Sinha, J.

1. This appeal is by the defendants 2nd party to an action for a declaration of title and recovery of possession with mesne profits.

2. The plaintiffs case is that the suit lands, namely, 14 bighas--8.30 acres, khata No. 741, plot Nos. 3554, 3555 and 3556, were the plaintiffs zirat lands. The plaintiffs ancestors had given, a registered rehan bond, dated 27-10-1897 (wrongly mentioned as the 28th October in the judgment) to one Basdeo Singh alias Baso Singh, in respect of 15 bighas 11 kathas of land in their milkiat share in Tauzi No. 1319, including the suit lands (Exhibit 5 original and exhibit 5a certified copy).

Thereafter, the plaintiffs ancestors executed another registered rehan bond sometime in, June, 1907 in favour of Raushandayal Singh and others in respect of 29 bighas of lands in villages Chaugain and Khairahi. The Chaugain lands-included the rehani lands covered by the earlier rehan bond in favour of Basdeo Singh. A portion of the rehan money was left with the second-mortgagees to redeem the earlier mortgage.

The second mortgagees redeemed the earlier mortgage bond and, thereafter, remained in Possession of the lands in suit. The defendants 3rd party are the descendants of the first mortgagee, namely, Basdeo Singh, and the defendants 4th party are the descendants of the second mortgagees, namely Raushandayal Singh and others. On 8-6-1941, the plaintiff redeemed the subsisting rehan bond of 1907, and endorsement of satisfaction was made on the bond (Exhibit 1b). After redemption the plaintiffs could not obtain possession of the lands in suit, and hence the suit.

The plaintiffs further case is that they later learnt that there was a case under Section 145 of the Code of Criminal Procedure between the second rehandars, on one side, and Bahadur Koiri and Sukhari Kouri, who were brothers and who are the ancestors of the defendants 1st party, on the other, in respect of the suit lands.

In that proceeding, there was a compromise, and so far as the suit lands are concerned, me ancestors of the defendants 4th party got 9 bighas and Bariadur Koiri got possession over the remaining 5 bighas and remained in possession of it till 1320 fasli, after which the defendants 4th party took possession of it and they remained in possession of the entire 14 bighas. According to them, the two brothers, Bahadur Koiri and Sukhari Koiri, were fraudulently set up as claimants to the suit lands by the defendants 3rd party, the first rehandar, and, as a result of fraud between the defendants 2nd and 3rd parties; the defendants 2nd party are purchasers from the defendants 1st party.

The suit lands were recorded in the names of Bahadur Koiri and Sukhari Koiri as their occupancy holding at the survey which took place in 1912. The plaintiffs state that they are not bound by the said illegal and unjustifiable entry in the record-of-rights, and that by that entry, neither the defendants 1st party nor the defendants 2nd party acquired any title to the suit lands against the plaintiffs.

The plaintiffs also learnt that the defendants 2nd party entered into various fraudulent transactions with their relations in collusion with the defendants 1st party to create false evidence of title in their favour. Although the plaintiffs several times asked the defendants 1st and 2nd parties for possession of these lands, these defendants refused to make over possession to the plaintiffs, and the plaintiffs, therefore, had to go to Court.

3. Defendants 3rd party have not appeared in the suit, and defendants 4th party have filed a written statement supporting the plaintiffs case.

4. Defendants 1st and 2nd parties only contest the plaintiffs suit. They have filed separate written statements. Their common case is that the suit lands were never zirat lands of the plaintiffs, but it were raiyati lands of Bahadur Koiri and Sukhari Koiri, the ancestors of defendants 1st party, that neither the plaintiffs nor their ancestors nor their rehandars were ever in khas possession of the suit lands, and they were merely entitled to recover rent in respect of the suit lands, and that the settlement record as occupancy holding of Bahadur Koiri and Sukhari Koiri was correct.

