JUDGMENT
Shivanugrah Narain, J.
1. This appeal by defendant No. 1 is directed against the decision of the 1st Additional District Judge, Motihari by which he has dismissed the appeal filed by defendant No. 1 against the judgment and decree of the 5th Additional Subordinate Judge, Motihari decreeing the suit for partition filed by the plaintiff-respondents 2. Defendant No. 1 Inar Hazara is the son of one Bishun Hazara. The plaintiffs, Rambriksha and Bikram are the sons of Ramgovind, brother of Bishun Hazara. The other defendants in the suit were sons of Inar’s brother and Mossomat Rupiya, widow of Ramgulam another brother of Bishnu besides defendant No. 5 who was Mossomat Rupiya’s daughter’s son. The plaintiffs brought the suit for partition of 6 bighas 5 kathas 16 dhurs of land detailed at the foot of the plaint situate in village Bhawanipur within the district of East Champaran and the plaintiffs have claimed l/3rd share in the suit lands. The suit lands appertain to khata No. 682 which stood recorded in the names of the three brothers, Bishun, Ramgulam and Raragovind and Ramlal who was admittedly son of Mauleshwar, a brother of Kewal who was father of Bishun and his two brothers. According to the entry in the khatian (Ext. C) Ramlal had one share in those lands while Bishun and his brothers had jointly one share therein. The land was recorded as Belagan Jagir. The entry in respect of the aforesaid land in the remarks column is Jagir Waste Goraiti.
3. The case of the plaintiffs, briefly, stated is that the suit lands were their ancestral lands of the joint family consisting of the three brothers Bishun, Ramgulam and Ramgovind, that on the death of Ramlal, Bishun, Ramgulam and Ramgovind inherited Ramlal’s share in the suit lands also and on the death of the three brothers the suit land came in possession of the plaintiffs and defendants 1 to 4 as their Jagir Goraiti and that after the vesting of Zamindari in the State of Bihar the suit lands became their kast lands and the plaintiffs and defendants 1 and 4 were jointly in possession thereof and the plaintiff’s share therein was one third. According to the plaintiffs as they reside mostly in the disirict of Saran, the management of the suit properties was in the hands of defendant No. 1 and as he was not maintaining proper accounts and there was difficulty in continuing in joint possession, the plaintiffs made a demand for partition which was refused and hence the suit. The plaintiffs also asserted that defendant No. 4 had gifted her interest in the suit properties to defendant No. 5.
4. Defendant No. 5 filed a written statement supporting the case of the plaintiffs. The suit was contested by defendant No. 1 alone. Defendants 2 and 3 who are the brother’s son of defendant No. 1 did not file any separate written statement. The defence of defendant No. 1 was that though the suit-lands originally belonged to the three brothers Bishun, Ramgulam and Ramgovind and were in their joint possession as Goraits, Ramgulam ceased to perform services as Gorait on account of his illness and Ramgovind also was unable to perform services as Gorait as he had shifted to his Sasural in the district of Chapra and that brother Ramgoviad and Ramgulam surrendered their interest in the suit property to Bishun, father of defendant No. 1 and thereafter, Bishun alone functioned a Gorait and remained in exclusive possession of the suit land and on his death defendant No. 1 began to work as Gorait and was in sole possession of the lands and that the lands in suit were settled with him by the State of Bihar after the Zamindari vested in the State. The deed of gift in favour of defendant no, 5 by Mossomat Rupiya was impugned by the defendants as not valid.
5. The learned subordinate Judge who tried the suit held that the plaintiffs had unity of title and possession with the defendants in respect of the suit land which did not belong exclusively to defendant and he accordingly, decreed the plaintiffs suit for partition and directed that a separate takhta for their l/4th share be carved out.
