Das, J.@mdashThis is a second appeal by defendant 1st party. The suit out of which the appeal has arisen was a suit for a declaration of title and confirmation of possession, or in the alternative recovery of possession of two bighas 8 kathas and 19 dhurs out of plot No. 1233 of khata No. 12 of village Dafapur alias Ismailpur bearing touzi No. 10142. The case of the plain, tiffs-respondents was that the disputed land was bakasht land of the malik. The old touzi NO. of the village was 1070, and in that touzi one Harihar Prasad Singh had one anna five dams interest. The Manjauli concern, an indigo planting concern, was the other co-sharer. It is not in dispute that the interest of Harihar Prasad Singh to the extent of one anna and five dams was in thika of the Manjauli concern. In the village there was a large area of bakasht lands. Harihar Prasad Singh executed certain mortgages with regard to his interest in 1914 and 1915. In 1921 and in 1922, Harihar Prasad Singh executed two mortgages in favour of the plaintiffs-respondents by which the earlier mortgages were to be paid off. On the basis of the said two mortgages the plaintiffs respondents instituted two suit in 1929. The suits were decreed in 1934, and in execution of the decree the property mortgaged was sold including the bakasht lands which fell to the share of Harihar Prasad Singh. The sale took place on 19-11-1940, and delivery of possession was taken on 7-8-1941. When the mortgage suits were pending there was a partition, and the interest of Harihar Prasad Singh was carved into a separate new touzi bearing No. 10142. It is not in dispute that the disputed land was part of the bakasht lands allotted to Harihar Prasad Singh by the aforesaid partition. The case of the plaintiffs-respondents was that they came in possession of the disputed land after the purchase and delivery of possession referred to above. There was an interference with their possession in December 1942, and hence the suit for a declaration of their title and confirmation of possession, or in the alter. native recovery of possession.
2. The defence of the present appellant was that the disputed land was settled with her father by the Manjauli concern some thirty years ago, and her father remained in possession on payment of rent to the Manjauli concern. After the death of her father the appellant remained in possession on payment of rent to the Manjauli concern. During the pendency of the mortgage action by the plaintiffs-respondents the interest of Harihar Prasad Singh was sold in favour of the defendants second party in execution of a money decree. The defendants second party got possession of the proprietary interest of Harihar Prasad Singh from the thikadar, the Manjauli concern, and the defendants second party also recognised the appellant as a tenant in respect of the lands and granted receipts for payment of rent. The appellant claimed that she had acquired a right of occupancy in the lands and was not, therefore, liable to be ejected.
3. The learned Munsif, who dealt with the suit in the first instance, held that there was a bona fide settlement in favour of the appellant, and the plaintiffs-respondents were entitled to receive the rent only but were not entitled to eject the appellant. On that finding he dismissed the suit. The learned Subordinate Judge, who heard the appeal, found that there was a temporary settlement in favour of the appellant''s father by the Manjauli concern, but accepted the contention made on behalf of the plaintiffs respondents to the effect that the settlement made by the Manjauli concern could not enure beyond the period of the thika and that the Manjauli concern could not by its action bind the lessor. In that view of the matter, the learned Subordinate Judge held that the appellant had not acquired any permanent occupancy right and was, therefore, liable to be ejected by the plaintiffs respondents who had acquired the interest of Harihar Prasad Singh by the purchase in execution of their mortgage decree.
4. Two points have been urged before me on behalf of the appellant. Firstly, it is contended that in an action in ejectment it was for the plaintiffs respondents to prove that either they or their predecessors in interest had been in khas possession within twelve years of the suit, Secondly, it is contended that the appellant had acquired a right of occupancy in the lands by operation of law by reason of the provisions of Sections 20 and 21, Bihar Tenancy Act. I think the second point is decisive of this appeal, and I propose, therefore, to consider the second point at some length.
