Judgment

GUPTA, J.:- The appellants are defendants 1 to 4 in a suit for declaration of title and recovery of possession. The property in dispute is 6.02 acres of raiyati lands of Khata Nos. 52 and 53 in village Pahri in the district of Gaya. In a sale held in execution of a rent decree, two of the co-sharer landlords, defendants 17 and 18, purchased this holding. On July 18, 1946 these two co-sharer landlords executed a document (Ex. 3) in respect of the property in favour of the plaintiffs who are the respondents in the present appeal. It is the nature of this documents that is in question in this appeal.

2. In 1949, the plaintiffs instituted a suit for declaration of their title to the land and recovery of possession. There is some dispute as to whether defendants 17 of 18 had succeeded in getting actual possession of the land or only symbolic possession was delivered to them, but the point is not of any importance because there is no question of adverse possession in this case and defendants 1 to 4 who were some of the original tenants and who resisted the plaintiffs claim had no subsisting interest in the property There were proceedings in 1947 under S. 145 of the Code of Criminal Procedure, 1898 over this properly which was attached under S. 146 of that Code, the land was put in the possession of a receiver and the parties were referred to the Civil Court for adjudication of their rights. The respondents then instituted the suit out of which this appeal arises.

3. The plaintiffs claim of title is based on the document Ex. 3 and the only question involved in this appeal relates to the character of this document. The trial court decreed the suit holding that though Ex. 3 was labelled as a deed of sale, it was really a lease of the land given by the two co-sharer landlords, defendants 17 and 18, to the plaintiffs. The lower appellate court dismissed the suit on the view that the documents was a deed of sale by which defendants 17 and 18 sold raiyati rights in the land to the plaintiffs which the said defendants themselves did not possess. S. 22 (2) of the Bihar Tenancy Act reads :

"If the occupancy-right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, he shall be entitled to hold the land subject to the payment to his co-proprietors or joint permanent tenure-holder of the shares of the rent which may be from time to time payable to them; and if such transferee sub-lets the land to a third persons, such third person shall be deemed to be a tenure-holder or a raiyat, as the case may be, in respect of the land."

It is clear from the section that a co-share landlord who purchases the raiyati holding does not become a raiyat himself. he is only entitled to hold the land on payment to the other landlord their shares of rent. He thus acquires no raiyati interest which he can sell. The section, however, adds that if he "sub-lets" the land to another, the transferee shall be deemed to be a raiyat in respect of the land, if the lease is for agricultural purposes.

4. Before us, Mr. Sarjoo Prasad appearing for the appellants also contends that the documents in question is a deed of sale by which the plaintiffs vendors sought to transfer raiyati interest in the land which, in view of S. 22 (2) of the Bihar Tenancy Act, they could not do and, therefore, the document is of no effect Mr. Sarjoo Prasad relies on a decision of the Patna High Court, Lal Narain Singh v. Mohammed Anwar Hussain reported in AIR 1949 Patna 367, in which it has been said : "It is well settled by authorities that a co-sharer landlord who purchases an occupancy holding is not a raiyat. He acquires a peculiar status and his only right is to retain possession of the land on payment of the share of rent which was payable for the land to his co-sharer landlords. He cannot sever the two interests and sell his right to hold the land apart from his interest as a co-sharer landlord of the holding. The two interests are sol