JUDGMENT
Mukharji. J.
1. This second appeal by plaintiff No. 2 is directed against the judgment and the decree passed by the 1st Additional Judicial Commissioner of Chotenagpur. Ranchi, dismissing the appeal filed by plaintiff No. 2 against the judgment and the decree passed by the Additional Subordinate Judge, Ranchi, by which the suit of the plaintiff was dismissed.
2. The suit was originally filed by Smt. Ugramani Kuer as the sole plaintiff for a declaration of her title in respect of seven plots of land measuring 6.25 acres in village Chuglu, Police Station Gumla, district Ranchi mentioned in the schedule of the plaint and for recovery of possession over the same after evicting the defendant respondents therefrom. Subsequently, the present appellant was added as plaintiff No. 2 in the suit on the ground that Smt. Ugramani Kuer executed a deed of gift during the pendency of the suit in favour of plaintiff No. 2 with respect to her, entire properties. Later on, Smt Ugramani Kuer died. Originally, there was a Mukarrari tenure including the land in dispute in village Chuglu which was the ancestral property of Balbhadra Nath Tewary. husband of Smt Ugramani Kuer who got this interest exclusively in his share on partition. Balbhadra Nath Tewary died leaving Smt. Ugramani Kuer as his sole heiress and she came in exclusive possession over this tenure. Plot No. 97 which is one of the plots in dispute, was in occupation of Ledwa Mahli, grand-father of the defendant-respondents during the time of revisional survey as a tenant at will under the plaintiff. Plot Nos. 98 and 101 which are also some of the plots in dispute were in occupation of Raiya Uraon and Chaiya Uraon also as tenants-at-will under the plaintiff. The other four plots in dispute were also let, out on a Thika settlement for a period of three years to Ledwa Uraon and defendant No. 1 on behalf of the entire joint family, including his grandfather Ledwa Mahli. In or about the year 1933. Ledwa Mahli and the members of his family including the defendants as also Ledwa Uraon vacated all the lands let out to them on Thika settlement. In or about the year 1949, Raiya Uraon and Chaiya Uraon also vacated plot Nos. 98 and 101. The de-defendant-respondents, however, did not vacate plot No. 97 whereupon Smt. Ugramani Kuer filed Title Suit No. 15/25 of 1948/49 for recovery of possession over plot No. 97. The suit was subsequently decreed and possession over plot No. 97 was delivered to the plaintiff of that suit. The plaintiffs case is that she came in possession over the entire plot in dispute and remained in khas possession over the same till 1-1-1956 when the estate of Smt. Ugramani Kuer vested in the State of Bihar Shortly after the vesting of the estate the defendant-respondents surreptitiously entered into possession over the disputed land. Smt. Ugramani Kuer asked the defendants to vacate the land but the defendants requested the plaintiff to allow them to cultivate the land on behalf of the plaintiff as Bataidars. Smt. Ugramani Kuer thereafter filed an application before the prescribed authority for fixation of rent in respect of the disputed land which is deemed to have been settled with her as raiyat by the State of Bihar in view of operation of Section 6 of the Bihar Land Reforms Act (hereinafter to be referred to as ‘the Act’). The defendants objected before the prescribed authority and urged therein that the rent should be fixed in their names as they were in possession on the day of vesting. The contention of the plaintiff was that these defendants are trespassers and are in wrongful possession over the disputed land and that the plaintiff is entitled to obtain khas possession over the same after evicting the defendants therefrom. Hence, it became necessary for the plaintiff to institute a suit.
3. The suit was contested by defendants 2 and 3 only. They contended, inter alia, that they are coming in exclusive possession over the disputed land in their own right and adversely to the plaintiff who never came in possession over these plots. They denied to have taken adhbatai settlement of the disputed land from the plaintiff.
4. The learned Additional Subordinate Judge, after considering the evidence adduced before him came to the conclusion that the intermediary right in the tenure belonged to the plaintiff. He found the disputed land to be majhias. According to him, the defendants and not the plaintiff, were in possession over the disputed land at the time of vesting. On these findings, the learned Additional Subordinate Judge dismissed the plaintiff’s suit. In appeal the Additional Judicial Commissioner. Ranchi held that the plaintiff-appellant failed to establish that he was in possession over the disputed land on 1-1-1956 when the tenure vested in the State of Bihar. The first appellate Court also dismissed the suit of the plaintiff-appellant.
