Dawson-Miller, C.J:— The suit out of which these appeals arise was instituted as far back as the 7th September, 1917 and it has had an unfortunate history. The Plaintiffs who are descendants and representatives of one Balgobind Singh instituted the suit against Daroga Singh and others claiming to recover possession of 17 bighas 16 cottahs of land on the ground that the land was held by the Defendants as the under-raiyats of the Plaintiffs who in turn held the land as raiyats from the proprietors who are known as the Kulharia Babus. The lease under which the Defendants held expired within three, months of the date of the institution of the suit and notice was given to the Defendants to quit. They refused to go out, hence the present suit was brought for possession.

2. The learned Subordinate Judge before whom the case came for trial decided the issues in favour of the Plaintiffs and passed a decree in their favour declaring their right to possession of the land. The District Judge of Arrah before whom the case came on appeal overruled the decision of the Subordinate Judge and from that decision a second appeal was brought to this Court. The learned Judge who heard that appeal considered that the decision of the District Judge could not be supported, he having taken a wrong view as to the doctrine of merger and he remanded the case to the Court of the District Judge to be re-heard in appeal.

3. The District Judge has re-heard the appeal and has again overruled the decision of the Subordinate Judge and dismissed the Plaintiffs' suit.

4. From that decision the present appeal is brought. The facts of the case in so far as they are material for present purposes and in so far as they are known, for the history of the matter goes back to the year 1866, are these: One Parbesh Singh and others had a holding of some 30 bighas in mauza Jalpura which they held under Mitrajit Singh and Balgobind Singh who were co-sharer landlords in the mauza. In that year, the tenants having failed to pay their rent and a rent decree having been obtained, the land was pub up for sale in execution of the rent decree. It was purchased by Balgobind Singh who was a co-sharer landlord in the mauza, he having a 1 anna share out of the 16 annas. There is no evidence to show what exactly took place immediately after that sale, that is to say, whether Balgobind Singh took actual khas possession of there and turned the defaulting tenants out or whether he re-let it to others or whether he, permitted the tenants to remain in as his under-tenants or whether, which is the case contended for by the Defendants, he did not in fact attempt to turn them out or in any way to alter their status as occupancy tenants but allowed them to remain in on exactly the same terms as they had been before, that is to say, occupancy raiyats holding under the same landlords. It appears, however, from a document dated the 20th September, 1866 that in addition to the rent which was the subject of the rent decree in execution of which the property had been sold there was further rent due from these tenants and a petition was filed in Court stating that they had no means of paying the subsequent rent due but that the maliks might realise their rent from the crops grown on the land which had been planted apparently by the tenants and which are still standing and that the maliks had accepted that prayer and the petition was filed praying that it might be placed with the record of the execution case of Babu Mitrajit Singh as evidence, I presume, of the payment of the subsequent rent. The next evidence we have as to the relationship between the parties is a kabuliyat dated in the year 1889 executed by the tenants or those who at that time represented them acknowledging that Balgobind Singh was the guzashtadar of the property in suit and that they had taken settlement of 17 dighas 17 cottahs under him as shikmi tenants. That document was for a term of years: in due course it expired and afterwards up to the present day further lease I have been entered into between the Plaintiffs or their predecessors and the Defendants or their predecessors in practically the same terms, that is to say, the Defendants taking as under-raiyats of the Plaintiffs who are acknowledged to have a raiyati interest under the present landlords.

5. I ought to mention that some 9 years after the sale in question, namely in the year 1875, the proprietary interest in mauza Jalpura was partitioned amongst the various co-sharers, and separate takhtas were allotted to the proprietors respectively. Of the 30 bighas which had been held originally by Parbesh Singh 19 bighas 9 cottahs fell to the share of Mitrajit who is now represented by the persons known under the name, of the Kulharia Babus. Another portion amounting to 8 bighas or thereabout fell to the share of Balgobind Singh. What happened to the small remaining share is not very clear but 2 or 3 bighas or there about appear to have been an orchard and this may have been left ijmal or it may have been either then or subsequently divided amongst the different proprietors. The property which is the subject of the present suit, namely, 17 bighas 16 cottahs, is a part of the 19 bighas 9 cottahs which fell to the share of Mitrajit Singh now represented by the Kulharia Babus. They were undoubtedly from that time the sole proprietors of this property and in so far as there is any evidence on the point they have always treated the Plaintiffs as their immediate tenants and the Plaintiffs have always treated the Defendants as shikmi tenants holding under them.

6. In the year 1911 or thereabout survey and settlement operations took place in the village and in the finally published record-of-rights published in 1911 the land in suit is described as the guzaslita land of the Plaintiffs and the Defendants are described as shikmidars holding under them. Therefore it would appear that so far as the evidence before the Court was concerned there can be little doubt that for a Ions time, that is to say, from the year 1889, at the latest, this relationship between the Plaintiffs and the Defendants has been in existence.

