversing judgment and decree of the learned Subordinate Judge, Bargarh. The plaintiffs filed the suit on 22-1-68 asking for declaration of title and confirmation of possession; alternatively for recovery of possession in the event of a finding that they were out of possession. They pleaded (hat their father Arakhita Bariha had title to the property and his name had been recorded in the Hamid Settlement. After him, the plaintiffs succeeded to the property and were in possession. Jayasingh, one of the brothers who had joint interest, did not join the plaintiffs and was, therefore, impleaded as a defendant. Following abolition of the estate where the disputed property was included, the intermediaries laid claim under Chapter II of the Orissa Estates Abolition Act (hereafter referred to as the Act) and the plaintiffs raised objection to such claim for settlement. In Estates Abolition Case No. 11/5-138 of 1962-63, the Collector under the Act passed the following order on 12-3-63:--
"Ordered that plots with area as mentioned in the Schedule VI be settled with Dala Bariha, s/o Aiban Bivisan Bariha, Bhima Bariha, Jaya Shinga Bariha, Ganga Bariha, s/o. Arakhita Bariha under Section 7 of the O.E.A. Act with effect from 1-4-60 on payment of annual rent of Re. l (Rupee one only) and cess of Re. 0.03 (paise three) only. The application made beyond the scheduled date. Hence an amount of Rs. 3.18 (Rupees three and paise eighteen only) is charged towards Salami".
Against the said order, a review was asked for and on l'4-4-64 the very same Collector modified the order by cancelling the settlement and directing settlement with the defendants. The plaintiffs carried an appeal which was numbered as Estate Abolition Appeal No. 14 of 1964-65 and by judgment dated 1-5-65 the Appellate Collector set aside the subsequent order of the original Collector under the Act by saying:--
"......The order passed by the learned Tahasildar in Misc. Case No. 2 arising out of review Case No. 11/5-138 of 62-63 cannot be maintained. In result appeal is allowed."
The net effect, therefore, was that the original order of the Collector dated 123-63 was sustained. Notwithstanding the settlement with the plaintiffs, the defendants created disturbance with their possession, raised a dispute u/Section 145 Cr. P. C. where an adverse order was made against the plaintiffs. They also started filing false criminal cases with a view to harassing the plaintiffs. This led to the institution of the suit.
(2.)Defendants 1 and 2 filed a joint written statement maintaining that Arakhit was merely a Sikimi tenant but he had given up possession by 1926-27 and the father of the defendants had remained in possession of the land thereafter. They contended that the claim for settlement had been made under the Act and the Tahasildar acted without jurisdiction in directing settlement of the disputed property with the plaintiffs. The plaintiffs were never in possession and at any rate, no settlement could have been made u/Section 7 of the Act with them. The claim laid in the suit, therefore, was not maintainable.
(3.)The trial court dismissed the suit on a finding that both parties were trespassers over the suit land and the plaintiffs were, therefore, not entitled to any relief.