JUDGMENT Harington, J. - This is an appeal by the Defendants from the decision of the Subordinate Judge of Hughly affirming the judgment of the Munsif in favour of the Plaintiff. The suit was brought for a declaration of the Plaintiffs' title to certain chowkidari chakran lands in the village of Munsingpur. 2. The zamindari interest in this village belongs an 8 annas share to Rajah Jotindra Mohan Tagore, and S annas to the Dighapatia Rajahs. 3. The chowkidari chakran land was transferred by the Collector to the zemindars under the provisions of Act VI of 1870 (B.C), secs. 48--51. 4. The 8 annas share of the Dighapatia Rajahs was held in putni by Rajah Pyari Mohun Mukherjee (Defendant No. 4). He granted to the Appellants a lease not of his 8 annas but of the whole 16 annas of the laud in question. 5. The Plaintiff (Respondent to this appeal) represents one Khadern Ali Mullik who obtained a lease of the other 8 annas share from one Bibi Jarao Kumari who held it as putnidar under Sir Maharajah Jotindra Mohan Tagore. 6. Thus the Appellants obtained a lease for 16 annas of the land from a person who had only a title to 8 annas. 7. The Plaintiffs who have a lease from the person who was entitled to the remaining 8 annas, seek to enforce their title to that 8 annas against the Defendants (Appellants). 8. The Appellants contend that although they were placed in possession of the 8 annas by a person who had no title, yet they were protected from ejectment under the Bengal Tenancy Act and they relied on Binad Lal Pakrashi v. Kalu Pramanik I. L. R. 20 Cal. 708 (1893). 9. For the Respondents it is contended that the lands in question are excepted from the operation of the Bengal Tenancy Act by sec 181 of that Act. The question we have to decide is whether chowkidari chakran lands when resumed under Act VI of 1870 became zamindari zarait, or whether they are subject to the provisions of the Bengal Tenancy Act. 10. The question we have to decide is whether chowkidari chakran lands when resumed under Act VI of 1870 became zamindari zarait, or whether they are subject to the provisions of the Bengal Tenancy Act. 10. The Act of 1870 under which the lands in question are transferred, provides that they shall be transferred to the zemindar of the estate or tenure within which may be situate such lands, and the effect of the order of transfer is expressed to be to transfer to such zemindar the land therein mentioned subject to all contracts theretofore made in respect of, under, or by virtue of which any person other than the zemindar may have any right to any land, portion of his estate, or tenure, in the place in which such land may be situate. Section 181 exempts from the operation of the Act any incident of any service tenure. The lands in question therefore stand unaffected by the Act unless the transfer to the zemindar has had the effect of throwing them into the raiyati lands of the village. 11. The case relied on by the Appellant, Binad Lal Pakrashi v. Kalu Pramanik I. L. R.20 Cal. 708 (1893), does not in my opinion affect this case. In it the lands were admittedly raiyati lands--and the question was as to the status of a raiyat who has been settled on raiyati lands by a trespasser. In this case the question is whether the lands are raiyati, or whether they are the zemindar's private land. If they are raiyati then that case is an authority in favour of the Appellants' contention, if the lands are not raiyati the case does not affect the question. 12. In my opinion the lands when transferred to the zemindar become his zerait land because the Act says "the lands" are to be transferred to him, and it appears to me to be a contradiction in terms to say that the lands are transferred to the zemindar, and the zemindar is not to have the possession of them when he has made no contract such as would, under sec. 51 of the village Chowkidari Act, debar him from his right in the land. 13. 51 of the village Chowkidari Act, debar him from his right in the land. 13. This view is in agreement with the case of Upendra Narain Bhattacharjee v. Pratap Chandra Pardhan 8 C. W. N. 320 (1903) in which it was held that a putnidar was entitled to khas possession of chowkidari chakran lands which had been resumed by Government and had been transferred to the zemindar who accepted rent from tenants, notwithstanding the fact that the putnidar was under the terms of his putni entitled to all resumed lands. 14. The putnidar could have of course no higher interest in the lands than the zemindar had: it follows therefore that if the putnidar was entitled to khas possession, the zemindar would have been equally entitled had no putni intervened. For these reasons I think that the Appellants have failed to substantiate their case. The appeal must therefore be dismissed with costs. Bodilly, J. 15. I agree. Mookerjee, J. 16. This is an appeal on behalf of the Defendants in an action commenced against them by the Plaintiffs-Respondents for recovery of possession of a half share of 17 bighas of lands upon declaration of title. It is undisputed that the lands in question is situated within the zamindari held in equal shares by Maharajah Jotindra Mohan Tagore and the Kumars of Dighapatia. The lands were originally chowkidari chakran and after resumption by some mistake on the part of the Revenue authorities, were transferred to one only of the two zemindars, namely, Dighapatia. Subsequently, the error was discovered, and corrected, and on the 31st March 1897, the lands were transferred to Tagore, and Dighapatia in equal shares. Meanwhile the