In the absence of any positive proof of the fact that the landlord has consented to the continuance of the tenant, who had held over, the tenant becomes a tenant by sufferance and as such his possession would be a sufficient bar to the claim of the landlord for recovery of possession from him if he has not been sued for eviction within 12 years from the date on which the tenancy, which was for a fixed period, had expired.

S.C.Prasad, J.

1. This is an appeal by the plaintiffs against the judgment of the Subordinate Judge of Dhanbad reversing a decision of the 2nd Additional Munsif of the same place in a suit which had been filed by the plaintiffs for recovery of Khas possession after ejecting the defendant from the disputed lands which originally belonged to Amrit Mahto and Samrit Mahto, who had held their lands as Jalsasan right in village Saridhola.

Samrit Mahto had mortgaged them to one Sheogobind Bhakat in 1899 and a decree had been passed on the basis of the mortgage before the passing of the Chotanagpur Tenancy Act, 1909. In execution of that decree in 1910 the lands in dispute were sold to and purchased by one Parmesh-war Bhakat, the then Manager & Karta of the joint family of the plaintiffs. Thereafter delivery ot possession was also taken.

The defendant, it was said, started trouble along with the son of Amrit and Ahlad Mahto and a title suit was filed in respect of half share obtained by the mortgage decree for declaration of title and partition. The suit was contested but was decreed in favour of the plaintiffs. The decree became final after the High Court confirmed it.

In pursuance of that final decree delivery of possession was obtained by Parmeshwar Bhagat who remained in possession for four years and after his death Jageshwar Bhakat, father of the plaintiffs 1 to 4 became Karta of the joint family and came in possession of the lands.

He also remained in Khas possession for four years and then settled the lands in khut bhag with one of the sons of Samrit Mahto and Sujan Mahto by a registered Qabuliat dated the 24th Jaistha, 1340 B.S.

2. After subsequent partition between Jagesh-war on one side and sons of Parmeshwar on the other, the lands in dispute fell into the share of Jageshwar and his sons, who are the plaintiffs in this suit. It was further alleged by the plaintiffs that after the expiry of the lease of khut bhag which was for one year, the defendant Sujan was allowed to continue in possession of the Mal bhag settlement.

The rent was realised from him for a number of years till 1357 B.S. in which year the defendant stopped making payment of that rent. The plaintiffs then served a notice on the defendant through a pleader demanding Rs. 350.00 as price of the mal bhag paddy which was due to them. In reply to that notice the defendant denied the title of the plaintiffs. Thereafter the plaintiffs sent another notice to the defendant asking him to quit the lands, but the defendant did not comply with that notice and then the plaintiffs filed this suit.

3. The defence of the defendant, who had contested the suit was that no title had passed to Parmeshwar Bhagat and that no delivery of possession had been taken. The defendant also denied the knowledge of the title suit for partition and delivery of possession in execution of the decree in that suit. The main contention of the defendant, however, was that he had been in possession of the lands for more than 40 years and had never taken them to Khut bhag or mal bhag from the plaintiffs.

He claimed to be in possession of the lands in his own right to the knowledge of the plaintiffs and their predecessors by cultivating the lands and appropriating their produce throughout for the above period and therefore, according to the defendant, the plaintiffs were not entitled to claim recovery of possession of the disputed lands.

4. It was found by the trial court that the plaintiffs had title to the lands by virtue of the purchase and delivery of possession and also by partition. It was further held that actually the lands had been settled with the defendant in Khut bhag for one year and after that in mal bhag. The defendants possession, therefore, was permissive in nature and consequently the plaintiffs were entitled to eject him. It, therefore, granted a decree to the plaintiffs.

5. The learned Subordinate Judge on appeal agreed with the finding of the learned Munsif that the plainti