The Bihar Land Reforms Act, 1950 created a new title in the intermediaries who were in khas possession of the proprietors private lands and that a simple suit for partition instituted on the basis of the title before coming into force of the Land Reforms Act is not maintainable.

N.L.Untwalia, J.

1. This appeal arises out of a suit for partition. The appeal was filed by defendants Nos. 1-14. An application has been filed by appellants 2, 3, 7, 8, 9 and 10, who were respectively defendants Nos 2, 3, 7, 8, 9 and 10 in the Court below, praying that they maybe transposed to the category of respondents for the reasons stated in the application. There seems to be no objection to this and the hearing of the appeal has proceeded on the basis that the said appellants are now in the category of respondents.

2. The plaintiff-respondents first party filed the suit in question in the Court of the Subordinate Judge at Darbhanga for partition of touzi No. 4896, khewat No. 3 in patti khalispur original and khewat No. 7/1 in patti Harlochanpur dependency. The share of the plaintiffs and defendants 1 to 21 was -/14/-annas, 19 gandas and odd which was entered in khewat No. 3 and the remaining one anna and odd share belonged to defendants Nos. 22-30 and was separately entered in khewat No. 3/2, and, they were impleaded as defendants second party in the suit.

The said share of one anna and odd is not the subject-matter of this suit. The plaintiffs and defendants first and second parties own 16 annas share which is recorded in the other khewat No. 7/1 in patti Harlochanpur."

The plaintiffs claim 4 annas 10 gandas and odd shares in both the khewats. According to their case, the parties were in joint possession and occupation of the two khewats. In khewat No. 3 there were about 50 bighas of zirat land and about 14 bighas of auction purchased and abandoned bakasht land, details of which were given in the schedules to the plaint. They further stated in the plaint that although the possession and occupation of the plaintiffs and defendants first party are separate for the sake of convenience and cultivation, the partition of the touzis according to proportionate shares had not been duly effected. On these allegations the suit was filed in 1948 for partition of the two khewats aforesaid.

3. A written statement was filed on behalf of defendants 15-17 praying that in case partition was effected, a separate patti with respect to the share of these defendants might be carved out and they might be put in separate possession and occupation of the same. Four other written statements were filed by defendants Nos. 1-14; one by defendants Nos. 1, 5, 6, 13 and 14, the second by defendants Nos. 2 and 7-10, the third by defendant No. 3 and the fourth by defendants Nos. 4, 11 and 12.

They were the defendants who really contested the suit and, inter alia, their common defence was that there had been a previous partition before the survey settlement proceedings with respect to the zirat, bakasht and gair-mazrua lands of khewat No. 3, patti Kalispur (? Khalispur) between the plaintiffs ancestors and the ancestors of the defendants first party by metes and bounds and each party was in separate and exclusive possession of the lands allotted to them on such partition. The record-of-rights was accordingly prepared showing separate possession of such lands of different parties according to the previous partition. The schedules annexed to the written statements, show the lands which were completely partitioned by metes and bounds and also show the lands which were left joint between the parties. They, however, raised no objection to the partition of khewat No. 7/1, patti Harlochanpur.

4. The learned Subordinate Judge by his judgment dated 8-8-1950, decreed the suit for partition of the two khewats and passed a preliminary decree holding that the story of previous partition of certain lands set up by defendants 1-14 was not correct and that the parties were in separate possession of such lands for the sake of convenience and cultivation.

5. Mr. Tarkeshwar Nath, the learned Advocate, who has argued the appeal on behalf of the remaining appellants, namely, appellants Nos. 1, 4, 5, 6 and 11-14 attacked the finding of the learned Subordinate Judge t