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PETITIONER: JYOTISH THAKUR AND OTHERS

       Vs.

RESPONDENT: TARAKANTJHA AND OTHERS

DATE OF JUDGMENT: 11/09/1962

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. MUDHOLKAR, J.R.

CITATION:  1963 AIR  605            1962 SCR  Supl. (1)  13  CITATOR INFO :  R          1969 SC 204  (9)

ACT: Raiyati Land--Acquisition of superior landlord’s interest by raiyat--Raiyati   interest,   if  merged   in   proprietor’s interest--Land  tenure in Santhal Parganas--Rule of  merger, if  applicable--"Bakasht Malik", meaning of--Regulation  III of 1872, s.27.

HEADNOTE: S who was the owner of the raiyati interest in the lands  in question  acquired  the entire interest of  the  Lakhirajdar under whom he was the raiyat.  These lands were purchased by the  appellants  under a deed dated May 15, 1935,  from  the successors  in interest of S. The plaintiffs’ case was  that no  interest passed to the vendees by the sale deed  because the  raiyati character of the land was existing on the  date of transfer and this was inalienable under the provisions of s.  27 of Regulation III of 1872.  The trial court took  the view  that  the land did not retain  its  raiyati  character after  S  acquired the landlord’s interest and so s.  27  of Regulation  III was not applicable.  The High Court  was  of the  opinion  that  the raiyati  interest  recorded  in  the earlier settlement continued in spite of the entry  "Bakasht Malik"  in  the subsequent settlement and that  the  raiyati interest  could not be alienated by the sale deed dated  May 15,1935. Held,  that S’s raiyati interest was not merged in his  pro- prietary  interest but continued side by side, and that  his successors  in interest did not in law transfer the  raiyati interest in the land to the vendees in 1935. The  legal position as regards merger, apart from  statutory provisions,  is  that while the union of  the  superior  and subordinate interests will not automatically cause a merger, merger will be held to have taken place if the intention  to merge  is  clear and not otherwise.  In the absence  of  any express indication of intention, the courts will proceed  on the basis that the party had no intention to merge it if  it is  to his interest not to merge and also if a duty  lay  on him  to  keep  the  interests  separate.   In  deciding  the intention  of the party the court will have regard  also  to

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his conduct; there was, in the present case, no evidence  of intention  to merge and S must be held to have  intended  to keep the two interests distinct and separate. 14 The entry in the record of "Bakasht Malik" against the  land meant  that the land which was formerly recorded as  in  the cultivating  possession of a raiyat under a landlord was  in the cultivating possession of the landlord himself. Held,  further,  that s. 27 (3) of Regulation  III  did  not stand  in  the way of the plaintiffs getting relief  in  the civil court. Semble,  in  the  community village  areas  of  the  Santhal Parganas  which covered the greater part of the district,  a raiyat  has not got the right to put an end to  his  raiyati interest even where he acquires the superior interest.   The doctrine  of  merger does not apply to the case  of  raiyati holders in the Santhal Parganas.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 443 of 1959. Appeal from the judgment and decree dated April 27, 1956, of the Patna High Court in L. P. A. No. 13 of 1954. L. K. Jha and B. P. Jha, for the appellants. Al.  C.  Chatterjee, A. N. Sinha and P.  K.  Mukherjee,  for respondents Nos.  1 to 7. 1962.   September  II.   The  judgment  of  the  Court   was delivered by DAS  GUPTA,  J.-If  a raiyat of lands  in  the  District  of Santhal  Parganas  acquires the entire  superior  landlord’s interest,  does his raiyati interest cease to exist or  does he  continue  to  be  a raiyat in  addition  to  becoming  a superior landlord ? This is the main question raised in this appeal arising out of a suit for declaration and delivery of possession  of  12  bighas, 16 kathas, 4 dhurs  of  land  in Mauza, Chhatahara in the District of Santhal Parganas.   The plaintiffs and the four defendants, described in the  plaint as  defendants 2nd party, are the successors in interest  of one  Santokhi  Jha who became owner of  the  entire  raiyati interest in these lands many years ago.  Some time after  he became  a  raiyat  of this land,  Santokhi  purchased  by  a registered deed the entire interest of the  15 Lakhirajdar under whom he was the raiyat.  On May 15,  1935, these lands were sold by the 2nd party defendants and others including the plaintiffs 1 to 6, to the present  appellants. The  plaintiffs’  case  is that no interest  passed  to  the vendees by that sale deed, because the raiyati character  of the  land was existing on the date of transfer and this  was inalienable under the provisions of Regulation III of  1872. It  was  further  pleaded that this  transfer  of  1935  was fraudulent and collusive and that there was no legal  neces- sity for the transfer. The  defendants first party denied the allegations of  fraud or collusion and further pleaded that the transfer was  made for  legal  necessity  for paying antecedent  debts  of  the family  and  they are therefore binding on  the  plaintiffs. They  also pleaded that the lands in the suit were  not,  on the date of the sale, raiyati but Bakasht lands of the Malik and so there was no bar to the sale of these lands under the provisions of Regulation III of’ 1872. The  Subordinate Judge, Dumka, who tried the suit held  that the  sale was justified by legal necessity and that  it  was not fraudulent or collusive.  He further held that while the