6. As I have already stated the appeal against the aforesaid decree of the learned subordinate Judge has been dismissed by the lower appellate Court. While dismissing the appeal the lower appellate Court has recordad the following findings;
(i) It can be presumed that the grant of Jagir was made to Bhuri, father of Kewal and Chandra Mauleshwar (ii) the recorded tenants inherited the Jagir from Bhuri and the landlord did not insist that each and every male descendants of Bhuri render service as Gorait, (iii) the grant of Jagir Waste Goraiti was an absolute grant of land subject to the condition of performance of service as Gorait, (iv) the case of defendant No. 1 that due to his physical incapacity Ramgulam had surrendered his interest in the’ Goraiti land to Bishun was demolished, (v) that it was not competent for Ramgulam or Ramgovind to relinquish their interest to Bishun and that the share of defendant No. 1 in the suit property was not enlarged by the alleged surrender of interest either by Ramgulam or Ramgovind, (vi) that Mossomat Rupiya was jointly in possession of the suit lands, (vii) the plaintiffs were probably not in actual physical possession of the suit land but the facts pleaded by defendant No. 1 did not make out a case of adverse possession muchless a case of ouster and, therefore, the right, title and interest of the plaintiffs subsists in the suit land in spite of their not being in actual physical possession and consequently they had unity of title and possession over the suit land with defendant No. 1 and defendant No. 5 and they were entitled to a decree for partition and a separate patti of 1/3rd share in the suit land.
7. The learned Counsel for the appellant contends that the grant of Goraiti Jagir was an encumbrance within the meaning and the expression as used in Section 4 of the Bihar Land Reforms Act, 1950 and that in consequence of the vesting the State of the estate within which the suit lands were comprised, the interest of the plaintiff, if any, in the suit lands were wiped out as the estate vested in the State of Bihar free from all encumbrances and that after the vesting the suit land, lands were settled with defendant No. 1 alone and the plaintiffs had no interest in the suit lands and, therefore, the suit lands were not liable to partition. This argument proceeds upon two assumptions, (i) that the interest of the plaintiffs and defendant No. 1 in the suit land prior to the vesting of the estate in the State of Bihar was as not the interest of Raiyat or under-raiyat and that it was a mere encumbrance and (ii) that there was a fresh settlement of the suit lands with defendant No. 1 which enures to his sole benefit. None of these two assumptions are, in my opinion, correct. As I have already stated the lower appellate Court has come to a clear and specific finding that Goraiti Jagir enjoyed by the ancestors of the plaintiffs and the defendants and thereafter by the plaintiffs-defendants themselves was an absolute grant of land burdened with service and thus it was not a mere grant of an office to be remunerated by the use of land. When a service tenure consists of grant of land burdened with service, the grantee must be regarded as a tenant of the grantor. In Kariman Ahir v. Nirmal Kumar 52 Indian Cases 181., which was cited by the learned Counsel for the appellant for the proposition that lands held on condition of service the holder of those lands cannot acquire a right of occupancy therein it was spacifically held that the holder of such lands with lands under a contract of tenancy and the decision of the lower appellate Court that the holder of the chowkidari Chakran lands was a tenant in respect of that land, though specifically impugned in the cross appeal was affirmed. It cannot, therefore, be doubted that if, as the lower appellate Court has held the grant was a grant of land burdened with service, the holders of the Goraiti Jagirs were tenants of the grantor and were tenants of the lands held by them as Jagir Goraiti.
8. I have also no doubt that in the facts and circumstances of this case it must be held that the plaintiffs defendant No. 1 and their ancestors belonged to the class of tenants described as raiyats in the Bihar Tenancy Act. The trial Court in a very careful and detailed judgment specifically held that and I agree with that conclusion. Raiyat according to Section 5(2) of Bihar Tenancy Act, 1885 means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by the members of his family or by hired servants or with the aid of partners and includes also the successors in interest of persons who have acquired such a right. It is the admitted position that the plaintiffs and defendant No. 1 and their ancestors were cultivating the lands themselves and, therefore, in absence of any other evidence on the point regarding the purpose for which the right of tenancy was originally acquired it can be safely held that the purpose of the tenancy was for personal cultivation of the lands and not for collecting rent for bringing it under cultivation by establishing tenants on it. It is not disputed that the ancestors of the plaintiffs and defendant No. 1 held the lands either under a proprietor or under a tenure holder. The conclusion, therefore, is irresistible that the plaintiffs or defendant No. 1 or their ancestors were raiyats of the lands and their interest in the suit land subsisted in spite of the vesting of the estate, in which the lands were comprised, in the State of Bihar. The interest of a raiyat or an under-raiyat in the land is expressly saved from vesting by Section 4 of the Bihar Land Reforms Act, 1950.
