The dar-raiyati interest with occupancy status is not heritable under the law. It may be heritable by custom.

Kanhaiya Singh, J.

1. This is defendants second appeal. Their father Nirbandh Oraon was recorded in the last revisional survey and settlement records, which were finally published in 1935, as a sikmi raiyat (under-raiyat) in respect of plot No. 240, the sikmi khata being khata No. 20 under the raiyati khata No. 77 in village Naro. The plaintiffs are admittedly the occupancy raiyats of khata No. 77. Nirbandh Oraon died in 1945. The plaintiffs served defendants with a notice to quit and demanded possession. On their refusal to give up possession, the present suit was brought for their eviction on the grounds that they were mere tenants-at-will and that their tenancy had been determined and, therefore, they had no right to remain upon the land and the plaintiffs were legally entitled to re-enter.

2. The defendants contested the suit and denied that they were tenants-at-will. They asserted that they had acquired permanent occupancy right in the disputed land, i.e., in plot No. 240 and that they had inherited this land from their father, Nirbandh Oraon, and they were not liable to eviction.

3. The [earned Munsif held that Nirbandh Oraon was an under-raiyat and had not acquired permanent occupancy right He alternatively held that, even if Nirbandh had acquired occupancy right, this right did not devolve on his death on the defendants since such a right was not heritable except by custom and that no such custom had been established. He held, therefore, that the defendants were mere trespassers and granted the plaintiffs a decree for possession.

4. The defendants went in appeal being Title Appeal No. 106 of 1952. This appeal was allowed by the learned Subordinate Judge, Ranchi, and the suit was dismissed.

5. The plaintiffs preferred second appeal in the High Court against the decree of the learned Subordinate Judge which was numbered as second Appeal 585 of 1953. In this connection, I may state that the plaintiffs were 4 in number, namely, Sitaram Sao (Bhagat), Ganesh Sao (Bhagat), Most. Dukhan and Manga Sao (Bhagat). During the pendency of this appeal (S.A. 585 of 1953), Manga Sao (Bhagat) died and his heirs were not substituted. There is no dispute about that. Eventually, this appeal was heard and disposed of by this Court on 16-12-57. The appeal was remanded for fresh hearing. After remand, T.A. 106/52 was heard again by another Subordinate Judge, Mr. M.A. Rahman. He came to a conclusion different from the one of his predecessor-in- office. He held that Nirbandh Oraon had acquired the right of a dar raiyat (under-raiyat) by prescription and that lie had further acquired the status of an under-raiyat with occupancy right. He further held that the occupancy right which Nirbandh had acquired by prescription was not heritable and accordingly the defendants, his sons, had acquired no interest in the disputed land and were mere trespassers liable to be ejected. He accordingly affirmed the decree of the learned Munsif and dismissed the appeal. Now the defendants have come up in second appeal.

6. On merits, there is very little to be said and, in fact, no serious argument was advanced. There is the concurrent finding of fact that Nirbandh Oraon had acquired a dar-raiyati interest in the disputed land by adverse possession for over 12 years and that he had also acquired the status of an occupancy raiyat. This right he acquired long before the sikmi khatian was prepared in his name in 1935. There is no dispute that Nirbandh Oraon died in 1945 and the present suit was brought within 12 years of his death on 4-4-51, unless, therefore, the defendants had inherited the right of Nirbandh Oraon, they could not successfully resist the suit because, before they could perfect their title by adverse possession for 12 years, the present suit was brought. So the only material question is whether or not the occupancy dar-raiyati interest which Nirbandh Oraon possessed devolved on his death on his sons, namely, the defendants. Now, it has been hel