Narasimham, C.J:— This is an appeal by the plaintiff against the judgment of a Single Judge of this Court affirming the appellate judgment of the Subordinate Judge of Purnea and dismissing the plaintiffs suit for declaration of title and recovery of possession of 13 bighas 19 khatas and 4 dhurs of land in khatas Nos. 51 and 69 situate in mauza Fulbari. Police Station Kishanganj. District Purnea.
2. The plaintiff's case was that he had obtained raiyati settlement of the said lands from the Padhoo Mian (a co-sharer patnidar) by a registered deed dated the 23rd June, 1943. He further stated that though the said settlement was for a period of five years on, which would ordinarily have expired on the 23rd June, 1948, nevertheless the legislature inter need and passed the Bihar Tenancy (Amendment) Act, 1947 (Bihar Act XXIII of 1947), by virtue of which a new section 21-A was inserted in the Bihar Tenancy Act (hereinafter referred to as the Act). The plaintiff claims to have obtained occupancy status by virtue of that amendment and hence he was not liable to eviction.
3. The defendants' plea was that after the expiry of the said settlement the plaintiff himself gave up possession of the said lands which were taken in khas possession by the then landlords defendants 4 and who sub-sequently settled the same with defendants 1 to 3.
4. On the pleadings of the parties, then fore, the main issue for considerate was whether the plaintiff gave up possession of the suit lands (issue No. 5) after the expiry of the settlement with him by Padhoo Mian in 1943, and if the story that he gave up possession is not believed, whether the plaintiff could claim on occupancy status by virtue of section 21-A of the Act the original Court, namely, the Munsil. 2nd Court. Kishanganj disbelieved the defendants' contention of the plaintiff giving up his possession and defendants 1 to 3 obtaining possession of the lands and held that the plaintiff had proved his possession from the date of the settlement, namely. 1943, till the date of the commencement of the suit lie further held that as the plaintiff was ‘undisputedty a settled raiyat of the village he acquire I occupancy rights and hence decreed his claim appeal, however, the learned Subordinate Judge was of the opinion in the plaintiff was in possession till 1358 Fasli (1951) but that the evidence about his possession thereafter, till the date of the filing of the suit, was not satisfactory, fie adversely commented on the trial court's ob serration that the status of the plaintiff as a settled raiyat of the village was not disputed and observed that there was no evidence to show that the plaintiff was a settled raiyat, hence he could not gel the benefit of section 21 of the Act.
5. But the learned Subordinate Judge, was fully conscious that if section 21-A of the Act be held to apply, the plaintiff would undoubted by get occupancy rights by virtue of that section. But as Counsel for the parties could not enlighten him about the exact date on which the Amending Act of 1947 was brought into force he thought that he could not apply Hi? provisions of section 21-A in favour of the plaintiff. The learned Subordinate Judge had obviously shirked his responsibility. Once an Act is placed on the statute book, the court cannot leave it to the counsel for the parties he point out to it the appropriate notification by which the Act was brought into force, as if it were a simple question of fact, and on their in ability to supply him that information it cannot dismiss the plaintiff's suit. The court expected to take judicial notice of all gazette notifications and it should have made a further probe into the matter and found out the date on which the Amending Act came no force and then examined whether section 21A of the Act would be of any help to the plaintiff.
6. When the litigation was taken up in second appeal before the learned Single Judge, his attention was invited to the appropriate notification, from which if was invited that the said Amendment Act came into force on the 11th December, 1947: hence section 21 A of the Act'would come-into operation and the plaintiff would gel occupancy status in respect of the lands for the time being hold by him as a raiyat even though he may not be a settled raiyat. The concurrent finding of the two lower courts was that the plaintiff continued in possession as a raiyat at any rate till the 23rd June, 1948. Hence the learned Single Judge thought that the plaintiff would get occupancy status by virtue of that section.
7. Bul the learned Single Judge dismissed the plaintiff's suit on the basis of a new point which had not been taken up by any of the parties in the two lower courts. The plaintiff's claim all along was that he obtained raiyati settlement from Padhoo Mian who was only a co-sharer patnidar the learned Single Judge, therefore, relying on a Full Bench decision of this Court in Bibi Kaniz Fatma v. Sk. Hossainuddin Ahmad*. AIR 1943 Pat 194 (FB) held that a co-sharer landlord cannot without the consent or authority, express or implied of the others co-sharers, induct a raiyat on the land. He thought that the said Full Bench decision could directly apply here and hence suit.
8. Mr. L.K Choudliary for the appellant urged that the learned Single Judge ought not to have allowed a new point to be taken up at such a belated stage as if was a missed question of law and fact. It is true that the plaint admit that the original settlement with the plaintiff was only by I adhoo Mian who was only a co-sharer landlord but if was nowhere admitted that when I adhoo Mian made the set lenient with the plaintiff he did not have the express or implied authority or consent of the other co-sharers. The defendants also in their written statement did not take any such plea and consequently no issue was raised on this question. Before applying the principle laid down in Bibi Kaniz Falma's case. AIR 1943 Pat 194 (FB) the learned Single Judge should have carefully examined whether on the pleadings of the parties and the matters in controversy between them that Full Bench decision has any application. The question as to whether the other co-sharers had given any consent or authority, whether expressly or by implication, is a mixed question of law and fact, and unless the necessary facts are admitted or challenged this court at the second appeal stage cannot assume that such consent or authority was not given and that consequently the plaintiff did not become a raiyat from the date of the settlement from Padhoo Mian in 1943.
9. The danger of allowing such mixed questions of law and fact to be taken up at the second appeal stage will lie obvious if the pleadings are further examined. Kven in the written statement it is admilted that the khatas which originally belonged to different raiyats were sold in execution of a rent decree and purchased ??? Padhoo Mian who was one of the co-sharer landlords and who obtained possession of the same. II was thereafter that he settled the lands with the plaintiff by lite registered document of 1943. Mr. Choudhary for the appellant. I here fore, urged that on in admitted ??? of the written statement the plaintiff could as well have urged that Padhoo Mian obtained a special right under sub-section (2) of Section 22 of the Act when he purchased the raiyal holding of the tenant and look possession of the same, and that when he made the settlement with the plaintiff in 1943 the latter became a raiyat as expressly recognized in the latter portion of that sub-section. If is true that Padhoo Mian's palni interest was subsequently ??? away and purchased by defendant No. I. and similarly the other 8 annas interest in the ??? which belonged to one Huruk Chand was also sold away and purchased by defendant No. 5 who is none else but the son of Padhoo Mian.
10. But the subsequent transfer of the land lord's rigid does not affect the status of the plaintiff as a raiyat by virtue of a settlement made with him by a co-sharer landlord who was in possession of the occupancy holding under sub-section (2) of section 22 of the Act. I do not wish to dicuss this matter further because the parties did not join issue 011 this question. I am only referring to this aspect to show the danger of allowing new points dealing with mixed questions of law and fad to be taken up at the second appeal stage.
11. I must, therefore, hold that if was not open to the learned Single Judge to examine whether the registered deed of ??? of 1943 in favour of the plaintiff by Padhoo Mian was made without the consent or authority express or implied, of the other co-sharer landlords. On the other concurrent findings of fact it necessarily follows that the plaintiff remained in possession of the land as a raivat on the date on which the Amending Act of 1947 came into force and he became an occupancy raiyal in respect of the lands by virtue of Section 21-A. For these reasons the judgment of the learner Single Judge is set aside and the plaintiff's suit is decreed with costs throughout.
G.N Prasad, J.:— I agree.
GI/MVJ/R.G.D
12. Appeal allowed.