Judgment S.N.Pathak, J. 1. This appeal is directed against the judgment dated 22nd August 1987 passed by the Sub-Ordinate Judge-Ill, Aurangabad, in Title Appeal No. 31/81/100/83, reversing the judgment dated 31.3.1981 passed by the Munsif, Aurangabad, in Title Suit No. 191 of 1971. The plaintiffs of that suit are the appellants here. 2. The plaintiffs had filed the aforesaid suit claiming, inter alia, that plot no. 416 of village Amba had a total area of 23 decimals and in the cadestral survey, it was recorded as Gair-Mazarua Malik Parti Kadim. Sri Sao and Raghunandan Sao, both obtained settlement from the Ex-landlord over the entire area of this plot by registered settlement deed dated 21st December 1951 and 16th May 1952. Subsequently Sri Sao and Raghunandan Sao separated their share over this land and both got 11 1/2 decimals each. Sri Sao constructed his house over his share and left some open land on the western side and he also left some open land on the south of his allotted share, both these open lands, measuring 3 decimals each. Raghunandan Sao also constructed his own house on his allotted share and left some vacant land on the west of his building. The western portion of plot no. 416 which is half of total area of plot no. 416 is vacant and it is in the form of a khand where there was a Pucca well constructed by the plaintiffs. The house of defendant nos. 1 to 5 was close to the north of the disputed land and to usurp the disputed land, they started raising certain walls of their house and opened a drain. In spite of protest by the plaintiff, defendant nos. 1 to 3 encroached upon the northern side of the vacant land, lying west of plaintiffs northern building and some portion of lands of Raghu Nandan Sao. Defendant nos. 4 and 5 also encroached upon western side of the southern building of the plaintiffs and opened a drain. The State of Bihar granted Parwana in favour of defendants over six decimals of suit plots, which was without jurisdiction. So the plaintiffs sought removal of this encroachment and the declaration that the defendants had acquired no title by virtue of aforesaid settlement by the State of Bihar in their favour. Permanent injunction was also sought, restraining the defendants from interfering with the peaceful possession of the plaintiffs. 3. So the plaintiffs sought removal of this encroachment and the declaration that the defendants had acquired no title by virtue of aforesaid settlement by the State of Bihar in their favour. Permanent injunction was also sought, restraining the defendants from interfering with the peaceful possession of the plaintiffs. 3. Out of the total number of defendants, only defendant no. 2 filed his W.S. and contested the suit of the plaintiff-appellants. The case of the defendants was that the settlement deeds in favour of plaintiff were forged and bogus and they had acquired no title over the suit plot. After vesting of the estate, the plot in question vested in the State of Bihar and the defendant was rightly granted Parwana by the State of Bihar who was in possession of his settled land and was paying rent to the State of Bihar. The plaintiff had no cause of action and the suit was, therefore, fit to be rejected. 4. The trial court, on the basis of settlement deeds of the plaintiff (Exts-1, 1/a and 1/b), held that plot no. 416 was settled to Raghunandan Sao and Sri Sao. The Court below considered the documents, such as rent receipts (Ext-2 Series) granted by the Ex-landlord, (sic) of village Amba (Ext-4), Zamindari Return (Ext-5), orders regarding mutation (Ext-7, 7/1 & 7/b), and held that the plaintiff haq acquired title over the suit land and he was also assessed to rent by the State of Bihar. The trial court considered Parwana (Bxt-B), granted by the State of Bihar in favour of Gaya Sao, defendant no. 2 and held it to be invalid; because it contained no seal of the authority who granted this Parwana and also because it contained no boundary of the settled land. The trial court further held that the defendant no. 2, Gaya Sao, as D.W. 5 had admitted that he had market named as Gaya Market in Amba Market area. Gaya Sao was owning six shops in the market. So he was not a privileged tenant who could be entitled to settlement of Govt. land as a privileged tenant. There was also no case in his W.S. that he was a privileged tenant. On the basis of Survey knowing Commissioners report, the trial court further held that Gaya Sao had encroached on a portion of the suit land. Thus, the trial court decreed the suit. land as a privileged tenant. There was also no case in his W.S. that he was a privileged tenant. On the basis of Survey knowing Commissioners report, the trial court further held that Gaya Sao had encroached on a portion of the suit land. Thus, the trial court decreed the suit. The appellate court held that the settlement deeds (Ext-1 and 1/a) referred to settlement by persons other than those mentioned as Ex-landlord in the survey Khatiyan (Ext-6). The plaintiff had failed to prove and connect the relationship of his settlers with the recorded Zamindar for his lands. Moreover, the appellate court held that the lands mentioned in Schedule- I and 1/a referred to sale of land of plot no. 416 measuring 10 dhurs and 1 katha 15 dhurs 15 dhurkies respectively. So the plaintiff-appellants failed to prove that they had acquired title on the basis of their settlement deeds. The appellate court further held that the State of Bihar was fully within its jurisdiction to issue a Parwana to defendant Gaya Sao, Gairmazarua Malik land having vested in the State of Bihar. The appellate court further considered the evidence and report of the Pleader Commissioner and gave adverse findings against the plaintiffs case of encroachment. Giving the aforesaid findings, the appellate court set aside the judgment of the trial court which caused filling of the present second appeal by the plaintiff. 