1. These cases were remanded to the Court below for distinctfinding upon the following points with respect to the lands of Schedules ka andkharist, "whether any of the namas in Mouzah Baliari mentioned in thechalan of 1275 (Exhibit P 26) OR any of the jamas in Mouzah Bankipore mentionedin the chalan of 1276 (Exhibit P 27) can be identified with the jamas mentionedin the khatian or other papers prior to the Permanent Settlement. Whether theland of such jama can be traced and identified, Second, whether the rent orrate of rent of any such jama has remained unchanged from the time of thePermanent Settlement. Third, whether, upon the facts proved and thecircumstances of the case, any presumption arises with respect to any such jamathat the rent or rate of rent has remained unchanged from the PermanentSettlement, and, if so, whether such presumption has been rebutted.

2. The learned Subordinate Judge has carefully consideredthe jamas mentioned in the chalans, Exhibits P--26 and P--27, one by one, andhas come to the following conclusion: "The facts above discussed show thatthe small jamas of the chalans, Exhibit P--26 and P--27, cannot be identifiedwith the lands and jamas described in Exhibits VI and V--2, the khatians of1190 or any other papers existing before the Permanent Settlement. In the caseof a few of the jamas, the areas of lands held by the tenants in 1275 did agreewith the areas held by them respectively in 1190, i.e., before the PermanentSettlement. But that fast alone is not enough to enable us to trace thedisputed lands of Schedules ka and kha and identify them with the lands of thejamas existing before the Permanent Settlement. The defendants did not relyupon any other documents to prove their contention. The result is, the firstquestion raised in respect of the lands of ka and kha Schedule should beanswered in the negative."

3. With regard to the second point, the learned SubordinateJudge has found that in not a single case the defendants succeeded insatisfactorily showing that the rent or rate of rent remained unchanged fromthe time of the Permanent Settlement. He has also found that no presumptionarises with respect to any; jama that the rent or rate of rent has remainedunchanged from the time of the Permanent Settlement, and that, in the case ofsome of the jamas mentioned in Exhibit P--27, the presumption, if any has beenrebutted by the plaintiffs.

4. The learned Pleader for the appellants has not attemptedto show that the findings are wrong.

5. He admitted that the evidence adduced by the defendantsis not sufficiently satisfactory to identify the small jamas with theconsolidated jamas mentioned in Exhibits P--26 and P--27, or that the rentshave all along been uniform from the time of the Permanent Settlement, or thatthere is uniform payment of rent BO as to raise any presumption under Section50 of the Bengal Tenancy Act, We accept the findings arrived at by the Courtbelow, as well as the reasons upon which they are based, and which are given indetail in its judgment,

6. The learned Pleader for the appellants, however, hasraised two points in connection with the lands of Schedules ka and kha. Thefirst is, that Ramjan and his predecessors having been in possession for such alength of time such possession constituted an incumbrance, and that thepossession of the defendant himself, since his purchase, for over 12 years as atrespasser was an incumbrance which it was necessary for the plaintiffs toannul under the provisions of Section 167 of the Bengal Tenancy Act.

7. With regard to the possession of Ramjan, we do not seehow such possession can be held to be an incumbrance, Ramjan held possession asa tenant, and, however long such possession might have been held, it could nothave been adverse. The only question was, whether the tenancies were permanentor not, and no question of adverse possession could arise with regard to the landsof Schedules ka and kha, so long as they were in the possession of Ramjan andhis heirs and before the sale to the defendants.

8. With regard to the possession of the defendant himselfsince his purchase, the question was dealt with in our remand order, indeciding the 7th issue. It was pointed out that, although the defendantsobtained possession of the lands in July 1899 (his purchase was on the 9thMarch 1900), and the suit was brought on the August 1911, i., e., after merethan 12 years, the plaintiffs purchased the patni at the rent sale on the 15thAugust 1906 which was within 12 years of the suit, and that the adversepossession (if any) of the defendant was arrested by the sale of the patni onthe 15th August 1900 which was only 7 years from the time when defendantobtained possession, and his title had not been perfected before the patni wasfold. We accordingly held that the suit was not barred by limitation and, forthe same reason, we hold that the possession of the defendant himself did notconstitute an incumbrance,

9. The next point taken is, that the defendant wasrecognised as tenant by the dar patnidars. Mr. Sirkar for the plaintiffsobjects to this question being gone into, as it was not raised before remand,the only recognition pleaded being that alleged to have been made by theplaintiffs after their purchase. So far as the marfatdari rent receipts grantedto the defendants by the dar--patnidars are concerned, they were dealt with byus in our remand order, and we held as follows: "The effect of the use ofthe word mafatdar may vary according to the circumstances of each case on aconsideration of all the facts of the case, but having regard to the fast thatrent receipts were asked for in the name of the purchaser, and the landlordexpressly refused to grant receipts in his name and gave receipts in the nameof the eld tenant (the purchaser being described merely as mafatdar ) negativesany idea of recognition of the purchaser as the tenant." That disposes ofthe contention .

10. We now come to the lands of Schedule ga and gha, Withrespect to these lands, the Court below was asked to come to findings upon thequestions, first, whether the defendant and his predecessors--in title had beenin possession for 12 years of the lands in Schedules ga and gha prior to thedate of the sale at which the plaintiffs purchased the patni, and was suchpossession adverse Second, whether such possession, if any, commenced frombefore or after the creation (a) of the patni, (b) of the dar-patni and (c) ofthe ijara p The Court below has recorded its findings with respect to the plotsseparately.

11. Two main questions have to be considered in connectionwith these lands. The first is, whether Zemindar was out of possession of thelands from before the creation of the patni, and was the possession of thedefendant adverse; and the second is whether the adverse possession of thedefendant, even if it commenced after the creation of the patni, constituted anincumbrance which the plaintiffs were bound to annul under the provisions ofSection 167 of the Bengal Tenancy Act before they can succeed.

