B.P.Jamuar, J.

1. These two cases have been referred to the Full Bench and they involve the construction of certain provisions of the Land Reforms Act. It will be more convenient to deal with them separately. Second Appeal No. 634 of 1949

2. This second appeal has been brought by the defendants from a judgment and decree of the Additional Subordinate Judge of Monghyr dated the 12th March, 1949, in a suit for partition. The suit has been decreed by both the courts below.

3. The plaintiffs sued for partition of certain plots in village Parbatta, Jagir Hasanuddin Nayak, Tauzi No. 1920. These plots are Nos. 247 and 249 of Khata No. 83 having an area of 5 bighas 10 kathas and 18 dhurs, and plot Nos. 246, 248 and 250 of Khata No. 84 having an area of 4 bighas, 17 kathas and 4 dhurs. The plaintiffs claimed to be proprietors to the extent of eight annas in the aforesaid Jagir, and the remaining eight annas belonged to the defendants first party. The land bearing a total area of 10 bighas, 7 kathas and 12 dhurs was alleged to have been in joint possession of the parties. It was further stated by the plaintiffs that on a demand for partition the defendants had refused. Hence the necessity to bring the suit.

4. The defendants admitted that they and the plaintiffs were the proprietors of the Jagir in question possessing half share each, but denied that the disputed lands constituted bakasht of the proprietors. It is common ground that the ancestors of the plaintiffs and the defendants purchased the Jagir as far back as 1839 by a deed o£ sale dated 31-5-1839. Their defence was that formerly the disputed lands comprised in this Jagir formed the raiyati lands of tenants and that the defendants had acquired the tenancy rights by purchase long before the acquisition of the Jagir by their ancestors and the ancestors of the plaintiffs, and, therefore the acquisition of the Jagir had not the effect of causing merger of the two interests and that in spite of the acquisition of the proprietary interests, the defendants continued to hold the lands as raiyats.

They alleged further that subsequent to the acquisition there have been mutual dealings between the parties with respect to these lands which amounted to confirmation of their raiyati interest by the plaintiffs. It was alleged that 2 bighas out of plot No. 250 of khata No. 84 was settled by the defendants with one Ramcharan Mandal as an under-raiyat at an annual jama of about Rs. 8-5-0 besides cess and that the plaintiff No. 1 acquired these two bighas from Ramcharan Mandal in exchange under a registered deed dated 22-9-1941, and was paying rent to the defendants for these lands at the same jama.

It was further stated that 1 bigha out of plot No. 249 of khata No. 83 had been settled by the defendants with the plaintiffs, and the plaintiffs gave in exchange 1 bigha of land in Jagir Rajvi Naik to the defendants and the defendants were paying certain rent to the plaintiffs, and the plaintiffs were paying the same amount of rent to the defendants. In these circumstances, the defendants pleaded that a suit for partition was not maintainable.

5. The trial court rejected the defence and, accepting the case of the plaintiffs, decreed the suit and allowed partition. The defendants went up in appeal to the District Judge. The appeal was heard by the Additional Subordinate Judge who, as I have indicated, by his judgment and decree dated 12-3-1949, dismissed the appeal.

6. Before the lower appellate Court the grounds taken by the defendants in their defence were reiterated and negatived. Relying upon the survey record of rights and the evidence, it held that the disputed lands were the bakasht lands of the proprietors, namely, the plaintiffs and the defendants and not the raiyati lands of the latter. It negatived further the defence that the lands were formerly occupancy holdings and had been purchased by the defendants.

The mutual dealings evidence only the mode of possession and did not affect th