JUDGMENT : Narasimham, C.J. - This is a Defendant's appeal against a preliminary decree for partition passed by the learned Subordinate Judge of Bolangir. 2. One Sidheshwar Meher had two wives, namely Rukmani and Tulasi. Defendant No. 1 is his only son through Rukmani (dead) and the other Defendants are the sons and grandsons of Defendant No. 1. The first four Plaintiffs (Plaintiffs Nos. 1 to 4) are the four sons of Sidheswar through his second wife Tulasi. Plaintiff No. 5 is the son of Plaintiff No. 1. Tulasi is Plaintiff No. 6. The Plaintiffs claimed partition of the joint family properties alleging that the five sons of Sidheshwar and his widow Tulasi (namely Plaintiffs Nos. 1 to 4. Plaintiff No. 6 and Defendant No. 1) were entitled each to one sixth share in the joint family property. That property was said to consist of 42.48 acres of ryoti land and 65.46 acres of Bhogra land situate in village Bhatpali in Patnagarh subdivision of Bolangir District. 3. The Defendants contended that during the lifetime of their common ancestor Sidheshwar, a partition had taken place in consequence of which 19.85 acres of ryoti land fell to the share of Defendant No. 1 and the Plaintiffs were allotted 2.2.63 acres of ryoti land and 1.64 acres of Bhogra land only. They further alleged that the Bhogra lands were first kept with Sidheshwar during his lifetime and after his death they devolved on Defendant No. 1, to the exclusion of all his step brothers. By a special amendment to the written statement the Defendants further set up a peculiar custom of their caste to the effect that if a person has two wives, the sons of each wife will get half the property of the father-irrespective of the number of sons and that the elder branch was also entitled to 'Jyeshtansa. 4. The main questions in controversy between the parties in the lower court were (i) whether there was a previous partition or else whether the property continued to be joint family property and (ii) whether the alleged custom in contravention of the ordinary rules of Hindu law, set up by the Defendants, was established or not. 5. 4. The main questions in controversy between the parties in the lower court were (i) whether there was a previous partition or else whether the property continued to be joint family property and (ii) whether the alleged custom in contravention of the ordinary rules of Hindu law, set up by the Defendants, was established or not. 5. The learned lower court held that the alleged custom had not been established and that the ordinary rule of Hindu law whereby all the sons of a deceased Hindu father would each get an equal share in his property should prevail. It also disbelieved the story of previous partition during the lifetime of Sidheshwar and held that the property continued to be joint family property. The lower court further held that even the Bhogra lands were liable to be partitioned amongst the sons and the surviving widow (Tulasi) of Sidheswar, each getting his share according to the Hindu law. Hence he passed a preliminary decree for partition. 6. Mr, B. Mohapatra for the Appellants pressed the appeal only in respect of the Bhogra lands which were not joint family properties but were given in lieu of remuneration to the Thikadar of the village and that when Sidheswar was the Thikadar he was in possession of the same and after his death Defendant No. 1 as his eldest son became the Thikadar and as such was entitled to their exclusive possession. He admitted, however that a small share out of the Bhogra lands namely 1.64 acres had bee a given to the Plaintiffs, merely by way of an amicable family arrangement, but this circumstance did not in any way militate against his contention that the Bhogra lands were not available for partition between the Thikadar and his undivided brothers. 7. The disputed property is situate in Bolangir district which was formerly one of the Feudatory States of Orissa ruled by the Maharaja of Patna State. That Feudatory State merged with the Province of Orissa on 1st January, 1948 and for sometime it was administered under the provisions of the Administration of Orissa States Order, 1948. Subsequently the State became an integral part of the Province of Orissa and the said Order was replaced by the Orissa Merged States (Laws) Act of 1950. 8. The disputed property consists of: (1) ryoti lands and (2) Bhogra lands. Subsequently the State became an integral part of the Province of Orissa and the said Order was replaced by the Orissa Merged States (Laws) Act of 1950. 8. The disputed property consists of: (1) ryoti lands and (2) Bhogra lands. So far as the ryoti lands are concerned it was conceded by Mr. B. Mohapatra that they are ancestral property and all the sons of Sidheswar would be entitled to an equal share unless it is established that by way of a family arrangement a larger share is given to one branch or other. But as regards the Bhogra lands he contended that they belonged exclusively to Defendant No. 1 who became the Thikadar after the death of his father in 1915. It is therefore necessary to decide whether the lands which were formerly recorded as the Bhogra lands of the Thikadar were the joint family properties of the Thikadar and his younger brothers available for partition, or else whether they were the exclusive properties of the Thikadar not liable for partition. 