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plaintiffs were not estopped from challenging the sale  deed it  was binding on them.  The learned judge was also of  the opinion  that the land did not retain its raiyati  character after Santokhi, the raiyat, acquired the landlord’s interest and  in that view rejected the plaintiffs’  contention  that the  lands were inalienable under the provisions of  section 27 of the Regulation III of 1872.  Accordingly lie dismissed the suit. On  appeal  by the plaintiffs the  District  judge,  Santhal Parganas,  agreed with the findings of the Trial  Court  and held that the suit had been rightly dismissed. The plaintiffs then appealed to the High Court of judicature at Patna.  Before the High Court the 16 finding that the sale deed was for legal necessity and there was  no fraud or collusion were not challenged.  The  entire argument  in  support  of the appeal was  that  the  raiyati interest  continued to exist inspite of the  acquisition  of the  landlord’s interest by the sole raiyat,  Santokhi,  and the  subsequent entry in the settlement records showed  that the lands were Bakasht Malik.  The learned judge  (Banerjee, J.)  who heard the appeal, was of opinion that there was  no conflict between the several entries in the record of rights the  first of which showed the lands as held by Santokhi  as the  raiyat while the later settlement records showed  lands as  Bakasht  Malik  and that in  law  the  raiyati  interest continued  even  after  the  raiyat  acquired  the  superior landlord’s interest.  He was also of the view that  assuming that  the equitable doctrine of merger could be  applied  in such cases of "unity between the interests of the raiyat and the  landlord"  in  the  Santhal  Parganas,  the  facts  and circumstances of this case showed that there was no  merger. He also rejected the contention made by the respondents that the  plaintiffs were estopped from challenging the  deed  of sale.   Accordingly he allowed the appeal, holding that  the sale was void with regard to the raiyati interest. The  Letters Patent Appeal by the defendants 1st party  from this decision was unsuccessful the learned judges who  heard the  appeal being of opinion, in agreement with Mr.  justice Banerjee, that the raiyati interest recorded in the  earlier settlement  continued "inspite of the entry ’Bakasht  Malik’ in the subsequent Settlements and the raiyati interest could not be alienated by the sale deed of May 15, 1935." The High Court, however, gave a certificate that as  regards the   value  and  nature  of  the  case  it  fulfilled   the requirements  of s. 110 of the Code of Civil Procedure  read with Article 135 of the Constitution of India and was a  fit case for appeal to this  17 Court.  On that certificate the defendants first party  have preferred the present appeal. The  first contention which Mr. Jha urged in support of  the appeal  is  that after Santokhi acquired the  Lakhirajdar  s interest,  he ceased to be a raiyat.  The argument  is  two- fold.   First, he argues that as a matter of law, there  was an  automatic merger of the raiyati interest in  the  larger interest,  the  Lakhirajdar’s  interest.   Secondly,  it  is argued  that at least Santokhi had the option to  merge  the raiyati  interest  in  the Lakbirajdar’s  interest,  and  he exercised  that  option.  The first argument is  indeed  the language of the law of merger at English common law.  Black- stone in his Commentaries on the Laws of England, Vol.   II, 4th  Edition,  p.  151 put the matter  thus  "   Whenever  a greater  estate and a less coincide and meet in one and  the same  person  without any intermediate estate, the  less  is