5. So far the findings of the appellate court, regarding the settlement deed (Ext. 1 and 1/a) are concerned, I find that the appellate court misread the contents of these documents which were settlement Pattas executed by the so called Landlord. These Pattas contained an area of 7 Katha, 7 dhurs, of plot no. 416 where the description of the property vended alongwith boundary has been made. So the appellate court wrongly stated that in one deed, area sold was 10 dhurs and in the other deed, the area sold was 1 katha 15 dhurs and 15 dhurkies. So far the Zamindars who were executing these Pattas (Ext-1 and 1/a), the appellate court held that the plaintiff-appellant had failed to establish their relationship with the landlords who were recorded in the revisional Survey Record of Rights (Ext-6). In this connection, I find that the recorded Zamindar was Roy Pramodho Nath, Mitter and one Mostt. and Dipnath and others were the tenor holders. In this connection, I find that the recorded Zamindar was Roy Pramodho Nath, Mitter and one Mostt. and Dipnath and others were the tenor holders. The Survey record of rights was finally published in the year 1920 and so it was difficult for the plaintiff- appellants to trace the relationship of their settler with the recorded Zamindar. In all circumstances, it was not denied by the defendants that plaintiff Raghunath Sah and Sri Sao were not holding any land and not having their houses on the suit plot no. 416. Other documents which I shall discuss hereinbelow will also show that the two co-plaintiffs were having their houses on the suit plot. In such circumstances veracity of Ext-1 and Ext-1/a could not be brushed aside in a sweeping manner, as the appellate court has done. 6. The next opinion of the appellate court regarding the Parwana of defendant no. 2 (respondent) was that the State Government was fully within its jurisdiction to grant Parwana to Gaya Sao, the land having vested in it. In this connection, it is to be noted that once a Gairmazarua Malik land is under settlement of any person before the vesting of the same, the State Government could not be supposed to come in possession of the aforesaid land in order to settle it to anybody. The contents of Ext-1 and 1/a would show that plot no. 416 was settled to Sri Sao and Raghunath Sao before its vesting. Return was also filed (Ext-5) showing the existence of Raghunath and others on the suit land. In such a circumstance, the State Government was not authorised to issue any Parwana in respect of the suit land. The appellate court has failed to meet the reasoning advanced by the trial court regarding the invalidity of Parwana (Ext-B). In this connection, the first question that attracts notice is whether Gaya Sao was a privileged tenant under the Bihar Privileged Persons Homestead Tenancy Act. Privileged Person has been defined in Section 2(i) of the aforesaid Act. It has been mentioned therein that a person who holds no other land, except the homestead (which is to be settled), having an area of more than one acre. Privileged Person has been defined in Section 2(i) of the aforesaid Act. It has been mentioned therein that a person who holds no other land, except the homestead (which is to be settled), having an area of more than one acre. Privileged tenant has been defined in Section 2(j) and it means and refers to a person who holds homestead under another person, and, but for a special contact (siccontract ?) he would be liable to pay rent for such homestead to such person. The trial court held that as admitted by defendant no. 2, Gaya Sao himself, he was having six shops in Amba Market. Admittedly, Gaya Sao was having his old house over another plot contiguous or near about the suit plot which had, perhaps, fallen down which he was reconstructing during the course of which he was alleged to have encroached upon the suit plot. In all circumstances, therefore, Gaya Sao was not a privileged person and, therefore, not entitled to receive Parwana from the State of Bihar. So Ext-B was a document which could not confer any authority on Gaya Sao to occupy the alleged 6 decimals of land on the bais of his Parwana. The plaintiff-appellant had filed mutation order in his favour (Ext-7, 7/a and 7/b) which indicated that in 1972, there was report by the Karmchari and recommendation of the Circle Officer on the basis of which the D.C.L.R. mutated the name of Sri Sao over the disputed land which was portion of plot no. 416. In Ext-7/b, there was reference to the Parwana of Gaya Sao (Ext-B) and regarding its doubtful character. If Gaya Sao was, of course, settled with the suit land of 6 dhurs of plot no. 416, it was imperative on his part to file revision or appeal againist the mutation order passed by the D.C.L.R. (Ext-7/b). Of Course, this mutation order was passed during the pendency of the suit, nevertheless, it would have some validity and it would convey a circumstance that Sri Sao was in possession of the suit land and Gaya Sao had no authority to hold this 6 decimals of