Gurusharan Sharma, J.
1. Defendants are appellants. Plaintiffs filed suit for declaration of title as occupancy raiyat over, the suit land, detailed in Schedule ‘C’ to the plaint and for confirmation of possession or in alternative, for recovery of possession, if found dispossessed during pendency of the suit.
2. According to plaintiffs, Gadi Serampore was an impartable revenue paying estate, bearing Tauzi No. 10, within Collectorate of Hazaribagh, now within Giridih district. The estate was being governed by law of primogeniture wherein eldest in the male descendant of the eldest branch used to succeed to the gaddi and youngers used to get khorposh grant (maintenance) resumable on extinction of male line.
3. Admittedly, Dubraj Singh, the proprietor had three sons, Pratap Singh, Ajit Singh arid Bharat Singh. Pratap Singh died leaving behind a son, Garur Narain Singh. He had a son, Sarda Narain Singh, who died issueless, leaving behind his widow, Jagdamba Kumari. Ajit Singh died issueless. Bharat Singh died, leaving behind two sons, Nikanth Narain Singh and Hari Prasad Singh. Nikanth Narain Singh died, leaving behind his widow, Hirday Kumari and son, Wazir Narain Singh, who left behind two sons, Bishambhar Narain Singh and Baidyanath Prasad Singh. Bishambhar Narain Singh died, leaving behind his widow Chudamani Devi, defendant No. 4 and a son, Narsingh Narain Singh, defendant No. 3. Baidyanath Prasad Singh died leaving behind his widow, Parbati Kumari, defendant No. 5 and six sons, namely, Mauleshwar Narain Singh, Ram
Narain Singh, Braj Kishore Singh, Baleshwar Narain Singh, Rohit Singh and Lalit Singh, defendants 6 to 11. Hari Prasad Singh died leaving behind his son, Raghunandan Prasad Singh, who died leaving behind three sons, namely, Kamleshwari Prasad Singh, Bindeshwari Prasad Singh and Parmeshwari Prasad Singh, defendants 11(a) to (c).
4. On the death of Dubraj Singh, his grandson, Garur Narain Singh succeeded to the estate, as his son, Pratap Singh had already predeceased him. Ajit Singh died issueless and Bharat Singh was granted certain khorposh rights, with respect to certain villages, including village Chaura. After death of Bharat Singh his khorposh tenure was succeeded by his two sons, Nilkanth Narain Singh and Hari Prasad Singh. During proprietorship of Sarda Narain Singh, the proprietary estate was placed under administration of the Court of wards.
5. In the year 1890, Nilkanth Narain Singh created two registered deeds of settlement of Dar-khorposh in favour of his wife, Hirday Kumari and nephew, Raghunandan Prasad Singh, detailed respectively in Schedules A and B to the plaint, but those deeds were not acted upon and remained inoperative.
6. After death of Sarda Narain Singh, Nilkanth Narain Singh filed Title Suit No. 122 of 1908 for declaration that he was proprietor of the estate, not only as the effect of law of survivorship of Mitakshwara School of Hindu Law, but of local customs also and Rani Jagdamba Kumari was not entitled to succeed, which was decreed on 18.9.1911.
7. Rani filed First Appeal No. 456 of 1911 in this Court, which was disposed of with certain modification in trial Court’s judgment and some of the suit properties were given to her. The matter went upto Privy Council. In the meantime survey entries were made in the name of Nilkanth Narain Singh, vide Khewat No. 1, Hriday Kumari, khorposhdar under him vide Khewat No. 2, Raghunandan Prasad Singh, khorposhdar
under him, vide Khewat No. 4, though both of them should have been shown as Dar-khorposhdar. However, khorposh right never merged into proprietary right of Nilkanth Narain Singh. After death of Nilkanth Narain Singh, his son, Wazir Narain Singh continued as khorposhdar and thereafter his two sons, Bishambhar Narain Singh and Baidyanath Prasad Singh continued as such, until vesting of estate in the year 1953. After vesting, under Section 6 of the Bihar Land Reforms Act, 1950, those khorposhdars retained the lands in question in village Chaura and became raiyat of the State of Bihar. Plaintiff thereafter purchased the suit land from them in the year 1967.
8. Defendants 5 to 11 and 11(a) to (c) filed separate written statements and supported the plaintiff’s case. Defendants 1 and- 2, who were respectively wife and husband filed separate written statements and contested the suit.