9. The determination of this question requires a careful investigation of ]the origin of the Thikadari tenure in Patna State and of the rights of the Thikadars and his co-sharers in Bhogra lands, as recognised in the revenue laws in force in the State prior to the merger of Patna with the Province of Orissa. The materials on this subject are somewhat scanty because this matter was not properly agitated before the lower court and all available decisions of the Civil Courts including those of the then existing Common High Court (prior to merger) were not proved. But as both parties have relied mainly on: (1) the Settlement report of Patna State of the year 1937 including the wazib-ul-arz and the Thikadari patta, (2) the provisions of the Patna State Land Revenue Ad, 1940 and (3) the Report of Sri R.K. Rama-dhyani, I.C.S. Officer on Special Duty regarding the land tenures and revenue systems of Orissa in Orissa and Chhattisgarh States (hereinafter referred to as the Ramadhyani Report), I shall decide this question on the basis of these documents. 10. The Ramadhyani Report gives an interesting account of the origin of the Thikadari and Gountia systems of village management which is a feature common not only to Patna State but also to the neighbouring districts of Sambalpur and Chhattisgarh. 10. The Ramadhyani Report gives an interesting account of the origin of the Thikadari and Gountia systems of village management which is a feature common not only to Patna State but also to the neighbouring districts of Sambalpur and Chhattisgarh. The sovereign did not deal directly with the ryots in the villages, but dealt with them through the headman who was known as the Thikadar or Gountia. Prior to 1871 the ruler used to lease out the village to the highest bidder for fours years (the Gountia) who used to pay Nazaranas for obtaining such settlements. It was then left to the Gountia to distribute the assessment amongst the various tenants of the village. He enjoyed all his Bhogra lands free of rent, in return for the Nazarana paid by him. In 1871 however a new settlement was made and after some enquiry leases were given to the gountias and kabuliayats were taken from them. But the gountias were allowed to enjoy the bhogra lands rent free. In 1885 the practice of receiving Nazaranas from the gountias was abolished and the Bhogra lands in their possession were also assessed to annual payments not exceeding half their rental value. In 1885 the system of remuneration of gountias was changed and the gountia was given a "draw back" of 20 per cent of the village cess. In the next settlement of 1903 no material change was made in respect of gountia tenures. Then came the Settlement of 193-37. Records of rights were prepared on the model now prevailing in Sambalpur district. There was a wazib-ul-arz giving full details of the various incidents of Thikadari tenure and there was a Thikadari patta and a Kabuliyat exchanged between the ruler and the Thikadar containing the terms of the settlement of Thikadari, tenure. The settlement was made for a period of fifteen years subject to renewal on special conditions. 11. The material terms of the wazib-ul-arz may now be quoted: Patna State Settlement, Wazib-ul-arz, Thikadars. 1. The Thikadars appointed by the State authorities for the period of a settlement shall be responsible for the administration of the village affairs, provided, in villages under zamindars and Khorakposhakadar the appointment of the Thikadar shall be made on the recommendation of the Khorakposhakdars or zamindars. 2. 1. The Thikadars appointed by the State authorities for the period of a settlement shall be responsible for the administration of the village affairs, provided, in villages under zamindars and Khorakposhakadar the appointment of the Thikadar shall be made on the recommendation of the Khorakposhakdars or zamindars. 2. Succession by inheritance to a Thikadari tenure shall ordinarily be governed by the law of primogeniture unless the person claiming succession is physically, mentally or otherwise unfit for holding the tenure in which case the tenure will go to the nearest of the remaining heirs of the deceased Thikadar, provided the State has full authority to reject the claim of any of such heirs on any reasonable ground, and to appoint a new Thikadar. 7. Co-sharers of a Thikadar who, by amicable arrangements have got a share in the Bhogra lands shall be entitled to hold such lands only so long as the particular Thikadar or his heirs are in possession of the village, and they shall have no right or title to or possession over such lands on the removal of the Thikadar or his descendants from the tenure. (Note: No co-sharer of a Thikadar can have any share in a village except in the Bhogra lands in the village). 