9. Faced with this position, Shri Prasad the learned Counsel for the appellants, attempted to impugn the finding of the lower appellate Court that the Goraiti Jagir was a grant of lands burdened with service and not a mere grant of an office of Goraiti to be remunerated by the use of the land. Now as pointed out in Tulo Naik v. Bageshwari Charon A.I.R. 1929 Patna 587., the question whether it is a case of tenancy burdened with service or one of a pure service tenure, is one of fact. The same view was expressed in Padmalochan Mahapatra v.Budhram Chirstian A.I.R. 1949 Patna 85., in which it was observed that the finding that the tenures are in the nature of grants burdened with service of a personal nature is” one of fact”. In the present case also no grant has been proved and, therefore, the finding that the Jagir Goriati was a grant of land burdened with service, is a finding of fact. The aforesaid finding being a finding of fact may not be interfered with in second appeal.
10. Shri Prasad, however, attempted to induce me to go behind the aforesaid finding of fact by arguing that the aforesaid finding which was arrived at after recording the further finding that the landlord did not insist that each and every member of the family should perform service was based on conjecture and surmises. This argument is completely misconceived. Admittedly, the interest of Ramlal in the suit properties had devolved on the members of his family who were his heirs. The land was recorded in the khatian in the name of the ancestors of the plaintiffs and defendant No. 1 and of Ramlal. Their names were entered in the column meant for stating the name of the tenant. The correctness of the entry in the khatian was accepted by both the parties. Upon the entry in the khatian Ramlal and the ancestors of the plaintiffs and defendant No. 1 were tenants and, therefore, the aforesaid entry was a material piece of evidence upon which the finding could be arrived at that the grant was a grant of land burdened with service and not merely a grant of an office to be remunerated by use of the land, Nor can the subsidiary finding that the landlord did not insist upon each and every member of the family for rendering service be said to be based on mere conjectures and surmises Defendant No. 1 asserted that he alone performed the services of Gorait but he admitted that defendants 2 and 3 who are is brother’s sons had also interest in the suit land. Further, admittedly the land was not reeumed by the granter even though according to defendant No. 1, Bishun’s brothers did not perform the service. There was, therefore, material on which a Court of fact could come to a conclusion that the grantor did not insist that each and every male members of the family should render service. This contention therefore, must also fail.
11. Upon the finding that the interest of the plaintiffs and defendant No. 1 and defendant No. 4 in the suit lands did not vest in the State of Bihar, the assumption that the State made a fresh settlement of the land in favour of defendant No. 1 after the vesting must be held to be unfounded. I may further point out that there is no material in support of this argument that the State settled the suit lands with defendant No. 1. The only material produced is an order of the revenue authority fixing rant in respect of the lands. That order purports to have been made up on an application under Rules 7(b) of the Bihar Land Reforms Rules, 1951. The order determining the fair and equitable rent upon . an application under rule 7(b) of the aforesaid Rules cannot, in the absence of anything more amount to an order settling the lands in respect of which the rent is determined with the person whose application is allowed. The determination of fair and equitable rent upon an application under rule 7(b) aforesaid is made only of land “as may be deemed to have been settled by the State”. An order of determination of rent upon an application under rule 7(b) therefore, postulates an existing settlement of the lands in favour of the person on whose application the rent is being determined. There is, therefore, no basis of the submission that there was a fresh settlement in favour of defendant No. 1 after the estate in which the suit lands were comprised, vested in the State of Bihar. No. other contention has been raised.
12. In the result, the appeal is without merit and it is accordingly dismissed with costs.