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immediately annihilated; or in the law phrase, is said to be merged that is, sunk or drowned in the greater".  In England equity however soon stepped in to modify the rigour of  this doctrine by laying down that one must look at the  intention of the parties to decide whether there has been a merger  or not.   The  result  of  the  statutory  provisions  in   the Judicature  Act of 1873 and later of the Law of Property  in 1925  has been that merger will be held to have taken  place only  where, there would be a merger both at common law  and in equity.  Foa puts the matter thus in his Law of  Landlord and  Tenant, 8th Edition, p. 643 : if the circumstances  are such  that a Court of equity would formerly have  held  that there was no merger in equity there is now no merger at  law "When  no  intention  is expressed, the  English  courts  in deciding  what the intention was, looked to the  benefit  of the person in whom the interests coalesce.  On this question of  intention it has also been hold that a presumption  will exist against merger where it can be shown that it is either the duty or the interest 18 of the person acquiring the outstanding estate that the  two estates should be preserved as separate interests. (Vide  Re Fletcher, [1917] 1 Ch. 339). We  have referred to the doctrine of merger in England  even though  there  was no reference to it at the Bar-,  for  the reason that the state of the law in England appears to  have influenced the judicial thinking in this country.  As  early as  1868 a question arose before the High Court at  Calcutta in Noomesh v. Rai Narain (1) whether the doctrine of  merger applied  to the case of a Patni taluk coming into the  hands of  the  Zamindar.  The Court answered the question  in  the negative.   Sir  Barnes  Peacock observed  in  his  judgment thus:-               "My  own  impression is that the  doctrine  of               merger does not apply to lands in the mofussil               in this country.  I believe it is the practice               in this country for Zamindars to purchase  and               keep  on foot patni taluks with the  necessity               of adopting the practice, which is followed in               England, of purchasing such taluks in the name               of  a trustee to prevent the merger  of  them.               If the doctrine of merger applies, a  Zamindar               could not purchase and hold a patni tenure  in               khas possession." A similar view was taken in Ruston v. Atkinson (2) and  Savi v. Panchanan. (3) In Prosonna v. jagat, (4) decided in 1878, the Court however held that while the union of the  superior and  subordinate interests might not automatically  cause  a merger of the latter in the former, the conduct of the party concerned might show that he did not intend to keep the  two interests alive as mutually distinct rights and if this  was shown,  merger  should  be held to  have  taken  place.   In decision  of  the Privy Council in Raja Kissen Dutt  Ram  v. Raja Mumtaz Ali Khan, (1)  (1868) 10 W. R. 15. (3)  (1876) 25 W. R. 503. (2)  (1869) 11 W. R. 485. (4)  (1878) 3 C. L. R. 159. (5) (1879) I. L. R. 5 Cal. 198.  19 there was a statement in favour of the possibility of merger of resumable birt tenures in a superior interest, where  the holder did not take steps to keep the two interests alive as distinct.   In  a lager number of cases decided  after  this date  the  Calcutta  High Court has taken  the  view  as  in