8. The Thikadar has no right to transfer, in any way his interest in the village, in whole or part nor has he the right to sublease the village, provided there will be nothing in this clause to prevent the Thikadar from letting out the Bhogra lands in the village to bonafide cultivators on annual leases during the currency of a settlement but no cultivator shall have any raiyati right over such Bhogra lands, even though the same were leased out to him for more than a year. In the Thikadari patta also the Thikadar agreed to follow the provisions of the wazib-ul-arz See Clause (r). 12. In the Thikadari patta also the Thikadar agreed to follow the provisions of the wazib-ul-arz See Clause (r). 12. It will be noticed that though, as against the State, the right of a in his tenure was somewhat precarious inasmuch as the State could, whenever there was a vacancy in the Office, appoint even a new Thikadar, excluding the claims of the descendants of the former Thikadar, yet, the wazib-ul-arz does not expressly bar the operation of the ordinary rule of Hindu law so far as the rights inter se between the Thikadar and his co-sharers are concerned in the Bhogra lands On the other band, Clause 7 of the wazib-ul-arz recognizes any amicable arrangement that might have been made between the co-sharers of the Thikadar and the Thikadar regarding partition of the Bhogra lands. Such an arrangement was also recognised by the State, subject to the condition that if the tenure was taken away from that family and given to some other Thikadar that arrangement would not be recognised. 13. The note to Clause 7 of the wazib-ul-arz has led to some confusion. The original note namely: No co-sharer of a Thikadar can have any share in a village except in the Bhogra lands in the village necessarily implied that in the Bhogra lands of a village the co-sharers of Thikadar will also have shares. But this note was latter amended by the rule as follows: No co-sharer of a Thikadar can have any share in a village except in the Bhogra lands of the village when he gets as a share by such amicable arrangement. Nothing in this clause shall however affect the rights of a co-sharer against the Thikadar in respect of profits from the Bhogra lands or the rights of a Thikadar to seek relief in the Civil Court against his co-sharers in respect of remuneration payable to him for managing the village at the rate of 3 and 1/4 anna per rupee on the revenue value of the whole of the Bhogra lands in such village. The parties shall have no right whatever as against the State. This amendment also, caused some difficulties and thereupon the ruler of Patna by his notification No. RM/129/4-W dated 3rd May, 1940, made a further amendment as follows: The Patna State Gazette Published by Authority Bolangir, Friday, 31st May, 1940 Part III Regulations, Orders, Notifications, Rules Etc. The parties shall have no right whatever as against the State. This amendment also, caused some difficulties and thereupon the ruler of Patna by his notification No. RM/129/4-W dated 3rd May, 1940, made a further amendment as follows: The Patna State Gazette Published by Authority Bolangir, Friday, 31st May, 1940 Part III Regulations, Orders, Notifications, Rules Etc. Issued by and under the authority of the Maharaja and Ruler of the State. Patna State Secretariat Notification, Dated the 31st May, 1940. No. R.M. 129/4: Where is it appears to the Maharaja and ruler that the insertion of the existing note to Clause 7 of the Wazib-ul-arz drawn up at the Current Settlement has misled the persons who are interpreting it, to an extent which is against the main principles of the existing laws and customs, it is hereby published for general information that the Maharaja and Ruler, in consultation with the Cabinet has been pleased to decide that the said note to clause 7 of the Wazib-ul-arz shall be treated as cancelled and the following substituted in its place: No co-sharer of a Thikadar can have any share in a village except in such Bhogra lands thereof, as he can get by amicable arrangement only. Nothing herein contained shall, however, affect the rights of any co-sharer who is not in possession of any Bhogra lands by amicable arrangement, against his Thikadar in respect of profits from Bhogra lands after deducting the cultivation expenses and Lambardari remuneration on the whole of free Bhogra, at the rate of 13 pice per rupee or the rights of a Thikadar, to seek relief in a civil court against his co-sharer, to receive remuneration as Thikadar from the co-sharers at the rate of 31 annas per rupee on the revenue value of the whole Bhogra exclusive of that portion of it, which is held by him-in severalty as a sharer: Provided (i) if there be any specific agreement between the Thikadar and his co-sharers regarding the Thikadari remuneration, the case will be governed by the terms of the said amicable settlement. (ii) the amount payable to or to be drawn back from the State on account of excess or deficit Bhogra shall be deducted from or added to the revenue value of the whole of the Bhogra as the case may be, before the remuneration is calculated. 