A surrender and settlement which constitute one transaction and are adopted as a device to circumvent Sec. 46 of the Chota Nagpur Tenancy Act are void.

, J.

1. This appeal by defendants 1 to 5 is directed against the judgment and decree of the District Judge of Singhbhum setting aside a judgment and decree of the Munsif and consequently dismissing a suit for declaration of title to and recovery of possession of a culturable area of land measuring 17 bighas 5 kathas 13 dhurs being a portion of khata No. 32 in village Tulasram police station Chandil in the district of Singhbhum.

2. One Harinarain Patar was the recorded raiyat of khata No. 32. He died leaving behind three sons, namely, Mango-binda, Dhananioy and Ramgopal. Mango-binda died leaving a widow named Sarala Patarani (defendant No. 10 in the suit). Dhananjoy and Ramgopal died lone ago. Defendants 1 to 3 are the sons of Dhananjoy and defendants 4 and 4(a) are his two widows. Defendant No. 5 is the son of Ram-gopal.

3. The case of the plaintiff respondent was that after the death of Harinarain his three sons came in possession of the family property, including the suit land. There was a private partition, by which the land described in schedule 2 to the plaint fell to the share of Mangobinda and after his death inherited by defendant No. 10 She held this land for sometime but surrendered it to the landlord on the 22nd October. 1946, under a registered deed of surrender (Ext. 2/a), and the landlord settled the land, which includes the suit land, on the 21st September, 1949, with the plaintiff under a registered deed (Ext. 2/b). It was then alleged that since the surrender the landlord was in possession of the land and since the date of settlement the plaintiff was in possession of the same as an occupancy raiyat thereof.

On the 5th March, 1958, defendants 1 to 5 alone with their labourers who are defendants 6 to 9, are said to have cut away the standing paddy crops from the suit land On account of this occurrence, the plaintiff instituted a criminal case against these defendants, but they were all acquitted As a cloud had been cast on the title of the plaintiff and by the said occurrence the plaintiff was dispossessed by defendants 1 to 5 on the 5th December, 1958, he instituted the present suit The main relief which he claimed has been stated in the beginning of the judgment. He, however, sought an alternative relief for partition by metes and bounds of one-third share in the family land described in Schedule 3 to the plaint, that share being that of the branch of Mangobinda HP also claimed a decree for Rs. 300 against the defendants as the price of the paddy crops cut and removed by them.

4. Defendants 1 to 4 and 4(a), i.e., the descendants of Dhananioy contested the suit. Their defence was that there was never any partition of the family property by metes and bounds; rather, after the death of Harinarain, all his sons held the family property jointly, though, for the sake of convenience, each one of them cultivated some land separately. Defendant No 10 was not in actual possession of the land described in Schedule 2 to the plaint and the deed of surrender, if any, executed bv her must be collusive. The plaintiff never got possession of the land and the same was in possession of Dhananjoy and, after his death, of his widow, defendant No. 4 For convenience of cultivation, she gave the land to defendants 1 to 3 for being cultivated as bhagidars. The allegation regarding theft of the standing crops was denied. It was also pleaded that the alleged surrender and settlement formed part of the same transaction, which contravened Sec. 46 of the Chota Nagpur Tenancy Act.

5. The learned Munsif found that defendant No. 10 was never in exclusive possession of any family land and that the documents of surrender and settlement were collusive and sham transactions and that the transaction in question contravened the provisions of Sec. 46 of the Chota Nagpur Tenancy Act. He also disbelieved the other allegations of the plaintiff and dismissed the suit. The learned District Judge, however, decided all the facts in favour of the p