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11. The trial Court recorded finding of fact that the suit land, though raiyati land of plaintiff is not coming under their possession on which the defendant and before him his father Nanhku Ahir, the recorded Dar-raiyat, have been coming in continuous peaceful possession of the suit land since the time of last survey and as such, they have acquired title by law of adverse possession.

12. The learned Court of appeal while confirming the judgment of the court below held that plaintiffs were not in possession of any part of the disputed land and defendant were in cultivating possession of the disputed land since before the survey settlement operation i.e. to say for about 65 years. With regard to the question whether the defendant could be ejected from the disputed land and that the right of under raiyat is not heritable it has been held by the court below that according to the provision of the CNT Act, an under raiyat could not be ejected except in execution of decree by the order of the Deputy Commissioner in writing. The village note (Exhibit-B) of village-Balha, Thana- Chhotapur pertaining to village Thana No. 63 shows that under raiyat could not be ejected from the lands recorded in his name.

13. The appeal has been admitted for being heard for the following substantial question of law:-

(i) Whether in view of the clear provision of Section 9 (appears to be typographical error should be Section 6) of CNT Act and as interpreted by 1941 Patna 485 the court below could have held that the raiyat in section 6 includes an under-raiyat?

(ii) Even assuming that an under raiyat cannot be ejected save and except in execution of a decree passed by a court or the Deputy Commissioner, in view of the admitted position that the recorded under raiyat was dead, whether the onus was on the respondent to prove that under raiyati interest was heritable by custom?

Section 4 of the CNT Act describes following classes of tenants:-

i. xxxxxxx ii. Raiyat, namely a. Occupancy-raiyats, that is to say raiyats having a right of occupancy in the land held by them, b. Non-occupancy raiyats having no such occupancy right . c. Raiyat having khunt katti rights.

iii. Under-raiyats, that is to say tenants holding whether immediately or mediately under raiyats.

iv. xxxxx Legal incidence of a raiyat and under-raiyat under the CNT Act are quite different as is evident from the above definition. Though both come under the definition of tenant, but the under-raiyat holds the land under a raiyat. Right of occupancy is secured to class of raiyats mentioned under Chapter-IV from Sections 16 to 36. Under Section 22 an occupancy raiyat cannot be ejected from his holding except in execution of decree for ejectment on the grounds specified therein. Under Section 23 occupancy-right of a raiyat has been made heritable subject to local custom to the contrary.

18. Trial Court has held in para 6 of the Judgment that on the basis of the village note that under-raiyat was not liable to ejectment and no contrary evidence has been led. Further it has also been noted that the tenant could be ejected only under an execution decree or in execution of an order of the Deputy Commissioner under Section 68. Under-raiyat was also a tenant within the meaning of definition of Tenant under Section 4 of the CNT Act. The Appellate Court concurred, with the finding of fact in para 22 of the Judgment on the basis of the village note (Ext B) in support of such a custom that Dar-raiyat could not be ejected. On the question whether Dar-raiyati interest was heritable or not, the appellate Court held that it was pleaded by the plaintiff that there was no custom in village Balha that an heir of an under-raiyat had a right to inherit the land held by him after his death, which was contested by the defendant, therefore it was for the Plaintiff to prove this part of the assertion.