14. (ii) the amount payable to or to be drawn back from the State on account of excess or deficit Bhogra shall be deducted from or added to the revenue value of the whole of the Bhogra as the case may be, before the remuneration is calculated. 14. The success of the present litigation will depend to a great extent on a proper interpretation of this notification The Ruler made it clear that the note to Clause 7 of the wazib-ul-arz was being interpreted in a way "which is against the main principles of the existing laws and customs" and hence he thought it advisable to clarify the position. The existing laws and customs in the preamble to that notification must necessarily include the rules of Hindu Law applicable, where the Thikadar are Hindus. The amendment consists of two parts: the first part deals with the rights of a co-sharer to possess portions of Bhogra lands. That Light was expressly made to depend on the existence of an amicable arrangement between the co-sharer and the Thikadar. Where there is such an arrangement, the co-sharer is entitled to remain in possession of his share of the Bhogra lands. But the second part of the amendment refers to the right of a co-sharer who is not in possession of any Bhogra lands by such an amicable arrangement. He is only given the right to claim a share of the net profits from the Bhogra lands after deducting the cultivation expenses and the remuneration on the whole of the Bhogra lands at the rate of 13 pice a rupee. Similarly a Thikadar is given the right to receive from his co-sharers remuneration as Thikadar at the rate of 13 pice per rupee en the revenue value of the Bhogra lands. 15. The natural interpretation of this amendment seems to be as follows: Though under the ordinary Hindu law every co-sharer can claim partition of the joint family properties, yet so far as Bhogra lands are concerned, the co-sharer of Thikadar cannot claim any such right. He can claim possession of his share of the Bhogra lands only if there is an amicable arrangement to that effect. He can claim possession of his share of the Bhogra lands only if there is an amicable arrangement to that effect. If there is no such arrangement, the only right left to him is to claim from the Thikadar his share in the net profits of the Bhogra lands of the village, after deducting the cultivation expenses and the remuneration of the Thikadar which was fixed at 13 pice in the rupee. In other words, though a junior male member of the Thikadar's family cannot claim a right to partition by metes and bounds of the Bhogra lands unless there is an amicable arrangement, yet, his right to a share in the net profits from the Bhogra lands, after making some deductions, was clearly recognised. The only special rights of the 'Thikadar were: (1) his right to possess the entire Bhogra lands unless by amicable arrangement he was willing to give a share to his younger brothers and,' (2) his right to appropriate as his remuneration 13 pice in the rupee out of the total profits from the Bhogra lands. These are undoubtedly rights inter se as between the Thikadar and his co-sharers and they cannot prevail as against the: State, before whom the entire tenure was of a somewhat precarious nature, liable to resumption for adequate reasons. 16. Mr. B. Mohapatra however gave an ingenious interpretation to the amendment of 3rd May, 1940, made by the Ruler and urged that the right of a co-sharer of a Thikadar to a share in the profits of Bhogra lands would arise only if there was first an amicable arrangement as between the co-sharer and the Thikadar for division of the Bhogra lands and, if, notwithstanding the existence of such an arrangement, actual possession of the allotted share was not given to the co-sharer. This interpretation seems to be some what artificial and strained. The ordinary rule of Hindu law which recognises the right of every co-sharer to his share cannot be taken away except by express words, to that effect. Moreover the very reason given by the Ruler for his amendment of ]940, namely, the confusion brought about by the interpretation against the principles of the existing Hindu Law and customs would appear to show that he was anxious to preserve the existing laws and customs. Moreover the very reason given by the Ruler for his amendment of ]940, namely, the confusion brought about by the interpretation against the principles of the existing Hindu Law and customs would appear to show that he was anxious to preserve the existing laws and customs. The only exception made was that unless there was an amicable arrangement, partition by metes and bounds of Bhogra lands was not recognised and the junior member's right was only to a share of the net profits. As against his co-sharer the only right reserved to the Thikadar was with regard to (1) his exclusive possession of the Bhogra lands and, (2) appropriation of 13 pice per rupee of the net profits towards his remuneration. In other respects, the ordinary incidents of Hindu Law were recognized and kept in tact. 17. An attempt was also made to belittle the value of the aforesaid amendment of 1940 on the ground that it was only an amendment to a note in Clause 7 of the wazib-ul-arz. But it should be remembered that at that time the Ruler of Patna combined in himself legislative and executive functions and prior to the coming into force of the Patna Land Revenue Act, 1940, there was no codified law dealing with revenue matters in that State. The notification dated 3rd May, 1940 should therefore be given as much importance as any other law in force at that time in that State. 