H.Mahapatra, J.

(1) Plaintiffs who brought a suit for declaration of their title and recovery of possession with mesne profits are the appellants. Their case was that plaintiffs 3 and 4 purchased from pro forma defendants 7 to 10 the raivati interest in respect of the suit lands under two deeds of sale (Exts. 5/f and 5/g) executed on the 21st of November, 1953, The contesting defendants resisted the suit on the ground that they had been in cultivating possession of the suit lands apart from two plots, plot No. 1 and plot No. 25 in Rajmahal Sub-Division under the pro forma defendants 7 to 10 for many many years and they had acquired occupancy right therein. Plaintiffs, therefore, were not entitled to evict them from the lands though they may be entitled to receive rent from the defendants. The plaintiffs had asserted that before their purchase they were on the land as batai-dars under defendants 7 to 10 belonging to Rajmahal Sub-Division. Except the two plots, 1 and 25. other lands under the two deeds of sale were in Ramnagar, P. S. Barh, Tauzi Nos. 8092 and 8705 in the district of Patna.

(2) The trial Court decreed the plaintiffs' suit on a finding that the defendants were neither in possession over the suit lands nor they had any title thereto in any way. On appeal by the defendants that finding has been reversed and the suit has been entirely dismissed on two reasons; one was that the plaintiffs had practised fraud on registration by including plots 1 and 25 situate in Rajmahal Sub-division in the deeds of sale (Exts. 5/f and 5/g) so as to get them registered at Rajmahal. The other reason was that the plaintiffs failed to prove their story that they were in cultivating possession of the suit lands as bataidars before November, 1953 or were in possession after that till the institution of the suit which .was on the 9th of August, 1958. The lower appellate court categorically found that the defendants succeeded in proving their possession over the lands for a very long time, more than twelve years by which they acquired right of occupancy over the lands.

(3) Learned Counsel appearing for the plaintiffs appellants urged that the finding that there has been any fraud in regard to registration was not correct. He pointed out that the two Plots, 1 and 25 situate in Rajmahal Sub-division which were included in the two deeds of sale (Exts, 5/f and 5/g) really belonged to the plaintiffs' vendors, defendants 7 to 10 and the Court below was wrong in thinking that they had no interest therein. Exts. 10 and 10(a) are the two khatians which the plaintiffs had produced to show that the pro forma defendants 7 to 10's ancestors had interest in those two plots of land, but the lower appellate court found that those two documents, Exts. 10 and 10(a) (Khatians) did not show that they were finally published nor did they show the date of such publication. Secondly, the lower appellate Court thought thai neither of those two documents showed the name of the father of the pro forma defendants 7 to 10. I am afraid, there has been a serious error of record committed by the lower appellate court in this respect. Ext. 10 which includes plot no, 25 bears the name of Balgovind Singh, father of defendants 7 to 10. In the other one, Ext. 10(a), the name of Balgovind Singh appears to have been scored through and the name of his cousin Haricharan Singh, son of Damari Singh was mentioned. There cannot be any doubt that these two plots, 1 and 25 belonged to the joint family consisting of the descendants of Mohan Singh. Haricharan Singh and Balgovind Singh belonged to that family; that at one point of time the two branches including that of defendants 7 to 10 had interest in these two plots cannot be denied. It was further asserted that there had been a partition and defendants 7 to 10's branch ceased to have any interest in these two plots That will hardly be very much relevant on the question of alleged fraud in registration unless it is established that defendants 7 to 10 fraudulently inserted these two plots in the sale deeds without intending to transfer title in those two plots to the vendees so as to obtain registration at Rajmahal. The lower appellate court also appears to have committed another error in regard to the evidence of P. W. 18, who was the plaintiff No. 4. The trial court referred to his evidence and said that he asserted that the plaintiffs were in possession whereas the lower appellate court referring to that evidence has stated that he admitted that the plaintiffs were not in possession of the two plots, 1 and 25. Though no special ground was taken in the memorandum of appeal in regard to this incorrect reading of the evidence of P. W. 18, I went through that evidence, when I found that there was a conflicting reference to this witness in the two judgments and I was not able to discover that P. W, 18 had stated that the plaintiffs were not in possession of plots, 1 and 25.

(4) The position that emerges is that these two plots belonged to the family to which the defendants 7 to 10 belong, and that in respect of plot No. 25 at least their father's name (Balgovind Singh) was entered in Ext. 10, the Khatian. Whether those Khatians were finally published record of rights or not is not very rraterial unless the presumption of correctness was sought to be attached to that. That they were admissible in evidence cannot be doubted. They go to support the plaintiffs' case to some extent.

