1. These are two analogous appeals confined to old Dag no. 305 and new Dag No. 187 of an annual patta of village Nowgnon in the subdivision of Borpeta.
2. The land is claimed by two parties Maheswar Talukdar and Bhupendra Kalita alias Bhabendra Mohan Patbak and others, Revenue Appeal No. 18/51 being filed by Maheswar Talukdar and Revenue Appeal No. 19/51 by Bhabendra Mohan Pathak and others.
3. It is admitted by both parties that the annual patta with respect to the disputed plot originally stood in the name of one Rameswar Medhi and Maheswar Talukdar was a transferee from Rameswar. Dharmeswar Adhikari Mandal was the son of Rameswar Medhi and he claimed to have let out the land to Dandiram Pathak, father of Bhabendra Mohan Pathak and others and Dandiram obtained an annual patta on the basis of his alleged possession as a tenant of Dharmeswar by virtue of the Sub-Deputy Collector's ex parte order dated 28 5-1945. Maheswar Talukdar filed an appeal against the order of the Sub-Deputy Collector dated 28-5 1945 which ultimately went up to the Revenue Tribunal and Mr. S.P. Desai, the then Member of the Revenue Tribunal by his order of 28 8-1945 sent the case back on remand to the Sub-Deputy Collector for a proper enquiry and for issue of a patta on the basis of actual possession.
4. Evidence was adduced by both parties before the Sub-Deputy Collector after the case came hack on remand and Mr. S. Rajkumar, Sub-
Deputy Collector by his order dated 31-5-1047 found that neither party could eatablish legal possession in view of the fact that Maheswar was a transferee from Rameswar and Dandiram claimed to have had the land from Dharmeswar on lease. According to him an annual Patta-holder could neither lease out the land nor transfer it and as such he recognised nobody's possession as valid in the eye of law. The Additional Deputy Commissioner who heard the appeal from the order of the Sub-Deputy Collector dated 31-5-1947 held that both parties failed to establish possession in the eye of law as found by the Sub-Deputy Collector and as such he dismissed the appeal. The present appeal is filed against this order of the Additional Deputy Commissioner dated 24-11-1950. It is regrettable that an appeal which was filed sometime in 1947 before the Additional Deputy Commissioner should have been heard by the end of the year 1950; that means the appeal was held up for nearly two years and a half.
5. After hearing the learned Advocates appearing on both sides and after going through the record, I must hold that the appeal of Maheshwar Talukdar should be allowed and that filed on behalf of Bhabendra Mohan Pathak and others should be dismissed. There is no use sending the case back on remand for a proper finding by the appellate Court as to possession since I have gone through the judgment and have been led through the materials that are necessary for coming to a finding as to actual possession.
6. The law does not surely recognize a transfer by an annual Patta-holder as binding but where there has been a 'de facto' transfer and somebody has come into possession by virtue of such a transfer, the possession of the transferee is undoubtedly legal possession and that should be taken into account while the Sub-Deputy Collector has to come to a finding as to 'bona fide' possession as was required by the order of the Revenue Tribunal. The learned Sub-Deputy Collector finds that Rameswar Medhi, the original pattadar supports the sale in favour of Maheswar and he further deposed about the possession of Maheswar on the basis of that transfer. The learned Sub-Deputy Collector was clearly wrong in saying that Rameswar Medhi did not speak about the possession of Maheswar. Kabil Mandal was a witness on behalf of Dandiram father of Bhabendra and he also speaks that Maheswar was in possession of the land. Therefore there was evidence to hold that Mabeswar had actually possessed the land in dispute - if these two witnesses are believed. The learned Sub-Deputy Collector did not disbelieve these two witnesses. On the other hand the evidence of possession adduced on behalf of Dandiram is very weak as was found by the S.D.C. I put no credit on the story that Dandiram held the land on lease from Dharmeswar who had apparently no semblance of a right to do it, his father being the Patta-holder. The Sub-Deputy Collector instead of refusing to come to a finding should have held that materials on record would justify holding that Maheswar was in rightful possession of the land though the Patta was in the meantime issued in favour of Dandiram through certain irregularity. The learned Additional Deputy Commissioner made no attempt to go into the evidence or even to understand the judgment of the Sub-Deputy Collector in its proper perspective.
7. I am satisfied after going through the materials on record that Maheswar was in posjsession of the land and accordingly the Patta should be issued in his name and the Patta issued in favour of Dandiram should be canceled.
8. The result is that R. A. No. 18/51 is allowed and R. A. No. 19/51 is dismissed. One judgment to cover both those appeals. Parties to bear their own costs.