18. Then came a codified revenue law for Patna State embodied in the Patna State Revenue Act, 1940. This Act came into force on 3rd September, 1940. In Clause (ii) of Section 3 of that Act Bhogra land was defined as follows: Bhogra land means land allotted by the Government of the State to a Thikadar in a village in lieu of remuneration for the management of such village and includes all lands recorded as Bhogra u/s 53 of be Act. The definition consists of two parts. The second part is more important for our purpose because admittedly the Bhogra lands in question were recorded as Bhogra in the settlement of 1932-37 in the name of Sidheswar Meher. That settlement will continue to be valid under the aforesaid Act also by virtue of the saving clause in Section 2 of the Act. The second part is more important for our purpose because admittedly the Bhogra lands in question were recorded as Bhogra in the settlement of 1932-37 in the name of Sidheswar Meher. That settlement will continue to be valid under the aforesaid Act also by virtue of the saving clause in Section 2 of the Act. The wazib-ul-arz prepared under the old Settlement was recognised under this Act in Clause (d) of Section 102 as follows: The Thikadar may exercise and enjoy the rights and privileges conferred on him by his patta and the wazib-ul-arz of his village. Similarly, while describing his duties in Clause (ii) of Section 106 he was required to "discharge the duties and obligations and to a bide by the conditions imposed on him by his patta and the wazib-ul-arz of the village." 19. Chapter VI of the said. Code deals with assessment of every village to land revenue. Section 42 says that the assessment shall be first offered to the existing Thikadar of the village. Section 45 further says that it shall be at his option to accept or refuse the offer. If be accepts the same, he is required to execute a Thikadari Kabuliyat. If he refuses the offer then it is open to the Settlement Officer, u/s 48 to settle the village with some other person. 20. It will thus be seen that the provisions of the Land Revenue Act 1940 do not in any way alter the legal status of the Thikadar either in his relations with the Government (Ruler) on the one hand, or in his relations with his co-sharers on the other. So far as Government are concerned his position is indeed somewhat precarious inasmuch as his tenure is a service tenure and he is liable to disciplinary action, including even eviction from the Thikadari tenure, for reasons specified in Sections 103 and 104. If there is a vacancy in his Office, though ordinarily the rule of primogeniture will be applied, under Clause 2 of the wazib-ul-arz the Ruler may for adequate reasons appoint even a stranger to the family. The Thikadari settlement is made for a fixed period of 15 years but at the time of fresh settlement the existing Thikadar is given the first option of accepting the same or rejecting it. The Thikadari settlement is made for a fixed period of 15 years but at the time of fresh settlement the existing Thikadar is given the first option of accepting the same or rejecting it. But as between the Thikadar and his co-sharers the provisions of Clause 7 of the wazib-ul-arz including the amendment to note made by the Ruler in his notification of the 3rd May, 1940 were kept in tact. The explanations to Section 101 of the Act merely reiterated the previous position. Hence, it appears to me that even after the passing of the aforesaid Act of 1940 the rights of the co-sharers of the Thikadar to their entire share in the net profits of the Bhogra lands of the village (according to their personal law) were kept untouched and were subject to Thikadar's right to collection charges at 13 pice per rupee. 21. It was strenuously contended by Mr. B Mohapatra that the Thikadari tenure is a mere office, Bhogra lands being given in lieu of remuneration, and consequently the co-sharers of a Thikadar can claim no right to the same under the general Hindu Law. It is true, a already pointed out, that as against the State the tenure is somewhat precarious but this does not mean that as between the Thikadar and his co-sharers there cannot be any concept of joint family property. This fundamental distinction between the rights inter se, between the Thikadar and his co-sharers on the one hand and the rights of the entire family as against the State on the other, must be clearly borne in mind. Even a precarious tenure can be joint family property. The only restriction was that the junior members of the Thikadar's family cannot insist on partition, by metes and bounds, of the Bhogra lands but must remain content with their proportionate share of the net profits. This restriction was a necessary consequence of the peculiar nature of the tenure arising out of the fact that succession to it was ordinarily regulated by the rule of primogeniture. 