5. This suit was originally instituted on 22-2-1960 for a declaration of the plaintiff’s title and recovery of possession with respect to Plot Nos. 97. 98, 101, 105. 213. 214 and 272. The suit was initially decreed in respect of Plot Nos. 97. 105. 213 and 214 but it was dismissed in respect of the remaining plots. The contesting defendants preferred an appeal which was numbered as Title Appeal No. 36 of 1961 against the portion of the decree in favour of the plaintiff. The plaintiff also preferred an appeal which was numbered as Title Appeal No. 31 of 1961 against that portion of the judgment and the decree in which the plaintiff’s claim was rejected. Title Appeal No. 36 of 1961 was allowed and the case was remanded to the trial Court for deciding the case in accordance with the direction of the appellate Court. Title Appeal No. 31 of 1961 preferred by the plaintiff was however, dismissed and thereafter the plaintiff did not take up the matter to any higher Court and so the original decision of the trial Court about the plaintiff having no title and possession with respect to plot Nos. 98, 101 and 272 has become final. The plaintiff, therefore, cannot agitate now that he had title and possession with respect to plot Nos. 98. 101 and 272. It may be noted that when Title Appeal No. 36 of 1961 was allowed and the case was remanded to the Court below, the Additional Subordinate Judge. Ranchi, dismissed the suit of the plaintiff with respect to plot Nos. 97. 105, 213 and 214. The plaintiff preferred an appeal against the said decision of the Additional Subordinate Judge but this appeal too was dismissed by the Additional Judicial Commissioner, Ranchi, and hence this second appeal has been filed before this Court.
6. Mr. R. S. Chatterji, learned counsel appearing for the plaintiff-appellant has urged that admittedly the disputed land is rnajhias and that when the intermediary interest of the plaintiff vested in the State of Bihar on 1-1-1956, the State of Bihar enquired into the rival claims of the parties and the appropriate authority recognised the plaintiff as a raiyat in respect of the disputed land in view of the provision of the Bihar Land Reforms Act. It is further contended that the defendants having failed to establish their title and possession over the disputed land for more than 12 years before the institution of the suit, the plaintiff is entitled to get a decree for the reliefs claimed, It is true that there is no controversy in this case that the land in dispute is majhias. It is also admitted that the estate of the plaintiff vested in the State of Bihar on 1-1-1956. The contention of the plaintiff is that he was in khas possession over the disputed land on 1-1-1956 and as such under Section 6 of the Act the disputed land would be deemed to be settled by the State with him as a raiyat. It is urged that the State of Bihar accepted the claim of the plaintiff Smt. Ugramani Kuer In this respect and treated her as a raiyat in respect of this land and fixed fair rent and prepared rent roll, Ext. 10 in her name with respect to this land.
7. It may, however be pointed out that the concurrent finding of fact of both the Courts below is that the plaintiff had failed to prove his possession over the disputed land on 1-1-1956 when the intermediary interest of the plaintiff vested in the State of Bihar. This is a finding of fact which is binding on this Court in second appeal. It is however, significant to note that after the estate of the plaintiff vested in the State of Bihar, Smt. Ugramani Kuer filed an application before the Collector for fixation of fair and equitable rent frith respect to the homestead, building, and structures thereon which were in her knas possession on the date of vesting. Several persons, including some of the defendant-respondents filed objection to the fixation of rent in the name of the plaintiff. It will appear from the order-sheet Ext. 7/a that the Circle Officer enquired into the rival contentions of the parties and found that the objectors were claiming possession over the majhias land of the plaintiff as adhbataidars. The Circle Officer also noticed that it was admitted on behalf of the plaintiff-landlord that the objectors were adhbataidars of the plot in question before the vesting. The Circle Officer opined that the objectors could not acquire occupancy right over the land of the landlord as it was majhias land and as such the rent could not be fixed in their names. So the Circle Officer by his order dated 20-6-1956 directed that the rent should be fixed in the name of the plaintiff. The objectors preferred an appeal before the Collector against the above order of the Circle Officer. This appeal was heard and disposed of by the Additional Collector by his order dated 22-10-1955. Vide Ext. 8 (a). The observation which the Additional Collector made while remanding the case is as follows:–
“Now the question is whether rent should be assessed in the name of the intermediary. There are no materials on the record to show whether the conditions laid down under Section 6 (1) of the Land Reforms Act have fulfilled by the respondents. Therefore, this is fit case for being remanded so that detailed information may be given keeping in view the provisions of Section 6 (l) of the Land Reforms Act”
After remand the Circle Officer passed an order on 24-6-1959 and observed as follows:–
“I enquired into the lease. The appellants were adhbataidars of the respondent who -used to cultivate the land on year to year oral lease from the ex-landlord. The land is majhias in which no right of occupancy or non-occupancy can accrue in any circumstances to the objectors. In view of the fact that the land is majhias and the objectors cultivated it on oral lease from year to year there is no merit in their claim. Hence their petition is rejected.”
