Das, J.:— This appeal cornea before us from the judgment of the Subordinate Judge of Monghyr and arises out of a suit instituted by Rani Ranjit Kuer, the present proprietress of the Narhan Estate, as the shebait of an idol, for a declaration that 75 bighas 11 kathas 1 dhur of land, forming part of Mauza Narayanpur, is the khudkasht land of the malik, and that the defendants, as the partners of a concern known as Daulatpur Factory, have not acquired a right of occupancy therein, and for khas possession thereof.

2. The plaintiff's case is that village Naryanpur was purchased by Mt. Ram Kuari, the wife of Babu Ranjit Singh, the then holder of the estate, out of her separate funds, and was dedicated by her to the family idol some time in 1237. The original grant, as contained in the copperplate, has been produced in this case, and it does not appear that it lays down any, rule of succession to the office of the she-bait. According to the plaintiff the income of the village was always appropriated to the use of the idol, although it is admitted that the Narhan Estate always stood recorded as the proprietor of the village in the Land Registration Department. The Court of Wards, who were long in possession of the estate, first on behalf of Babu Barham Narain Singh, then on behalf of his widow Mt. Biseswari Kueri, and lastly on behalf of his mother, the present proprietress, always treated Mauza Narayanpur as part and parcel of the estate, but they released the mauza on discovery of the copperplate, which discovery took place some time in July 1912.

3. On 1st September 1914 Rani Ranjit herself executed a fresh deed in favour of the idol, and there is some contention before us whether this constitutes a fresh grant in favour of the idol or whether it merely confirms the original grant made by Mt. Rani Kueri. The plaintiff's case is that the mauza of which the defendants are admittedly in possession is the khudkasht land of the idol, and that the defendants have not acquired any right of occupancy therein. On 1st April 1915 the plaintiff served on the defendants a notice to quit, which was disregarded by he defendants. On 24th January, 1916 the present action was brought.

4. Now this appeal may be disposed of on a very short point. It is practically conceded by the learned vakil appearing on behalf of the appellant that if the Full Bench of this Court has decided the case of Janki Singh…Defendant v. Jagannath Das…Plaintiff .(1) correctly, then the plaintiff's suit having been brought more thin six months after the expiration of the lease is barred by the special rule of limitation provided by the Bengal Tenancy Act. But he argues that case was wrongly decided and is at present before the Judicial Committee. So far as we are concerned we are conclusively bound by the Full Bench decision and must hold that the plaintiff's suit is barred by limitation. But as various other questions have been argued before us we think it right and proper to deal with them.

5. The first question that arises is what is the title of the idol which enables it to maintain an action in ejectment. The only evidence of an endowment in favour of the idol is a copper plate which was discovered in an iron safe where the late Rani's ornaments were kept but a dedication to be effectual must be real and not nominal, and it must be shown that the grantor completely divested herself of every portion of the property which is the subject matter of the grant. In the case of Madhab Chandra Bara v. Sarat Kumari Debi(2), which was a case of a public endowment it was laid down by their Lordships that to support the case relied on that the lands in suit formed the subject of a valid public endowment it must be established that an absolute grant was in the first place, made with the intention that the properties should be applied for the service of the idol, and that the properties have since been so applied, and that the members of the family of the settlor have not treated the property as one the profits of which were mainly intended to be applied for their benefit. In my opinion the same considerations must apply only with greater force to the case of a private endowment which it must be remembered can be put an end to by the consensus of the family, and the dedication must be held to be nominal when there is no proof of the application of the income of the property endowed for the maintenance of the idol, and when the whole conduct of the parties is inconsistent with the hypothesis of a valid trust.

6. In this there is no evidence that the income of the village was ever applied for the maintenance of the idol; there is on the other hand positive evidence on the record and that from the side of the plaintiff herself, that Mt. Ram Kuari herself treated this property as belonging to her. The property has always stood recorded as I have said before in the name of the estate in the Land Registration Department and the mode of dealing with the property by the parties interested in the endowment shows conclusively that they regarded the property as belonging to the estate. It seems to me that the original endowment was altogether ineffectual ind that the trust in favour of the idol was never brought into existence. If the original endowment was ineffectual then the subsequent grant by Rani Ranjit Koer having the estate of a Hindu mother cannot create a valid title in favour of the idol. It follows therefore that the idol cannot maintain a suit in ejectment. The principal question of fact in this case is: Are the lands, subject-matter of the suit the proprietor's private lands so as to prevent the accrual of a right of occupancy therein. Mr. Manuk's argument is that under the combined operation of Sections 20 and 21 of the Ben. Ten. Act the defendants would have a right of occupancy in the land unless it can be established that the land has been cultivated as zerait land by the proprietor himself with his own stock and by his own servants or by hired labour for 12 continuous years immediately before the passing of the Bengal Tenancy Act or that the land is recognized by village usage as proprietor's private land and (2) that the land is held under a lease for a turn of years or under a lease from year for, year.

