Syed Md.Mahfooz Alam, J.

1. This second appeal has been preferred by the defendant-appellant against the judgment and decree dated 22.7.1986 passed by Sri M.K. Verma, 3rd Additional District Judge, Munger in Title appeal No. 105 of 1978 whereby he has been pleased to set aside the judgment and decree dated 28.9.1978 passed by Sri Braj Nandan Sahay, Munsif 2nd, Munger in Title Suit No. 163 of 1969 and dismissed the suit of the plaintiff.

2. The brief facts of the case are as follows:

Plaintiff-respondent, Nathuni Ram Marwari, filed title suit in the court of the Munsif 2nd, Munger which was numbered as Title Suit No. 163 of 1969 for declaration of his title and confirmation of possession over the suit land and in the alternative, for recovery of possession if he is found dispossessed during the pendency of the suit. The suit was contested by defendant Dehal Mahto and others. On 28.9.1978 the judgment was delivered in the suit by the Munsif 2nd, Munger and by the said judgment, the plaintiffs suit was dismissed. An appeal was preferred by the plaintiff, Nathuni Ram Marwari, against the said judgment which was numbered as Title Appeal No. 105 of 1978. The appeal was disposed of on 22nd July, 1986 by Sri M.K. Verma, 3rd Additional District Judge, Munger, who allowed the appeal and decreed the suit of the plaintiff. The defendants, being aggrieved by the said judgment in appeal, have preferred this second appeal.

3. The case of the plaintiff-respondent, in brief, is that he is a representative and Karta of Joint Hindu Family governed by Mitakshara School. The suit land described in Schedule I of the plaint was owned and possessed by him and he has been coming in possession thereof. During the survey which was finally published on 20.12.1939, the suit land was recorded in the name of Manu Lal Marwari, son of Bansi Lal Marwari, resident of Mohalla Khalifabag, Bhagalpur. The name of Siya Mahton, the father of defendant No. 1, was recorded as non-occupancy under-raiyat only for a temporary period of two years during the survey proceeding and accordingly, a Sikami Khata was opened in the name of Siya Mahton, father of defendant No. 1. The said Manulal Marwari was shown as landlord of Siya Mahton for the said Sikami Khata. Further case of the plaintiff is that the said Siya Mahton lost all concern from the suit land immediately after 20.12.1939. Manu Lal Marwari, the recorded tenant, died leaving behind a widow Mostt. Manbhari Devi and two minor sons, namely, Basudeo Sah and Banwari Sao. The widow of Manu Lal Marwari, namely, Mostt. Manbhari Devi executed a registered sale deed with respect to the suit land as well as some other lands in favour of the plaintiff on her behalf and on behalf of the two minor sons and by virtue of the said sale deed, the plaintiff came in possession over the suit land and acquired valid title. The plaintiff has been paying rent all along and getting rent receipts for the same. Siya Mahton or his heirs had no concern with the suit land and they were never in possession except for two years at the time of survey proceedings but immediately after the survey proceeding was over, Siya Mahto surrendered and gave up the possession of the suit land to Manu Lal Marwari and after the said surrender there had been no relationship of the tenant and under-tenant between the plaintiff on the one hand and Siya Mahton or his other heirs on the other hand. Further case of the plaintiff-respondent is that during the survey proceeding, defendant No. 1 and others filed objection before the Assistant Settlement Officer, Munger on that basis Case No. 114 (VIII) of 1967-68 was started and ultimately, on 7.9.68, the Assistant Settlement Officer passed order in the case that the defendant-appellant is entitled to continue as Sikamidar over the suit land. It has been stated that the said order of the Assistant Settlement officer is based on misconception of law and the Assistant Settlement Officer had ignored this fact that d