12. Before dealing with these questions it should bementioned that there is no doubt that there were lakherai, debutter andbrahmottar lands in the village at the time of the Permanent Settlement. Thechittas of 1190, Exhibit V, printed at pages 397 to 422 (Book No. II), dealwith debutter and brahmottar lands. Some of these lands were purchased by theNaskara. For instance, the chitta of 1190 (Book No. II, page 417) mentions 5bighas 13 cottas of brahmottar land in the name of (worm eaten) Ram Sidhanta andKirparam Sidhanta, and the kobala dated the 16th Ashar 1209(Btfok No. II, page295) shows that 5 bighas 13 cottas of brahmottar lands were sold by KriparamSarma to Habib Naskar. The chitta (Book No. II, page 415) mentions 1 bigha 19cottas as brahmottar and the kobala Exhibit O 57 dated the 22nd Kartik 1283(Book No. II, page 314) recites that 18 cottis 41/2 chatahs out of one plot ofbrahmottar land in the name of Ram Ram Bapuli 1 bigha 19 cottas were purchasedby one Dosh Mahmud Molla, and which, together with some other land, were soldby Tomijudin Nackar to Ramjan Naskar. The chitta mentions several plots ofbrahmottir lands (without sanad) in the name of Jagannath Tarkapanchanon ofTribeni, one of them being 1 bighi 8 cottas (Book No. II page 411) and thekobala dated the 19th Magh 1207 (Book No. II, page 311) shows that Jagannath,in exchange for 1 bigha 2 cottas first class lands given to him by SamsuddinNackar, gave the latter I bigha 8 cottas of second class brahmottar lands. Thechitta mentions 4 bighas 19 cottas of lands belonging to Bishalakshmi Thakuranishebait Basudeb (Book No. II, page 407), and the kobala Exhibit 05) dated the15th Falgoon 119 (Book No. II, page 312) shows that Basudeb sold 4 bighas 19cottas of land which he possessed as the shebait of the Goddess BisalakshmiThakurani. The cutta (Book No. II, page 406) mentions 2 bighas 8 cottas asdebutter of Sri Iswar Daskhin Ray Thakur in the name of Radha Charan Sarkar,and the kobala Exhibit O--40 dated the 21st Magh 1183 (Book No. II, page 297)shows that Radha Charan Sarkar sold 2 bighas 5 cottas out of the lands ofdebutter lands to Keamuddi Nackar. These documents go to show that, primafacie, all the lands of the village were not mil not in the possession of theZemindar.

13. With regard to the first question, it is contended onbehalf of the plaintiffs that the defendants never set up any case of adversepossession from before the creation of the patni. It appears, however, from thewritten statement that the defence was two fold. In the first place, theypleaded that the lands did not appertain to Taluk No. 156 owned by theplaintiffs. So far as that plea was concerned, the Commissioner found onenquiry that, with the exception of some plots, the rest appertained to theZamindari, and we have already dealt with the matter in our order of remand. Inthe next place, however, they pleaded (see paragraph 10 of the writtenstatement) that if the lands were held to be vial, Ramjan Nackar and his heirshaving enjoyed and possessed all those properties for long upwards of 12 yearsadversely to the plaintiffs, they (Ramjan Nackar and his heirs) had acquiredgood title thereto adorning from adverse possession, and that the defendant hadacquired a good title on the basis of purchase from them. In the 11th paragraphthe question of limitation was raised. It is true that the defendant did notexpressly state that the adverse possession commenced from before 12fcl (thecreation of the patni), but the thoka of 1280 shows that at any rate some ofthe lands were held by Ramjan in that year which was before the creation of thepatni. Besides, there is a general statement in the 10th paragraph of thewritten statement that the plaintiffs never had any right to or concern orpossession of the lands of Schedules ga and gha. The Zemindar and the formerpatnidar and dar patnidar are also meant to be included in the wordplaintiffs," as Ramjan died before the "plaintiffs" purchased atthe rent--sale.

14. It is to be observed that the question of limitation wasraised in the fourth issue in a qualified way. But the question of limitationwas gone into by the Court below, and in fact that Court dismissed the claimwith respect to the lands of Schedules ga and gha in the ground of limitationbefore remand.

15. The fifth issue, as amended, raised the question."Are the lands of Schedule ga and gha the mal lands of theplaintiffs" And the sixth issue was have the defendants any right to thelands described in Schedules ga and gha of the plaint by advene possessionagainst the plaintiffs" We thick that, in these circumstances thequestion of possession before the creation of the patni was raised though notexpressly. Evidence was adduced on both sides on the point; and our remandorder directed an express finding on the question of adverse possession.

16. That being so, the question arises whether it is for theplaintiffs to show that the lands of Schedules ga and gha of which they seek torecover possession, as part of the pitni purchased by them, from the defendantsas trespassers, were in the possession of the Zemindar when the patni wascreated in 1281; or whether it "lay upon the defendant to show that theirpossession commenced from before the creation of the patni. Upon this questionwe may refer to the case of Kalikananda Mukherjee v. Bipro Das Pal Choudhurji26 Ind. Cas. 436 [LQ/CalHC/1914/45] : 19 C.W.N. 18 : 21 C.L.J. 265, where the plaintiff, apurchaser of a patni taluk at a sale held in execution of a rent--decree underthe Bengal Tenancy Act, brought suits against the defendants within 12 yearsfrom the date of his purchase for declaration of his title to the lands held bythem within the patni taluk, and for recovery of possession thereof. It washeld in that case that the plaintiff, before he could succeed, must prove thatthe proprietor was in possession when the patni was created, and that where theproprietor is cut of possession he cannot, merely by the devise of the creationof a subordinate taluk, arrest the effect of the adverse possession which hadalready commenced to run against him and such possession would be effective notonly as against the subordinate tenure holder, hut also as against the superiorproprietor. That case is bought to be distinction on the proud that there itwas found that the Zemindar was out of possession when he created the patni.