The special case made out by the defendants 1st party (defendants 1 to 4) is that the suit lands were acquired by their ancestors partly by purchase and partly by taking settlement, and, therefore, the suit lands were ancestral kasht lands of these defendants. They also claim occupancy right by adverse possession. These defendants deny the case of the defendants 2nd party about the partition between Bahadur and Sukhari and their father, Satram.

It is stated by the defendants 1st party that, though Sukharis share in the suit lands was sold at auction at Court sale, Sukhari remained in possession of his share till his death, which took place a little before the suit was instituted.

5. The special case of defendants 2nd party is that there was partition in the family of Bahadur and Sukhari, sons of Satram, and by virtue of that partition, Sitram and Sukhari got 9 bighas and Bahadur got 5 bighas as their separate share, Satram and Sukhari having remained joint, Sukhari got 9 bighas after the death of his father, Satr-m. These 9 bights consisted of plots 3554 and 3555, and Bahadurs 5 bighag consisted of plot No. 3556. Thereafter, in execution of a money decree obtained by one Ramscrekh Singh and others against Sukhari, the decree-holders purchased these 9 bighas at auction sale on 4-7-1923, and took delivery of possession.

In 1925, they sold these lands to the defendants 2nd party by a registered sale-deed, exhibit B(2), and since then the defendants 2nd party are in possession of these two plots. Regarding plot No. 3556, their case is that Bahadur had rebanned this plot to one Deoki Singh, and Deokisingh in big turn, gave it in dar-rehan to the defendants 2nd party on 4-6-1936, and that, as these defendants 2nd party are settled raiyats of the village and they are in possession of this land for more than 12 years, they have acquired occupancy right in the suit lands.

6. The Court below has held that the lands in suit have been proved to be zirat lands of the plaintiffs, that at least 12 years before the passing of the Bengal Tenancy Act, the plaintiffs ancestors were in khas possession of the suit lands, and that the entry in the record-of-rights is wrong, as it was based on no material supporting the case of the defendants 1st and 2nd parties. It has also been found that there is practically no evidence to show that the decree-holders, who had bought at Court auction 9 bighas of land belonging to Sukhari, had ever taken dakhaldehani of the plots and were ever in possession: that the rehandsrs had no right to create tenancies in the zirat lands in suit, and whatever tenancies might have been created by them during their possession came to an end when the mortgage was redeemed by the plaintiffs in 1941; and that the possession of the defendants 1st or 2nd parties became that of trespassers as against the plaintiffs on redemption of the rehan bond in 1941.

7. Mr. Advocate-General, on behalf of the appellant, submitted that, in view of the provisions of the Bihar Land Reforms Act. 1950 (XXX of 1950), the plaintiffs have ceased to be the proprietors of the land, and, therefore, they have no cause of action for the suit, and the suit, therefore, ought to be dismissed. He has also argued that, on merits, it should be held that the plaintiffs had failed to prove that the lands in suit were their zirat lands.

Mr. S. N. Datta, on behalf of the respondents, controverted the submissions made by Mr. Advocate-General, and further submitted that the defendants 1st party or defendants 2nd party had no right to remain on the land after redemption of the rehan bond by the plaintiffs, and that any settlement made with the defendants 1st party did not entitle them or their transferees to acquire any permanent rights in the land as rayats inasmuch as the mortgagee being neither the proprietor nor the tenure-holder, any settlement made by the mortgagee in possession can in no circumstance confer any raiyati interest on the settlees, namely, the defendants 1st party or their transferees, the defendants 2nd party.

It is the admitted case that the proprietary interest of the plaintiffs vested in the State of Bihar under the aforesaid Bihar Land Reforms Act on the 1st January, 1955. In this case, under the provisions of Section 4(ee) of the Bihar Land Reforms Act, notice was given to the State of Bihar. On their behalf, Mr. Lakshman Saran Sinha has appeared, and has submitted that the State of Bihar is entitled to a decree for possession as also for mesne profits from the date of vesting.