By a subsequent order dated 30-9-1959 the Circle Officer fixed the rent of the land in the name of Smt. Ugramani Kuer. The objectors do not appear to have assailed the order of the Circle Officer after remand. In view of the subsequent order of the Circle Officer, rent roll, Ext. 10 was prepared in the name of the plaintiff with respect to the disputed land and other lands in December. 1959. The rent roll bears the signature of the Anchal Adhikari and it is dated 2-1-1960.
8. Mr. Chatterji has contended that the case of the defendant-respondents before the Circle Officer as will appear from the order-sheet, Ext. 7 (a) was that they were adhbataidars of the plaintiff in respect of the property in suit at the time of vesting and as such the possession of the respondents over this land will ensure to the benefit of the plaintiff-landlord and that it should be deemed that the plaintiff-landlord was in khas possession over the property in suit as envisaged under Section 6 (l) of the Act. According to Mr, Chatterji the conditions laid down under Section 6 (1) of the Act for finding whether any land was in khas possession of the landlord on the date of vesting were fulfilled in this case and so the Circle Officer fixed fair rent of the disputed land in favour of plaintiff. In this connection, the learned counsel for the appellant has referred to the definition of expression “khas possession” as mentioned in Section 2 (k) of the Act It is as follows:–
“(k) ‘khas possession’ used with reference to the possession of a proprietor or tenure-holder of anv land used for agricultural or horticultural purposes means the possession of such proprietor or tenure-holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own stock or by his own servants or by hired labour or with hired stock,”
An argument was advanced on behalf of the appellant that the order of the Anchal Adhikari indicates that the defendants were in possession over the land in dispute on the date of vesting as adhbataidars under the appellant and as such under Section 6 (1) (b) of the Act the disputed land should be deemed to have been settled by the State of Bihar with the appellants who would hold the same as raiyat. The contention of Mr. Chatterji is that the cultivation of the land in suit was done by the appellant through his adhbataidars who are in the position of hired labourers and so the provisions of Section 6 (1) (b) of the Act is attracted. I do not agree with this contention. Firstly, there is no authority for the view that adhbataidars are hired labourers. It is well settled that an adhbataidar has to give to the landlord half produce of the land he cultivates as the rent. The status of the adihbataidar will be that of a tenant and not that of a hired labourer because in the adhbatal system, the adhbataidar has to pay the half share of the produce of the land as rent to the landlord. So there is a sort of relationship of landlord and tenant between a landlord and his adhbataidar. Further the provision of Section 6 (11 (b) of the Act is applicable when the land of intermediary used for agricultural or horticultural purposes is in possession of a temporary lessee of the estate or tenure. In the instant case, the defendants who were found in possession on the date of the vesting were mere adhbataidars and it is nobody’s case that they were in possession over the entire tenure as a temporary lessee. In these circumstances, the provisions of Section 6 (1) (b) of the Act has no application to this case.