7. When the Plaintiffs instituted the present suit the Defendants raised the plea that they were not under-tenants at all but that they were occupancy tenants although it is not very clear from their written statement whether they claimed to be occupancy tenants holding under the Plaintiffs or occupancy tenants holding under the proprietors. They further raised a plea that by the custom prevailing in the mauza under-tenants could also acquire occupancy rights by long possession. This plea, however, has been found against them, by all Courts and it is no longer urged in this appeal. In fact it was a question of fact which the lower Appellate Court was alone competent to determine and we are not concerned with it.

8. I have already said that when the case first of all came on appeal from the District Judge before this Court on the previous occasion the Court took the view that in the particular circumstances of this case there could be no merger of the raiyat interest with the proprietary interest of the purohaser Balgobind Singh. It is important to bear in mind that at that time neither the Transfer of Property Act of 1882 nor the Bengal Tenancy Act, 1885 were in existence and the law of merger as it then existed with regard to the interests of landlords and tenants was not the same as exists at the present day under the provisions of the Bengal Tenancy Act. Whether it was the same as was enacted in the Transfer of Property Act is not a matter which we need discuss, for even assuming that the law laid down in Section 111(d) of the Transfer of Property Act was the same as that which previously existed, that section only applies to a case where the interests of the lessee and of the lessor in the whole of the property become vested at the same time in one person in the same right. In the present case it is quite clear that, unless Balgobind Singh purchased on behalf of his co-proprietors, the interests of the lessor and lessee did not become merged in one person. Balgobind was not the proprietor of the whole property. He merely had a one anna share in it and the evidence which is clear and has been accepted is that he purchased for himself and not on behalf of the co-proprietors. Whether he could do that at the present day under the Bengal Tenancy Act or not we are not concerned with. Therefore I consider that Mr. Justice Das in the judgment he delivered when the case was remanded was right in the view he took, but we are not really concerned with that question because I think we are bound by the finding of Mr. Justice Das in the case as he set aside the decree of the learned District Judge and remanded the case for re-trial. There was no appeal from that decision and it was no longer open to us to question the finding come to by the learned Judge in that appeal. It must be taken therefore that when Balgobind purchased the Defendants' holding in 1866 the interest which he purchased did not merge in the proprietary right.

9. The learned District Judge on remand, whilst accepting the directions of the High Court on the question of the merger, has dealt with the case as if the onus were entirely upon the Plaintiffs to make out that they had in fact kept alive the interest which they purchased at the auction sale in 1866 and had not given up the right which they then acquired by allowing the Defendants to remain in possession of the property upon exactly the same terms and in the same right as they had before the auction sale. In my opinion the learned District Judge was wrong in the view he took.

10. Whatever onus there may have been upon the Plaintiffs to make out their case I think they had clearly discharged that onus by putting in evidence the record-of-rights. The record-of-rights shows that their position was that of tenants under the landlord and the position of the Defendants was that of sub tenants under them. The evidence of the kabuliyats, documents signed by the Defendants themselves or their predecessors, was also to the same effect. Therefore the onus wherever it may have rested originally was clearly shifted to the Defendants to show that the record-of-rights and their own documents did not really disclose the true state of affairs. Now the way the learned District Judge dealt with the case was this. He said that the Plaintiffs had failed to call any evidence to show exactly what took place between the year 1866 and the date of the first kabuliyat in 1889 and having failed to do that he said, “I cannot but presume that the auction sale was never given effect to and that Parbesh Singh continued to remain in possession of the holding as before as if no sale had been practically brought about”. He goes on: “The Plaintiffs relied on the recitals in the kabuliyats but to my mind such recitals cannot affect the interest of the Defendants, in the disputed land if it remained unaffected by the auction sale itself.” If it remained unaffected by the auction sale itself no doubt the learned District Judge might be right in saying that the kabuliyats could not alter their status but it seems to me that the learned Judge was in no way justified in presuming that a state of affairs existed, of which there was absolutely no evidence whatsoever and with regard to which the only evidence before him was entirely the other way including the record-of-rights which raised a presumption the other way. It seems to me that presumption has not been rebutted in this case by the Defendants and however much one may regret that after all these years they can no longer remain in possession of the property, the only conclusion to which I can come is that they have been holding all this time merely as under tenants of the Plaintiffs and according to the law at the termination of the existing agreement between them they are liable to be ejected if the Plaintiffs should desire to bring the lands into their own possession. In these circumstances, though it is with some regret that I arrive at this conclusion, I am satisfied that the learned District Judge's decision cannot stand and that it should be set aside and the, decree of the learned Subordinate Judge restored. As there were two appeals from the decision of the Subordinate Judge by different sets of Defendants there have consequently been two appeals to this Court. They are numbered at present 94 and 95. The judgment which I have just pronounced will apply to both appeals. There will be one set of costs throughout.

11. Macpherson, J.:— I agree.

12. Appeals allowed.