Defendants had, on the 4th February 1896, taken a lease of the lands from the putnidar under Dighapatia who under the terms of his contract was entitled to resumed chowkidari chakran lands included within his putni; this settlement was in respect of the whole land and proceeded upon the assumption that Dighapatia alone was entitled to the property as zemindar. On the 24th March 1901 the Plaintiff took a settlement of a half share of the lands from Tagore and brought this suit to eject the Defendants on the ground that they had acquired no title to this half share under their lease from the putnidar of Dighapatia. On the 24th March 1901 the Plaintiff took a settlement of a half share of the lands from Tagore and brought this suit to eject the Defendants on the ground that they had acquired no title to this half share under their lease from the putnidar of Dighapatia. The Defendants substantially resisted the claim, on the ground that they were cultivators who had acquired bond fide a right to bold the lands from one, whom they bond fide believed to have the right to let them into possession, and were consequently either occupancy or non-occupancy rights, not liable to be ejected as trespassers. The Courts below have overruled this contention and made a decree for ejectment which is now challenged before this Court, on the ground I have just stated. I am of opinion that the contention advanced on behalf of the Appellants is not well founded and must be overruled. 17. It is clear from Regulation VIII of 1793, that at the time of the Permanent Settlement, zerait lands were regarded as distinct from chakran lands. Sec. 36 which provided that the assessment of revenue was to be fixed exclusive and independent of all existing lakheraj lands, was followed by sec. 39 which provided that nij-jote and other private lands appropriated by the zemindars to the subsistence of themselves and families would be annexed to the malguzari lands and sec. 41 which provided that chakran laud or lands held by public officers and private servants in lieu of wages were not to be included under the category of lakheraj lands but were to be annexed to the malguzari lands and declared responsible for the public revenue assessed on the zamindaries in which they were included. It is not necessary for our present purposes to examine the relative rights of the Government the zemindar and the Chowkidar in chakran lands which were considered by the Judicial Committee in the case of Joy Kishen Mookerjee v. Collector of Burdwan 10 Moo. I. A. 16 (1864), where it was declared that the lands might be considered as appropriated to maintenance of the Chowkidar, that the right of appointing such officer belonged to the zemindar, and that the Chowkidar might be liable in addition to his Police duties to perform such services to the zemindar personally as might have the sanction of law or usage. It is sufficient to point out that at the time of the Permanent Settlement, the distinction was well recognised between zerait lands, chakran lands and malguzari lands, although the first two were, for the purposes of the security of the revenue and for such security only, annexed to or assimilated with the third class. 18. The question which arises for consideration is as to the alteration, if any, resulting in the character and incidents of chakran lands, when at some subsequent period the services originally imposed upon such land cease by operation of law; in other words when such services have ceased, do the lands still continue to possess their original character and incidents as chakran lands or are they assimilated to malguzari lands or to the zerait lands of the zamindari. I am of opinion that the first alternative presents no real difficulty and must be answered in the negative. It is not, I think, reasonable to hold that lands which were originally appropriated for the performance of certain services and which by reason of such circumstance had certain legal incidents attached to them should continue to possess those incidents even when they cease to be appropriated for the performance of services; it seems to me that these incidents are dependent for their continued existence upon the continuance of the character of the lands as service lands. I would hold accordingly that the chowkidari chakran lands cease to be chakran lands as soon as they are enfranchised. The choice therefore lies between the second and third alternatives set forth above, and the answers must depend upon the construction to be put upon secs. 48 and 51 of Act VI of 1870 (B. C). Sec. 48 provides that all chowkidari chakran lands, before the passing of this Act, assigned for the benefit of any village in which a punchayet shall be appointed, shall be transferred in manner and subject as hereinafter mentioned to the zemindar of the estate or tenure within which may be situate such lands. Sec. 50 then provides that the Collector is to transfer by an order to the zemindar such lands subject to an annual assessment. Sec. 50 then provides that the Collector is to transfer by an order to the zemindar such lands subject to an annual assessment. Sec. 51 provides that such order shall operate to transfer to such zemindar the land therein mentioned, subject to the amount of assessment therein mentioned, and subject to all contracts, theretofore made in respect of, under or by virtue of which any person other than the zemindar may have any right to any land, portion of his estate, or tenure, in the place in which such land may be situate. The concluding portion of this section