JUDGMENT : Misra, J. - The three appeals are taken together as they arise out of one judgment of the trial court as also of the appellate court. The Appellants in each case were Defendants in the connected suits. The Plaintiffs purchased occupancy holding Nos. 174 and 217 from one Gadadhar Das, who was a proforma Defendant in all the suits and on whose death no substitution has been made on 1-5-53. There were several tenants as under raiyats in different portions of land recorded as homestead in the said holdings. The Plaintiffs brought five different suits for declaration of their title and for confirmation of possession or recovery on possession in the alternative, against the different Defendants connected with those homestead areas. The Plaintiffs' allegations were that the recorded tenants had all surrendered their tight sometime about 1937; that the Plaintiffs' predecessors in-interest were in khas possession of those lands since the date of surrender till the date of sale; that after the sale the Plaintiffs were in possession; and that the Defendants, in each case, were threatening to disturb the Plaintiffs' possession. The contention in each case on the Defendants' side was that there was no surrender by the recorded tenants, and that the Defendants were in possession throughout till the date of the suits. The Defendants also contested that the Plaintiff had acquired no title by purchase of the occupancy holdings, and that the real owner of the occupancy holdings was somebody else, and the Plaintiffs' vendor was a mere benamidar. 2. Both the courts held that the Plaintiffs' vendor had title over the occupancy holdings sole, and that the Plaintiffs had acquired title by purchase. Both the courts further held that there was no surrender by the recorded tenants, as alleged by the Plaintiffs, in 1937, and that it was the Defendants and not the Plaintiffs or their predecessors who were in actual possession over the respective suit lands. In two of the suits, the recorded tenants were the Defendants. In two other suits, the Defendants were the heirs of the recorded tenants, and in one of the suits the Defendant was the transferee from the recorded tenants. In two of the suits, the recorded tenants were the Defendants. In two other suits, the Defendants were the heirs of the recorded tenants, and in one of the suits the Defendant was the transferee from the recorded tenants. The trial court took the view that it was for the Plaintiffs to establish that the interest of the recorded tenants was not heritable or transferable, and since the Plaintiffs have failed to establish the same, the heirs and the transferees in the suits concerned were under-raiyats under the Plaintiffs; and that since in none of the suits notice of ejectment had been issued, the Plaintiffs were not entitled to recover possession from any of the Defendants. The trial court took a further view that there could be no ejectment of under-raiyats from homestead areas by virtue of Section 236(1) of the Orissa Tenancy Act. 3. The appellate court held that the right of an under raiyat was neither transferrable nor heritable, and it was for the Defendants to establish if there was any custom to the contrary, which they have neither established nor pleaded. It was further of the view that the Defendants in any of the suits were not actually residing over the respective suit lands, and mere recording of the suit lands as homestead without actual residence thereover did not give them any right u/s 236(1) of the Orissa Tenancy Act. So the appellate court affirmed the judgment of the trial court in respect of those two suits where the original recorded tenants were the Defendants of whereas in respect of the three other suits where the Defendants were either the hears or transferees of the recorded tenants, the appellate court passed decrees for recovery of possession. 4. Suit No. 146 to which second appeal No. 103 relates, and suit No. 167 to which second appeal No. 88 relates are the two cases where the heirs of the recorded tenants are the Defendants, (sic) suit No. 133 to which second appeal No. 101 relates is a case where the Defendant is the transferee from the recorded tenant. It may be noted that the status of the recorded tenants relating to the suits concerned has been entered as "sikimi" in the record of rights. It may be noted that the status of the recorded tenants relating to the suits concerned has been entered as "sikimi" in the record of rights. According to para 65, page 23 of the Final Report on the Revision Settlement, the status of under-raiyats has been recorded as "sikimi", and so obviously the recorded tenants concerned were under-raiyats. The only question mooted in the present appeals is whether the