A trespasser in possession of land can maintain a possessory suit against a subsequent trespasser who has dispossessed him.

B.N.Jha, J.

1. There is dispute in this case that the land bearing plot No. 102 of khata No. 3 of village Badgawan having an area of 2.78 acres appertained to the estate of the defendants commonly known as Palganj estate which vested in the State of Bihar on July 13, 1953. The plaintiffs-respondents claimed the aforesaid land by virtue of settlement by Rang Bahadur Prasad Singh, grand-father of defendant No, 1 under a hukumnama dated November 26, 1931 in the name of plaintiff No. 2 at an annual rental of Rs. 4 besides cess. Village Badgawan where the suit land lies was in thika at that time which was to end on 30th Falgun 1359 Fs. Hence the plaintiffs were to take possession of the land in question after the expiry of the thika i. e., from 1st Chait. 1359 Fs. The land was being cultivated by the thikadar through bataidars. The plaintiffs took possession of the land and began to get it cultivated through bataidars. They continued in possession for some time but subsequently, there was a proceeding under Sec.144 of the Code of Criminal Procedure in respect of the suit land and, thereafter, defendant No. 2 took forcible possession of the suit land on 30th Magh, Fs. corresponding to February 26, 1955. Hence the plaintiffs brought the suit for declaration that the plaintiffs have raiyati right in respect of the disputed land and for confirmation of their possession, in the alternative, for recovery of possession besides mesne profits past and future.

2. The suit was resisted by the defendants. They asserted that the hukumnama in question was a forged and fabricated document and as it was not registered, no valid settlement of the land in favour of plaintiff No. 2 was made. They alleged that the plaintiffs never came in possession of the land and the whole story of possession and dispossession was false. According to the defence case, the defendants, as landlords, were in possession of the suit land throughout.

3. The trial court disbelieved the case of the plaintiffs and dismissed the suit On appeal, however, the suit was decreed. The defendants filed a second appeal in the High Court which was allowed and the case was remanded to the lower appellate court for fresh hearing- After remand the lower appellate court came to the conclusion that the hukumnama was genuine document and a valid raiyati settlement was created by the document in favour of the plaintiffs. Hence the appeal was allowed and the plaintiffs suit was decreed. Hence the defendants have come up in second appeal.

4. The second appeal was heard by a Division Bench of this Court presided over by Mr. Justice Tarkeshwar Nath and myself. It was urged by learned counsel for the appellants that there could not be a valid raiyati settlement without the hukumnama being registered. This position was virtually accepted by learned counsel for the respondents but he contended that the plaintiffs were in possession of the suit land. The defendants who were ex-landlords were not in possession of the suit land at the time of the vesting of the estate. Therefore, they had no right to dispossess the plaintiffs. Hence, on the basis of previous possession the plaintiffs were entitled to a decree. Since the lower appellate court had not recorded a clear finding as to when the plaintiffs were dispossessed either by defendant No. 1 or defendant No. 2 or by both and also as to whether the defendants were in possession of the suit land on the date of the vesting of the estate, we, therefore, remanded the case for recording clear findings on the aforesaid points on the materials already on the record. After remand the lower appellate court has come to the conclusion that the plaintiffs were dispossessed by defendant No. 2 on February 26. 1955 as alleged by them and the defendants were not in possession of the disputed land on the date of vesting i. e., on July 13, 1953.

5. At the hearing of the appeal we were not addressed on the question of the validity of the settlement by the hukumn