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Prosonna  v. Jagat (1) that where the conduct of  the  party concerned  showed  that he did not intend to  keep  the  two interests alive as mutually distinct rights the union of the superior and subordinate interests will result in merger  of the latter in the former. (Vide Surja Narain Mandal v.  Nand Lall  Sinha,  (2)  Ulfat  Hossain v.  Gayani  Dass  (3)  and Promotha Nath Roy v. Kishore Lal Sinha, (4 ) Dakshavani Dasi v. Amrita Lal Ghosh(5).  A similar view was indicated by the Patna  High  Court  (Chamier, C.J.,  and  Sharfuddin.j.)  in Lachanbati v. Bodhnath(6). Statutory  provisions  as regards merger were  made  in  the Transfer  of Property Act in 1882 and in the Bengal  Tenancy Act  in  1885-which  was later  extended  to  Bihar.   These statutory provisions have, admittedly no application to  the present  case.  The legal position as regards merger,  apart from  these statutory provisions, may be stated thus.   That while  the union of the superior and  subordinate  interests will  not automatically cause a merger, merger will be  held to  have taken place if the intention to merge is clear  and not otherwise.  In the absence of Any express indication  of intention,  the  courts will proceed on the basis  that  the party  had no intention to merge if it was to  his  interest not  to  merge  and also if a duty lay on him  to  keep  the interests separate.  In deciding the intention of the  party the courts will have regard also to his conduct. To this general statement of law in India it is necessary to add  that there are special features in the land  tenure  in Santhal Parganas which make it (1)  (1878) 3 C. L. R. 159. (3)  (1909) I. L. R. 36 Cal. 802. (5)  (1919) 23 C. W. N. 826. (2)  (1906) I. L. R. 33 Cal. 1212. (4)  (1916) 21 C. W. N. 304. (6)  A. I. R. 1918 Pat. 651. 20 difficult for the law of merger to apply there.  The Santhal way  of life favoured the emergence of a  powerfull  village community  with  its special rights over all  lands  of  the village.  This community of village raiyats has preferential and  reversionary  rights  over all  lands  at  the  village whether  cultivated or uncultivated. (Vide Final  Report  on the  Survey  and Settlement Operations in  the  District  of Santhal  Parganas’).  There is also in the majority  of  the villages  of  this district a headman who  in’  addition  to performing  certain village duties collects rents  from  the raiyats  and pays it to the proprietor.  The headman is  not however a tenure holder.  One of his duties in that capacity is  to arrange for settlement of lands in his village  which may  fall  vacant  and available for  settlement.   All  the raiyats  in  the  village  are  included  in  the  jamabandi prepared  for  the village and it is the headman’s  duty  to settle the available land to one of the jamabandi raiyats. It  does  not  require  much imagination  to  see  that  the interests  of the village community as also of  the  headman are likely to suffer if the land which as raiyati land would be  included in the Jamabandi is allowed to be taken out  of the  total quantity of the raiyati lands.  If  once  raiyati lands are allowed to lose their character as such a  village may  find  in the course of a few years the total  stock  of land available for settlement to resident raiyats, dwindling before their eyes. It  was  in  this state of things  that  the  alienation  of Raiyat’s holdings in any form was interdicted by  Government orders in 1887.  These had the immediate effect of  checking the practice of open transfer which had sprung up during the

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first  years  of  Wood’s  Settlement;  but  transfers  in  a disguised  form  continued  and  the  officers  had  to   be constantly  on watch to check the passage of  village  lands into the hands of persons whose intrusion within the village community’ was considered pernicious. (Appendix  21 XV  of the Settlement Report of the Santhal  Parganas).   In his note on the subject of the alienation policy of lands in the  Santhal  Parganas,  Mr.  McPherson,  expressed  himself strongly  against any sales in any form being allowed.   "To allow  sales  in any form’ will, I think",  runs  the  note, ""tend to weaken the communal system of the Santhal Parganas and  the  position  of the Pradhan.  The root  idea  of  the system  is  that  all the cultivated lands  of  the  village belong in a way to the whole community". His  recommendation was accepted by the Government  and  the result  was the amendment of the prohibition of transfer  in Regulation  III  of  1872.  As a  result  of  the  amendment section 27 stands thus : -               "27. (1) No transfer by a raiyat of his  right               in  his  holding or any  portion  thereof,  by                             sale,  gift,  mortgage,  lease,  or  any  othe r               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.                (2)  No  transfer  in contravention  of  sub-               section (1)     shall be registered, or  shall               be  in  any  way recognised as  valid  by  any               court,  whether  in  the  exercise  of  civil,               criminal or revenue jurisdiction.               (3). If at any time it comes to the notice  of               the  Deputy  Commissioner that a  transfer  in               contravention  of  sub-section (1)  has  taken               place,  he may, in his discretion,  evict  the               transferee and either restore the  transferred               land to the raiyat or any heirs of the  raiyat               who has transferred it, or re-settle the  land               with  another raiyat according to the  village               custom  for  the  disposal  of  an   abandoned               holding:-               22               Provided-               (a)   that the transferee whom it is  proposed               to   evict   has  not   been   in   continuous               cultivating possession for twelve years,                (b)  that  he  is  given  an  opportunity  of               showing    cause   against   the   order    of               eviction, and                (c)  that  all  proceedings  of  the   Deputy               Commissioner  under  this  section  shall   be               subject   to  control  and  revision  by   the               Commissioner". It  is important to remember this background of  a  raiyat’s rights  and  duties and the incidents of  raiyati  lands  in considering  the  question how far the  doctrine  of  merger applies   to  the  Santhal  Parganas.   On  behalf  of   the respondents Mr. Chatterjee has urged that a raiyat is in law bound  to  keep his raiyati interest separate even  when  he acquires  the superior interest.  There is, in our  opinion, considerable  force in this contention.  Even if  we  assume that  it. will be in the interest of the raiyat  himself  to put  an end to his raiyati interest in order to  remove  the bar against transfer, the interests of the village community

