Judgement

JAFER IMAM J.: This is an appeal against the decree of the Patna High Court setting aside the decree passed by the Add. District Judge of Motihari in favour of Raja Mohan Bikram Shah the proprietor of the Ramnager Raj. After his death the appellants were substituted in his place and stead and they filed an application in the High Court for a certificate for leave to appeal to this Court which was granted.

2. On 19-3-1910 the Raja executed a registered Sadaua Pataua deed in favour of Messrs. H. Murrey and G. Murrey, hereinafter referred to as the Naraipur Concern with respect to 17 villages including village Ratni for a period of 31 years. The land in suit appertains to Khata No. 2. of village Ratni, consisting of plot Nos. 2, 87 and 89.

3. The Raja instituted the suit out of which this appeal arises for a declaration that the land in suit was his Bakasht and the respondents were unlawfully in possession of it. He prayed for recovery of possession, mesne profits and interest pendente lite as well as future interest.

4. The respondents resisted the suit on the ground that the land in suit had been permanently settled with him by the Naraipur Concern as Raiyats under a Patta Hunda (Ex. A) described in this case as a "hukumnama dated 5-3-1918, that they were settled Raiyats of village Ratni and had been in possession of the land for more than 20 years and that they had acquired occupancy rights in the land in suit. They, had also pleaded adverse possession but this plea was abandoned at the trial.

5. The Additional District Judge of Motihari decreed the suit, leaving the determination of the amount of mesne profits to be decided in a subsequent proceeding. Against this decision the respondents appealed to the High Court which reversed the decision of the trial Court and dismissed the suit .

6. On the question of possession the trial court disbelieved the respondents case that they had been in possession for over 20 years but it was of the opinion that near about the time that the Sadaua -Pataua mortgage was about to expire, the respondents were, in fact, in possession. The High Court confirmed these findings.

7. The trial court was of the opinion that the Hukumnama , Ex. A, and the receipts filed by the respondents showing payment of hunda rent were not genuine. It held that the respondents were not inducted upon the land in suit by the Naraipur Concern and they had not acquired any right of occupancy by virtue of the alleged settlement. The High Court was of the opinion that there was no reason to interfere with the findings of the trial Court that the Hukumnama and the receipts were not genuine.

8. It would appear from the Khatian of village Ratni that the respondents are settled "Raiyats of that village. The trial court however, thought that in order that the respondents may acquire a right of occupancy in the land in suit, it was necessary under S. 21, Bihar Tenancy Act that they must hold the land as Raiyats . The story of the settlement having failed, there was nothing to show that the possession of the respondents of the land in suit was in the capacity of Raiyats . It accordingly held that the respondents had not acquired any right of occupancy.

The High Court was of the opinion that the trial Court had erred in holding that there was nothing to show that the possession of the respondents over the disputed land was in the capacity of Raiyats even though the case of settlement had failed. It relied upon an alleged acknowledgment in the written statement (Ex. D) filed by the Naraipur Concern in a commutation proceeding under S. 40, Bihar Tenancy Act instituted at the instance of the respondents. It rejected the contention that this document was inadmissible.

It was of the opinion that as the application of the respondents for commutation of rent was not resisted on the ground that they were not holding as Raiyats , it was clear that their possession as Raiyats was acknowledged by both the Naraipur Co