8. In support of his first submission, Mr. Advocate-General has relied upon the case of K.C. Mukherjee v. Mt. Ramratan Kuer 17 Pat LT 25, also reported as : AIR 1936 PC 49 [LQ/PC/1935/86] :63 Ind App 47 (A) and that of Lachmeshwar Prasad v. Keshwar Lal : AIR 1941 FC 5 [LQ//1940/1] (B) for the proposition that the appellate Court is entitled to decide, the rights of the parties on taking into consideration subsequent events. So far as these cases are concerned, it is enough to state that both these cases had to consider the effect of retrospective legislation, in one case the amendment of the Bihar Tenancy Act, Sections 26A to 26N, and in the other the Bihar Money-Lenders Act.

These cases, therefore, are of no assistance. The other case on which reliance was placed is that of Saghir Hassan v. Tayab Hasan : AIR 1940 All 524 [LQ/AllHC/1940/118] (B1), which is a decision on the provisions of Order II, Rule 2, of the Code of Civil Procedure and which, in my opinion, is absolutely irrelevant for the present case. In my judgment, the function of the appellate Court is to find as to whether the judgment appealed against was correct on the date when it was made. If it finds that the judgment was a correct judgment, the appeal must be dismissed.

If, however, it is brought to the notice of the appellate Court that there have been some subsequent events or legislations on the matter in controversy between the parties, then the appellate Court will take judicial notice of the subsequent events and the change in the law to quieten or shorten litigation between the parties, and to do complete justice between them.

9. I would now consider some of the cases which have been cited at the Bar by Mr. S. N. Datta. The first case to which reference is made is that of Mt. Anundmoyee v. Sheeb Chunder Roy 9 Ind App 287 (PC)(C). Their Lordships made the following observation in that case.

"The first and most important question is, whether the decision of the Principal Sudder, Ameen was, when pronounced, a correct decision of the issues then pending before him between the then parties to the suit. No subsequent event, or devolution of interest, can affect this question; because to give effect to these, should justice require it, would be the office not of an appeal, but of some supplemental proceeding.

The question in the suit was the title of Bhairub Chundra, as the adopted son of Kirtee Chundro Chowdhuree, to recover certain property, and to have another adoption cancelled. The foundation of this title was the Unoomotee Puttur under which he was adopted. If the proof of that failed, he had no title, and this suit was properly dismissed."

To the like effect is the observation made in the case of Doorga Prosad Chamaria v. Secretary of State, 72 Ind App 114 : (: AIR 1945 PC 62) (D) at p. 118 (of LA.) : (at p. 62 of AIR).:

"The only question which arises in the appeal is whether a certificate dated April 1, 1933, issued under the provisions of the Bengal Public Demands Recovery Act, 1913, is a valid certificate. The appellant in his case claims further that the certificate, if originally valid, became unenforceable by reason of matters which occurred after the filing of the suit, but their Lordships are of opinion that the relief claimed in this suit must be confined to matters existing at the date when the suit was instituted."

In Ram Ratan Sahu v. Bishun Chand, 6 Cal LJ, 74 (E), it was observed that, as a general rule, a Court of appeal, in considering the correctness of the judgment of the Court below, will confine itself to the state of the case at the time such judgment was rendered, and will not take notice of any facts which may have arisen subsequently. It was further observed that, in exceptional cases, this rule could be departed from, specially where, by so doing, it could shorten litigation and best attain the ends of justice by preserving the rights of both parties, and also that it was not only in the power, but it must sometime be the duty of the Court of appeal to take notice of events which had happened during the pendency of the appeal and such events when not appearing on the record might be proved by extrinsic evidence. In Raj Charan v. Biswa Nath 20 Cal LJ 107 : AIR 1915 Cal 103 (F), it was said that a suit

"is to be tried in all its stages on the cause of action as it existed at the date of its commencement. An exception to this rule, namely, that a Court may take notice of events which have happened since the institution of the suit and afford relief to the parties on the basis of the altered conditions, is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties."