9. It is true that before the Circle Officer the plaintiff admitted that the defendants were adhbataidars with respect to the property in dispute on the date of vesting. But it will appear that this was not the plaintiff’s case when the plaint of the suit has given rise to the present appeal was filed. In paragraphs 7 and 8 of the plaint it has been clearly asserted by the plaintiff that she continued in possession of all the lands in suit as her majhias land till the vesting of the tenure on 1-1-1956 in the State of Bihar. It is further recited in the plaint that shortly after the vesting the defendants surreptitiously entered into the land; but when the plaintiff asked the defendants to vacate the land, the defendants requested the plaintiff to allow them to cultivate the land on plaintiff’s behalf as her bataidar for the agricultural season 2012 Sambat. The plaintiff, no doubt, examined her Karpardaj (P. W. 4) Madhusudan Nath Tewary who has stated that Smt. Ugramani Kuer had given the disputed plot in adhbataidar for one year, that is 2013 Sambat, to the defendants after the vesting of the Zamindari. There is clear discrepancy in the plaintiff’s evidence regarding the year in which the adhbataldari settlement is alleged to have been given. This is also a new case set up by the plaintiff during the trial. In my opinion when the plaintiff categorically asserted in the plaint that she was in possession over the property in suit on the date of vesting and that the defendants surreptitiously entered upon the suit land after the vesting, the plaintiff cannot be allowed to set up a new case at the hearing that the defendants were her adhbataidars with respect to the property in suit on the date of vesting.
10. Even if it be accepted for the sake of argument that the defendants were adhbataidars of the plaintiff with respect to the property in suit, the plaintiff cannot succeed in this case unless the conditions laid down in Section 6 (1) (b) of the Act are fulfilled. The portion of Section 6 (1) of the Act which is relevant for the purpose of this case to quoted below:–
“On and from date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of (an intermediary) on the date of such vesting including– (a) (i) proprietor’s private lands let out under e lease for a term of years or under a lease from year to year, referred to in Section 116 of the Bihar Tenancy Act, 1885 (8 of 1885).
(ii) landlord’s privileged Lands let out
under a registered lease for a term ex
ceeding one year or under a lease, writ
ten or oral, for a period of one year or
less, referred to in Section 43 of the
Ghota Nagpur Tenancy Act. 1908 (Ben
gal Act 6 of 1908).
** ** ** shall, subject to the provisions of Sections 7-A and 7-B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the Payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner."
The land in question is situate in Ghota Nagpur and so the plaintiff can, at best, invoke the aid of Section 6 (1) (ii) of the Act in his favour in support of his contention that he was in khas possession on the date of vesting. It is true that the land in dispute being majhias was landlord’s privileged land. But there is no evidence on the record that on the date of vesting, it was in possession of the defendants under a registered lease for any term or it was let out to them under a lease written or oral for a period of one year or less. Unless the above conditions are established it cannot be said that the plaintiff-landlord was in khas possession on the date of vesting. No doubt the Circle Officer found that the defendants used to cultivate the lands on oral lease from year to year and then on being satisfied that the conditions laid down in Section 6 (1) of the Act were fulfilled in the case he fixed the fair rent in respect to the disputed land in the name of the plaintiff. It may, however, be observed that the Circle Officer was in error in holding that the conditions laid down in Section 6 (1) of the Act were fulfilled in this case. Simply because the defendants were found to cultivate the land in question on an oral lease from year to year, that was no justification for him to hold that the conditions laid down under Section 6 (1) of the Act were fulfilled. Probably the Circle Officer was under the impression that the land in dispute was governed by the Bihar Tenancy Act. because under Section 6 (1) (i) of the Act If a proprietor’s private land is in possession of a person under a lease from year to year, it would be deemed that the proprietor was in khas possession over the land. It will, however, be seen that if a land is governed under the Chotanagpur Tenancy Act the proprietor can be said to be In khas possession within the meaning of Section 6 (1) (a) (ii) of the Act only if it is let out under a registered lease for a term exceeding one year or under a lease written or oral for a period of one year or less. The expression “under a lease from year to year” occurring in Section 6 (1) (a) (i) of the Act is not there in Section 6 (1) (a) (ii). In its place the expression used in Section 6 (1) (a) (ii) is “under a lease written or oral for a period of one year or less.” The Circle Officer did not find that the defendants on the date of vesting were in possession over the land in question under an oral lease for a period of one year or less. In this circumstance, I hold that the Circle Officer was in error in holding that the conditions laid down in Section 6 (1) (a) (ii) of the Act were fulfilled in this case.