17. It is true that in that case the learned Judgesobserved: The District Judge be not found that in the cases before us theadverse possession of the defendants and their predecessors commenced after thecreation of the point. On the other hand, there is ample evidence that theadverse possession of the defendants and their predecessors commenced beforethe creation of the patni. There are traces on the record to show that therehad been adverse assertions of hostile title before the patin title itself wascreated". But the decision was not based on that ground. It appears fromthe report of the case See Kalikananda Mukherjee v. Bipro Das Pal Choudhri 26Ind. Cas. 436 : 19 C.W.N. 18 : 21 C.L.J. 265, that, after Counsel for thedefendant appellant read the judgment, the Court sailed upon the Vakil for therespondent (the plaintiff) to argue why the suits would not be barred if theplaintiff respondent could not prove that the Zamindar was in possession of thedisputed lands before 1807. The learned Judges observed: "On behalf of theplaintiff--respondent, however, it has been suggested that there is someevidence of ancient possession of the disputed land by the proprietor of theestate. But before we deal with the evidence, to which allusion has been madein the course of argument, it may be pointed out that the plaintiff, before hecan succeed, must prove that the proprietor was in possession when the patniwas created. In order to establish that the proprietor was in possession atthat time it has been argued that; we should presume that possession followstitle. In our opinion that doctrine has no application to case of thisdescription. No doubt, it was pointed out by their Lordships of the JudicialCommittee in the case of Runjeet Ram Panday v. Gouardhun Ram Panday 20 W.R. 25(P.C.), that in the decision of the question of imitation if there isconflicting evidence on both sides, the Court may presume that possession waswith the party whose title has been established. But it does cot follow that,when the plaintiff has to establish possession at a particular point of time,he is entitled to call upon the Court to pressure that, because his tide hasbeen established possession must be presumed to have been with the holder ofthe title at that specific period of time", and then referred to certaincases on the point. Had the decision proceeded upon the ground that there wasample evidence of defendants adverse possession before the creation of thepatni, it would have been unnecessary to consider the question whether theplaintiff was bound to show that, take Zemindar was in possession before thecreation of the patni.

18. Reliance was placed on behalf of the plaintiff upon thedecision of the Judicial Committee in the case of secretary of State for Indiav. Chelikani Rama Rao 35 Ind. Cas. 902 : 20 C.W.N. 1311 : 31 M.L.J. 324 :(1916) : 2 M.W.N. 224 : 39 M. 617 : 14 A.L.J. 1114 : 20 M.L.T. 435 : 4 L.W. 486: 18 Bom. L.R. 1007 : 25 C.L.J. 69 : 43 I.A. 192 (P.C.). In that case theirLordships observed that nothing is better settled than that the onus ofestablishing property by reason of possession for a certain requisite periodlies upon the person asserting such possession; and it would be contrary to alllegal principles to permit a squatter to put the owner to a negative proof thatthe possession of the squatter was not long enough to fulfill all legalconditions. There is no doubt that that is so. But the person who set upthe--right by adverse possession in that case was the plaintiff. TheirLordships observed:

The position of the objectors to afforestation in this casewas in law the same as that of persons bringing a suit in an ordinary Court ofJustice for a declaration of right by adverse possession, with this differenceonly that the period of twelve years provided by Article 144 is extended byArticle 149 to sixty years.

19. We do not think that the decision of the JudicialCommittee lays down any principle contrary to that laid down in the case ofKalikananda Mukherjee v. Bipro Das Pal Choudhri 26 Ind. Cas. 436 [LQ/CalHC/1914/45] : 19 C.W.N. 18: 21 C.L.J. 265, referred to above. The latter case, we understand, had beenappealed to Privy Council, but so long as the decision is not set aside, weshould follow it. The lands were not waste or jungly lands The Court belowfound that the lands were cultivated and homestead lands, tanks and otherthings, aid were capable of possession in the ordinary modes, The defendantsand their predecessors in--title have been in possession of the lands frombefore the plaintiffs, purchase of the point and the plaintiffs are suing toeject them from the lands as trespassers. Had the Zemindar brought the suit forpossession and had the defendant pleaded that the Zemindar was out of possessionhe could not have succeeded without adducing some evidence that he was inpossession. The plaintiffs cannot be in a better position than the Zemindarmerely because they are purchasers at a sale for arrears of rent. We think,therefore, that it was for the plaintiffs to show that the Zemindar was inpossession of these lands before the creation of the patni, and that thepossession of the defendants commenced after the pitni game into existence, orthat such possession was not adverse. There is no evidence of possession beforethe creation of the patni. One of the plaintiffs was examined in the care, andhe admitted that there is no collection paper showing realization of rent inrespect of these lands. It is true that the Nackars held many mal lands (the landsof Schedules ka and kha) as tenants under the Zemindar, but that fact alone isnot sufficient to shift the onus of proof upon the defendants unless it appearsthat any particular plot of land of Schedules ga and gha is intermingled withor surrounded by mal lands, and we have been referred to only two such cases.The question, moreover, is not whether the lands are lakhera, but whether theZemindar was in possession before the creation of the patni. It is found,however, by the learned Subordinate Judge that many of the plots were mentionedin a Road Cess Return (Exhibit U) filed by Ramjan Nackar on the 22nd July 182.That Return was filed in respect of lands held by Ramjan under the Zemindar.The lands entered in the Return prima facie were not held by Ramjan in a rightadverse to the Zemindar, and, unless the defendant can satisfactorily establishthat the inclusion of the land was erroneously made, we must hold that thelands entered in the Return were not held adversely to the Zemindar.

20. The next question is, whether the adverse possession ofthe defendants in respect of any of the lands subsequent to the creation of thepatni constituted an incumbrance which it was necessary for the plaintiffs toannul under the provisions of Section 167 of the Bengal Tenancy Act.

