Robertson, J.

1. The respondents are in possession of the land in disputeby virtue of a Magistrates order granted in August 1885. The onus is,therefore, on the appellant who claims the land to make out that she has thebetter right.

2. In considering the question thus raised it is well tohave in mind the nature of the disputed land. Its area is about 1,400 bighas,but it is a significant fact that the most various estimates on this subjecthave been made during the period in dispute, the reason being that very fewpeople had occasion to be there or were interested in its size. The decree towhich this is the case may be gathered from two facts. It is clearlyascertained that in 1865 there were no human beings living on any part of theground, and only one-twentieth of the whole area was susceptible ofcultivation. At the time of this action there was only one small group ofdwellings. The ground, generally speaking, is jungle; but there has been insome parts, more or less of intermittent cultivation.

3. The two competitors for this territory are, on the onehand, the Collector of Khulna (who will hereafter be referred to as therespondent), whose lessee is in possession and whose theory is that this issouthern part of his talukh of Bhil Pabla, and on the other hand the appellant whois the undoubted proprietor of the mauza of Kulati which lies to the south ofthe disputed land An important feature of the case however is that theappellants theory is not that the land forms part of the mauza Kulati but thatit forms a separate mauza bearing the name of Uttar Kulati and lying betweenKulati and Bhil Pabla. Although the vicissitudes of this prolonged disputemight naturally have suggested the simpler view, the appellant has neverpretended that the disputed ground is part of the mauza Kulati and this is notsuggested on the record. The sequel will show that this is not a merely nominaldistinction.

4. With the doubtful exception of a lease of the disputedland said to have been executed in 1846, the history now to be considered opensin 1856. What then happened was that a survey of the ground was made by theGovernment Collector and a thak map was prepared, depicting the ground asforming a separate mauza of Uttar Kulati. So far as it goes, this directlysupports and substantiates the appellants case. The map, it is true, shows onits face the facts already mentioned as to the entire absence of population andthe extremely exiguous amount of cultivable land. Accordingly, it cannot betreated as a contemporaneous record of possession so much as of a publiclyasserted claim.

5. That claim moreover was not allowed for long to standunchallenged. In 1865 a Government survey was made of Bhil Pabla and the mapthen prepared records on its face that it was made to rectify the thak map,which had included in other mauzas parts of Bhil Pabla. The ground in disputeis depicted on the plan as having been so treated. As compared with the map of1856 the map of 1865 has this in its favour that it bears on its face that thesurvey was made in the presence of the officers and tenants of the owners ofthe adjoining mauzas, whereas no such circumstance is recorded on the map of1856. There has been some controversy as to the occasion of this map being madeand as to its authorship; but the evidence and the conduct of parties make itclear that it is entitled to no less than the degree of authority whichattaches to Government surveys generally. If the map of 1856 records the claimof the appellant, so and with equal authority does the map of 1865 record therepudiation of that claim. The one wipes out the other and leaves the partiesto appeal to possession as the ultimate criterion of their rights.

6. The appellant however cannot escape from this branch ofthe case without it being noted that the theory of her map is the theory of herrecord, that this ground was not part of her mauza Kulati but was a mauza ofitself, bounded by Kulati and bearing the separate name of Uttar Kulati.

7. In considering the question of possession it is necessaryto remember its twofold bearing on the dispute. The appellants claim is restedfirst on her title to the mauza of Uttar Kulati, and second on the statutorylimitation, she having had (so she asserts) 12 years adverse possession of theland in dispute. Now what has been to some extent overlooked by the SubordinateJudge is that the evidence of possession affects both questions and not merelythe second question. In the view taken by their Lordships of the maps of 1856and 1865, the appellant has no case on title, unless she has adequatelysupported by possession her claim embodied in and affirmed by the map of 1856.

8. When the evidence of possession is examined, it is foundto be divisible into two kinds having very different values. On the one handthere is an abundant supply of evidence on paper, leases and documents ofvarious kinds, and on the other hand there is meagre and conflicting evidenceof actual physical possession. Neither feature need excite surprise. The groundhas in fact been little used, hence little evidence of physical possession; theground has for fifty years been the subject of claims, hence paper grants to supportthose claims.

9. Now in the inquiry conducted in the Court of theSubordinate Judge the relative values of those two kinds of evidence havescarcely received due appraisement. Even assuming the authenticity of the leaseof 1846 (which singularly enough describes the land as "Uttar Kulati aliasDurgapur "), it is confronted by the appellants own plan of 1856 whichattests the absence of effective occupation. Similar criticism applies to muchof the evidence from pottahs and kabuliyats; and, even where some testimony ofphysical possession emerges from the mass of documentary evidence, it is foundto be exiguous in amount, in some instances uncertain in time and place, and inmany instances irreconcilable with equally plausible contrary assertions.

10. Their Lordships find it impossible to hold that fromthese materials the appellant has made out her claim of title to the land. Herclaim under the statute of limitations remains to be considered, but thisquestion gives rise to very much the same observations within a more restrictedregion of inquiry.

11. It is necessary to remember that the onus is on theappellant and that what she has to make out is possession adverse to thecompetitor. That persons deriving from her any right they had have done acts ofpossession during the twelve years in controversy may be conceded and is indeedevidenced by the dispute which ended in the Magistrates order of 1885. But thepossession required must be adequate in continuity, in publicity, and inextent, to show that it is possession adverse to the competitor. The appellantdoes not present a case of possession for the twelve years in dispute, whichhas all or any of these qualities. The best attested cases of possession do notcover the whole period and apply to small portions of the ground. Whileexhibiting those positive deficiencies, the appellants case is moreoverconfronted by tangible evidence of possession by the respondent which is farsuperior in quality. The only persons living on the ground hold and have heldtheir dwellings and cultivated the ground round it by rights derived throughJogendra from the respondent. As has been justly observed in the High Court,the true significance of this evidence was missed in the Court of theSubordinate Judge. It is not merely negative of the appellants case so far asthat portion of the ground is concerned which has been so possessed by therespondents, but it is directly contradictory of the whole theory of theappellants case of possession.

12. Their Lordships will humbly advise Her Majesty that theappeal ought to fee dismissed. The appellant will pay the costs of the appeal.

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Radhamoni Debi vs.The Collector of Khulna and Ors.(24.03.1900 - CALHC)