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to  which he belongs and the Pradhan make it  obligatory  on him  to keep the raiyati interest in tact.  So, it seems  to us  prima facie that in the community village areas  of  the Santhal  Parganas  which  cover  the  greater  part  of  the districts raiyat has not got the right to pot an end to  his raiyati  interest  even  where  he  acquires  the   superior interest.   We are inclined to hold, as at present  advised, that  the doctrine of merger does not apply to the  case  of raiyati holders in the Santhal Parganas; but we do not  wish to  express  a final opinion on this point  in  the  present case. Even  if we assume that it is open to a raiyat to treat  the raiyati  interest as merged in the proprietary  interest  we are  clearly of opinion that the evidence in this case  does not  show that this was done by Santokhi.  In their  attempt to  show that Santokhi decided to treat raiyati interest  as merged in the Lakhirajdar  23  interest  the appellants relied on Ex. I--a certified  copy of  the order-sheet in Settlement Objection Case No.  41  of 1909.  The objection was made by Santokhi in respect of  the entry  in the record of rights of the land now  in  dispute. After stating that Santokhi purchased the Zamindari interest three  years ago., the order reads thus : "Santokhi  is  now the  Zamindar and the sole raiyat in the village.  It  seems necessary to have him as Pradhan now.  He wants the  village to  be made Khas and his jote interest as Bakasht Malik.   I think  this  should  be allowed.   Submitted  to  Settlement Officer."  The Settlement Officer approved of  the  proposal and  the  record  was  corrected  accordingly  by   entering "Bakasht  Malik"  against this land.  Mr. jha has  tried  to persuade us that in making the prayer that his jote interest should be recorded as Bakasht Malik.  Santokhi was  treating his raiyati interest- as at an end.  We are not impressed by this  argument.  Admittedly, the phrase "Bakasht  Malik"  as used by settlement authorities means "in the cultivation  of the  owner."  At  page 83 of the Settlement  Report  on  the Santhal  Parganas  we  find the statement  that  "in  a  few villages   there  are  agricultural  lands  which   formerly belonged  to  raiyats,  but  have come  into  the  hands  of proprietors usually by purchase at auction sales in the days when  the  courts were selling raiyati jots for  arrears  of rent.  These lands now entered as "bakasht malik" occur both in   pradhani  and  khas  villages."  In  a   foot-note   an explanation  of  the  word Bakasht Malik  is  given  thus  : "Bakasht  Malik  lands  in  the  cultivating  possession  of landlords, but not privileged".  This is followed by a  note as  regards  "Khas Khamat"  thus:  "Khas  Khamat--privileged lands in the private possession of landlords." We  are unable to see anything that would  justify  Mr.Jha’s argument that assertion of Bakasht Malik status carried with it a negation of raiyati status of the land.  When  Santokhi prayed  for  record of the land as "Bakasht  Malik"  all  he wanted was the record 24 of the fact that the land which was formerly recorded as  in the cultivating possession of a raiyat under a landlord  was in the cultivating possession of the landlord himself.  This correction  of  the former entry was needed because  of  the very  fact  that  Santokhi, the  raiyat,  had  acquired  the landlord’s  interest.   It  will be reading  too  much  into Santokhi’s  prayer  to think that he asserted  that  he  had decided to put an end to the raiyati nature of the land  and to  treat his raiyati interest as merged in  the  landlord’s interest.   It  is  proper  to mention  also  that,  in  our

