U.N.Sinha, J.

1. This appeal, filed by the plaintiff, has been referred to a Full Bench for decision. The point stated by the Divisional Bench in the order of reference will be clear after the facts have been narrated.

2. The plaintiff has instituted a suit, out of which this appeal has arisen, for declaration, of title to and for recovery of possession of certain lands, mentioned in the plaint, along with mesne profits. The right claimed by the plaintiff was that of an under-raiyat. It was alleged that 1.78 acres of land in village Bachiar was the raiyati Kasht lands of two brothers, named Durga Bhagat and Kishun Dayal Bhagat. Durga Bhagat had left four sons, and Jagarnath Bhagat was the only son of Kishun Dayal Bhagat. As a result of Title Partition Suit No. 9 of 1935, these lands had fallen to the share of Jagarnath Bhagat. It was contended that the plaintiff was inducted as an under-raiyat of the disputed lands by Durga Bhagat, on an annual rent of Rs. 100. Having remained in possession for more than twelve years, the plaintiff contended that he had acquired right of occupancy in the disputed land.

It was alleged that the defendants first party had purported to purchase