The case of Kalidas Das v. Satyesh Chandra : AIR 1933 Cal 554 (G) which is similar to the facts of the present case as will appear from the following observation made at page 558 of the report:

"The last contention relates to the question of mesne profits. As regards this matter, it has been argued in the first instance that a decree for mesne profits can only follow a decree for possession, and that when the plaintiffs have failed to obtain a decree for possession their claim, for mesne profits should not have been allowed. The proposition, which the appellant has thus propounded and which under ordinary circumstances is perfectly sound, cannot be regarded to be applicable to the present case in its special circumstances. It is only because of the sale that took place during the pendency of the suit that the plaintiffs are precluded from obtaining khas possession. This cannot deprive the plaintiffs of their right to mesne profits up to the date up to which they were entitled to possession."

The underlining (here into ) has been done by me to bring out in bold relief the fact that the argument of Mr. Advocate General that the plaintiffs suit should be dismissed even in regard to mesne profits is untenable because the plaintiffs proprietary interest vested in the State of Bihar only in 1955; and if the facts alleged by the plaintiffs are proved, the plaintiffs would be entitled to a decree for mesne profits up to the date of vesting of the proprietary interest in the State of Bihar. In Lalloo Prasad Singh v. Lachman Singh: AIR 1924 Pat 438 [LQ/PatHC/1923/322] : ILR 3 Pat 224 (H), it was held that the judgment of the Court must depend upon the rights of the parties at the date when the suit was instituted.

The facts, briefly, of this case were that the plaintiffs, who were nephews of a deceased Hindu, had sued for a declaration of title to the estate of their uncle, fathers brother, on the allegation that they were entitled to it as the next reversionary heirs inasmuch as the defendant No. 2, the daughter of their deceased uncle, did not claim the property in suit. The attitude taken up by her was that the parties were joint and that her only right was that of maintenance. Later on, during the pendency of the appeal, the defendant No. 2, the daughter of the uncle, filed a petition of disclaimer, and it was held that

"the most that could be said in favour of the plaintiffs is that although at the date when the suit was instituted there had been no relinquishment in their favour the defendant No. 2 was during the appellate stage of the case apparently willing to relinquish in their favour but as the judgment of the Court must depend upon the rights of the parties at the date when the suit was instituted it seems to me that the finding of fact of the learned Subordinate Judge in first appeal was amply justified by the evidence before him and it is not open to this Court in second appeal to disturb that finding of fact."

In Deopati Kuer v. Mahabir Prasad Singh : AIR 1947 Pat 293 [LQ/PatHC/1946/93] (I), following the case in 6 Cal LJ 74 (E) already mentioned, it was observed at page 297 as follows:--

"As a general rule, a Court of appeal in considering the correctness of the judgment of the Court below, will confine itself to the state of the case at the time such judgment was rendered, and will not take notice of any facts which may have arisen subsequently. But the Court will in exceptional cases depart from this rule specially where, by so doing, it can shorten litigation and best attain the ends of justice by, preserving the rights of the parties."

Mr. Sinha, on behalf of the State, has made reference to the case of Deoraj Singh v. Ram Bilas Singh. AIR 1951 Pat 629 (J), for the proposition that where, after the institution of rent suits, the tenants defendants had made applications for commutation of their bhauli rent into nakdi under Section 40 of the Bihar Tenancy Act before the Revenue Court and the order for commutation came into existence during the pendency of second appeal, the appellate Court was entitled to take notice of the commuted rent and the landlords were not entitled to get a decree for rent other than the rent commuted.

This judgment, in my view, does not alter the position which I have been endeavouring to indicate. In certain circumstances subsequent events can be taken into consideration by the appellate Court, as observed already. In this case, what happened was that, during the pendency of the rent suits, applications were made for commutation of rent under Section 40 of the Bihar Tenancy Act and the order of commutation came into existence during the pendency of the second appeal, and that was given, effect to by this Court. The reason wag that, under Sub-section (5) of Section 40, the Revenue Court had power to give retrospective effect to its orders, and that retrospective effect covered the period for which the rent suits had been brought, and, therefore, the Court found no difficulty in modifying the decree according to the commuted rent.