21. It is found that there is no evidence of adversepossession before the thoka of 1295. The sale at which the plaintiffs purchasedwar, no doubt, more than twelve years after 1295. But the dar-patni was grantedin 1302, i.e, 7 years after the defendants adverse possession commenced. Theinterest of an adverse possessor is an incumbrance only when the adversepossession has continued for the statutory period See Gokul Bagdi v. DebendraNath 11 Ind. Cas. 453 [LQ/CalHC/1911/290] : 14 C.L.J. 136, and Satish Chandra v. Munjamali Debt 15Ind. Cas. 869 : 17 C.W.N. 340,. Adverse possession in the present case havingcommenced from 1295, had not ripened into an incumbrance when the dar-patni wascreated in 1302, The defendants, no doubt, continued in possession even afterthe grant of the dar-patni and the statutory period was completed while themahal was in the hands of the dar-patnidar . The plaintiffs have annulled thedar-patni according to the provisions of Section 167 of the Bengal Tenancy Act,and the incumbrance of the defendants (by virtue of adverse possession) wasupon the dar-patni and not upon the patni. It is accordingly contended onbehalf of the plaintiffs that they were not bound to annul any incumbrance onthe dar patni under the provisions of section 167 of the Bengal Tenancy Act. Onthe other hand, it is contended on behalf of the defendants that it isnecessary to annul all incumbrances whether created by the patnidar or by anyother subordinate tenure holder by service of notice under Section 167, and wewere referred to the case of Mafizuddin Sardar v. Ashutosh Chukerburtty 5 Ind.Cas. 189 : 14 C.W.N. 352 : 11 C.L.J. 140. Now, under Section 161 of the BengalTenancy Act the term incumbrance, used with reference to a tenancy, means anylied, sub-tenancy, casement or other right or interest created by the tenant onhis tenure or holding or in limitation of his own interest therein, and notbeing a protected interest as defined in the last foregoing section.

22. The incumbrance, therefore, must be some interestcreated (or suffered to be acquired, as in the case of adverse possession) bythe tenant on his tenure or in limitation of his own interest therein, and wedo not think that the words refer to the creation of an interest by atenure-holder of any inferior grade. In the case of Mafizuddin Sardar v.Ashutosh Chukerbutty 5 Ind. Cas. 189 [LQ/CalHC/1910/17] : 14 C.W.N. 352 : 11 C.L.J. 140, referredto above, the purchaser of a tenure at a rent-sale annulled a subordinateinterest leaving untouched a superior interest immediately subordinate to theinterest purchased by him. Obviously, he could not do so, and it was observedthat, where there is a succession of subordinate tenures, the purchaser, if hechooses to exercise his power to annul any incumbrance at all, must begin withthe highest subordinate tenure and may proceed downwards as far as he chooser,but be cannot Eelect arbitrarily any link in the chain and destroy it while heallows those above it to remain unaffected. The latter proposition cannot bedisputed and with regard to the observation that the "purchaser, if hechooses to exercise his power to annul any incumbrance at all, must begin withthe highest subordinate interest and may proceed downwards as far as hechooses," it is to be noted that the learned Judges do not say thatnotices under Section 157 of the Bengal Tenancy Acts have to be served upon allthese subordinate tenure--holders, The purchaser must annul the incumbrancecreated by the tenant, i.e., the highest subordinate interest, by service ofnotice under Section 167 of the Bengal Tenancy Act and, he may, if he chooses,avoid any tenure of inferior grade by a suit if necessary, or he may affirmsuch tenure. The case does not lay down that the purchaser must serve noticesunder Section 167 upon all grades of subordinate interests. There may be achain of subordinate interests under a patni, such as dar-putni, se-patni,mokurari, dar-mukarari, to mokurari and there may be incumbrances (adversepossession for the statutory period) on each of these various grades ofsubordinate tenures, and we do not think that the purchaser of the patni at arent--sale is to find out all these interests and serve notice upon each ofthem under Section 167. The sub tenancy create 1 by the tenant (in this case thepatnidar) is the dar-patni; that is an incumbrance under Section 161 and thatonly has to be annulled under the provisions of Section 167. The notice underthat section upon the dar-patnidar is operative upon incumbrances created bythe dar-patnidar or the holders of interests subordinate to him, which arecarved out of the dar-patni. What is required to be annulled under Section 167is the sub tenancy created by the patnidar i.e, thadar patni as it was created,and which would include all the interests created or carved out of it. In thecase of Makhan Das v. Ram Chandra 18 Ind. Cas. 372 [LQ/CalHC/1912/538] : 17 C.W.N. 1064, where thepurchaser at a sale for arrears of rent purchased a patni, and annulled adar-patni under the provisions of Section 167, but did not take any steps toannul a ge-patni created by the dar-patnidar, it was held by Holmwood andChapman, J.J., that the extinction of the dar-patni necessarily carried with itthe extinction of the se-patni which is not a protected interest under thedefinition in Section 160 of the Bengal Tenancy Act.. The objection in thatcase was taken by the tenant under the se-patnidar, and it may be contendedthat the question whether the se-patni was extinguished or not would dependupon the purchaser of the patni, because he might choose to affirm theto-paini. But, probably, the learned Judges had in view the fact that thepurchaser of the patni in the previous suit had sought to avoid the se-patnialso, though the latter was subsequently dismissed from the action for some supposeddefect of parties. However that may be, we agree with the principle laid downin that case that the se-patni is extinguished with the extinction of thedar-patni, provided, of course, the purchaser chose to disaffirm it, and we areof opinion that any incumbrance created by any tenure--holder of an inferiorgrade can be avoided by a suit within 12 years from the date of the sale beingfinal, under Article 121 of the Limitation Act, such interest coming intoexistence after the creation of the patni. In this view it is unnecessary toconsider whether a person who by adverse possession has acquired a statutorytitle against a tenant, becomes a co-sharer with the tenant, and whether theinterest of such a person passes at a sale of the tenure.

