Judgment

DAS GUPTA, J. : If a raiyat of lands in the district of Santhal Parganas acquires the entire superior landlord s interest does his raiyati interest cease to exist or dies he continued to be a raiyat in addition to becoming a superior landlord? This is the main question raised in this appeal arising out of a suit for declaration and delivery of possession of 12 bighas, 16 kathas, 4 dhurs of land in Mauza Chhatahara in the District of Santhal Parganas. The plaintiffs and the four defendants, described in the plaint as defendants 2nd party are the successors in interest of one Santokhi Jha who became owner of the entire raiyati interest in these lands many years ago. Some time after he became a raiyati of this land, Santokhi purchased by a registered deed the entire interest of the Lakhirajdar under whom he was the raiyat. On May 15, 1935 these lands were sold by the 2nd party defendants and others including the plaintiffs 1 to 6 to the present appellants. The plaintiffs case is that no interest passed to the vendees by that sale deed, because the raiyati character of the land was existing on the date of transfer and this was inalienable under the provisions of Regulation III of 1872. It was further pleaded that this transfer of 1935 was fraudulent and collusive and that there was no legal necessity for the transfer.

2. The defendants first party denied the allegations of fraud or collusion and further pleaded that the transfer was made for legal necessity for paying antecedent debts of the family and they are therefore binding on the plaintiffs. They also pleaded that the lands in the suit were not, on the date of the sale, raiyati but Bakasht lands of the Malik and so there was no bar to the sale of these lands under the provisions of Regulation III of 1872.

3. The Subordinate Judge, Dumka, who tried the suit held that the sale was justified by legal necessity and that it was not fraudulent or collusive. He further held that while the plaintiffs were not estopped from challenging the sale deed it was binding on them. The learned Judge was also of the opinion that the land did not retain its raiyati character after Santokhi, the raiyat, acquired the landlord s interest and in that view rejected the plaintiffs contention that the lands were inalienable under the provisions of Section 27 of the Regulation III of 1872. Accordingly he dismissed the suit.

4. On appeal by the plaintiffs the District Judge, Santhal Parganass, agreed with the findings of the Trial Court and held that the suit had been rightly dismissed.

5. The plaintiffs then appealed to the High Court of Judicature at Patna. Before the High Court the findings that the sale deed was for legal necessity and there was no fraud or collusion were not challenged. The entire argument in support of the appeal was that the rayati interest continued to exist in spite of the acquisition of the landlord s interest by the sole raiyat, Santokhi, and the subsequent entry in the settlement records showed that the lands were Bakasht Malik. The learned Judge (Banerjee J.) who heard the appeal, was of opinion that there was no conflict between the several entries in the record of rights the first of which showed the lands as (held by Santokhi as the raiyat while the later settlement records showed lands as ) Bakasht Malik and that in law the raiyati interest continued even after the raiyat acquired the superior landlord s interest. He was also of the view that assuming that the equitable doctrine of merger could be applied in such cases of "unity between the interests of the raiyat and the landlord" in the Santhal Parganas, the facts and circumstances of this case showed that there was no merger. He also rejected the contention made by the respondents that the plaintiffs were estopped from challenging the deed of sale. Accordingly he allowed the appeal, holding that the sale was void with regard to the raiyati interest.

6. The Letters Patent Appeal by the defendants 1st party from t