Judgment Lalit Mohan Sharma, J. 1. This appeal by the defendants 1 to 7 arises out of a suit filed by the plaintiff respondant for a declaration of his title to and recovery of the lands described in Schedules B and C of the plaint. The plaintiff has also claimed a certain sum of money as the price of the usufruct from the land besides mesne profits. 2. One Umrao Singh was the landlord of the village in which the suit lands are situated and he and his family members were in possession of the suit land which was their bakasht and zirat. Umrao Singh died long time back leaving behind several sons, the eldest being Uigambar Singh. They are said to have borrowed a sum of Rs.1250/- from the family of one Durga Bhagat on the basis of a registered usufructuary mortgage-deed dated 4.4.1971. According to the case of the plaintiff, Digambar Singh and his brothers gave in bharna the entire village where the suit lands are situate. The document has been marked as Ext.1 in the case. On 12.1.1926, the Bhagats assigned their interest to the defendant No.18 under Ext.2 and the latter filed a mortgage suit which was numbered as Mortgage Suit No.67 of 1926. A prelimary decree was passed on 7.11.1927 which was followed by a final decree dated 9.7.1928. The decree was put in execution in Execution Case No.141 of 1928 and the plaintiff claimed that defendant No.18 on 9.4.1929 purchased the entire village including the suit properties. The sale was confirmed on 24.2.1930 and delivery of possession was thereafter effected. An attempt to undo all this by a junior member of the family of Digamber Singh also failed and thereafter on 6.1.1932 the plaintiff purchased the village from the defendant No.18 under a registered document, ext.15, and he claims to have been in peaceful possession of the land in village. But after his title as a landlord vested under the provisions of the Bihar Land reforms Act on 23.2.1954, the members of Umrao Singh started raising false claims which resulted in initiation of certain proceedings under the Code of criminal Procedure. Ultimately, two proceedings under section 145 of the Code of Criminal Procedure in respect of Schedules B and C were finally decided against the plaintiff and in favour of the defendants-appellants on 21.9.1964 which necessitated the filing of the suit. Ultimately, two proceedings under section 145 of the Code of Criminal Procedure in respect of Schedules B and C were finally decided against the plaintiff and in favour of the defendants-appellants on 21.9.1964 which necessitated the filing of the suit. The other defendants were impleaded in the suit as they were parties to the proceedings under section i 45 of the Code of criminal Procedure but they have disclaimed any interest in the suit land and have not taken part in the trial. During the pendency of this appeal, defendant no.13 Jadu Pahan died and a note was made that the appeal abated against his heirs. However, in view of the claim of the parties, the admission of Jadu Pahan and the findings recorded by the courts below, it is manifest that he was not a necessary party to the suit or this appeal at all and this appeal has not become defective in the absence of substitution of his heirs. 3. The suit has been contested by the defendants 1 to 8 who have pleaded that the bakasht and zirat lands were not the subject-mattar of the mortgage, and the sale certificate Ext.-11, dated 9.4.1929 issued in favour of the defendant No.-18 has been interpolated by inclusion of bakasht and zirat lands. It has further been asserted that the family of Umrao Singh of which these defendants are members continued in possession of Schedule B and C lands all through and the decision in the proceeding under section 145 of the Code of Criminal Procedure in their favour was correctly given. They have seriously challenged both title and possession of the plaintiff, as claimed in the plaint. 4. The learned Additional Subordinate Judge, Hazaribagh, who tried the suit rejected the plaintiffs case and accepted the claim of the defendants and accordingly dismissed the suit. He held that the bakasht and zirat lands of the village in question had not been mortgaged in 1917 and were not the subject-matter of Mortgage Suit No.67 of 1926 and Execution Case No.141 of 1928 and they were wrongly mentioned in the sale certificate Ext.11 as a result of the fraud of defendant No.18. He also held that neither the defendant No.18 nor the plaintiff ever came in possession of the lands. The plaintiff appealed thereafter and the learned District Judge agreed with the plaintiffs case and decreed the suit. He also held that neither the defendant No.18 nor the plaintiff ever came in possession of the lands. The plaintiff appealed thereafter and the learned District Judge agreed with the plaintiffs case and decreed the suit. Now the defendants 1 to 7 have come to this Court in second appeal. 5. Mr. S. B. N. Singh, learned advocate for the appellants, has raised the following two points in support of the appeals : (i) The plaintiff cannot succeed in the suit without proving his khas possession within the meaning of the term as defined in the Land reforms Act on the date of the vesting of the zamindari and since the plaintiff has failed to prove the same, the suit is bound to be dismissed ; (ii) The court of appeal below should have agreed with the finding of the trial court that the bakasht and zirat lands including the suit lands were not the subject-matter of the mortgage, the mortgage suit and execution case which followed, and that the sale certificate, Ext.11, is not a dependable document 6. Mr. K. D. Chatterji has attempted to repel the arguments by contending that this appeal is concluded by findings of fact recorded by the appellate court. He placed great reliance on the discussion made on the question of possession in paragraph 47 onwards of the judgment it is true that the Court has referred to the question of possession and considered the evidence led by the parties, but, it appears, it has failed to appreciate the correct scope of the point. For appreciating the legal position in this respect, it is necessary to consider certain provisions of the Bihar Land Reforms Act, which provides for vesting of the zamindari interest in the State of Bihar on issuance of a notification under sections 3 and 3-A. Sec.4 dealing with the consequences of the vesting of an estate lays down that as a result of the publication of a notification mentioned above, the entire interest of the intermediary vests in the State. Sec.6 saves for the intermediary lands in his khas possession on the date of vesting. Sec.6 saves for the intermediary lands in his khas possession on the date of vesting. The expression khas possession has been defined in section 2 (k) in