23. We now proceed to deal with the particular plots oflands comprise in Schedules ga and gha. The learned Subordinate Judge has dealtwith each plot separately and recorded his finding with respect to each. He hasfound that a large number of the plots were included in the Road CessReturn(Exhibit U) filed by Ramjan Nackar on the 22nd July 1872. That Return wasfiled in respect of lands held by Ramjan under the Zemindar, and is evidenceagainst the defendant under Section 95 of the Road Cess Act. The lands entered inthe Return prima facie were held by Ramjan as tenant under the Zemindar, and,therefore, not held adversely to him. It is contended on behalf of thedefendant that the return was in respect of lands not only held under theZemindar, but also in respect of lands held under other persons (brah-mottordarlakherajdars, etc.,) and the learned Pleader refers to the word pattai landsat the heading of the Return in support of his contention. Then heading of theReturn, however, runs as follows: "In respect of 147 bigha 11 cottas ofland paying the annual malguzari of Rs. 200-13-18 gandas being my mourashiancestral purchased and patta lands whether held in my own name or in the namesof others and situate within the villages of Mouzah Balaria and Arjunpore withinZamindari No. 156 belonging to the late Rajah Radha Kant Deb Bahadur." Thepattai lands also, therefore, refer to the mal lands held under the Zemindar.Unless, therefore, the defendant can succeed in clearly establishing that anyland included in the Return was his lakheraj land or land held under thepersons; in other words, that such land was erroneously included in the Return,the lands included in the Return cannot be taken to have been held by Ramjanadversely to the Zemindar.

24. Out of the plots found by the Court below to be includedin the Cess Return, the learned Pleader for the defendant admits that the plotsNos. 12, 14, 17, 18, 27 to 45, 47 and 55 in Schedule ga exactly tally with theentries in the Cess Return both as regards the area and the rental. It is alsoadmitted that those plots are not patta lands, and that he cannot contend thatthey are Lekheraj or that the claim with respect thereto was barred bylimitation. He contended, however, that they were incumbrances which shouldhave been annulled under Section 167 of the Bengal Tenancy Act. But these landswere included in the Cess Return and were, therefore, admitted to be mal. Noquestion of adverse possession or incumbrance, therefore, arises in respect ofsuch lands, and we are of opinion that the plaintiffs are entitled to a decreein respect of these plots.

25. Besides the above, there are various other plots whichare found by the Court below to agree with the entries in the cess Return. Theyare plots Nos. 1, 2, 6, 8, 13, 46, 49, 4, 58 to 64, It is contended, however,on behalf of the defendants, they do not agree and plots Nos. 58 to 64 are saidto be puttai lands held under other persons. We must, therefore, deal with eachof them,

26. Plot No. 1.--Corresponds to plot No. 16 of thedefendants kobila. It is described in the plaint as one plot Shali land 8bighas 13 cottas 5 chataks out of 10 bighat 4 cottas 5 chataks the remaining 1bigtia 11 cottas & chataks is plot No. 8 of ka which is admittedly mal, sothat one portion of the land is mal.

27. The land being intermingled with mal land which was heldby the Nackar as tenants, it was for the defendant to show that the disputedplot was not mal, and was held adversely, and we need not, therefore, discussthe question of the identity of the plots with some of the dags which wasraised before us.

28. Plot No. 2 is dag No. 47, the area is 19 cottas 15chataks.

29. This plot (Bastu) is described in the plaint as being"out of 7 bighas 1 cotta 9 chataks 10 gandas. Plot No. 47 of the kobala ofthe defendant describes it as lakhraj battu, 19 cottas 15 chataks of BasudebPal and others out of whole plot 7 bighas 1 cottas 9 chataks 10 gandas.Deducting 19 cottas 15 chataks from 7 bighas 1 cotta 9 chataks 10 gondas thereremains 6 bighas 1 cotta 101/2 chataks and that is the exact area of plot No. 2of Schedule ka which is admittedly mal. The land, therefore, is intermingledwith land which was held by the Nackars as tenants, The boundaries of the plotof 19 cottas 15 chatahs in the kobala show khas patit land on the easternboundary, and the evidence of Ram Chandra Sarkar, witness No. 2 for thedefendants, shows that there is the Cutchery of the plaintiffs on a portion ofplot No. 2 of Schedule ga. See alpo Taraknath Dutt, witness No. 7 for theplaintiffs, No connection with Basudeb Pal is made out, and the Kumars who aresaid to be tenants under the defendants have not been examined.

30. The plot is mentioned in Exhibit U in the name of RamChandra Pal as 1 bigha 1 chntck at a rent of Rs. 6 4 51/2 . There isproportionate reduction of rent of 12 gandas for 2 chataks and the present areais 19 cottas 15 chataks at a rent of Rs 6 3-13 1/2.

31. Having regard to all these fame, it seems that what wasput down as lakheraj in the defendants kobala was mal land and the possessionwas not adverse.

32. Plot No. 6 corresponds to dag No. 13,

33. Dag No. 13 of the defendants chitta is a ticca land inMouza Nij Belaraia and contains three entries. It is clear, therefore, that itis mal. Dr. Kanjilal for the defendants says that the dag numbers refer to thedags of some chitta prepared by Ramjan, and not to those of the chittas V-1 orV-2, but there is no evidence of the existence of any other chili i. It isfound that the area of the plot is 3 bighas 1 cotta at a rental of Rs. 10--0 16gandas including 3 cottas 6 chataks acquired by the Mission ariea and that inthe Road Cess Return the area is 2 bighas 14 cottas at a rent of Rs. 8--1--12gandas in 127M, excluding the 3 cottas acquired by the Missionaries bearing aproportionate rent of Rs. 1-15-4 gandas. The Court below has held possession isproved from 1279, but not adversely. We agree with the finding of the Courtbelow.