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opinion,  it was not really in Santokhi’s interest that  the raiyati  should  cease to be such.  So long as  his  raiyati interest was kept alive he had the rights of a raiyat in the village  jamabandi lands.  These would cease if his  raiyati interest  came to an end.  What he might appear to  gain  by getting  rid  of  the bar against  transfer  would  be  more harmful to him and his family in the long run. All  things considered, it seems to us clear that it was  to the  benefit  of  Santokhi  to  keep  the  raiyati  interest distinct  and separate from the Zamindari interest  acquired by  him.   This  was  also, in a way,  his  duty  under  the community  village system in the Santhal Parganas.  Even  if we  were  to  hold therefore that  the  doctrine  of  merger applies to the Santhal Paraganas to this extent that if  the person in whom the two interests unite choose to treat  them as one the lesser interest should be held to have merged  in the  larger  interest,  there  is in  the  present  case  no evidence  of such choice and Santokhi must be held  to  have intended  to keep the two interests distinct  and  separate. Our  conclusion therefore is that the raiyati  interest  did not merge in the proprietary interest. Mr.  Jha’s next contention that the entry in the  subsequent record of rights should prevail over any entry in an earlier record would have been of assistance to his clients only  if the  entry  of Bakasht Malik amounted to a negation  of  the raiyati interest.  25 As  we are of opinion that the entry Bakasht Malik does  not amount  to  such a negation and is a neutral  expression  as regards  the  continuance or otherwise of  raiyati  interest there   is  in  effect  no  conflict  between  the   earlier settlement entry and the subsequent entries and no  question as to which should prevail arises. For the same reasons Mr. Jha’s contention that the  decision of  the Settlement Officer that the land was  Bakasht  Malik operates  as  res judicata is beside the point; for,  it  is unnecessary for the plaintiffs to challenge the  correctness of that entry. Another point raised by Mr. jha is that the question whether the  raiyati  interest  continued to  exist  after  Santokhi acquired the proprietary interest is a question of fact  and the  Trial Court and the Court of First Appeal  having  held that  that interest had ceased to exist it was not  open  to the  High Court in Second Appeal to go behind that  finding. It is not possible to say, however, in the facts and circum- stances  of the present case, that the question whether  the raiyati  interest continued or not after Santokhi  purchased the  proprietary interest is a pure question of  fact.   The decision of the question depended on a correct  appreciation of the doctrine of merger as applicable to Santhal  Parganas and  so the question whether the raiyati interest  continued to  subsist  after Santokhi’s purchase  of  the  proprietary interest cannot but be considered to be a mixed question  of law  and  fact.  There is, therefore, no  substance  in  the argument  that  the High Court was not  justified  in  going behind the conclusions of the Courts below. The  result of the conclusion that Santokhi’s  interest  was not merged in his proprietary interest and continued side by side with his raiyati interest necessarily is that the  sale by  the  plaintiffs  and  other  successors-in-interest   of Santokhi  in  1935  did not in law  transfer  the  raiyati’s interest in the land to the 26 vendees.   For,  it  is  common ground  that  the  right  to transfer  raiyati interest was never recorded in the  record