9. Defendant No. 1 claimed her right, title and interest over the suit land by virtue of settlement, obtained from one Prajapalak Nath Singh. According to her, Serampore estate was sold pursuant to a decree in a Court auction sale held on 6.4.1935 and purchased by Raja Bahadur Kamakshya Narain Singh, who became proprietor thereof and on 5.5.1947 executed an indenture of sale in favour of Prajapalak Nath Singh and defendant No. 1 obtained raiyati settlement from him in the year 1948.
10. According to contesting defendants, village Chaura in the survey records was held in proprietary right of Nilkanth Narain Singh, vide Khewat No. 1 and his wife Hriday Kumari was shown as having khorposh right over the land shown in Khewat No. 2. It was merely a life grant which reverted to the parent estate after her death on 15.10.1939. During her life time Hriday Kumari had executed certain mortgage deeds. Raja Bahadur Kamakshya Narain Singh filed Title Suit No. 11 of 1946 and obtained mortgage decree against those mortgagees and purchased those lands in
Court’s auction sale in execution of the said mortgage decree dated 3.7.1947, vide Execution case No. 4 of 1947 and got delivery of possession thereon.
11. Plaintiff’s father, Chintaman Mahto firstly claimed to be bataidar of the aforesaid mortgagees. Secondly in the year 1944 he along with others also claimed to have obtained settlement of plot Nos. 104, 457 and 473, which were parts of the present suit lands from Baidyanath Prasad Singh. There was a proceeding under Section 145 of the Code of Criminal Procedure between the contesting defendants on the one hand and plaintiffs’ father and others on the other, which was finally decided on 9.9.1959 in favour of plaintiffs’ father, Chintaman Mahto.
12. On 3.3.1961 defendant No. 1 herein, therefore, filed Title Suit No. 92 of 1961 against Chintaman Mahto and others for declaration of her raiyati right over 249 acres land of the aforesaid plots Nos. 104, 457 and 473, detailed in Schedule B to the plaint, which was decreed on 26.7.1965. Father of the present plaintiffs preferred Title Appeal No. 55 of 1965 and thereafter Second Appeal No. 487 of 1966, which were also dismissed.
13. In the said litigation on the basis of materials on record, it was finally decided that after death of Sarda Narain Singh, Nilkanth Narain Singh succeeded to the gaddi of Serampore estate. Khewat No. 1 in his name as proprietor in the survey records was rightly prepared and no separate Khewat in respect of any khorposh interest in his name was prepared. After death of Hriday Kumari in the year 1939, the auction purchaser Raja Kamakshya. Narain resumed village Chaura and, therefore, the tenants were liable to pay rent to him. In this regard Raja Bahadur had to file rent suit in the year 1943-44-48, wherein rent decrees were obtained by him.
14. It was also held in the said litigation that there were materials on record to show that there was implied intention on the part of Nilkanth Narain Singh for the merger of the two interest,
namely, proprietory as well as khorposh, after the superior interest also vested in him.
15. During pendency of the aforesaid litigation, which was finally decided against father of the present plaintiff by this Court on 27.10.1972, plaintiff claimed to have purchased the suit land by registered sale-deed dated 28.12.1967 (Ext. 3) from the aforesaid Bishambhar Narain Singh and Baidyanath Prasad Singh, ancestors of defendants 3 to 11 and filed the present suit in the year 1975. It is not in dispute that out of total six lots, namely, Nos. 104, 283, 320, 385, 457 and 473, three plots namely, Nos. 104, 457 and 473 were subject-matter of earlier Title Suit No. 92 of 1961 and the present defendant No. 1 was the plaintiff and father of present plaintiff was defendant No. 1 therein.
16. The aforesaid Second Appeal No. 487 of 1966 Chintaman Mahto v. Fanindra Devi and Ors., was heard by a Division Bench of this Court and its judgment stands reported in AIR 1973 Pat 175. In the said case this Court considered whether there was merger of khorposh interest of Nilkanth Narain Singh in village Chaura with the parent estate and whether khorposh interest was also acquired by Prajapalak Nath Singh and Smt. Fanindra Devi, the settlee from him acquired good title and held that it was well-settled that merger was a question of intention and decision of the question of the question whether when lesser interest vested in a person, who held greater interest, merger had taken place or not, depended upon intention of the person, who held both the interests. It was further held that such an intention was implied. Reliance was placed mainly on the fact that after Nilkanth Narain Singh succeeded to the gaddi of Serampore estate and Title Suit No. 122 of 1908 was decreed in the favour by trial Court, in the survey operations, which followed, he did not get a separate Khewat for the subordinate interest of khorposh rights, recorded in his name. Merely be-
cause an appeal against the said judgment and decree was pending at the time of survey operation, it could not have been said that by omitting to get a separate Khewat recorded in his name for the subordinate khorposh interest, intention for merger on the part of Nilkanth Narain Singh could not have been implied. Finding as to merger was not based only on the absence of a Khewat in respect of the khorposh interest in the name of Nilkanth Narain Singh, but it was also based on the facts that after taking delivery of possession, Raja Bahadur Kamakshya Narain Singh, got proclaimed under Section 15 of the Chhota Nagpur Tenancy Act to the tenants of village-Chaura, under Khewat No. 2, of Hirday Kumari that after her death he had resumed the village and the tenants were liable to pay rent to him. However, as some of the tenants did not pay rent to him and as such he instituted suits against them, impleading two sons of Late Wazir Narain Singh as defendants, who contested the suit, but did not raise any plea that they were khorposhdars of village-Chaura and it was held that khorposh right had merged in the superior right of holder of the gaddi.
