Wort, J.We have in this case to deal with two appeals one in which the plaintiff who is the Maharajadhiraj of Darbhanga claims possession of 127 bighas odd of land which had been recorded in the record of rights as parti and jungle lands. In the other appeal the same plaintiff against other defendants sought possession of 62 bighas odd of the same lands. In the case dealing with the larger area, the learned Subordinate Judge of Purnea found against the plaintiff but gave a decree for rent as against the defendants. He came to a similar decision as regards the lesser area of land. In appeal however to the District Judge the judgment relating to the 62 bighas was reversed and the plaintiffs claim allowed. In both cases although the defendants were different the defence was the same that the lands had been settled with them in the year 1316-1317 and in both cases this story of settlement has been disbelieved by the learned Judge of the trial Court.

2. No argument is addressed to us on this question and the finding of the learned Judge in relation to the 127 bighas on this point is therefore upheld.

The question of adverse possession however with which the trial Court had dealt is argued before us and it is contended that the decision arrived at on this point is wrong both in law and in fact. Before dealing with this point, it is necessary to state the reasons which the learned Judge of the trial Court gives in coming to a decision in favour of the defendants in this matter. As I have stated, the defendants case was that there had been a settlement with them in the year 1316-1317 and the learned Subordinate Judge in his judgment points out that as the defendants failed to prove the settlement the proper course would have been to accept the case of the plaintiff that the defendants began to cultivate this land in 1329.

3. The reason he gives for not accepting the plaintiffs case is that there were circumstances in the case and in the evidence of the plaintiff which prevented a decision in favour of the plaintiff being arrived at. It would appear that the plaintiff in the trial Court produced his books for the years 1317 to 1319. The gap which the learned Judge mentions and which existed between the years 1319 and 1329 is described by the learned Judge as a long one and that the failure of the plaintiff to produce books for those years is a circumstance which led him to come to the conclusion that the defendants were in fact in possession for a long time prior to the year 1329.

4. Together with that alleged omission on the part of the plaintiff there was the absence of the patwari whom the defendants in their evidence mentioned. One of the patwaris of the plaintiff gave evidence, a man named Rajdhari Lal Das and he it was that produced the books for the years 1317 to 1319 and proved them. He mentions the fact that he did not go to see partilands of his own free will. He states that he was the patwari of Nawabganj, Pitambar, Bisaria and Birnagar.

5. As I have already stated, one of the witnesses for the defendants gives the names of a number of patwaris in the employment of the plaintiff. It is nowhere indicated whether these witnesses were available although as regards one of them Debi Das the witness to whom I have already referred on behalf of the plaintiff states that he was a very old man, that he was not able to walk, nor could he see. It is the absence of this patwari Debi Das which was the circumstance upon which the learned Judge relied in coming to the conclusion that the defendants had been in possession prior to 1329.

6. In order to appreciate the point which was argued and arises on this question of fact, it is necessary to mention an argument which was advanced by Mr. Jha and which was his main contention and that was that in this case Article 142. Lim. Act applied and not Article 144; and that being so, it was necessary for the plaintiff to shew not only his title but that he was in possession within twelve years of the suit. Had Article 142 applied in this case, it would have been necessary as Mr. Jha argues for the defendants to prove that they were actually in possession within 12 years of the suit. It seems to me that on this point it is quite clear that Article 142 does not apply but Article 144 does. In order to come to that conclusion, it is necessary to notice the contentions of the parties in this case.

7. It was admitted that the plaintiff had title to these lands; it was also admitted that up till the time that the defendants went into possession and cultivated them they were parti and jungle lands. It was also the case of the defendants that had they a title it was not of the proprietary interest but a limited tenancy interest only as against the admitted proprietor, the zamindar. It is unnecessary to mention authorities to show that where a defendant, who is in possession, as the defendants in this case were, is setting up a title to a tenancy right, he must either show it by contract or by the fact that he has been in possession for the necessary period and the onus is equally upon him to show the date upon which he came into possession and his title began. If that be the position, as undoubtedly in my judgment it is in this case, it was impossible for the learned Subordinate Judge in trying this suit to raise any presumption against the plaintiff by reason of the absence of any witnesses on the part of the plaintiff.

8. It may be assumed for the purpose of the argument that the patwari whose absence the learned Judge comments upon could have thrown some light upon the case. But once, as I have already stated, it is shown that the onus was on the defendants, the plaintiff was entitled to come to Court and take the risk of the defendants establishing a case by their evidence. Therefore the reasons which the learned Judge gave namely the absence of witnesses, in no way justified the conclusion at which he arrived. I have already referred to the other matter, the non production of the books and the learned Judge deals with it in this way.

9. He says that the plaintiff who seeks to prove that the defendants have been in possession since 1329, has also produced earlier papers showing that the defendants were not there.

The facts were, as I have already stated, that the learned Judge has found that there was nothing in the books between the years 1317 and 1319 to assist the defendants. He has also come to an equally clear finding that there was no settlement with the defendants in the years 1316-1317 but an admission by the plaintiff that the defendants were in possession in the year 1329. Equally the learned Judge was not justified in drawing any inference or raising any presumption from the absence of the books between the years 1319 and 1329 having regard to the fact that the onus was upon the defendants.

10. Furthermore as the Judicial Committee of the Privy Council has pointed out in more than one case no such presumption can arise by reason of the absence of books which in this case clearly could prove nothing having regard to the circumstances of the case, unless the defendants, who relied upon that presumption, called for them. Now eliminating, these matters, there remains one other reason why the learned Judge decided in favour of the defendants and that was that the plaintiffs own evidence stood in the way. When this matter is examined it will be seen that the only obstacle in the way of the plaintiffs success was the fact that the patwari who was called made no statement as regards the possession of the land between 1319 and 1329. Having regard to what was established in the case it was not incumbent on the plaintiff to prove what was happening between 1319 and 1329.

11. It seems to me that as the defendants have not succeeded in contending that they have established the settlement in 1316-1317, and having regard to the fact that the onus was on the defendants for the reasons which I have given, the decision of the learned Judge was wrong. Now as regards the case relating to the 62 bighas of land, the learned Judge in the appellate Court has given a decree in favour of the defendants. The only point in that case is as to whether Article 142, Lim. Act applies that is to say whether the onus was wrongly placed upon the defendants.

12. For the reasons which I have already given in the case relating to the 127 bighas it seems to me that the judgment of the learned Judge was right. The result therefore is that the judgment of the learned Subordinate Judge in Appeal No. 114 of 1929 will be set aside and there will be a decree for the plaintiff. The judgment in appeal No. 22 of 1933 will be affirmed and the appeal dismissed with costs to the plaintiff in both cases throughout.

Agarwala, J.

13. I agree.