Under the Bihar Tenancy Act, 1885, under-raiyats, even with occupancy rights, do not have the right to transfer their interest in the land they hold.

P. S. Mishra, J.

1. Whether under Raiyats, having occupancy rights under the Bihar Tenancy Act, 1885 , can transfer alienate and/or otherwise dispose of their interest or not, is the short question raised in this appeal.

2. The defendant-appellants, who have lost in both the courts below, have preferred this appeal. The plaintiff respondents filed the suit for declaration of title and recovery of posssession with mesne profits. They alleged that their ancestors were the raiyats of the lands in dispute and they were so recorded in the record of rights. In due course there was a partition in their family and their interests were separated from other co-sharers. The lands in dispute were allotted to their share. According to them, Ram Pratap Choudhary was the under-raiyat in occupation of the lands was used to cultivate and divide the produce and after his death, his widow Jagpato came in possession. She also was recognised as the under raiyat and she continued as the Sikmidar till her death. After her death, her daughter, Mariun Kuer came in possession by virtue of inheritance. She, however, sold her Sikmi rights in the suit lands to the defendant-appellants by dint of several sale deeds. The sale deeds, according to the plaintiffs were fraudulent collusive, illegal and void and created no light in favour of the defendants (transferees ).

3. There is no serious controversy about the nature of the tenancy, as according to the defendant-appellants by virtue of inheritance Marun Kuer acquired Sikmi rights which she transferred in their favour. They have however, added to the controversy, a fact that Jagpato had made a gift of her Sikmi rights in favour of her daughter Marun Kuer in the year 1941. According to the defendant appellants, Marun Kuer came in possession of the disputed lands not after the death of Jagpato but by virtue of the aforesaid gift in the year 1941. She transferred her interest by executing various sale deeds in favour of the defendant-appellants between 1943 and 1959 and by executing a will in respect of some other lands in favour of her daughter Jewan Kuer on 13-6-1951. Jewan kuer also executed some sale deeds in favour of the defendant appellants. By virtue of sale deeds executed by Marun Kuer as well as Jewan Kuer, the defendants had come in possession of the suit lands.

4. The courts below have held that the defendants acquired no valid title by virtue of any of the sale deeds in their favour in respect of the suit land as their transferer, either Marun or Jewan and no transferable right or interest in the suit properties.

5. The Bihar Tenancy Act, hereinafter referred to as the Act, has defined a raiyat in Sec.5 thereof to mean primarily person who has acquired right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants or with the aid of partners and to include also the successor-in-interest of persons who have acquired such a right. It also says that where a tenant of land has the right to bring it in cultivation, he shall be deemed to have acquired a right to hold it for the purpose of cultivation, notwithstanding that he used it for the purpose of gathering the produce of it or of grazing cattle on it sub-section (3) of the section, however, says that a person shall not be deemed to be a Raiyat unless he holds lands either immediately under a proprietor of immediately under a tenure holder. Notwithstanding the introduction of the bihar Land Reforms Act the position of a tenant has remained the same a defined under Sec.5 of the Act, although the tenure holders and proprietors have lost their rights and the raiyats have been admitted as tenants under the State itself.

6. In classes recognised under the Act as tenants, after the raiyats fall under raiyat either having a right of occupancy in the land held by them or having no such right of occupancy. Sec.26a of the Act (introduced by Bihar Act XI of 1938) says that every occupancy holding or a p