Judgement

BACHAWAT, J. : On July 15, 1912 Abdul Karim the predecessor-in-interest of the plaintiff executed in favour of the proprietors of an indigo concern collectively known as the Bhikhanpur Kothi a thika patta (Ex. 4) in respect of village Khanjadpur for a term of 40 years from 1320 to 1359 fasli corresponding to 1913 to 1952. By two pasta Katkenas (Exs. A and A-1) dated April as, 1940 and May 23, 1944 the Bhikhanpur Kothi settled plots Nos. 183 and 184 in village Khanjadpur with the predecessor-in-interest of the contesting defendants. The first settlement was for five years from 1347 to 1351 fasli. The second settlement was for five years from 1352 to 1365 fasli. The term, of the thika patta (Ex. 4) expired in 1359 fasli. Thereafter on April 24, 1953 the plaintiff instituted the suit for recovery of possession of the plots. He also asked for certain other reliefs with which we are not concerned in this appeal. The Trial Court found that (1) plots Nos. 183 and 184 were bakasht and not zeriat lands, (2) the tenants under Exs. A and A-1 were settled raiyats of the village, (3) the thika patta in favour of the Bhikhanpur Kothi was a lease, (4) the Kothi had the authority to induct raiyats on the village and (5) the tenants held the plots as raiyats and they acquired occupancy rights under S. 21 of the Bihar Tenancy Act. On these findings the Trial Court disallowed the plaintiff s claim for recovery of possession of plots Nos. 183 and 184. The plaintiff filed an appeal in the High Court of Patna. Before the High Court the plaintiff did not dispute the correctness of the first two findings of the Trial Court. The High Court agreed with the other findings and dismissed the appeal. The plaintiff has now filed this appeal after obtaining special leave from this Court.

2. In this court Mr. Sarjoo Prasad contended (1) that Ex. 4 was a mortgage and not a lease and the mortgagee under Ex. 4 had no authority to induct raiyats : (2) that assuming that Ex. 4 was a lease, the lessee had no authority to settle raiyats having occupancy rights enuring after the expiry of the lease. We are unable to accept either of these contentions.

3. Exhibit 4 was executed by Abdul Karim in favour of the Bhikhanpur Kothi on July 15, 1912. It was styled a thika patta. It provided that the Kothi would remain in possession of Khanjadpur village for a term of 40 years from 1320 to 1359 fasli on payment of a fixed annual jama of Rs. 6203/4/- Out of this jama the Kothi was to pay annually government revenue and cess amounting to Rs. 1203/4/- It appears that on the same day Abdul Karim took loans from the Bhikhanpur Kothi and two ladies on executing two separate bonds. Ex. 4 provides that between 1320 to 1331 fasli the balance Rs. 5000/- of the annual jama would be paid or appropriated towards the liquidation of the two debts and between 1332 and 1344 fasli would be appropriated towards full satisfaction of the debt due to the Kothi. The deed further provided that from 1345 fasli until 1359 fasli the Kothi would pay the entire balance of Rs. 5000/- to Abdul Karim. It is to he noticed that the ladies were not parties to Ex. 4. The loan was taken from the Kothi on a separate bond. Ex. 4 provided for the repayment of the loan, but the Kothi was entitled to remain in possession for 15 years after the loan was fully satisfied. The gist of the document was a letting of the village for the full term of 40 years. There was no express or implied grant of a right of redemption of the village on repayment of the loan. The document was not intended to create a relationship of debtor and creditor or a security for the repayment of a debt. In our opinion, the transaction was a lease and not usufructuary mortgage.

4. The question then is whether the tenants of the Bhikhanpur Kothi acquired occupancy rights in plots Nos. 183 and 184. Section 21 (l) of the Bihar Tenancy Act 1885; (Act 8 of 1885) reads :

"S. 21 (1) Every person who is a settled raiyat of a village within the meaning