Reuben, J.This appeal by the plaintiffs is directed against a decision of the Additional District Judge of Dumka affirming a decision of the Subordinate Judge, Deoghar.

2. This suit, brought for declaration of title to and recovery of possession of land, formerly belonging to one Chuto Rai, was based on the assertion that the plaintiffs, Jaleshar and Binode are the nearest agnates of Chuto Rai and are his heirs. The Courts below have held that defendants 1, 3 and 4 are also agnates equally closely related to Chuto and have, therefore, granted the plaintiffs a decree for recovery of joint possession of the property to the extent of a two-fifths share. This finding, being a finding of fact, is not challenged before us, and that relates only to plot No. 735, in respect of which the Courts below have held that defendants 7 to 9 have acquired permanent tenancy rights therein, and have decreed in the plaintiffs favour possession as landlords to the extent of a two-fifths share in the rent payable by these defendants. The contention of the appellants is that, under the law obtaining in the Santal Parganas, defendants to 9 could not obtain the right claimed by them, that, they are, therefore, trespassers, and the plaintiffs are entitled to khas possession of plot No. 735 to the extent of a two-fifths share.

3. Defendants 7 to 9 are holding under a kurfa settlement made by Chotu Rai in the year 1338 B.S. 1921 22 A.D. . The appellants rely upon S.27, Sub-secttion (1), Santal Parganas Settlement Regulation, 1872 (Regulation in [3] of 1872) which provides that no transfer by a raiyat of his right in his holding or any portion thereof, by sale, gift, mortgage, lease or any other contract or agreement, shall be valid unless the right to transfer has been recorded in the record of rights, and then only to the extent to which such right is so recorded. There is no evidence on the record as to whether there is any note of a right o transfer in the Settlement Record. Had there been any, we may take it that it would have been produced by the defendants. It may, therefore, be assumed that there is no right of transfer by lease in this mauza. Under Sub-section (2) of this section, it has been provided that no transfer in contravention of Sub-section (1) shall be regulated,, or shall be in any way recognised as valid by any Court, whether in the exercise of civil, criminal or revenue jurisdiction. The lessees, therefore, were from the beginning in the position of trespassers and there is substance in the appellants contention, that the Additional District Judge was wrong in holding that, by possession for twelve years, they have acquired occupancy rights u/s 18, the relevant portion of which runs as follows:

Any raiyat who may, either himself or through persons from whom he inherits, have held fields in a village for a period of twelve years shall be deemed to have occupancy rights in such fields.

4. It does not follow, however, that defendants 7 to 9 are Btill in the position of trespassers, for, by this very Regulation, the whole of the Limitation Act was made applicable to the Santal Parganas, including the provision regarding prescriptive title. It has accordingly been rightly held by the Subordinate Judge that the defendants, having entered on the land as trespassers and having held it for a period of twelve years in open assertion of permanent tenancy rights therein, have now acquired the right asserted by these and cannot be ejected. The fact that, during this time, they have been paying rents, will be no bar to the acquisition of such rights: vide Rani Bhuneshwari Koer Vs. Secretary of State, , where their Lordships observed at page 379:

If the Secretary of State came on to the land as a trespasser with an open claim to permanent possession the acceptance of rent by the landlord would not create a tenancy-at will or a tenancy from year to year.

I may also refer to the following remarka of their Lordships of the Judicial Committee in Maharajah Bajundur Kishwar Singh Baha. dur v Sheopursun Misser 10 M.I.A. 438.

If this tenure be not interposed between the Zamindar and the cultivators, the ordinary relation between him and them exists; but if it the interposed, the Zamindars general proprietary title to the collections is gone, and in lieu of it he is simply entitled to some jumma from the mesne proprietors It is obvious then, that the assertion of such a title is a serious prejudice to a Zamindar, and may materially interfere with his successful management of his Zamindary. Such an intermediate tenure cuts off the possession, that is, the Zamindars title to the rents and profits derived from the cultivations.

In this sense, the term possession is used in this plaint. Now, this injury, supposing the claim to the Bbakee Birt tenure to be groundless, is not the less a wrong requiring a remedy, when it is put forward by one in possession under a title to an inferior right, derived from the Zamindar; as, for instance, by a farm of a portion of the Zamindary. If such a claim were preferred by a person having such an interest, it would certainly be competent to the Zimindar, if the claim amounted to a repudiation or worked for forfeiture of the existing interest to sue for the restoration of possession, and the quieting of the claim also; because the limitation of his demand to that of possession would keep alive an adverse claim, and would also multiply suits.