is not a very favourable specimen of legislative draftsmanship, and is not very intelligible but the object of the section seems to be to transfer to the zemindar, resumed chowkidari chakran land, to impose upon it a permanent annual assessment and to save contractual rights of persons other than the zemindar. The question therefore narrows down to one point, namely, upon such transfer, do these lands in the hands of the zemindar merge into the malguzari lands of his zamindari or into his zerait lands. The question is not free from difficulty, because, in my opinion, there are no materials upon which we can say that the lands must necessarily by operation of law, merge into the one class rather than into the other. I think the correct view of the matter is that upon transfer to the zemindar such lands are at his disposal, to be dealt with by him as malor zerait at his option. To put the matter in another way, in relation to these lands, the position of the zemindar is identical with what might be imagined to have been his position when he had the entire lands of the zamindari at the disposal, and had not settled any portion thereof, with cultivating tenants. 19. The question therefore arises whether a raiyat who has obtained a settlement; of resumed chowkidari chakran land from a person other than the zemindar legally entitled thereto, can successfully claim to have acquired a raiyati interest in it as against the true zemindar. In other words can such a person claim, that the choice made by the trespasser as to the character which the resumed lands were to acquire, is binding as against the true zemindar. In my opinion the question ought to be answered in the negative. 20. In other words can such a person claim, that the choice made by the trespasser as to the character which the resumed lands were to acquire, is binding as against the true zemindar. In my opinion the question ought to be answered in the negative. 20. The only authority which has been relied upon by the learned vakil for the applicant in support of the contrary view, namely, the case of Binad Lal Pakrashi v. Kalu Pramanik I. L. R. 20 Cal. 708 (1893) is clearly distinguishable. It was no doubt held in that case that if a tenant bond fide acquires a right to hold land, for the purpose of cultivating it, from a trespasser whom he bond file believed to have a right to let him into possession acquires the status of a raiyat within the meaning of sec. 5, cl. (2) of the Bengal Tenancy Act. It is manifest however from the judgment of Petheram, C.J., that the lands in question in that case were the raiyati lands of the zamindari. In my opinion it would be an unwarrantable extension of the doctrine which underlies that case, if I were to apply it to lands other than mal lands. I think there is between the two cases a substantial distinction well founded on principle; in the case of mal lands they have to be let out to tenants and various statutory rights may be acquired therein; in the case of zerait lands, they belong primarily to the proprietors and even if they are let out to tenants, the growth of statutory rights is circumscribed within very narrow limits. Besides I cannot discover any intelligible principle upon which a trespasser may be taken to have authority to impress upon resumed chakran lands a particular character which can be determined at the choice of the true owner alone. I am not prepared to assent to any extension of the rule laid down in Binad Lal v. Kalu Pramanik ILR 20 Cal. 708 (1893) which as pointed out in Upendra Narain v Pratap Chandra 8 C.W.N. 320 (1903). "made a great encroachment on the strict law according to which a landlord who has no title can give no title to a third person and a person who has title can give a title to another only for as long as his own title endures." 21. "made a great encroachment on the strict law according to which a landlord who has no title can give no title to a third person and a person who has title can give a title to another only for as long as his own title endures." 21. I must hold accordingly that the Defendants-Appellants under their settlement from the lessee of Dighapatia in respect of the half share which the latter had no authority to deal with, has not acquired the status of either occupancy or non-occupancy raiyats and cannot successfully contend that the act of a person who had no title whatsoever but who sought to impose a raiyati character upon these lauds, is binding upon the Plaintiffs-Respondents who are the representatives of the true owner, Tagore. I may add that in the view I take of the matter, sec. 181 of the Bengal Tenancy Act which provides that nothing in the Act shall affect any incident of a ghatwali or other service tenure, does not appear to have any application to this case; for in my opinion this section applies to service tenure as long as they possess the Incidents thereof, but although chakran lands were by the terms of the Permanent Settlement proportionately hypothecated as it were for the double service required from their occupants (that is, service to the public and to the zemindar), as soon as the service ceases, they cease to be chakran lands and upon statutory resumption and transfer to the zemindar, they lose all the incidents of a service tenure. No question can therefore arise as to any provision of the Bengal Tenancy Act affecting any incident of what is no longer a service tenure. The result therefore is that the decree made by the Court below is correct and must be affirmed. The appeal fails and is dismissed with costs.