7. It is Mr. Manuk's argument that? Section 120 of the Ben. Ten. Act gives a convenient definition of proprietor's private land but that Section 116 of the Act is the substantive section that deals with the non accrual of a right of occupancy in a proprietor's private land and that in order to establish such non-accrual, it must be shown as a condition precedent that the land is actually held under a lease for a term of years or under a lease from year to year.

8. In this case the lease in favour of the defendants expired in 1905. The suit was brought in 1916. Between 1905 and 1916 the defendants have been in actual possession of the land without a lease, and it seems to me that the essential condition for non-accrual of a right of occupancy is not satisfied. Mr. L.N Sinha however, argues that it must be presumed that tenant has held over on the same terms and conditions, and that therefore he has in effect held under a lease from year or for a term of years. This argument has great force, for it has been held that all that the landlord need prove on this point is that when the holding was first created it was held under a lease for a term of years or from year to year. It is, however unnecessary to come to a definite conclusion on this point, because I am satisfied that the plaintiff has failed to establish that the land is the proprietor's private land within the meaning Section 120 of the Ben. Ten. Act. There is no evidence worth the name that the land has been cultivated by the proprietor himself with his own stock by his own servants or by hired labour for twelve continuous years immediately before the passing of/Ben. Ten. Act, and it is not suggested that the land is recognized by village usage as the proprietor's zerait. Mr. L.N Sinha relies on two circumstances in support of his contention. First, on the patta grantee by Babu Parmeshwar Narain Singh, the then holder of the estate, on 11th February, 1872 coupled with a letting by Poshat Jha in favour of Daulatpur Factory on 27th March, 1873 for cultivating purposes; and, secondly, on the admission of the defendants that the land is the zerait land of the malik.

9. I am of opinion that there is no force in this contention. The fact that the plaintiff's predecessor-in-interest was letting out a portion of the village for cultivating purposes in my opinion leads to nothing at all, and the admission of the defendant that the land is the zerait of the malik must be taken with all other facts, admitted or proved in the case, before it is possible for us to arrive at a definite conclusion. It is admitted that the finally published Record of Rights, which was promulgated after the admission made by the defendants, is against the contention of the plaintiff, and the plaintiff has given no evidence whatever to discharge the heavy onus that is on her to bring her case within Section 120 of the Ben. Ten. Act; I hold therefore that the land which is the subject-matter of this suit is not the zerait land of the plaintiff. It was next contended by Mr. L.N Sinha that in any case the defendants, being a concern or a firm, are incapable of acquiring a right of occupancy in any land, and reliance was placed on the case of Cannan, Liquidator Agra and Masterman's Bank v. Kylash Chunder Roy Chowdhry(3), Rai Komul Dossee v. J.W Laidly(4) and Bujrangi Raut v. M.H Mackenzie(5). The first two cases were decided under the old Rent Acts which Contained no definition of a raiyat, but the word has now been defined in the Bengal Tenancy Act to mean:

“Primarily a person, who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants, or with the aid of partners, and includes also the successors-in-interest of persons who have acquired such a right.”

10. It is impossible to hold now that the members of a firm are incapable of acquiring a right of occupancy in the land. The two earlier cases were considered in the case of Laidley v. Gour Gobind Sankar(6), and it was there pointed out that, so far as the first case was concerned, the report did not show the particular facts on which the decision was base, and with reference to which the observations of the learned Judges were made, and, so far as the second case was concerned, the observations on which the plaintiff relied were obiter dicta and were not necessary for the decision of the case. The Court came to the conclusion that a lease in favour of a firm or of a concern must be taken to be a lease in favour of the individuals constituting the firm, and as there was nothing to show in that case that the original grantees were no longer members of the firm, there was nothing to prevent them from acquiring a right of occupancy in the land. In the case before us the last lease in favour of the Daulatpur Factory is dated 22nd May, 1900, and there is nothing to show that the original grantees are no longer members of the firm. There is, on the other hand, a clear admission by the plaintiffs in their plaint that the original grantees are still the members of the firm. This case was again considered in Bujrangi Raut v. M.H Mackenzie, wherein its authority was not in any way shaken. The facts in the latter case were entirely different. The names of the original grantees in that case were unknown and the person who claimed to have acquired a right of occupancy in the land was some one different from the original grantees. It is obvious that case can have no application to the facts of the case before us. I hold that the defendants have acquired a right of occupancy in the land in dispute. This appeal therefore fails, and I would dismiss it with costs.

11. Atkinson, J.:— I agree.

V.S/R.K

12. Appeal dismissed.