11. Mr. R. S. Chatterji, however, refers to Section 6 (2) of the Act which recites as follows:–
“If the claim of an intermediary as to his khas possession over the lands referred to in Sub-section (1) or as to the extent of such lands is disputed by any person prior to the determination of rent of such lands under the said subsection the Collector shall, on application, make such inquiry into the matter as he deems fit and pass such order as may appear to him to be just and proper;”
According to him, the special tribunal constituted under the Act after proper inquiry as envisaged under Section 6 (2) of the Act has fixed the fair rent of the disputed land in favour of the plaintiff and it is urged that unless the special tribunal found the plaintiff to be in possession over the disputed land on the date of vesting, the fair rent of the land in question could not have been fixed in the name of the plaintiff. It is argued that this special tribunal only has been vested with the jurisdiction to decide as to who is the raiyat of the tenure which has vested in the State of Bihar and as to what will be the fair rent of that land. It is therefore, contended that the aforesaid order of the tribunal treating the plaintiff to be a raiyat with respect to that property and fixing fair rent in his favour cannot be challenged in civil court as that order of the special tribunal has become final and that the civil court has no jurisdiction to investigate into the matter. In support of this contention learned counsel has placed reliance on the case of R. B. R. Krishna v. S. K. Shaw. ILR 30 Pat 329 = (AIR 1951 SC 115). This was a case under the Bihar Buildings (Lease, Rent and Eviction) Control Act. 1947. In this case, the house controller had ordered for eviction of a tenant for non-payment of rent and it was held by their Lordships of the Supreme Court in this case that:–
“The Act thus sets up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly marks his order final and subject only to the decision of the Commissioner. The Act empowers the Controller alone to decide whether or not there is non-payment of rent, and his decision on that question is essential before an order can be passed by him under Section 11.”
Their Lordships further observed:–
“Therefore, even if the Controller may be assumed to have wrongly decided the question of non-payment of rent which by no means is clear, his order cannot be questioned in a civil court.”
It is manifest on a perusal of the Bihar Buildings (Lease. Rent and Eviction) Control Act. 1947 referred to above that under Section 18 (3) of that Act the decision of the Commissioner and subject only to such decision an order of controller was final and it could not be questioned in any court of law whether in a suit or other proceeding by way of an appeal or revision. Such is not the case in the Bihar Land Reforms Act, 1950 with which we are concerned in the present case. There is nothing in the Bihar Land Reforms Act, 1950 which makes the order passed by the Collector under Section 6 (2) of the Act a final order. Section 8 of the Act provides that an appeal against any order of the Collector under Sub-section (2) of Section 6 shall lie to the prescribed authority not below the rank of an Additional Collector. Rule 8 of the Bihar Land Reforms Rules recites that an appeal against an order of the Collector shall lie (i) if such order is passed by any officer below the rank of an Additional Collector, to the Additional Collector; (ii) if such order is passed by any Additional Collector, to the Collector of the district; and. (iii) if such order is passed by the Collector of a district, to the Commissioner of the Division. There is no provision in the Act similar to Section 18 (3) of the Bihar Buildings (Lease. Rent and Eviction) Control Act, which lays down that such an order passed by the Collector under Section 6 (21 of the Act cannot be questioned in any civil court. Our attention has been drawn to Section 35 of the Act which lays down that no suit shall be brought in any civil court In respect of any entry in or omission from a compensation, assessment-roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject of any application made or proceeding taken under the said Chapters. The contention of Mr. Chatterji is that under Section 35 of the Act the proceedings before the Collector cannot be challenged in any civil court. I do not agree with the contention urged by Mr. Chatterji. Section 35 of the Act just referred to above only bars the jurisdiction of the civil court to entertain any suit in respect of the order passed under Chapters II to VI of the Act. In this case, the defendants have challenged the entry in the rent-roll. Ext. 10 which has been prepared in the name of the plaintiff. The defendants have not filed this suit. The position would have been different if the defendants had filed the suit assailing the order of the Collector made under Section 6 (2) of the Act. In the instant case the suit has been filed by the plaintiff-appellant and in my opinion Section 35 of the Act will not stand as a bar to the objection raised by the defendants in the suit assailing the entry in the rent-roll, Ext. 10 specially when it is urged that the order passed by the Circle Officer is incorrect on the face of it. The Circle Officer had clearly no jurisdiction to treat the plaintiff as a raiyat with respect to the disputed land and fix fair rent in the name of the plaintiff unless on the date of vesting the land in suit was in khas possession of the plaintiff within the meaning of Section 2 (k) and Section 6 (1) of the Act. It Is manifest from, what has been discussed above that the plaintiff has not been able to prove his khas possession over the disputed land on the date of the vesting.