On behalf of the appellants, our attention has been drawn to the note in column 18 of the form of record of rights and duties of raiyats at p. 173, Santal Parganas Manual, 1911, which says:

A karfadar who is not recorded in the settlement papers, or who becomes such after the settlement, cannot acquire any occupancy right or immunity from eviction.

This form relates to the first programme of the Revision Settlement of 1898-1902, vide pages 165 and 166 of the Manual. The village with which we are concerned belongs to the second programme the corresponding form for which does not bear this note: vide p. 191 of the Manual. Instead, it contains a note that it shall be open to the Depty Commissioner to evict both the transferor and transferee from the area alienated--a note evidently based upon Sub-section (3) of Section 27, Santal Parganas Settlement Regulation of 1872. The form of the third programme is on the same lines as that of the second programme: vide p. 216 of the Manual.

5. The difference between the form of the first programme and the forms of the two later programmes is explained in a note on the Settlement records of the Santal Parganas prepared by the Settlement Officer, Mr. Macpherson, and printed by the Order of Government (p. 109B of the Santal Parganas Manual). Dealing with the Settlement practice regarding the recording of korfa settlement and alienations contrary to law, Mr. Macpherson explains at p. 116 of the Manual that Korfadars, whose names were recorded in the first programme, were recorded as such, unless they happened to be holding under the headman, in which case they were recorded as independent raiyats. It was in these circumstances that, in the form of the record of rights: and duties the note was inserted about the position of the korfadar who is not recorded in the Settlement papers. According to the later Settlement rules, however, the korfadar was not to be recorded as such. This rule is set out at p. 158 of the Manual under the heading "Sub-leases". It places on the Assistant Settlement Officer the responsibility for deciding in each case whether the sub.lessee should be regarded as a jamabandi raiyat or his name should be omitted from the record. In the former case, the sub-letting raiyats name was to be removed from the Settlement record. This is on a line with Sub-section (3) of Section 27, Santal Parganas Settlement Regulation of 1872, under which it is entirely a matter for the discretion of the Deputy Commissioner whether the transferee should be evicted or not, and the Deputy Commissioner, in the event of the transferee being evicted, is given the power either to restore the transferred land to the rttiyat or to resettle it with another raiyat. This section was inserted in the Santal Parganas Settlement Regulation by the Amending Regulation of 1908 (III of 1908) and had nothing corresponding to it in the Regulation as originally enacted.

6. The entries in these forms of the record of rights and duties represent the view taken by the Settlement authorities of the position of korfadars under the then existing law. The position was altered between the first programme and the later stages of the Settlement by the amendments in the Settlement Regulation. The Settlement authorities of the Revision Settlement of 192235 seem to have taken the same view as that taken in the later stages, for Mr. Gantzer in his Final Report on the settlement of 1922-35 states:

The record of rights and duties for the third programme was drafted in Mac Phersons settlement after a good deal of experience had been gained and, more important still, after the enactment of Section 27 of Regulation III of 1872. It was generally speaking, a complete and accurate codification of the revenue law of the district.

7. The opinion of the Settlement authorities as to the rights in law to which a korfadar is entitled, so far as it is expressed in the passages to which I have referred above, is not inconsistent with the view which I am taking in this case. On the contrary, it appears to go even further in that it seems to suggest that, where the korfadar has acquired rights of a permanent nature, the lessor-raiyat must go out altogether. In the case before us, we are not concerned to examine the correctness of the proposition, because the Courts below have treated defendants 7 to 9 as tenants under the plaintiffs and their cosharers, and the is no appeal or cross-objection against this decision.

8. An attempt was made before us to shift the basis of the claim in the suit. Our attention was drawn to the fact that, in the records of the last settlement, the suit lands are recorded jointly in the names of Chuto Rai, the plaintiffs, and Ganga Kumari, widow of the uncle of Chuto Rai, and it has been suggested that the plaintiffs have an interest in the property in their own right as distinct from their claim as heirs of Chuto Rai. In this connection, it may be noticed that the khatian covers other lands as well, and that, in the remarks column, the possession of the suit lands is shown to be that of Chuto Rai and Ganga Kumari only, so that the khatian is not conclusive that the plaintiffs had any interest of their own independent of Chuto Rai in the suit lands. Further, it is not open to the plaintiffs to set up such a claim at the present stage of the litigation. They came to Court with a claim to the land as heirs of Chuto Rai, and it was on this basis that the suit was contested both in the Court of the Subordinate Judge and before the Additional District Judge: vide pages 2 and 9 of the paper book,

9. On the above grounds, the appeal fails and must be dismissed with costs.

Imam J.

I agree.