22. In this connection, it will be interesting to quote the following observations in the Ramadhyani report (at pages 213214) regarding the rights between the Thikadar and his co-sharers in respect of the Bhogra lands: The Bhogra of the Thikadar seems to be a very vexed question. 22. In this connection, it will be interesting to quote the following observations in the Ramadhyani report (at pages 213214) regarding the rights between the Thikadar and his co-sharers in respect of the Bhogra lands: The Bhogra of the Thikadar seems to be a very vexed question. Where the Thikadar has held for generations there are "co-sharers" in the Bhogra who claim a share of other village "profits" as well and there is frequent litigation between co-sharers and Thikadars about these. In 1937 a note was inserted in the wazib-ul-arz that a co-sharer could not have any rights in a village except in the Bbogra lands of the village. This seems to have caused several disputes and in 1940 a notification was issued replacing the note by another which made the share in the Bhogra obtainable by 'amicable arrangement only'. In respect of profits from Bhogra lands anyway co-sharers not in possession of Bhogra were given rights to a share of 13 pice per rupee and the Thikadar was given the right to recover 13 pice per rupee of the rental value of the Bhogra held by the co-sharers-a rather involved arrangement; this clause was to be subject to any private arrangement. The rental of excess Bhogra (of 20 per cent rule) was to be deducted and drawback for deficit added to the rental value in calculating the share. In the Act however there is a simple note which says that private arrangements may be made in respect of Bhogra which will not be enforced by revenue courts. Difficulties about Bhogra are not peculiar to this State and may be found wherever the system exists. They can be eliminated only by the grant of ryoti rights. 23. The question is indeed somewhat difficult as pointed out by him but in the absence of express provisions either in the wazib-ul-arz or in the Act of 1940 the general rule of Hindu law should not be abrogated. Unfortunately neither party has cared to prove, before this Court the judgments of competent Civil Courts during the pre-merger period where this question has been decided. Those judgments would have been admissible as evidence u/s 13 of he Evidence Act. 24. Sidheswar died sometime in 1945 and his eldest son (Defendant No. 1) was recognised by the Ruler as the Thikadar for the time being. Then came the merger of 1st January 1948. Those judgments would have been admissible as evidence u/s 13 of he Evidence Act. 24. Sidheswar died sometime in 1945 and his eldest son (Defendant No. 1) was recognised by the Ruler as the Thikadar for the time being. Then came the merger of 1st January 1948. With the change in the sovereignty the rights of the parties as against the State would depend on the extent to which the new Ruler was willing to recognise those rights but in the Administration of Orissa States Order, 1948 (see Clause (b) of paragraph 4), all the laws in force, whether based on custom or usage, existing prior to the 1st January 1948 were continued in force until amended or altered by the competent authority, Hence, even after the 1st January 1918 the pre-existing rights as between the Thikadar and his co-sharers continued for sometime. 25. On the 19th December 19-1-9 the Government of Orissa in the Revenue Department, in their letter No. 14340/tt. SI-Ten. 114/49 addressed to the Commissioner, Northern Division, Sambalpur, communicated their decision to abolish the Thikadari system in Bolangir with effect from the 1st April 1950. In paragraph 2 of that letter Ext. 16) they give the following directions: All lands recorded as Bhogra in the 1936 settlement excepting the items mentioned hereunder, shall be settled in ryoti tenancy with the Thikadar and his co-sharers according to their present possession. The possession will be determined entirely by the revenue authorities and the decision of the Commissioner, Northern Division, shall be final in this record. In pursuance of this direction the then Commissioner, and the Collector of Bolangir acting under his orders, took up the settlement of the Thikadari tenure on a ryoti basis with the Thikadar and his co-sharers. Objections were invited and the present parties appeared before him. Defendant No. 1 claimed the property to be exclusively his, whereas the Plaintiffs claimed a share of the same under the general Hindu Law. The Commissioner passed the following order on the 22nd March 1952 (See Ext. 17): 22-3-1952. This is an objection by one Hrushikesh Meher, one of the Hinsadars that the parch a for the Thikadar's Bhogra share should be joint in the name of five brothers. The Thikadar Krishna Chandra Meher objects to this