5. There is a clear finding by the final Court of fact that there was a temporary settlement of the lands by the Manjauli concern in favour of the appellant''s father. In one part of the Judgment the appellate Court seemed to think that the lands might have been given to the appellant''s father in lieu of services to the Manjauli concern, it being admitted that the father of the appellant was a servant of the Manjauli concern. It was, however, nobody''s ease that the lands were given to the appellant''s father in lieu of services. On the contrary, the dear case of the appellant in Para. 12 of the written statement was that the lands had been settled with her father by the Manjanli concern, which had accepted rent, and that the appellant also paid rent as a raiyat in respect of the lands after the death of bar father. The learned Subordinate Judge has expressed the finding of fact in the following words :
"It appears that the respondent was holding the land as a temporary settle during the thica period of Manjhauli Kothi. She continued her possession over it when the possession of the disputed Touzi went to defendants second party, She teems to be under the wrong impression that the length of possession has given her indefeassible rights in the suit land. Under that impression of consciousness she cut and removed the Simal tree. But as said above the length of possession under the peculiar circumstances of this case can hardly confer valid qaims right in it upon her."
At another place in the Judgment the learned Subordinate Judge has stated that the Manjauli concern as a thikadar of the disputed land could not have settled the land with the defendant or her father beyond the thika period and could not legally bind the lessor by its action. The learn-ad Subordinate Judge appears to have lost sight of the provisions of Sections 20 and 21, Bihar Tenancy Act. u/s 20, every person, who, for a period of twelve years, whether wholly or partly, before or after the commencement of this Act, has continuously held as a raiyat land situate in any village, whether under a lease or otherwise, shall be deemed to have become, on the expiration of that period, a settled raiyat of that village. u/s 21, every person who is a settled raiyat of a village within the meaning of Section 20, shall have a right of occupancy in all land for the time being held by him as a raiyat in that village. If, therefore, the finding of the learned Subordinate Judge that the appellant''s father and thereafter the appellant continued to hold the lands as a raiyat continuously during the thika period of the Manjauli concern is a correct finding, then the appellant has, by operation of law, acquired a right of occupancy in the lands by reason of the provisions of Sections 20 and 21 Bihar Tenancy Act referred to above. This aspect of the learned Subordinate Judge seems to have lost sight of.
6. Mr. Lal Narain Sinha appearing on behalf of the plaintiffs respondents has contended that the learned Subordinate Judge did not correctly appreciate the legal position, and, therefore did not apply his mind to the question whether there was a temporary settlement by the Manjauli concern and whether the appellant or her father continuously held the land as a raiyat for a period of twelve years. He suggested that as the application of Sections 20 and 21, Bihar Tenancy Act, was not specifically considered by the learned Subordinate Judge, the case should go back on remand for a finding as to whether the appellant or her father held the land continuously as a raiyat for a period of twelve years. In my opinion, there is no necessity for a remand. I have quoted the exact words in which the learned Subordinate Judge expressed his finding. They show that be found clearly that the appellant was a temporary settlee during the thika period of the Manjauli concern, and she continued her possession over it as a raiyat. We know that the thika period of the Manjauli concern did not come to an end till the defendants second party took possession of the interest of Harihar Prasad Singh by purchase is execution of their money decree. That was some time after 1929 when the mortgage action was brought. The allegation in the written statement was that, the temporary settlement was made by the Maujauli concern in favour of the appellant''s father some thirty years ago, which would take one back to the year 1914. If, therefore, the appellant''s fattiest and thereafter the appellant was in possession as a raiyat from 1914 to some time after 1929, the period would be much more than twelve years. An attempt was made before me to show that the appellant based her title not on a settlement made by the Manjauli concern, but on a settlement alleged to have been made by the defendants second party during the pendency of the mortgage action by the plaintiffs respondents. It appears that the word ''settlement'' has been rather loosely used, and the Judgment of the learned Munsif gives one the impression, that the appellant claimed that a final settlement was made with her during the time when the defendants second party were in possession. Learned counsel for the parties have, however, read out the relevant paragraphs of the written statement to me, and it is clear from those paragraphs that the appellant claimed that a settlement had been made in favour of her father some thirty years ago and her father came in possession as a raiyat, as a result of that settlement. Her father continued in possession as a raiyat and thereafter the appellant continued in possession as a raiyat continuously during the thika period, and she continued in such possession even after the defendants second party obtained possession of the interest of Harihar Prasad Singh from the Manjauli concern. That being the position, it is clear to me that the appellant had acquired a right of occupancy by operation of law and was not liable to be ejected by the plaintiffs-respondents who had purchased the interest of Harihar Prasad Singh in execution of their mortgage decree and had obtained delivery of possession in 1941
7. The result, therefore, is that the appeal is allowed, the Judgment and decree of the learned Subordinate Judge are set aside and those of the learned Munsif are restored. The appellant will be entitled to her costs throughout.