34 Plot No. Section The Court below finds that the plot ismentioned in the thoka of 1295 and 1260, but is also mentioned, at last a partof is, in the Road Cess Return. It is described as ticci in the chitta of MouzBelaria. We think that the Court below is right in holding that the land is maland was not held adversely by the defendants.

35. Plots Nos. 13, 46, 54 and 58 to 64.

36. The Court below has found that the areas and rentals inthe thoka of 1295, and the Road Cess Return agree in respect of plots Nos. 46,49, 54, 60 to 64, and in respect of plots Nos. 13, 58 and 5 (in respect of thelast two there is a slight difference in the rent) they substantially agree,and although possession was proved from 1295 it was not adverse. Plot No. 49 isalso mentioned in the thoka of 1880 but as it is included in the Cess Return,the possession was not adverse.

37. We must accordingly hold that, with respect to all theplots mentioned in the Road Cess Return (Exhibit U), the possession was notadverse, and the plaintiffs are entitled to possession.

38. The plots which are not mentioned in the Road CessReturn are plots Nos. 3, 4, 5, 7, 9, 10, 11, 15, 16, 19 to 26, 48 to 53, 56, 57and 65 to 67. Out of these, the plaintiffs could not point out plot No. 3 tothe Commissioner at the locality and the plots Nos. 20, 22 23 and 24 were foundby the Commissioner to be outside the plaintiffs Zemindary. The Court belowaccordingly held that the plaintiffs claim with respect to these plots shouldbe dismissed, and no objections have been preferred against the finding onbehalf of the plaintiffs. The claim in respect of these plots should,therefore, be disallowed.

39. With respect to plots Nos. 15, 16, 25, 26 56, 57 and 65the Court below has found that they are in the thoka of 125, and possession ofthe defendants has been proved. The plaintiffs have taken objections to thefinding of the Court below. It is contended with respect to plots No. 15 and 16that the Court below has made a confusion between possession and adversepossession, that the only witness who speaks to possession is Ram Chandrasarkar, but he speaks to plot Nos. 15 and not to 16, and that the MissionarySahebs have not been called nor any collection papers produced. It is alsourged that the Churah, according to the Commissioners plan, scheduled plot No.15 and is close to plot No. 16. But the witness did not say that the Church wasen these plots, he said that the Church was on plot No 6 and that there werehouses of Christian converts on plots Nos. 15 and 16 who have all along beenpaying rents to the defendant and his predecessors. We agree with the findingof the Court below that adverse possession is proved. In the absence ofevidence to show that possession commenced after 1281, we think the claim withrespect to these plots is barred. Plot No. 25 is a tank, and it is found thatit was in the khas possession of the defendants and his predecessors. Theplaintiffs witness No. 9 admitted that it belonged to Ramjan Nackar and twowitnesses for the defendants proved their adverse possession. It is pointed outon behalf of the plaintiffs that the defendants gomasta and witness BholanathGanguly says, "my master is in possession of five tanks which are all onthe lands of Schedule ka", and it is accordingly contended that the tankis mal. But the witness says he knows only some lands in Schedules ka and kha.The plaintiff did not claim the gur tank (plot No. 25) as appertaining to thejotes described in Schedules ka and kha. It is not mentioned in the Road CessReturn. In all these circumstances, we are unable to differ from the finding ofthe Court below.

40. As for plot No. 26, Jafer Molla the witness No. 8 forthe defendant says that he suits--rates the land which is his ancestral jote,that he formerly paid rent to the Naskars, then to the Receiver and then to thedefend, ant. We accordingly agree with the finding of the Court below. Withrespect to plots Nos. 56 and 57 it is pointed out or behalf of the plaintiffsthat the defendants conveyance mentions the name of Dharma Das Ghose as thetenant, but his name is not mentioned by the witness Ran Chandra. However thatmay be, there ii evidence of possession of the defendants and theirpredecessors which has beet believed by the Court below. And we gee no reasonto differ from it. The Court below has found adverse possession proved withrespect to these plots (Nos. 15, 16, 25, 26, 56 and 57), and as there is noevidence to show that possession commenced after the creation of the patin (in1281), we overrule the objections of the plaintiffs to the finding of the Courtbelow with regard to these plots. The claim of the plaintiffs with respect tothese plots (Nos. 15, 16, 25, 26, 56 and 57) must accordingly be dismissed. Theplaintiffs have also preferred objections to the finding of the Court belowwith respect to plot No. 65. The Court below has found that in the thoka of1295, there is a remark that this land was purchased in 1283 as brahmottar inthe name of Shiram Chakravertty (see Exhibit C--57 kobala) and as the adversepossession commenced after the creation of the patni, the Court below held thatit could not affect the Zamindars But although the possession of R&mjarjcommenced from 1283, he acquired it by purchase from the brahmottardar in 1283,The land, therefore, appears to have been in the possession of a person professingto hold it as lakheraj in 1283, and, in the absence of any evidence that thepossession of the brahmottardar commenced after 1281, the claim with respect tothis plot (No. 65) also should be dismissed.