interest of an under-raiyat is transferable or heritable under law. The Orissa Tenancy Act makes provisions regarding the rights and liabilities of the different classes of tenants. In cases of all other classes of tenants, except non-occupancy raiyats and under-raiyats, the right of transfer and of succession has been recognised by the Tenancy Act. u/s 237 of the Act, it is provided that nothing in the Act shall affect any custom, usage or customary right not inconsistent with, or not expressly or be necessary implication modified or abolished by, its provisions. In illustration AIR 1918 Cal. 452 to the said section, it is mentioned that if there is a custom or usage whereby the right of a non-occupancy raiyat is heritable it is not inconsistent with the provisions of the Act, and so such a custom will not be affected by the Act. This illustration makes it clear that the right of non-occupancy raiyats is not heritable unless so recognised by custom. The right of an under-raiyat is inferior to that of a non-occupancy raiyat. Hence it is clear by necessary implication and if the absence of any express provision in the Tenancy Act that the right of an under-raiyat is not heritable or transferable unless supported by custom. The Bengal and the Bihar Tenancy Acts are on similar lines as the Orissa Tenancy Act in respect of the rights and liabilities of the different classes of tenants. It was held, in Pramatha Bhusan v. Ram Chandra that an under-raiyati interest is not transferable except with the consent of the landlord. It was held in Nirode Mohan Dev v. Jagarali 20 C.L.J. 328, that an ordinary holding of an under-raiyat from year to year is not in itself heritable and there is nothing in the Bengal Tenancy Act which makes it heritable. It was observed in Akhil Chandra v. Hussain Ali 18 C.L.J. 262, that an interest of an under raiyat is not ipso facto transferable. It was observed in Akhil Chandra v. Hussain Ali 18 C.L.J. 262, that an interest of an under raiyat is not ipso facto transferable. It was observed in Jugesh Chandra v. Maqbul Hussain AIR 1936 Patna 381. The interest of an under-raiyat with occupancy rights is not heritable under the law, and the question whether an under-raiyat who acquires occupancy rights acquires also the rights of an occupancy raiyat as defined by the Tenancy Act depends entirely on the local custom. This observation makes it clear that the interest of an under raiyat with non-occupancy right cannot be heritable, of course unless supported by custom. No authority supporting the counter theory that the interest of an occupancy raiyat is heritable and transferable unless contrary to the custom, has been cited before me. In view of the aforesaid authorities and the provisions of the Orissa Tenancy Act, referred to above, I have no hesitation to hold that the right of an under-raiyat is neither heritable or transferable unless supported by custom. 5. In view of the finding that the right of the under raiyats was neither heritable nor transferable, Second Appeal Nos. 88 and 101 have no merits. But as to Second Appeal No. 103 relating to suit No. 146, the Defendants had stated in-their pleadings that their forefathers, the recorded tenants, had died more than 12 years before the suit, and that they were paying rents to the predecessors of the Plaintiffs and as such they had acquired status of under-raiyats. If they had been paying rents to the Plaintiffs' predecessors-in-interest, they had become under-raiyats by acceptance of rent from them as such. Even if they were not paying rents, they claim to have prescribed the status of an under-raiyat by being in possession, as such for more than 12 years. No issue was raised on this part of the pleading", and naturally no evidence was adduced by parties in support or rebuttal of the aforesaid stand. The Defendants cannot be rejected without service of proper notice if they have acquired status of an under-raiyat either by prescription or by recognition. This question has to be tried. So the suit is remanded back to the trial court for an investigation and disposal of the aforesaid question. 6. In the result, Appeal Nos. The Defendants cannot be rejected without service of proper notice if they have acquired status of an under-raiyat either by prescription or by recognition. This question has to be tried. So the suit is remanded back to the trial court for an investigation and disposal of the aforesaid question. 6. In the result, Appeal Nos. 88 and 101 are dismissed Appeal No. 103 is allowed and the suit is remanded to the trial court for retrial on the points indicated above. Costs of this appeal will abide the result of the suit. 7. Appeal nos. 83 & 101 dismissed and Appeal No. 103 remanded. Final Result : Dismissed