Chaudhary Sia Saran Sinha, J.

1. The substantial question of law, formulated in this second appeal at the instance of the plaintiff against the judgment of reversal, is a short one, namely whether an under tenant even after remaining in possession for more than 12 years can lawfully transfer his under tenancy right.

2. Short facts, relevant for the disposal of this appeal, which are more or less undisputed, are these. Plot Nos. 5922 and 5923 having an area of 0-09 and 0-08 acres respectively lying in mauza Rampur Mohanpur, Araria, in the district of Purnea, were recorded as raiyati lands of one Mushahru father of defendants 8 and 9, Sk. Khalil and Sk. Jamil, respectively. Defendants Nos. 8 and 9 sold the raiyati interest in these plots obviously on the death of their father, Mushahru, to the plaintiff under a registered sale deed dated the 4th July 1962. One Jitni, widow of of Buni Baitha was recorded in the revisional survey recorded of rights as sikmidar in respect of these two plots. Sk. Khalil and Phulai Baitha (defendants 6 and 7) respectively claimed to have purchased the under-raiyati interest of these two plots from the recorded tenant Jitni on the assertion that Jitni, by being in possession over the said land for more than 12 years, he acquired right of occupancy over the same. Some criminal litigation preceded the instant suit and ultimately the plaintiff instituted this suit for declaration of her title, confirmation of possession with a further prayer for grant of injunction.

3. The defendants first party are the grand sons of one Nabir, who was said to be the benamidar of Sk, Musharu. Defendants first party did not, however, contest the suit and the question of benamidar is thus irrelevant. The suit was contested only by defendants No. 7 and by some intervenor defendants challenging the claim put forward by the plaintiff in toto.

4. The trial Court found that the plaintiff proved her possession over the suit land and that 12 years possession of Jitni as Sikmidar over the suit land or acquisition of any occupancy right by her in the suit land was not substantiated. The sale deed in favour of defendant No. 6 and 7 was held to be appear transaction which was never acted upon. The result was that the trial Court decreed the plaintiff suit. In view of the limited contention raised in this appeal it is not necessary to dilate upon the case of the intervenor defendants,

5. Defendant No. 7 and the intervenor defendants went in appeal. The lower appellate Court found that Jitni and her husband were in long continuous prossession of the disputed land for more than 12 years and Jitni had acquired right of occupancy therein. The finding of the trial Court that the sale deed in favour of defendants No. 6 and 7 was a paper transaction was found to be incorrect. The result was that the lower appellate Court allowed the appeal set aside the judgment and the decree of the trial Court and dismissed the plaintiffs suit. This is how the plaintiff has come up to this Court in this second appeal.

6. The finding of fact recorded by the lower appellate Court that Buni Baitha and Jitni remined in possession over the disputed land for or more than 12 years as under tenant was not challenged before this Court by the learned Counsel for the appellant the submission of learned Counsel for the appellant was that even after acquisition of the occupancy right by an under raiyat, which Jitni was, she had no right to transfer the said under raiyati interest to defendants 6 and 7.His further submission was that the raiyati interest of a raiyati in his holding would remain in fact although subject to the provision of the Bihar Tenancy Act, 1885 (hereinafter referred to as the act even after acquisition on the occupancy right by an under raiyat in respect thereof and this being the position the plaintiff was entitled in law to the relief claimed by her.

7. Chapter V of the act deals with the occupancy rights. Sec.26-A occurring in Chapter V