Judgment P. S. Mishra, J. 1. Whether under Raiyats, having occupancy rights under the Bihar Tenancy Act, 1885 , can transfer alienate and/or otherwise dispose of their interest or not, is the short question raised in this appeal. 2. The defendant-appellants, who have lost in both the courts below, have preferred this appeal. The plaintiff respondents filed the suit for declaration of title and recovery of posssession with mesne profits. They alleged that their ancestors were the raiyats of the lands in dispute and they were so recorded in the record of rights. In due course there was a partition in their family and their interests were separated from other co-sharers. The lands in dispute were allotted to their share. According to them, Ram Pratap Choudhary was the under-raiyat in occupation of the lands was used to cultivate and divide the produce and after his death, his widow Jagpato came in possession. She also was recognised as the under raiyat and she continued as the Sikmidar till her death. After her death, her daughter, Mariun Kuer came in possession by virtue of inheritance. She, however, sold her Sikmi rights in the suit lands to the defendant-appellants by dint of several sale deeds. The sale deeds, according to the plaintiffs were fraudulent collusive, illegal and void and created no light in favour of the defendants (transferees ). 3. There is no serious controversy about the nature of the tenancy, as according to the defendant-appellants by virtue of inheritance Marun Kuer acquired Sikmi rights which she transferred in their favour. They have however, added to the controversy, a fact that Jagpato had made a gift of her Sikmi rights in favour of her daughter Marun Kuer in the year 1941. According to the defendant appellants, Marun Kuer came in possession of the disputed lands not after the death of Jagpato but by virtue of the aforesaid gift in the year 1941. She transferred her interest by executing various sale deeds in favour of the defendant-appellants between 1943 and 1959 and by executing a will in respect of some other lands in favour of her daughter Jewan Kuer on 13-6-1951. Jewan kuer also executed some sale deeds in favour of the defendant appellants. By virtue of sale deeds executed by Marun Kuer as well as Jewan Kuer, the defendants had come in possession of the suit lands. 4. Jewan kuer also executed some sale deeds in favour of the defendant appellants. By virtue of sale deeds executed by Marun Kuer as well as Jewan Kuer, the defendants had come in possession of the suit lands. 4. The courts below have held that the defendants acquired no valid title by virtue of any of the sale deeds in their favour in respect of the suit land as their transferer, either Marun or Jewan and no transferable right or interest in the suit properties. 5. The Bihar Tenancy Act, hereinafter referred to as the Act, has defined a raiyat in Sec.5 thereof to mean primarily person who has acquired right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants or with the aid of partners and to include also the successor-in-interest of persons who have acquired such a right. It also says that where a tenant of land has the right to bring it in cultivation, he shall be deemed to have acquired a right to hold it for the purpose of cultivation, notwithstanding that he used it for the purpose of gathering the produce of it or of grazing cattle on it sub-section (3) of the section, however, says that a person shall not be deemed to be a Raiyat unless he holds lands either immediately under a proprietor of immediately under a tenure holder. Notwithstanding the introduction of the bihar Land Reforms Act the position of a tenant has remained the same a defined under Sec.5 of the Act, although the tenure holders and proprietors have lost their rights and the raiyats have been admitted as tenants under the State itself. 6. In classes recognised under the Act as tenants, after the raiyats fall under raiyat either having a right of occupancy in the land held by them or having no such right of occupancy. Sec.26a of the Act (introduced by Bihar Act XI of 1938) says that every occupancy holding or a portion thereof together with the right of occupancy therein shall be capable of being transferred and bequeathed in the same manner and to the same extent as other immoveable properties and all transfer made by sale, exchange or gift or all bequeaths shall subject to the provisions of sub-section (2) be binding on the landholder. Sub-section (2)provides that every transfer of an occupancy holding or a portion thereof together with the right of occupancy therein by sale, exchange or gift and every bequest of such holding or portion together with the right of occupancy therein shall be made in the same manner and subject to the same condition as a permanent tenure in respect of registration and the payment of registration fees. It clearly limits the right to transfer and bequest to the occupancy holding. "holding" has been defined in Sec.3 (9) of the Act to mean a parcel or parcels of land held a raiyat forming the subject of a separate tenancy. 