(5) Learned counsel for the appellants referred to the case, Mt. Ram Dai v. Ram-chandrabali Devi. 4 Pat LJ 433 = (AIR 1919 Pat 572) to contend that even if the plaintiff's vendors had ceased to have interest in one of the plots included in the sale deed, that gave jurisdiction to the Sub-Registrar at Rajmahal to register the document and that would not amount to fraud on registration. In the reported decision a property included in the deed of transfer was partly situated in Benaras and partly elsewhere. The transferor had ceased to have any title to the portion situated in Benaras, but that portion had been included in the deed of transfer which gave jurisdiction to the registering authority at Benaras to register the document of transfer. It was held that the transferor who was acting in a perfectly bona fide manner had ceased to have any interest in the portion of the property situated in Benaras, but the inclusion thereof would not amount to a fraud on registration, I think this case has very apt application to the facts in the case before us, assuming that the defendants 7 to 10 had ceased to have any interest in plots 1 and 25 in Rajmahal.

(6) Learned Counsel appearing for the contesting defendants-respondents referred me to three decisions of the Judicial Committee, 41 Ind App 110 = (AIR 1914 PC 67), 48 Ind App 127= (AIR 1921 PC 8) and 61 Ind App 286= (AIR 1934 PC 157) to strengthen his argument that where the property included in the deed of transfer is non-existent or where the vendor did not have any interest in that property, or where the vendor could not put the vendee in possession of such property, the parties to a deed of transfer including that property would be guilty of fraud on registration. The proposition, generally speaking is undisputed, but that will not help the defendants in the present case. Here the property (Plots 1 and 25) situated in Rajmahal Sub-division was in existence and at one point of time the Vendors' branch in the family had interest therein and physical possession was capable of being delivered of that. Learned counsel very much stressed upon the case in 48 Ind App. 127=(AIR 1921 PC 8). There the vendor purchased one cowrie interest in a property and included that in the deed of transfer, but he had purchased that from a person who did not have any title over that property. Thus the vendor or his predecessor-in-interest had at no point of time any semblance of title or interest in that property. It is in that context, the inclusion of that property to obtain the facility of registration of the deed of transfer was considered by their Lordships of the Judicial Committee to be a fraud on registration. In the instant case, It cannot be argued that the plaintiffs' vendors at no point of tune had any semblance of interest in those properties. As far as plot No. 25 is concerned, their father's name (Balgovind Singh) has been entered in Ext. 10. As far as plot No. 1, their uncle's name had also been entered. Which properties were allotted to which branch exclusively in the family partition was a matter of evidence. Absence of such evidence does not lead to the conclusion that the plaintiffs' vendors without having any semblance of title to the properties had included them to commit a fraud on registration. I would, therefore, conclude that on the facts of this case there was no fraud on registration and the plaintiffs derived a good title under Exts. 5(f) and 5(g) from the pro forma defendants 7 to 10 whose title was not disputed by the contesting defendants.

(7) The other question that arises for consideration in this appeal and which was equally stressed upon strongly by learned counsel for the appellants is whether the plaintiffs proved their possession within twelve years of the suit so as to be able to recover possession from the defendants. In this respect the1 trial court found in favour of the plaintiffs, but the lower appellate court on a consideration of the same evidence came to a different conclusion. Whether the plaintiffs were in possession of this land as bataidars before the date of their purchase (21st November, 1953) was purely a question of fact and the appellate finding against them in that respect cannot be assailed here. Learned counsel was not able to assert that that finding of the lower appellate court was not based on any evidence. In regard to defendants' possession, the lower appellate court is clear that they were able to show that they had been in cultivating possession of these lands for more than twelve years on account of which they acquired right of occupancy in that. For the appellants, it was contended that this finding is not only in conflict with that of the trial court, but is untenable on evidence. No ground has been taken in the memorandum of appeal to show that there is no evidence to support this finding of the appellate court. On the other hand, all the documentary evidence like the rent receipts, postal acknowledgments, money-order coupons, post cards as well as numerous oral evidence have been referred by the lower appellate Court while considering this question and its conclusion is in favour of the defendants' possession for more than twelve years. It will be very difficult to assail this finding on a question of fact in a second appeal.

(8) Learned counsel for the respondents (defendants) pointed out to Section 20 of the Santhal Parganas Tenancy Act, 1949 where transfer of a raiyati interest in a holding is to be invalid unless such right of transfer is expressed in the record of rights. Rajmahal Sub-division is in Santhal Parganas. This argument was raised to support the lower appellate court's finding about fraud on reg

istration. The argument was that the pro forma defendants 7 to 10 were not competent to include plots 1 and 25 in the sale deed because that was not transferable. Whether in the finally published record of rights such transfer was authorised or not, I do not know nor either of the parties is able to show. This point had not been raised in the appellate court below. There are not enough materials on record to conclude one way or the other on this question. In that view, I do not propose to enter into a discussion on this question. (9) The result is that the defendants' possession having been found and the plaintiffs' title having been established, the latter (plaintiffs) will be entitled to the declaration of their title over the suit properties, but they will not be en- titled to recover possession from the defendants who are Shikmidars under them being occupancy ralyats The plaintiffs, however, will be entitled to rent from the defendants since the date of their purchase, that is, from November, 1953. The appeal is accordingly partly allowed and the judgment and decree of the appellate Court below are modified to this extent. In view of partial success of both the parties, there will be no order for costs in this Court.