41. There remain plots Nos. 4, 5, 7, 9, 10, 11, 19, 21, 48,50 to 53 and 66 and 67. Of these, plots Nos. 4 and 5 are mentioned both in thethohas of 1280 and 1295 and a portion of plot No. 4, according to theCommissioners map, is outside the plaintiffs Zamindari. Plots Nos. 7, 9, 10,19, 21, 66 and 67 are mentioned in the thoka of 1295, but the Court below hasfound against the defendants because oral evidence of possession was notadduced in respect of some of the plots or the evidence adduced was not satisfactory.But they are all mentioned in the thoka of 1295 which indicates theirpossession in that year (in the case of plots Nos. 4 and 5 they are mentionedin the thoha of 1280 i. e., before the creation of the patni, and again, 15years afterwards, in the year 1295), with regard to plot No. 5, the Court belowappears to think that the jama as described in the thoka of 1280 was the Game(both--in area and rental) as that in the Road Cess Return, and Mr. Sarkar onbehalf of the plaintiffs had attempted to show the identity of a portion ofthis plot with the land in the Cess Return, but we are not satisfied that theyagree, With regard to plot No. 10, the plaintiffs case was that the tenant RupChand Sardar held that land of this plot is in excess of the 6 bighas 5 cottas6 chaiaks mentioned in the Road Cess Return. No evidence, however, has beenplaced before us to show that the land was held as part of the jote of RupChand. As for plots Nos. 65 and 67 the Court below has held that there is nodag of the thoka in the kobala, that no area is given in respect of the jama ofKrishna Panja a tenant mentioned in the thoka, and that the evidence ofpossession is not reliable. Plot No. 9 is said to be included in plot No. 92 ofSchedule gha and has not been traced separately and there is no oral evidenceof possession. But, as stated above, the thoka shows possession in 1295 inrespect of all the above plots.

42. The defendants were admittedly in possession at the dateof the suit. These plots are not mentioned in the Road Cess Return. The thokaof 1295 indicates the possession of the defendants predecessors in that year.That, however, does not show that possession commenced in that year. Withrespect to plots Nos. 4 and 5 possession commenced from before the creation ofthe patni and there is no evidence to show that possession with respect to theother plots commenced after the creation of the patni in 1281 and there is nosuggestion that any one else was in possession.

43. The Court below finds that the area of plot No. 11 inthe kobala dose not agree with that in the thokus nor do the boundaries agree,that there is no satisfactory identification and there is no oral evidence ofpossession; that plot No. 48 is not in the thokas and the evidence of possessionis not reliable. As for plots Nos. 50 to 53, they were acquired subsequent tothe date of the thokas, and are not, therefore, included in them. The defendantdid not adduce any evidence as to possession. But the observations made aboveapply to these plots also, except that these plots are not in the thoka. Thedefendants were admittedly in possession at the date of the suit, and the plotsare not mentioned in the Cess Return. We have held that it is for theplaintiffs to show that the Zemindar was in possession before the creation ofthe patni or that the possession of the Nackars was not adverse. That being so,and there being no evidence to show that the possession of the defendantspredecessors commenced after 1281 or that such possession was not adverse(these plots not being included in the Cess Return), we must hold that theclaim with regard to these plots Nos. 11, 48 and 50 to 53 is also barred bylimitation. In this view, it was unnecessary for us to discuss the questionwhether any particular plot of land was or was not mentioned in the thoka of1295 and the question whether the defendants had been able to show adversepossession with respect to any particular plot was immaterial because the onuswas upon the plaintiffs to show that the Zemindar was in possession before thecreation of the patni. But as the matter has been discussed before us, and aswe were told that the case may go up to a higher Court, we have thought itproper to discuss the matter and refer to the findings and evidence in respectof the plots under separate heads.

44. As already stated, plots Nos. 58 to 64 are claimed aspattai lands. Out of these, plot No. 64 is alleged to have been subsequentlypurchased from the brahmottardar, and is, therefore, no longer pattan land, butis lakheraj. The kobala, Exhibit 0--66, dated the 6th Kartik 1280 (Book No. IIpage 323) by Parbati Bhattacherjee and another, recites that the 16 bighai 2cottai of land stood in the name of Mathuresh Bhattacherjee, elder brother ofthe grand--father of the executants of the kobala in 1190, and one moiety ofthe lands belonging to the Executants, was sold to Aminulla Kazi by the kobala.There was another kobala, Exhibit0.67,dated the 14th Kartik 1281 (Book II page325), by which another co--sharer sold 16 cottat of land in his own share toKazi Aminulla with similar recitals. The first kobala. is prior to the grant ofthe patni, and the second, though subsequent to the date of the patni, showsthat the land was held as lakheraj from before the Permanent Settlement. Inthere circumstances, we think the claim in respect of plot No, 64 should bedismissed. With respect to the remaining plots, viz., Nos. 58 to 63, the onlyevidence relied upon is the deposition of Dwijapada Mookerjee (Book I, page394) who speaks to payment of rent to certain other maliks. Some receipts,Exhibits S to S--5, have been filed to prove payment of rent to such maliki,only one of them (Exhibit S) has been printed which shows payment of rent tothe owner of mahal de--buttar in the name of Krista Chandra Roy. But thelearned Pleader for the defendants has not shown the identity of the plots ofplots Nos. 58 to 63 with the lands for which the rent receipts have beenproduced. No pottahs in respect of these lands have been produced. The area andrentals of these plots have been found to agree in some cases entirely, and inothers substantially, with the area and rentals mentioned in the Road CessReturn, and there is no satisfactory evidence that they are held under otherpersons. We think, therefore, that the defendants possession with respect tothese plots (except No. 64) was not adverse.

45. We now take up the plots of Schedule gha. Plots Nos. 79,84 and 102 (not No. 101 mentioned in the judgment of the Court below the claimto which had been withdrawn) 131, 145, 147, 148, 151, 153 and 157 have beenfound to be included in the Road Cess Return. The possession of the defendantwas, therefore, not adverse. It appears, and it is admitted by the learnedPleader for the defendant, that plots Nos. 30, 33, 9, 7, 8 and 40 of Schedulega have been repeated in, and correspond to plots Nos. 88, 89, 82,. 103 10:,and 14s, 71 respectively of Schedule gha. We have found that plot No. 8 was notheld adversely, and plots Nos. 30, 33 and 40 are admittedly included in theCess Return, We have also found that the claim in respect of plots Nos. 9 and 7of Schedule ga should be disallowed. These findings, therefore, will govern thecorresponding plots of Schedule gha. We accordingly hold that the possession withrespect to plots No. 7, 74, 79, 84, 88, 69, 101, 131,146, 147, 148, 151, 153and 157 was not adverse.

