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10. As to the lands recorded as jote No. 3, if they are the nij-jote of the tenure-holder as was contended in the Courts below on behalf of the appellants, then, as pointed out by the learned District Judge, it follows from the finding that the tenure is shikmi ghatwali that they are not saleable.

11. The learned District Judge went on to point out that even if the tenure had been transferable the land recorded as jote No. 3 would not be saleable. Now Mr. S.S. Bose, though apparently as a last despairing effort, contends on behalf of the appellant that it is a general delusion that a raiyati jote in the Santhal Parganahs cannot be sold by the regular Courts in execution of a decree. But this point was not taken in the Courts below. Indeed not only was the contention of the decree-holder that the lands of jote No. 3 are nij-jote (and not raiyati) land in a transferable tenure but it was in the view of the Judges presiding in those Courts palpably a common place that the interest of a raiyat in his holding in village Sangramlorhia is not transferable at all whether by Court or private sale. In the circumstances the appellant cannot beallowed to raise the point in second appeal when full materials for a decision are not available. It may, however, be remarked that the considerations in support of the contention are prima facie not impressive. True, no direct statutory prohibition such as is found in Section 47 of the Chota Nagpur Tenancy Act, 1808, can be indicated. But in 1908 the position in respect of the question of saleability by the Court of the right of a raiyat in his holding was very different in the two areas. In the Santhal Pargannas there had been no Court sales since 1887 at least, and very few before that and during a brief period only. There is in that district no provision for the sale of a raiyati interest even in execution of a decree for arrears of rent accruing on the holding. In the Courts not subordinate to the Patna High Court, the raiyat may be ejected in execution of a rent decree in respect of his holding but the holding may not be sold. In Chota Nagpur on the other hand a holding had long been saleable in execution of a decree for rent accruing thereon and Courts were freely selling holdings in execution of money decrees. A direct interdiction of what was in fact not permitted in any Court in the Santhal Pargannas may well have been adjudged unnecessary. It is indisputably a common place in those Courts that the interest of a raiyat in his holding cannot be sold by the Court any more than the raiyat himself can under Section 27 of Regulation III of 1872 (substituted for the previous Section 26 lay Regulation III of 1908) sell it. In this case the Courts below have so assumed and the remark in the decision in Dhhatradhari Singh v. Hemlal Singh 105 Ind. Cas. 42 : 9 P.L.T. 283 : A.I.R. 1928 Pat. 105 is entirely typical of the view held in this Court. The learned Judges said:

The sole question for decision now is whether the khorposh mukarrari jote was a raiyati holding or a tenure. If it was a raiyati holding, it was not saleable; but if it was a tenure it was saleable.

12. The basis of this view may perhaps be that a Court will not countenance a sale which must be ineffective. Under Section 25 of Regulation II of 1886 no raiyat can be ejected from his holding otherwise than in execution of an order by the Deputy Commissioner. The effect of e. 27 of Regulation III of 1872 and of the entry in the Record of Rights being that the raiyat cannot (except in one Pargana) sell his right in his holding, the invariable practice of the Courts over a long period to refuse to (sic) a raiyati holding (no case of sale can be cited) is highly significant, especially when it would be prima facie, unreasonable that a holding could be sold in execution of a money decree when it is not saleable in execution of a rent decree for its own arrears. Moreover other important considerations, historical and legal, emerge on perusal of the Settlement Report of Sir Hugh Macpherson and the Santhal Pargannas Manual which are adverse to the idea of saleability by the Court of a raiyati holding in the Santhal Pargannas except where transferability is recorded in the Record of Rights.