7. Chapter VII of the Act, which deals with the subject of under raiyats, however contains some provisions which talk of the limit of the land recoverable from under raiyats including produce rent, restrictions on payment of certain kinds of rent, acquisition of right of occupancy and the extents of the right of occupancy by the under-Raiyats. Sec.48 of the Act is applicable to the uuder-raiyat tenancy at a money rent and Sec.48 (a) is applicable to produce rent. Sec.48 (c) of the Act which has been introduced in the Act by the Bihar Act xxiv of 1955 says that every person who for a period of twelve years whether wholly or partly before or after the Bihar Tenancy Act (Bihar Act 11 of 1938) has continuously held land as an under raiyat in any village whether under a lease or otherwise, shall be deemed to have acquired on the expiration of that period a right of occupancy in the land which he has so held for the said period, subject to a proviso containing certain conditions precedent and exceptions thereto. Sec.48 (d) which again has been introduced in the Act by Bihar Act 24 of 1955 says that an under raiyat who has acquired a right of occupancy in any land under Sec.48-A, shall be subject to the same provisions with respect to rights in trees and bamboos and the use of succession to, and eviction from such land as an occupancy Raiyat. 8. It is worth notice that until the amendment introduced by Sec.48 (c) of the Act there could be no occupancy right acquired b y under raiyats except under some custom or uses duly recognised in this behalf. 9. 8. It is worth notice that until the amendment introduced by Sec.48 (c) of the Act there could be no occupancy right acquired b y under raiyats except under some custom or uses duly recognised in this behalf. 9. In Shri Kishun V/s. Harihar ILR 27 Pat 194, one Musammat Akli had taken settlement of the plot of land in suit from Umesh Chandra Rai for building purposes Akli sold her interest to defendant No.1. Akli was an under-raiyat, who had acquired occupancy status. One of the questions involved in the said case was whether Akli being an under-Raiyat had power to transfer her interest and whether the defendant no.1 acquired interest in the land conveyed by her or not. Speaking for a Division Bench consisting Agarwala, C. J. and Meredith, J. , the latter has said- "once it is held that the Tenancy Act is applicable, the next question which arises is whether Akli, the under-raiyat having an occupancy right, could transfer it to the defendant No.1. Upon this point there is a decision of Rawland, J. Abass Khan V/s. Sheikh Mohammad hussain (1941)22 PLT 749 and though that learned Judge was sitting singly, find myself in complete agreement with his reasoning. There is no provision in the Tenancy Act under which an under-Raiyat can transfer his interest unless Sec.26-A is applicable. Section 26-A makes an occupancy holding transferable. Does it apply to an under-Raiyat 1 Only if an under Raiyat, having an occupancy status has an occupancy holding within the meaning of the Act. holding is defined in Sec.3 (9) as a parcel or parcels of land held by a raiyat and forming the subject of separate tenancy. Under this definition only a Raiyat can have an occupancy holding and "raiyat does not and cannot, include "under Raiyat" as is clear from Section 5 (3), which says : a person shall not be deemed to be a Raiyat unless he holds land either immediately under a proprietor or immediately under a tenure holder. "it must be held that the Act does not give an under-Raiyat the right to transfer his interest even if he has an occupancy status. "it must be held that the Act does not give an under-Raiyat the right to transfer his interest even if he has an occupancy status. " although Shri Kishuns case has made no reference to Sec.48-C or 48-D, as these provisions have been introduced in the Act after the judgment in the said case, I shall presently demonstrate that the law noticed by Meredith, J. has remained unaffected by the provisions made by the Bihar Act 24 of 1955.48-C has only said that every person who for a period of twelve years has continuously held land as an under raiyat in any village whether under a lease or otherwise would be deemed to have acquired on the expiration of that period a right of occupancy in the land which he has so held for the said period. Even by acquiring the occupancy status in the land, the under raiyat would remain under a raiyat and not by dint of such occupancy status become a raiyat himself. I he right which a raiyat enjoys under Sec.26a is granted in respect of occupancy holding. Definition of "holding" has remained unchanged in Sec.3 (9) of the Act and an under raiyat with his occupancy status cannot without having the same interest in holding as that of a raiyat exercise the power to transfer the occupancy holding. Sec.48-D does not introduce any right akin to the right under Sec.26-A given to a raiyat in favour of an under raiyat. It only says that an under-raiyat who has acquired right. f occupancy in aay land under Sec.48-A shall be subject to the same provisions with respect to the right in trees and bamboos and to the succession to and eviction of from such land as an occupancy raiyat. Under raiyat is thus made equal to a raiyat with respect to the rights in trees and bamboos and of succession to and eviction from such land in respect of which he has acquired a right of occupancy. Sec.48-A in particular speaks of the limits of produce rent recoverable from under-raiyat. To