12. Their Lordships of the Supreme Court in the case of R. B. R. Krishna v. S. K. Shaw, ILR 30 Pat 329 = (AIR 1951 SC 115) referred to above has quoted with approval the observation of Sir James Colville in the Colonial Bank of Australasia v. Villan. reported in (1874) 5 PC 417 at p. 443 which Ss as follows:–
“Accordingly, the authorities….. establish that an adjudication by a Judge having jurisdiction over the subject-matter is if no defect appears on the face of it to be taken as conclusive of the facts stated therein; and that the Court of Queen’s Bench will not on certiorari quash such an adjudication on the ground that any such fact, however essential, has been erroneously found.”
This observation of Sir James Colville in that case proves that an adjudication by a Judge having jurisdiction over the subject-matter is to be taken as conclusive if there is no defect on the face of it. In the case before us it will appear that the order passed by the Circle Officer is clearly incorrect on the face of the record as already pointed out above and so such an erroneous order on the face of it cannot be said to be conclusive and as such it can be challenged in a civil court.
13. It is further urged on behalf of the appellant that the defendant-respondents have, also not been able to establish their title over the disputed land and they are at best in possession over this land as trespassers and as such the appellant is entitled to evict them from the disputed land. It is true that on the evidence on the record the defendants have also failed to prove any semblance of title over the disputed land and their possession over the disputed land was that of mere trespassers. But this circumstance will not, in my opinion entitle the plaintiff to get a decree for recovery of possession over the land in question. It is only land in khas possession of the proprietor which is saved from vesting in the State under Section 6 of the Act It is decided in the case of Suraj Ahir v. Prithinath Singh. 1963 BLJB 1 = (AIR 1963 SC 454) that “the right to recover possession from the trespasser also got vested in the State.” In this circumstance the plaintiff has no right to recover possession over the property in dispute. The learned counsel appearing on behalf of the appellant has no doubt placed reliance on the cases of Bhubneshwar Prasad Narain Singh v. Sidheshwar Mukherjee, AIR 1971 SC 2251; Budhan Singh v. Babi Bux. AIR 1970 SC 1880; Nainsingh v. Koonwarjee, AIR 1970 SC 997; Raja Sailendra Narayan Bhanj Deo v. Kumar Jagat Kishore Prasad Narayan Singh, AIR 1962 SC 914; Maharana Pratap Singh Bahadur v. Thflkur Manmohan Dey. AIR 1966 SC 1931 and Himmatrao v. Jaikisandas, AIR 1966 SC 1974 in support of Ms contention that the appellant is entitled to get a dpcree for recovery of possession over the disputed land. In my opinion, the facts of these cases can easily be distinguished from the facts of the present casp and I hold that these decisions are inapplicable to the facts of the present case.
14. In view of what has been observed above, the plaintiff-appellant has not been able to establish his case and as such he is not entitled to any decree. In the result, the appeal fails and is accordingly dismissed; but on the facts and in the circumstances of the case, it is directed that the parties will bear own costs of this Court.
Shambhu Prasad Singh. J.