Mr. Sinha also cited the case of Ram Ayodhya v. Raghunath Missir ( (S) : AIR 1957 Pat 480 [LQ/PatHC/1956/154] :1956 Pat LR 486 where at the stage of Letters Patent Appeal effect was given to the new legislation contained in Section 14 of the Hindu Succession Act, 1956, and their Lordships said that it was manifest that Section 14 was made expressly retrospective, and, therefore, there is no surprise that their Lordships took into consideration the subsequent legislation. In Chunilal Khushaldas v. H. K. Adhyaru, (S) : AIR 1956 SC 655 [LQ/SC/1956/12] (L), there is an observation to the following effect:--

"Even though an appeal is in the nature of a re-hearing and the courts in this country can take into account the facts and events which have come into existence after the decree appealed against, it could be only for moulding the relief to be granted in the appeal."

10. On a resume of these authorities, I am fortified in my opinion which I have expressed, namely, that, as a general rule, the appellate Court has to pronounce judgment on the facts on which the judgment of the first Court was given, but, in some circumstances, the appellate Court can take notice of subsequent events to shorten the litigation, to do justice between the parties and to mould its own judgment in appeal. In my opinion, therefore, there is no merit in the submission of the learned Advocate General that the plaintiffs suit has to be dismissed because their proprietary interest vested in the State of Bihar by the Bihar Land Reforms Act aforementioned.

They ceased to be proprietors under that Act on the 1st January, 1956. That is, in my opinion, no reason to dismiss their suit in its entirety. The plaintiffs will be entitled to their declaration sought for and to mesne profits till the date of vesting of their proprietary interest in the State of Bihar, provided the appellate Court confirms the findings of the Court below in regard to their title. The only thing that can happen as a consequence of the passing of the Bihar Land Reforms Act is that they shall not be entitled to a decree for recovery of possession, because, on the date when the appellate Court judgment is pronounced, they have no right under the present law to recover possession of these lands in suit.

11-12. So far as the merits of the case are concerned, in my view, the Court below has come to correct findings, and there is no substance in the second contention of Mr. Advocate General. In this case, luckily, there are very old documents which throw a good deal of light on the present question as to whether the lands in dispute were the zirat lands of the plaintiffs even at the time when the earliest rehan bond was executed by the ancestors of the plaintiffs. We shall consider the documents on record in their chronological order.

"His Lordship then considered the documentary evidence on record and continued as under :--)

These are all the documents on which reliance has been placed by the parties. In view of these documents, I have no hesitation in accepting the finding of the Court below that the plaintiffs have been able to prove that the lands in suit were the zirat lands of the plaintiffs, and their evidence has been rightly accepted by the Court below.

13. There is another aspect of the case from which the matter in controversy can be looked at. The case of defendants 1st and 2nd parties is that the lands in suit were the ancestral kasht lands of the defendants 1st party. It has been found, however that, even at the time of the first rehan bond of 1897, the lands were in possession of the mortgagors, namely, the plaintiffs ancestors, and that there were no tenants on the land. In 1907, when the second mortgage bond was executed, that in express terms described the lands in suit as zirat land, and, as already mentioned, the document states that, on redemption, the mortgagees shall put the mortgagors in khas possession of the land, which was not possible if the lands were held by tenants.

Thereafter, we have seen the kabuliyat and patta of the year 1906 describing the lands ex- pressly as zirat. In that view of the matter, the defendants had no right to remain on the land after the mortgage was redeemed in 1941, even though it had been held that the entry in the record-of-rights of the year 1912 recording the ancestors of defendants 1st party as occupancy raiyats had not been rebutted. In Deosaran Singh v. Deoraj Ahir 17 Pat LT 797 (M), it was held as follows:--

"Not having been brought on to the land by the mortgagee and not having been brought on to the land by the mortgagors the defendant has no right as against the mortgegors who now come into possession to remain in occupation or possession of the land. Therefore, in my view, the opinion of the learned Judge of this Court that the Record-of-rights had not been rebutted though true is immaterial".