proposal. The Commissioner passed the following order on the 22nd March 1952 (See Ext. 17): 22-3-1952. This is an objection by one Hrushikesh Meher, one of the Hinsadars that the parch a for the Thikadar's Bhogra share should be joint in the name of five brothers. The Thikadar Krishna Chandra Meher objects to this proposal. I find from the judgment of a civil court produced by Hrushikesh that there is some dispute in the family about the partition of properties. This decision is that the property is joint, but the present distribution goes by possession of the parties. Krishna Chandra Meher, the Thikadar, is in possession of the lands in the Bhogra recorded in his name. Parcha will issue in his name. But this will not prevent the other brothers from establishing their claim in a civil court for partition of family properties. The parcha is without prejudice to this right. Sdl B. Sivaraman, 22-3-1952. Thus the decision of the competent authority (Commissioner, Northern Division) converting the Bhogra lands into ryoti lands and entering them in the name of Defendant No. 1 was expressly made provisional, subject to his brothers establishing their right in the Civil Court. In the last sentence of the Commissioner's order it was stated: The parcha is without prejudice to this right. In pursuance of this orders ryoti settlement was made with Defendant No. 1 and was confirmed by the Board of Revenue on the 20th July 195 (see Ext. 18). The suit under appeal was filed on the 8th May 1952, i. e., after the passing of the Commissioner's order setting the lands with Defendant No. 1 on a ryoti basis, but prior to the confirmation of the same on the 26th July 1952. Strictly speaking, when the suit was taken up for trial the land had ceased to be Bhogra but as the Commissioner's order in favour of the Defendant was made expressly conditional on the Plaintiffs establishing their rights in the civil court the necessity for investigating the rights of junior members in Bhogra lands settled with senior members during the pre-merger period, arose. The Bhogra conversion proceedings thus did not alter the rights between the Thikadar and his co-sharers but left them to be adjudicated by the civil court. 26. The Bhogra conversion proceedings thus did not alter the rights between the Thikadar and his co-sharers but left them to be adjudicated by the civil court. 26. Statutory recognition to the conversion of Bhogra lands into ryoti lands in Bolangir district is given in Clause (g) of Section 7 of the Orissa Merged States (Laws) Act, 1950 which is as follows: "7(g). When land is held as service tenure, either under the Ruler or any member of his family, the liability of the holder of such tenure to render service for the use and occupation thereof, shall cease, and he shall, on payment of such rent as may be assessed by the Provincial Government, as fair and equitable, acquire occupancy rights therein". Mr. Mohapatra urged that by virtue of this clause the 'holder' of the service tenure (here the Thikadari tenure) was alone recognised as having occupancy rights in the same and that his younger brothers cannot claim any share. Such a narrow interpretation of this clause will not be permissible. This clause deals only with the rights as between the State on the one hand and the holder of the service tenure on the other. It is entirely silent as regards the rights as between the bolder of the service tenure on the one hand and the members of his family on the other which depends on their personal law. Those rights are not expressly taken away and they will depend on the rights that existed prior to the merger, which were expressly saved by paragraph 4 Clause (b) of the Orissa Administration of States Order. Moreover, as already pointed out the order of the Commissioner dated 22nd March, 1952 expressly reserved the right of the junior members to establish their claim in the Civil Court while making the ryoti settlement with Defendant No. 1. 27. I may now notice another argument advanced by Mr. Mohapatra on behalf of the Defendant. He urged that u/s 101 of the Act of 1940 Thikadari tenure was not partible and Clause 6 of Section 140 ousted the jurisdiction of the Civil Court to entertain any suit in a matter "provided for or referred to in Sections 62, 63 and 101 as to lands held or claimed to be held free from revenue". The answer to this contention is two fold. The answer to this contention is two fold. First, the land has ceased to be Bhogra lands now and when the competent revenue authority while converting it into ryoti in 1952 expressly reserved to the co-sharers their right to establish their right to partition in the Civil Court, the bar to the jurisdiction of the Civil Court u/s 140 cannot apply. Secondly, that Bar is limited in its scope to a determination of the question as to whether the lands described or referred to in Section 101 can be claimed to be free from revenue or not. In other words where the question was whether the land in dispute is Bhogra land or land held revenue free or held on payment of concessional rent, the Civil Court may not have jurisdiction to decide that question. Similarly so long as the land retained its character as Bhogra land it was impartiable. But the right of the junior members to claim their share of the net profits in the Bhogra lands which has been recognised in the notification of 3rd May 1940 was never taken away. Hence, when the Bhogra land was subsequently converted into ryoti land, it lost its character of impartibility and the ordinary rule of Hindu Law regarding the right of a junior member to claim partition by metes and bounds would necessarily revive. I must therefore overrule the objection of the Defendant that the Civil Court had no jurisdiction to entertain this suit for partition. 