the following terms : "2 (k) khas possession used with reference to the possession of a proprietor or tenure holder of any land used for agricultural or horticultural purposes means the possession of such proprietor or tenure-holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock". The right which has been saved under section 6 is that in the capacity of a raiyat under an estate and is, therefore, clearly a new and different right than the one enjoyed by an intermediary earlier as a landlord. The question of khas possession of an outgoing landlord forms the basis of his title, unlike the issue of possession in other ordinary cases where it may affect the question of limitation, adverse possession or as a circumstantial evidence in support of a claim. The very title of an ex-intermediary is dependent in his khas possession and that too on the date of vesting and this aspect has been completely missed by the court below. Than it has to be appreciated that the Legislature has intentionally used khas possession as a condition of the ex-intermediarys title to his bakasht land as distinguished from mere possession, and the Court has failed to notice the difference. The decisions of the Supreme Court in Gurucharan Singh V/s. Kamla Singh, (A. I. R.1977 Supreme Court, 5) and Surajnath Ahir V/s. Prithinath singh, (A. I. R.1963 Supreme Court, 454) and the decision of this Court in brij Nandan Singh V/s. Jamuna Prasad, (A I. R.1953 Patna, 589) have pointed out the departure made by the Legislature which has been introduced in the concept of possession for the purpose of clothing an intermediary with new rights under section 6. Dialing with the definition of the expression khas possession it was pointed out that what is meant by the term is actual possession with ones feet on the land, plough in the field and hands in the soil, although hired labour is also contemplated. Dialing with the definition of the expression khas possession it was pointed out that what is meant by the term is actual possession with ones feet on the land, plough in the field and hands in the soil, although hired labour is also contemplated. The Supreme Court observed that the emphatic point is that possession is actual possession and admits of no dilution except to the extent of section 6 itself, by an inclusive process, permits. The parties have led bulk of evidence in support of their compating cases on the question of possession, but the final court of fact has, by failing to consider the same in the context in which the evidence has to be scanned, in substance, omitted to decide the issue. Naturally the learned District Judge could not and did not record a finding on the question of the plaintiffs khas possession on the date of the vesting, and the general discussion on the question of possession in the wider sense of the term cannot effectively dispose of this litigation and so I do not find any option but to interfere in this appeal which I am conscious is an old one. 7 Mr. Chatterji urged that the question of khas possession has been actually considered and decided by the Court but a mere perusal of the judgment from paragraph 47 onwards will unmistakably disclose that the Court was not doing any thing as suggested. Many pieces of evidence relied upon by the plaintiff themselves indicate in no uncertain terms that the plaintiff was not cultivating at least portions of the suit land personally or through hired labour. The plaintiff claims to be in possession of at least some of the lands through adh Bataidars and has relied upon oral and documentary evidence not consistant with his actual personal possession. It is true that the plaintiff can rely upon certain provision of section 6 which, by inclusive process, permits some more benefits on an intermediary, but the Court below has considered neither these provisions nor the evidence in their light. It is not possible for the High Court to re-assess the entire evidence in the background of the correct applicable law and the learned counsel for the parties have rightly not suggested such a course. The case must, therefore, go back to the lower appellate court for reconsideration of the evidence. 8. It is not possible for the High Court to re-assess the entire evidence in the background of the correct applicable law and the learned counsel for the parties have rightly not suggested such a course. The case must, therefore, go back to the lower appellate court for reconsideration of the evidence. 8. In support of the second question raised by Mr. Singh, he argued that the mortgage document, Ext.1, and the sale certificate, Ext.11, being documents of title, the High Court should even in second appeal, reconsider them, as it is well established that a question relating to interpretation of a document of title is a question of law. Mr. Singh further said that the lower appellate court has not been able to meet all the criticisms of the trial court on this issue and so the finding is illegal. Serious exception has been taken Jo the observation of the lower appellate court in paragraph 36 of the judgment that the principles of resjudicata would apply in this case against the defendants. The argument is that before applying the principles of res judicata, the Court should have carred to refer the specific exhibits and the findings recorded thereon, on which reliance is being placed on behalf of the plaintiff. The identity of the parties in the two litigations was another pre-requisite. The assumption made by the lower appellate court in favour of the correctness of the sale certificate without disposing of the objections of the defendants thereto has also been criticised. Mr. Singh has said that on such an assumption, the Court proceeded to record a finding in favour of the plaintiff and after such a finding has been recorded, the sale certificate has been upheld in its entirety after taking the aid of that finding. The learned counsel also stated that the Court should have considered Ext. G. G/1 and H before recording its finding in paragraph 37 and not subsequently as has been done. The counsel for both sides advanced various other arguments on this issue, but since I agree with the criticism of the appellants learned counsel of the manner in which the lower appellate court has dealt with this question, I propose to direct the Court of appeal below to reconsider this issue also ; and in that view, i refrain from expressing any opinion on the other arguments which might prejudice the parties. 9. 9. In the result, this appeal is allowed, the judgment and decree of the lower appellate court are set aside and the case is remanded to it for reconsideration and disposal in accordance with law. The costs of this appeal will follow the final result in the litigation.