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. Section 26-A occurring in Chapter V status inter alia, that every occupancy holding or a portion thereof, together with the right of the occupancy therein, shall be capable of being transferred and be quashed in the same manner and to the same extent as other immovable property, and all transfers made by sale, exchange or gift and all bequests shall, subject to the provisions of Sub-section (2), is binding on the landlord. Sections 23 and 23-A of the Act occurring in Chapter V thereof deal with right in respect of the use after acquisition of occupancy right therein and about the rights of occupancy raiyats, etc. Chapter VII of the Act deals with under raiyats. Section 48-C occurring in that chapter states about acquisition of rights of occupancy by under raiyat. This follows Section 48-D, which too occurs in that chapter. It runs as follows:
An under raiyat, who has acquired a right of occupancy in any land under Section 48-A, shall be subject to the same provisions with respect to rights in trees and bamboos and the use of, succession, to and eviction from such land as an occupancy raiyat
Obviously, like Section 26-A occurring in Chapter V of Act there is no provision in Chapter VII entitling an under raiyat even after acquisition of the occupancy right by him, to transfer his under raiyati interest by sale or otherwise. In the absence of any provisions in the act entitling and under-raiyat with occupancy right to transfer his under-raiyati interest in the land, any transfer made by an under-raiyat of his under raiyati interest can not be binding on the raiyat under whom the under tenancy stands, unless the matter is covered by Section 183 of the Act or other relevant provisions thereof regarding which no case has made out. In such a situation the raiyat will be entitled in law to repudiate any such transfer made by the under raiyat undisputedly, the raiyat interest of disputed land belonged to Mushahru whose heirs sold their interest under the sale deed dated the 4th July, 1962. Thus, the title of the plaintiff over the disputed land as raiyat is intact and was not disputed before this Court. Jitni and after her defendants 6 and 7 merely claimed to be under raiyat in respect of these land though with a right of occupancy. Thus, the symbolical possession of the plaintiff over the disputed land as raiyat after her purchase remains intact.
8. Relying on a single Bench decision of this Court in the case of Munilal Mandal v. Babaji Mandal 1963 B.LJ.R. 90, the submission on behalf of the respondent was that an under tenant acquired occupancy right in the land if he continues in the possession for 12 years and is entitled to convey valid title to the transferee by sale. The facts of this case are distinguishable in as much as the person who is challenging the sale deed executed in favour of defendants 6 and 7, is the raiyat himself, merely, the plaintiff, who has validly acquired her title as such from the recorded tenant. His Lordships, while observing in the said decision that any sale made thereof is binding at least against third person clearly observed that this would be a right of vito in favour of the landlord. The point at issue stand a clearly covered by a Bench decision of this Court in Srikishun v. Harihar I.L.R. 27 Pat. 194. This Lordships held in this case that a part from custom the Bihar Tenancy Act did not bestow any right on the under tenant to transfer his under raiyati interest even if he had acquired occupancy status.
9. Learned Counsel for the respondent submitted that in paragraph 13 of the written statement filed on behalf of the contesting defendant it has been alleged that the sikmi right was transferable by custom in the locality. No such issue was however framed nor any evidence appears to have been led by any of the parties on this point. Besides, no such point was agitated even before the lower appellate Court. In such a situation no such plea based solely of the facts can be entertained in the second appeal particularly when the contesting defendant singularly failed to adduce any evidence worth the name to substantiate any such allegation.
10. No other contention having been raised it has to be held that the plaintiff is entitled to the declaration of her title as raiyat over the disputed land and to confirmation of her possession thereon as raiyat. She is further entitled for permanent injunction against the defendants restraining them from interfering in any way with her right of possession over the suit land as a raiyat. In view of the law as it stand and the circumstances stated above the transfer of under raiyati interest in favour of the defendants No. 6 and 7 can not be regarded as a good and valid, much less binding on the plaintiff. The approach adopted by the lower appellate Court is wrong and has resulted in findings which cannot but be regarded as perverse and illegal.
11. The result is that this appeal succeeds, the judgment and the decree of the lower appellate Court are set aside and those of the trial Court are affirmed. In the facts and circumstances of this case, however, there shall be no order of cost of the second appeal and the parties shall bear their own costs.