17. It is well settled that where the two interests were co-existensive and vested in the same person in the same right, prima facie there would be merger, unless it was proved that intention of the holder was to keep the two interests separate. This Court in Chintaman Mahto (supra) held that fact that khorposh grant in favour of Bharat Singh was created prior to coming into force of the Transfer of Property Act, would not make any difference as there was implied intention on the part of Nilkanth Narain Singh for the merger of two interests, after the superior interest also vested to him.
18. In my view, after Raja Bahadur Kamakshya Narain Singh purchased entire Serampore estate in Court’s auction sale held on 6.4.1935, descendants of its proprietor or khorposhdars, if any completely lost their right, title and interest
therein and had absolutely no authority to transfer the suit land, after vesting of estate in the State of Bihar. Hence, registered sale-deed dated 28.12.1967, Ext. 3 executed by aforesaid Bishambhar Narain Singh and Baidyanath Prasad Singh in favour of plaintiff was illegal and sham transaction and was, therefore, not binding on defendant No. 1 who acquired her right, title and interest over the suit land by virtue of settlements by Prajapalak Nath Singh, in the year 1948.
19. In my view, benefit of Section 6 of the Land Reforms Act, 1950 was not available to the plaintiffs’ vendors, who were not in khas possession of the suit land, in the capacity of either proprietor or khorposhdar on the date of vesting of the estate. The whole estate was already auction sold in the year 1935, and purchased by Raja Bahadur Kamakshya Narain Singh, who had became proprietor thereof.
20. In view of the fact that a Division Bench of this Court had already confirmed the findings recorded by the courts below that after Nilkanth Narain Singh succeeded to the gaddi of Serampore estate and became proprietor thereof his khorposh interest also merged with superior interest and in 1935 the whole estate was auction purchased by Raja Bahadur Kamakshya Narain Singh, who transferred it to Prajapalak Nath Singh, there was no occasion for the Court below in the present case to hold that after Bharat Singh, Nilkanth Narain Singh and Hari Prasad Singh became the khorposhdars and thereafter Wazir Narain Singh and Raghunandan Prasad Singh and, thereafter, their descendants, who continued to be in actual physical possession over the land, became raiyats over the same after vesting.
21. In my opinion, the trial Court also erred in holding that alleged merger of khorposh interest with proprietory interest, during proprietorship of Nilkanth Narain Singh never took place nor was any such merger possible of a part only of the khorposh interest, inspite of Nilkanth Narain Singh’s succession to gaddi of
Serampore estate nor did khorposh interest exclusively belong to him to bring about such a merger, even if he wanted.
22. Trial Court also committed mistake in holding that in auction sale held on 6.4.1935, Raja Bahadur Kamakshya Narain Singh cannot be said to have acquired any right, title and interest with respect to khorposh tenure, which continued to be in existence in view of living heirs of Bharat Singh nor can Prajapalak Nath Singh be said to have acquired any interest in the said khorposh tenure, under his lease from Raja Bahadur Kamakshya Narain Singh and he could not have conveyed to others, when” he himself had none.
23. In my opinion, aforesaid points were already decided and were covered by the said Division Bench decision of this Court in Chintaman Mahto (supra) and trial Court should not have over looked or ignored the same. In fact in the year 1967, plaintiff vendors had no right, title and interest or possession over the suit land and they were not authorised to transfer it. The plaintiff, therefore, did not acquire any interest by virtue of Ext. 3.
24. I, therefore, set aside the impugned judgment and decree dated 3.6.1981, passed by Second Additional Subordinate Judge, Giridih, in Title Suit No. 21 of 1975.
25. In the result, the appeal is allowed and plaintiffs suit is dismissed. However, there will be no order as to costs.
26. Appeal allowed.