IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.152 of 2003 Ainul Mian son of Tasuddin Mian, resident of village- Kalyanpur, Tola Hua, P.O. and P.S. Kalyanpur, District- East Champaran. … .Defendant 1st party.. Appellant. Versus 1. Aziz Mian son of Dular Mian. 2. Samsul Haque son of Aziz mian, both resident of village- Kalayanpur, Tola- Alaula, P.S. Kalayanpur, District- East Champaran. 3. Yunus Mian son of Jalil Mian, resident of village Kalyanpur, Tola Alaula, P.O.and P.S. Kalyanpur, District- East Champaran. …. Plaintiffs- Respondents 1st set. ----------- For the Appellant: Mr. Ramesh Singh, Advocate. For the Respondents : None. 17/ 24-11-2008 Heard learned counsel for the appellant. 2. This second appeal arises out of Title Suit No. 234 of 1987, which was filed by the plaintiffs-respondents-respondents 1st set for declaration of title and possession and for other ancillary reliefs. The said suit was decreed on contest with cost by learned Munsif Sadar, Motihari by judgment and decree dated 25.05.1991. The aforesaid judgment and decree of the trial court was challenged by defendant 1st party in Title Appeal No. 73 of 1991 (28/2002) which was dismissed by the learned Additional District Judge, Fast Track Court no. 5, East Champaran, Motihari by judgment and decree dated 10.04.2003. The said judgments and decree of the learned courts below are challenged in the instant second appeal. 3. From the averments made by learned counsel for the appellant , the materials available on record and from the judgment and decree of the learned courts below, it is quite apparent that the plaintiffs were claiming through the recorded raiyat of the suit property whereas the defendants were claiming from the under raiyats. The learned courts below specifically found that there was no provision under Chapter-VII of the Bihar - 2 - Tenancy Act which entitles an under raiyat, even after acquisition of the occupancy right by him, to transfer his under raiyat interest by sale or otherwise and hence in absence of any such provision , any transfer made by an under raiyat of his under raiyati interest cannot be binding on the raiyat under whom the under tenancy stands. It was further concurrently found by the learned courts below that Bihari Mian was not the raiyat of the disputed land. From Khatians, Exts. 3 and E, it is apparent that the disputed plot was recorded in the name of Kunjan Ahir and only in the remarks column Bihari Mian was shown in possession. Hence from the materials on record as well as the evidence produced by the parties, the learned courts below found that admittedly, Kunjan Ahir was the raiyat whereas Bihari Mian was under raiyat. Thus , Roja Mian son of Bihari Mian had no right to transfer title over the suit property to Chand Mian and subsequently Most.Darudan the widow of Chand Mian had no right to transfer title over the suit property in favour of the defendants and hence the sale deed executed by Darudan in favour of defendant-appellant dated 24.01.1976 was clearly illegal conferring no title upon the defendants. So far the question of possession of defendant-appellant and his vendor of the suit land is concerned, both the learned courts below specifically found that the defendants could not prove their possession over any portion of the disputed land prior to the filing of the suit, much less any adverse possession thereon. It was also concurrently found that the plaintiffs were dispossessed by the defendants on 19.01.1989, i.e., during the pendency of the suit and hence the plaintiffs were entitled to get recovery of possession of the suit property from the defendants. - 3 - In the said facts and circumstances the aforesaid judgments and decree of the learned courts below are covered by findings of fact and they have also considered the specific provisions of law in their correct perspective. Accordingly, this Court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. B.Tiwary/ (S.N Hussain,J)