15. In my opinion, the question whether the appellant has got title to the suit property is not free from difficulty. True it is that, as found by the courts below he was not in possession on the date of the vesting of his interest as intermediary In the State of Bihar under the Bihar Land Reforms Act (hereinafter referred to as ‘the Act’) and, therefore, according to the decision of the Supreme Court in 1963 BLJR 1 = (AIR 1963 SC 454) Ms right to recover possession from the trespasser also got vested in the State. But rightly or wrongly, the Circle Officer, as an agent of the State, passed an order under Section 6 (2) of the Act assessing the rent in his name and thus recognising him as a raiyat. It has been contended by learned counsel for the respondents that in absence of a registered document, the appellant, who was not in possession could not get any title to the suit lands on the basis of that order. No doubt, a settlement not evidenced by a registered document, but made by acceptance of rent by issuing rent receipt, does not confer any title on the settlee, unless it is accompanied by possession. But. here the settlement is not by mere issuance of rent receipt as was usually done by the landlords. The Circle Officer had statutory power to pass an order under Section 6 (2) of the said Act for assessment of rent and, I do not think, it will be proper to hold that an order of assessment of rent will not confer title on the person in whose favour rent is assessed, if he is not or not put in khas possession. I have used the words ‘khas possession’ as it is ordinarily understood and not as defined in the Act. The Act makes the scope of khas possession wider. An intermediary even if not in actual possession, has to be deemed to be in khas possession for the purposes of the Act in certain cases. The Act therefore, does not merely reiterate the law of the land on the aforesaid question.
16. It has, however, been contended on behalf of the respondents that as the appellant was not in khas possession even according to the definition of the term in the Act, the order under Section 6 (2) passed by the Circle Officer could not confer any title upon him. In this connection, another important question arises for consideration. Can a person having no title to the suit Land challenge the validity of the order passed under Section 6 (2) of the Act? If the intermediary had right to recover the land on the date of the vesting, that right also vested in the State and an agent of the State has recognised the intermediary as a raiyat. Authority of a recognised agent to do certain things can be challenged by the principal himself or his successor-in-interest. It cannot be challenged by a third party. Of course, a person having got title to the property can challenge the validity of an act by the agent not on the ground of want of authority in the agent, but on the ground that the principal himself has got no title to the property. Section 35 of the Act. which has already been referred to in the judgment of my learned brother, lays down that no suit shall be brought in any civil court in respect of any entry in or omission from a compensation assessment-roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject of any application made or proceeding taken under the said chapters. The respondents, even if they had title to the property could not have challenged the ferder under Section 6 (2) of the Act passed by the Circle Officer as plaintiffs, except on the ground of jurisdiction in the Circle Officer or some wrong assumption made by him with regard to jurisdictional facts. If they could not have challenged the order as plaintiffs. can they be allowed to challenge it as defendants? That is another question which arises for serious consideration in the case. Does Section 35 of the Act bar merely a claim in respect of matters enumerated therein by the plaintiff or does it bar even such a claim by the defendant? I do not propose to go into all these questions in this appeal, and have deliberately refrained from expressing any view on the question of plaintiff’s title to the suit property on the basis of the order of assessment of rent passed by the Circle Officer in his favour under Section 6 (2) of the Act. and agreeing or disagreeing with the view expressed by my learned brother Mukharji, J. on the questions referred to in this paragraph and the preceding paragraph of my judgment. I agree with my learned brother, Mukharji. J. that this appeal be dismissed on the ground that the appellant has failed to prove possession and dispossession as alleged by him. According to him. as stated in paragraph 9 of the judgment of my learned brother, the original plaintiff was in possession of the basis (sic) of the land in suit on the date of the vesting and shortly after it. the respondents surreptitiously entered into the land and on being asked by her to vacate it. they requested her to allow them to cultivate the land as bataidar. This case has been disbelieved by the court below. According to the case of the respondents, they were coming in exclusive possession of the disputed land in their own right adversely to the plaintiff who never came in possession over it. They also denied to have taken adhbatai a settlement of the disputed land from the plaintiff. In the circumstances, it was for the appellant to prove either the case as made out in the plaint or at best that the original plaintiff was dispossessed some time within 12 years of the institution of the suit. The evidence led on behalf of the appellant is merely as to dispossession as alleged in the plaint, and, as stated earlier, that has been disbelieved. He cannot now be allowed to make out a new case that the possession of the respondents before the date of the vesting was that of adhbataidar and thus permissive. The suit, therefore, has rightly been dismissed by the courts below.