46. The Court below has found that the identity of plotsNo3. 72, 7 , 87, 91, 93, 94 and 98, 124 and 125 have not been proved with thelands of the thokas and no oral evidence of possession has been adduced.

47. It is found that the lands of plots Nos. 72 and 73 havenot been identified with the lands of village Balaria. that plots Nos. 87, 91,93 and 98, 124 and 125 have not been identified with the lands of the thoka andthat plot No. 94 is outside the defendants kobala. The defendant identifiedplots Nos. 124 and 125 with dags Nos. 59 and 49 of Ahad Balaria while thedisputed lands lie in Balaria, proper. No oral evidence was adduced with respectto these plots, But, for the reasons given in connection with plots Nos. 11,48. and 50 to 53 of Schedule ga, we must hold that the claim with respect toplots Nos. 72, 73, 87, 91, 93, 94 and 98, 124 and 125 is barred by limitation.

48. It was contended that plots Nos. 93, 94, 98, 147, 148,150 and 151 are pattat lands, but no patta has been produced, and the identityof these plots with any rent receipt has not been established. We have,however, held that the claim in respect of plots Nos. 93, 94 and 98 is barredby limitation. The other plots, viz., 147, 148, 150 and 151, being included inthe Road Cess Return, the defendants must clearly prove by satisfactoryevidence that they were not held under the Zemindar but were held under othermaliks. We do not think that there is any such evidence.

49. Plot No. 83 was admitted by the defendants gomastaBholanath before the Commissioner to appertain to Schedule ka. It is admittedlymal and the possession, therefore, was not adverse. The learned Pleader for thedefendants states before us that plots Nos. 38, 15, 20 and 21 and 6 of Scheduleka are repeated in plots Nos. 83, 102,140, 141, and 142 and 146 respectively ofSchedule gha. These plots of gha, therefore, are mal and the plaintiffs willget a decree for them along with the other lands of Schedule ka.

50. Plots Nos, 86 and 100 have been found to be outsideplaintiffs Zeraindari, and the claim of the plaintiffs must, therefore, bedismissed.

51. Plot No. 92 includes plot No. 9 of Schedule ga and plotsNos. 108 and 108 have been found to be included in plot No. 7 of Schedule gaand have no separate existence. The Court below has held that the claim inrespect of plots Nos. 106 and 103 should be dismissed, and there is noobjection to the finding by the Court below. We have held that the claim inrespect of plot No. J of Schedule is barred the claim with regard to plots Nos.92, 106 and 108 should, therefore, be dismissed. As for plots Nos. 118 and 119though they are not covered by the defendants kobala, the witnesses Nos. 1 and5 for the defendants proved possession from 1293, and the Court below foundthat there was adverse possession from that year, in the absence of anyevidence to show that adverse possession commenced after 1281, we thick thatthe claim in respect of these two plots is barred.

52. We accordingly hold that the claim in respect of plotsNos. 1. 2, 6, 8, 12, 13, 14, 17, 18, 27 to 45, 46, 47, 49. 54, 55, 58, 59, 60,to 63 of Schedule ga and plots Nos. 71, 74, 79 84, 88, 89, 102, 131, 146, 147,148, 150, 151, 157 of Schedule gha should be allowed, on the ground that theyare mentioned in the Road Cess Return and the possession of the defendant was,therefore, not adverse. Plots Nos. 3, 20, 22, 23 and 24 of Schedule ga andplots Nos. 86 and 100 of Schedule gha being outside the plaintiffs Zamindarithe suit should be dismissed with regard to the said plots.

53. Out of the remaining plots, we hold, agreeing with theCourt below, that the claim as to plots Nos. 15, 16, 25, 26, 56 and 57 of Schedulega and plots Nos. It 6 and 8 of Schedule gha should be dismissed, and,differing from the finding of that Court, we dismiss the claim with respect toplots Nos. 4, 5, 7, 9, 10, 11, 19, 21, 48, 50 to 51, 65, 66 and 67 of Scheduledand plots Nos. 72, 73, 87, 91, 92, 118, 119, 124 and 125 of Schedule gha asthere is no evidence to show that the possession with respect to plotscommenced after the creation of the patni in 1281.

54. The result is, that the suit will be decreed withrespect to the lands of Schedules Ka and Kha and with respect to lands of plotsNos. 1, 2,6, 8,12,13,14,17,18, 27 to 45, 46, 47, 49, 54, 55, 58, 59 and 60 to63 of Schedule ga and plots Nos. 71, 74,79, 84, 88, 83, 102, S3, 146 to143,150, 151 and 157 of Schedule gha. The plaintiffs will get khas possessionof the said lands. They are entitled to wasilit in respect of the said landsfor a period of three years prior to the institution of the suit until deliveryof possession, to be ascertained in farther proceedings, The claim in respectof plots Nos. 3, 4, 5, 7, 9, 10, 11, 19, 20, 21,22,23, 24, 48, 50 to 53, 64,65,66 and 67 of Schedule ga, and plots Nos. 72, 73, 86, 87, 91, 92, 98, 94, 98,100, 118, 119, 124 and 125 of Schedule gha will be dismissed. It is unnecessaryto make any separate order with respect to plots NOB. 83 and 140 to 142 ofSchedule gha. as they are included in the lands of Schedule ka.

55. The parties will be entitled to costs in each case inproportion, the plaintiffs getting three fourths and the defendants one--fourth,only one--half of the costs of the paper--book will be allowed. Hearing fee inAppeal No. 164 is assessed at Rs. 301, and in No. 258 of 1914 at Rs. 100.

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Monmotha Nath Mitter and Ors. vs. Anath Bundhu Pal and Ors.(19.08.1919 - CALHC)