land of this plot. 7. The appellate court also considered the report of the Pleader Commissioner and on that basis, it held that there were certain patches of the land over plot no. 7. The appellate court also considered the report of the Pleader Commissioner and on that basis, it held that there were certain patches of the land over plot no. 416 which indicated that it was used as public thoroughfare and the well over it was old. Therefore, the appellate court held that the well was not constructed by the plaintiff. But the appellate court ighored the report of the Pleader Commissioner that this well was used for throwing garbage and its water had become unfit for human consumption. The appellate court also ignored the report of the Pleader Commissioner where there is reference to the encroachment by the defendant respondent Gaya Sao. The appellant was claiming the only 11 1/2 decimals of plot no. 416 and over the same, he was alleging encroachments of 6 decimals by Gaya Sao. The appellate court had to examine this aspect of the case and it should not have been misled in its direction in rendering his findings on the other aspects of the Pleader Commissioners report where it was mentioned that some portion of plot no. 416 was being used by general public for passage and for other purposes like draining the refuse water etc. The appellate court had to confine itself to the aspect whether Gaya Sao had encroached upon the portion of the land claimed by the plaintiff. When Gaya Sao was claiming that he was on this land on the basis of Parwana and his Parwana having been found to be of doubtful character and the suit having been filed within a period of 12 years after the issuance of Parwana, the appellate court had to hold that Gaya Sao had no authority to continue in possession of this land. In such a circumstance, I think the appellate court misdirected itself in its disagreement with the trial courts findings. 8. At this stage, it was pointed out by the respondents lawyer that the Collector had power to examine the genuineness of the settlement etc. under Section 4(h) of the Land Reforms Act and annul the same. The question is whether the Collector had exercised his jurisdiction u/s 4(h) of the Land Reforms Act and whether the settlement of the appellants was cancelled. There was neither any pleading in this connection by the respondents nor there was any evidence to this effect. under Section 4(h) of the Land Reforms Act and annul the same. The question is whether the Collector had exercised his jurisdiction u/s 4(h) of the Land Reforms Act and whether the settlement of the appellants was cancelled. There was neither any pleading in this connection by the respondents nor there was any evidence to this effect. The order passed by the D.C.L.R. (Ext-7/b), rather indicated that the plaintiff-appellant was assessed to rent and so it would further imply that the settlement in favour of appellants was not cancelled by the Collector under the authority conferred on him u/s 4(h) of the Land Reforms Act. The next objection to the maintainability of the suit raised by the defendant-respondents was that the suit land, as described in the Schedule of the plaint was vague. In this connection, it was pointed out by the appellants lawyer that when the whole area of the plot is mentioned in the suit land, there is no necessity to describe it in any further detail. I find that the suit plot has been described in the footnote of the plaint as Khata No. 65, plot no. 416, area 11 1/2 dec. That means, part of plot no. 416 was described as the suit land over which encroachment by the original defendant Gaya Sao was alleged and the removal of which was sought. There is a sketch map appended to the suit land and this is part of the plaint. So I find that there was no misdescription of the suit land. 9. A further pertinent question was raised by the appellants to the effect that Sri Sao died during the pendency of the appeal in the court below and a petition was filed by the appellants before this Court that the appeal in the lower court had abated but no order was passed on this petition. However, in this connection, it was pointed out by the respondents lawyer that heirs of Sri Sao were substituted vide order dated 19th September 1986. So even if there was any abatement that was impliedly set aside and the heirs of Sri Sao were brought on the record. However, in this connection, it was pointed out by the respondents lawyer that heirs of Sri Sao were substituted vide order dated 19th September 1986. So even if there was any abatement that was impliedly set aside and the heirs of Sri Sao were brought on the record. In this connection, I find that the appellants before this Court who were the respondents in the first appeal had filed that petition regarding abatement, much after the order of substitution and when the case was already fixed for argument and partial arguments were heard. The respondents before this Court and the appellants in the first appellate court had filed rejoinder to the petition of the appellants, but no order was passed, because, perhaps, they failed to press their application. So I am of the opinion that the question of abatement of the first appeal now is a closed chapter. 10. As a result of the aforesaid discussion on the entire gamut of circumstances on the record, this appeal is allowed. The judgment of the first appellate court is set aside and the judgment of the trial court is maintained.