make an under raiyat paying produce rent equal to an under-raiyat paying money rent and the rights which such under raiyat may exercise in respect of succession to and eviction from such land, a special provision has been made in Sec.48-D of the Act. Sec.48-A in particular speaks of the limits of produce rent recoverable from under-raiyat. To make an under raiyat paying produce rent equal to an under-raiyat paying money rent and the rights which such under raiyat may exercise in respect of succession to and eviction from such land, a special provision has been made in Sec.48-D of the Act. One quite a some what discordant note, however, is noticed in a judgment by Ahmad, J. , as he then was, of this Court in Munnilal Mandal and others V/s. Babuji Mandal 1963 BLJR 90, in which with reference to Sec.48-C of the Act if has been said-"then comes the question whether the right of occupancy acquired by the under-tenant under the aforesaid Sec.48-C of the Bihar tenancy Act is in the nature of a right of property or not. The submission made by Mr. Sinha is that it is so, and, therefore, it is open to be transferred by an under tenant to a third party though with a power of veto in favour of the landlord. In other words, the submission made by Mr. Sinha is that in such a case the sale, though open to be challenged by the landlord, is binding as against a third party. To support this contention Mr. Sinha has by way of analogy laid reliance on the Full Bench of this Court in Jugeshar Mishra V/s. Nath Koeri, II. R I Pat 317. This authority, in my opinion, in so far as it relates to the nature of occupancy right in favour of a raiyat is a settlor ; but the question is whether the same is the principle applicable to a case of an occupancy right as has been accorded to an under tenant under Sec.48-C of the Bihar Tenancy Act. I think there is no reason why on the same principle the right of occupancy as given to an under tenant should not be held as one of the nature of a right to property and, therefore, any sale made thereof is binding atleast against a third party, though with a right of veto in favour of the landlord. . . . . . . . . . . . . . . " Ahmad, J. has himself noticed that in Jugeshar Mishra case, the Full Bench cate-gorically has said- "it must be held that the Act does not give an under raiyat the right to transfer his interest even if he has an occupancy status. " he has said that this observation is a bare reiteration of the law on the subject. But according to him it does not go beyond that nor does it throw any light on what is in issue, namely, whether occupancy right to an under raiyat under Section 48-C of the Bihar Tenancy Act is not a right to a property. Having said so, ahmad, J. has said-"therefore, the law as laid down in Jugeshar Mishra V/s. Nath Koeri is not susceptible to an interpretation that it is not applicable to the case of occupancy right in an under-tenancy holding. Atleast in this view of the matter therefore, the title conveyed to the plaintiff under the deed of sale dated 18th August, 1949, is not open to be challenged by a third person like the defendant first party. " One can distinguish Munnilals case (supra) on facts by taking notes of the veto which the landlord has been allowed, and accepting that the raiyat is the landlord with respect to the under raiyat holding in possession of the under raiyat. having occupancy right decide the case in favour of the raiyat. The plaintiff respondents are raiyats who have questioned the validity of the transfer made by the under raiyat. This aspect of the case aside, however, in the scheme of things that have given to the raiyat a somewhat superior position even as occupancy tenant that given to the under raiyat, the right to transfer the land has been engrafted in section 26-A of the Act. 10 I have already taken notice of the scheme of the land the reasonings in Shri Kishuns case (supra) which go to support the conclusion that the under raiyat having occupancy right by dint of his continuous possession for more than twelve years can have rights to succession etc. but cannot have the right to transfer. A similar view has been taken by Ch. S. S. Sinha, J. in Bibi Jaloosan V/s. Bhulai Baitha, 1981 BBCJ 466 . but cannot have the right to transfer. A similar view has been taken by Ch. S. S. Sinha, J. in Bibi Jaloosan V/s. Bhulai Baitha, 1981 BBCJ 466 . He has said in no ambiguous words that the transfer by the under raiyat of his under raiyati interests conveys no title to the transferee. 11. In view of the discussion made by me above, I answer the question against the appellants and in favour of the plaintiff-respondents. Marun Kuer had no transferable interest in the lands that she inherited from her mother as sikmidar and she could convey no valid title in favour of the defendant appellants. She could similarly not by virtue of the deed of gift, even if it is assumed that she did execute that deed of gift in favour of her daughter Jewan Kuer, convey any title to the letter and as her successor-in-interest also Jewan Kuer could acquire no transferable interest. The courts below have rightly decreed the plaintiff respondents suit. There is no merit in this appeal. It is, accordingly, dismissed. There shall be, however, no order as to costs. Appeal dismissed.