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1. This Letters Patent Appeal is directed against a judgment of Ray J. (as he then was). The only point which emerges for decision in this appeal is whether the plaintiffs are entitled to permanent 'shikmi' tenancy right in the suit lands which cover an area of 1.20 acres as recorded in the cadastral survey, bearing a rental of Rs. 6/3/-. The lands have been recorded as 'khas dakhli' lands of defendants 1 to 4, but in the earlier survey the lands were recorded in the name of one Natha Satapathy as a 'shikmi' tenant under these defendants. The survey records also show that the lands appertain to 'bazyaftidar sthiti-ban' holding of the defendants.

2. The suit to which this appeal relates was filed by the plaintiffs now respondents before us, for' declaration that they had permanent 'shikmi' intet est in the lands in suit, and also for confirmation of possession. The plaintiffs' case was that the land in question had been settled by the ancestor of defendants 1 to 4, one Dinabandhu Kar, with the plaintiffs' ancestor, one Shyam Charan Satapathy in Chaitra 1296 (Oriya Sambat) in permanent 'shikmi' interest, and Natha Satapathy recorded in the revisional survey was the son of the original settlee. It appears that in 1906 there was liti-mation between the descendants of Dinabandhu and the descendants of Shyam Satapathy leading to a suit for damages which resulted in a compromise.

3. The suit was contested by defendants 2 4 only who denied that the lands were filed in permanent 'shikmi' tenancy with (sic) Satapathy as alleged or with the ancestor of the plaintiffs; and their case was that the defendants were in possession of the lands; and that they had obtained a valid compromise decree against defendants 5 and 6, who were in possession, but who had since given up possession thereof.

4. The trial Court found that the plaintiffs had permanent tenancy rights as 'shikmi' tenants in the disputed lands. The lower appellate Court reversed that decision and held that although the plaintiffs were 'shikmi' tenants under the defendants, they had no permanent rights in the lands, and no such right could validly be conferred upon them. The appellate Court, therefore, modified the decree and held that the plaintiffs were simply entitled to a declaration that they were 'shikmi' tenants of the lands.

Section 237, Orissa Tenancy Act, provides that nothing in this Act shall affect" any custom, usage or customary right not inconsistent with, or not expressly or by necessary implication modified or abolished by its provisions. No such custom, usage or customary right has been pleaded in this case. It, therefore, requires examination whether irrespective of custom a 'shikmi' tenant is entitled to permanent rights at all. The relevant sections which deal with under-raiyats or 'shikmi' tenants are Sections 56 and 57 of the Act. Section 56 specifies the limit of rent recoverable from under-raiyats, and Section 57 deals with the restriction on ejectment of under-raiyats. It is provided under this section that an under-raiyat shall not be liable to be ejected by his landlord except on the expiration of the term of a written lease, and where he holds otherwise than under a written lease at the end of the agricultural year within which a notice to quit as prescribed has been served upon him by the landlord.