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of rights as regards these lands. As  a last resort Mr. jha argued that in any case the  civil court has no jurisdiction in the matter and the only  relief that  can  be  given when an  invalid  transfer  of  raiyati interest  takes place is under s.27 (3) of the  Regulations. This sub-section of s.27 gives a Deputy Commissioner of  the District  the  right  to evict  the  transferee  and  either restore  the  transferred land to the raiyat or any  of  his heirs or to re-settle the land with another raiyat according to the village custom, if at any time it comes to his notice that  a transfer in contravention of sub-section 1  of  s.27 had  taken  place.  We can find no reason to  think  however that  the  provision  of  this relief  was  intended  to  be exhaustive and to be a bar against any other reliefs in  the courts.   Indeed,  the provisions of sub-section 2  of  s.27 that no transfer in contravention of sub-section 1 shall  be in  any  way  recognized  as valid by  any  court,  make  it obligatory  for  the civil court when a  dispute  arises  as regards  the  title  to lands to ignore  transfers  made  in contravention of s.27 (1).  For the proper exercise of  that obligation  it is necessary for the Court to decide  whether in  fact  the  transfer on the basis of  which  one  of  the parties to the litigation bases his claim was really made in contravention  of  s.27(1). If the Court is  satisfied  that there  was  such contravention the  court  must  necessarily proceed  to dispose of the case on the basis that  no  title accrued  to the transferee by such transfer.  The  objection that  s.27(3) stands in the way of the  plaintiffs’  getting relief in the civil court cannot therefore succeed.  It  may be mentioned that this objection was not taken on behalf  of these appellants in any of the courts below. It  remains  now to notice the cases cited at the  Bar.   In Sarda  Devi v. Ram Louchan Bhagat (1) the Patna  High  Court held that s. 27 of the Regulation (1)  A I. R. 1926 Pat. 444. 27 (3 of 1872) does not prohibit the landlord from transferring his  interest in a raiyati holding if the landlord  by  some means  or other comes into possession of such  holding.   If this  decision  was intended to lay down the  law  that  the raiyati  interest  of  the  landlord  also  passed  by   the transfer, we are of opinion that the decision was wrong.  We find  however that the High Court was careful to  point  out that  what  was being sold there-in a  court  sale-"was  the right,  title and interest of the judgment-debtor’s 4  annas Brahmottar interest and in the 62 bighas of land held by her in  the  capacity of a Brahmottardar." That would  be  quite correct  as  section 27 prohibits transfer  of  the  raiyati interest  and not of the landlord’s interest which  may  co- exist in a person along with Raiyati interest. In  Madan  v. Kheelu(1) which was also cited by Mr.  Jha  in support  of  his contentions, the Patna High  Court  had  to consider  whether certain lands were Ghatwali lands  of  the plaintiffs’ father.  Before the High Court a plea was raised that  some  of the properties in suit were recorded  in  the Khatian  Jamabandi  of  the year 1904 in  the  name  of  the defendants as raiyat and so these were not Ghatwali lands of the defendants.  It appeared that in the Revision Survey and Settlement   in  1932  the  lands  were  recorded   as   Ire appertaining  to  Mahal Ghatwali" belonging to  Maharaj  Rai Ghatwal,  as  his  Bakasht.   The  High  Court  held  on   a consideration of the provisions of s. 25 of the  Regulations that  this  1932 entry prevailed.  In that  connection  they also  held  that  entry Bakasht  was  sufficiently  wide  to include  khud-kast, sir and Zerait and that in the facts  of

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the case before them it was proper to hold that the entry of raiyat  in  the earlier record was wrong and ought  to  have been  merely Ghatwal.  The learned judges laid  emphasis  on the  fact that there was no evidence before them to show  to whom  the alleged raiyati belonged or when it came into  the possession of Maharaj Rai and that (1)  (1957) I.L.R. 36 Pat. 439. 28 on the other hand it was established that the land was never the raiyati land of the appellant but was the pradhani  jote of Maharaj Rai Ghatwal.  It is unnecessary for us to  decide whether  in  the facts and circumstances of  that  case  the decision  of the High Court was correct.  We need  only  say that  this  case did not purport to decide  that  the  entry Bakasht would always imply the negation of a raiyati  right. It may be mentioned that the attention of the learned judges ,who  decided  this  case  was drawn  to  the  High  Court’s decision  in  the case now under appeal before us  and  they distinguished it by saying that the earlier decision  should be  held  to be a finding restricted to its own  facts.  and circumstances. Our conclusion therefore is that the High Court was right in holding that the sale of May 15, 1935 was void with  respect to  the raiyati interest and only the right to receive  rent passed by this sale to the defendants first party. The appeal is accordingly dismissed with costs. Appeal dismissed.