1. This appeal arises from a judgment and decree, dated 24-8-1974 passed in Title Suit No. 178/124 of 1968/ 1974 by the 3rd Additional Subordinate Judge, Bhagalpur.

2. By the aforesaid judgment and decree the trial Court has held that the plaintiffs do not have occupancy right with respect to the suit land.

3. The suit was filed for declaration that I the plaintiffs are the raiyats of the suit lands J and have got occupancy right thereon and the defendant, i.e. State of Bihar has no right to make settlement of the suit land and, if ! any, such settlement is made, it will be in violation of the provisions of law.

4. The lands in question appertain to khesraNos. 12, 13, 14 and 15of khata No. 4 situated in Mauza Asanandpur, Thana No. I I I and measure 6, 7 acres and land of khesra No. 12, khata No. 5 situated in Mauza Dharrnpur Mills measuring 3 acres. The lands have been described in the records of right as Ghair Mazrua Mokaridar, the Collector of Bhagalpur under the Thakurs of Barari who were the proprietors.

5. The plaintiffs case is that they were in possession over the lands for more than fifty years on the basis of successive settlements made with them from time to time by the Collector of Bhagalpur on payment of rent. The entry made in the recent Khatiyan describes the lands as Ghair Mazrua and indicates that the lands are in possession of plaintiff No. 1. The plaintiffs filed a petition for fixation of rent on 14-9-1967 which was referred to Halka Karmchari for enquiry. The Halka Karmchari found the plaintiffs in possession and the Circle Officer recommended that the fixation of rent should be made in favour of the plaintiffs. The Dy. Collector Land Reforms, Sadar, Bhagalpur by order, dated 15-7-1967 rejected the recommendations made by the Circle Officer. The plaintiffs came to know that a fresh settlement was to be made and he filed an application claiming title and possession and stating that the State had no right to make any settlement. On rejection of the claim the plaintiffs filed the suit.

6. A written statement has been filed on behalf of the defendant 1st party stating therein that in recent survey the suit lands have been recorded in the name of State of Bihar and the entry made with respect to possession of the plaintiffs is incorrect. The State has denied the possession of the plaintiffs and had stated that the settlements have been made to defendant 2nd set with respect to the land in question. It is the specific case of the defendants that the suit lands were/are known as Choti Race Course. Sri Karan Mohan Thakur was the landlord in respect of the lands of Mauza Asanandpur whereas Sri Taraknath Ghosh was the Mokaridar with respect to both the lands which were recorded as Ghair Mazrua Mokaridar.

7. During the recent survey and consolidation proceeding the lands were recorded as Ghair Mazrua Sarkar. It has specifically been stated that 15 bighas, .15 kathas and 17 dhurs of lands were temporarily leased by public auction under the orders of the Collector, Bhagalpur and from the records it appears that several persons including plaintiff No. 1 took part in the public auction for temporary settlement. It is stated that the defendant had not acquired right, title and interest over the suit lands as he was a settlee for specific period only.

8. The Court below has framed six issues. The issue with respect to service of notice under Section 80, CPC and question of limitation and maintainability of the suit have been decided in favour of the plaintiffs. The Court below has found that the plaintiffs are not occupancy raiyat of the suit land. For this purpose the Court below has referred to the evidence led on behalf of the plaintiffs and found that the plaintiffs were not in continuous possession. The Court has also relied on Section 20 of the Bihar Tenancy Act to hold that the plaintiffs do not have any occupancy right.

9. The main question that arises on behalf of the plaintiffs-appellants is that whether t