I respectfully agree with the view thus expressed. In the present case, however, upon the materials on record, it cannot but be found that the entry in the record-of-rights has been rebutted. There were enough materials, before the entry in the record-of-rights came to be made, showing that the lands were not the tenancy lands of the defendants ancestors, who were recorded therein, but that the lands were zirat lands, to which reference has already been made.

In Sheonandan Persad Sukul v. Bacha Raut 4 Ind Cas 54 [LQ/CalHC/1908/129] (Cal) (N), it was held that, in considering the correctness or otherwise of an entry in the record-of-rights, the evidence of facts and circumstances subsequent to the publication of the record was not the only evidence which could be produced to rebut the correctness, but any documentary or oral evidence or facts and circumstances existing prior to the publication were admissible in evidence and should be taken into consideration in determining whether the presumption had been rebutted or not. I think that proposition is firmly established and needs no further support.

14. Mr. Advocate-General submitted that, under Section 120 of the Bihar Tenancy Act, in order to prove that the lands in suit are the proprietors private lands, it must be shown that the lands in question had been cultivated as proprietors private land by the proprietors themselves with their own stock or by their own servants or by hired labour for 12 continuous years immediately before the passing of this Act. Learned Counsel, however, forgets that, under Section 120, Sub-section (2), when the matter has got to be determined, other evidence is not ruled out, though it is correct that the presumption will be raised that the lard was not proprietors land.

The other evidence, however, to which I have already made reference, show quite unmistakably, in my opinion, that the lands in suit are the proprietors private land, and that other evidence is proved by the patta and kabuliyat (Exts. 7 (a) and (7) ). In Bindeshwari Prasad v. Kesho Prasad Singh ILR 5 Pat 634 : : AIR 1926 PC 79 (O), it was held as follows :--

"Sub-section 2 of Section 120, as their Lordships construe it, does not exclude as inadmissible evidence that subsequent to the 2nd March, 1883, the tenant admitted that the lands let to him were zirait lands of the landlord; such an admission is relevant and admissible evidence, but it is probetive evidence only, which, like any other relevant fact, has to be considered, and such weight given to it as under the circumstances of the case it is entitled to have..... .In their Lordships opinion any agreement or compromise in (2a) must refer only to an agreement or compromise of a question in discussion as to the character of the land at the time when the agreement or compromise was made. .... it is difficult for their Lordships to understand why the agreement lor letting of the land, lease, patta, or kabuliyat which contains a statement of the character of the land, should not be admissible in evidence against a party to it".

As was observed by their Lordships in that case, quite apart from the statement in the kabuliyat and the patta in the present case also, as in that case, there is further material, which I have already discussed, to show that the lands in suit were the proprietors private lands. As it was said in Santokhi Mander v. Rameshwar Sinha: AIR 1929 Pat 41 [LQ/PatHC/1927/210] : ILR 7 Pat 187 although there is presumption that the land is not the proprietors private land, within the meaning of Section 120 of the Bengal (Bihar) Tenancy Act, the presumption is a rebuttable presumption and can be shown by the proprietor that, though he had never cultivated the land himself, it was nevertheless his private land.

That finishes the submission made by the learned Advocate General. Coming to the submission made by Mr. Datta, I have no hesitation in accepting his submission that, even if the defendants case be accepted that they Were let into possession by the mortgagees and did remain in possession for much more than 12 years before the suit, the defendants, on redemption of the mortgage, cannot claim to remain on the land as occupancy raiyats for the simple reason that they do not come under the definition of "raiyat" as defined in Section 5 of the Bihar Tenancy Act. I need quote only Section 5(3) of the Act, which is as follows :--

"A person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder".

A mortgagee is neither a proprietor nor a tenure-holder, and, therefore, even though the defendants had taken settlement from the mortgagees and had remained in possession for much more than 12 years, they did not acquire the status of a "raiyat", and, therefore, they cannot take advantage of the provisions of Section 20(1) read with Section 21(1) of the Bihar Tenancy Act, which is to the following effect:--