28. On behalf of the Plaintiff-Respondents it was further urged that the Defendant did not raise in the lower court any specific issue as to whether Bhogra lands of a Thikadari tenure were joint family properties or not; and that consequently it was not open to him to raise this point for the first time in the appellate court. There is considerable force in this objection. In the written statement of the Defendants there was no averment at all about the Bhogra lands being impartible and the junior members of a Thikadar's family having no right over the same. On the other hand the Defendants resisted the claim of the Plaintiff on the two following grounds namely: (i) previous partition in the lifetime of their father and, (ii) special family custom by which the descendants of each wife of a Hindu were considered as one unit for purposes of partition. On the other hand the Defendants resisted the claim of the Plaintiff on the two following grounds namely: (i) previous partition in the lifetime of their father and, (ii) special family custom by which the descendants of each wife of a Hindu were considered as one unit for purposes of partition. He conceded that the Plaintiff's family also got 1.64 acres of Bhogra lands at the previous partition, thereby recognising that the Bbogra lands were partible. The prayer portion of the written statement is as follows: The suit therefore deserves to be dismissed with costs, or in the alternative, if it is to be found that there has been no partition which illegally binding on the parties, partition may be effected in accordance with caste custom, as specified in paragraph 5(a). For some inexplicable reason, no specific issue about the impartibility of the Bhogra lands and the absence of any rights in those lands, in the junior members of the Thikadar's family, was raised. Mr. B. Mohapatra urged, in reply, that this is a pure question of law depending on the interpretation of the Wazib-ul-arz and the Land Revenue Act of 1940, and it was open to him to raise it even at the appellate stage. In my opinion, however, this is a mixed question of fact and law and should have been pleaded in the lower court and a specific issue also should have been raised. Had this been done both parties could have led evidence to show how the Thikadari tenure first came into the family, how nazaranas were paid to the Ruler by the ancestors of the parties, whether the nazaranas were paid out of the joint family properties, or out of their personal income and how the Bhogra lands were dealt with in the family all along. Moreover the parties might then have been able to prove the judgments of the competent civil courts during the premerger period where this question might have been decided. Hence I would accept the contention, on behalf of the Plaintiff-Respondents that it is not open to the Appellant-Defendants to raise this question at this stage. Moreover the parties might then have been able to prove the judgments of the competent civil courts during the premerger period where this question might have been decided. Hence I would accept the contention, on behalf of the Plaintiff-Respondents that it is not open to the Appellant-Defendants to raise this question at this stage. Nevertheless I thought it advisable to discuss it at some length and give my own decision, as the question is of great importance, affecting the rights of the junior members of Thikadar's families in Bolangir district and also because this is pot a final court of appeal. 29. Our attention was also drawn to a decision of a single Judge of this Court in Second Appeal No. 293 of 1950 in which my learned brother Rao, J. held that the co-sharers of a Thikadar were not entitled to any share in Bhogra lands except by way of an amicable arrangement. I have carefully gone through that judgment and, with great respect, I am unable to accept his conclusions, mainly because his attention was not invited to the amendment made on the 3rd May 1940 to the note to Clause 7 of the Wazib-ul-arz by the Ruler of Patna State. His discussion was based on the note as it stood prior to that amendment. Moreover, it does not appeal that Ramadhyani Report was placed before the learned Judge. 30. For the aforesaid reasons, I would affirm e judgment of the learned Subordinate Judge and dismiss the appeal with costs. Misra, J. 31. I agree. 32. Appeal dismissed. Final Result : Dismissed