John Wallis, J.

1. The facts of this case are some what unusual. The plaintiffs, as executors of the late Upendra Nath Ghose, sue the defendant, Srimati Krishna Promada Dasi, his brothers widow, to recover certain lands which they claim formed part of a permanently settled estate described as Touzi No. 1240, which the deceased Upendra purchased at a revenue sale of this touzi for arrears of land revenue in the year 1908.

2. In 1899, there had been a partition suit in the family of Upendra and of the defendants deceased husband, and by the partition decree the Immovable properties in Schedule VI of the decree were allotted to Upendra and the Immovable properties in Schedule VIII were allotted to the present defendant as her husbands widow. It is common ground that the lands allotted to the widow included the lands claimed by the plaintiffs in this suit. The plaintiffs case is that at the time of Permanent Settlement they formed part of what is now Touzi No. 1240, and that even assuming, which he does not deny, that the owners of 1240 had lost their title to these lands by adverse possession and under the Law of Limitation that they had become the property of his own family and had been partitioned as such, they still remained liable for the rent or land revenue fixed on Estate No. 1240 and were liable to be sold for failure to pay the land revenue fixed on this estate under Section 37 of the Bengal Land Revenue Sales Act, 1859. The new owners might, if they had so desired, have had the portion of Estate No. 1240, which had passed to them by adverse possession separately assessed to land revenue, but, as they had omitted to do so, it continued to form part of the security for the whole land revenue of Estate No. 1240, and to be liable to be sold under the section already cited. In their Lordships opinion this was clearly so, and has been so held by this Board in Surja Kanta Acharjya Bahadur v. Sarat Chandra Roy 25 Ind. Cas. 309 : 18 C.W.N. 1281 : 18 M.L.T. 290 : 27 M.L.J. 365 : 1 L.W. 807 : (1914) M.W.N. 757 : 16 Bom.L.R. 925 : 20 C.L.J. 563 (P.C.).

3. This being bo, the substantial questions in this suit are, did the suit lands form part of Estate No. 1240; and, if they did, did the fact that in a partition suit these lands had been allotted to the defendant as the widow of Upendras brother, Upendra himself receiving other properties as his share of the family properly, estop his executors from enforcing against the defendant any title which he acquired to them as purchaser of Estate No. 1240 at a revenue sale

4. It was held by both the lower Courts that the suit lands did form part of Estate No. 1240 and that the plaintiffs as executor of the deceased Upendra were not estopped from suing for them.

5. The first question depends upon the proper inferences to be drawn from the Revenue Records which have been exhibited, consisting of registers, thaks or maps, and thak statements recorded when the thaks were made. The learned Judges of the High Court, Walmsley, J., a member of the Indian Civil Service, and Chakravarti, J., from their familiarity with the revenue system of Bengal, were necessarily in a better position than their Lordships are to draw the proper inferences from these records, and their Lordships would be very unwilling to interfere with their finding, affirming as it does the finding of the lower Court, unless it were clearly made out that it was vitiated by some error of law.

6. It was argued that both the lower Courts erred in acting on the thak statements, which were drawn up when the thaks or maps were made, and reference was made to a judgment this Board delivered by Mr. Ameer Ali in Jagdeo Narain Singh v. Baldeo Singh 71 Ind. Cas. 984 : 49 I.A. 399 : 2 Pat. 38 : 3 P.L.T. 605 : A.I.R 1922 P.C. 272 : 36 C.L.J. 499 : 32 M.L.T. 1 : (1923) M.W.N. 361 : 27 C.W.N. 925 : 45 M.L.J. 460 (P.C.) in which it was observed that such statements had no evidentiary value. In their Lordships opinion, it was not intended in that case to lay down that these statements could never have any evidentiary value, still less that they were inadmissible in evidence, but only that they were of no evidentiary value when, as in that case, they dealt with matter altogether outside the scope of the survey.

7. At the hearing of the appeal the findings of the lower Courts were only questioned with reference to the lands included in the first or ka schedule to the plaint. It is in their Lordships opinion unnecessary to review the evidence on which the Courts below have arrived at a concurrent finding. The lands in dispute were known as Jenidhaha which was apparently the name of a village or hamlet. There was a good deal of evidence as to the way it had been dealt with from the time of the Permanent Settlement, but it is sufficient to say that Jenidhaha is entered both in the defendants estate, Touzi No. 659l and in Touzi No. 1240, which was purchased by Upendra in the general register of revenue-paying lands in estates borne on the revenue roil of the District of Faridpur, maintained under Sections 6 and 7 of Bengal Act VII of 1876.

8. In their Lordships opinion, these entries, which were based on the earlier Revenue Records, raise the inference that Jenidhaha was included both in Estate No. 1240 and in the estate from which the defendants Estate No. 659Z was separated when these estates were settled and the revenue fixed upon them. From these and other facts the lower Courts have drawn the inference that at the time of the Permanent Settlement of these estates they each had a share in Jenidhaha, and that consequently it was included in the touzis of both estates, and that, in the absence of any evidence to the contrary, it must be presumed that each estate was entitled to a half share in Jenidhaha.

9. From this conclusion their Lordships see no reason to differ, especially as it appears to have been not uncommon to include the same mouza in two estates when each of them had an interest. It was contended before their Lordships that there were two Jenidhahas, one of which was included in each estate in it, but in their Lordships opinion this is not in accordance with the evidence and would not appear to have been the case put forward in the Courts below.

10. As regards the question of estoppel, the judgment of the Board in Muhammad Wali Khan v. Muhammad Mohi-ud-din Khan 51 Ind. Cas. 843 : 24 C.W.N. 321 : (1920) M.W.N. 188 : 11 L.W. 421 : 2 U.P.L.R. (P.C.) 48 : 27 M.L.T. 204 (P.C.) was cited, but in their Lordships opinion that case is clearly distinguishable. In that case two brothers, who were Muhammadans, referred it to arbitrators to divide the estate of their deceased father between them, ignoring the fact that their fathers widow was entitled to a share in his estate. One of the brothers predeceased the widow, and the surviving brother, who was the heir to his mothers property, then sought to recover from his deceased brothers family half the share to which she should have succeeded on her husbands death. This, however, was not the footing on which the two brothers had gone to arbitration, and it was held by the Board that he could "not be allowed to come back and take as heir to his mother what was by his own act not allotted to her, but was divided between herself and his brother." That case has no resemblance to the present, in which lands belonging to the family were allotted to the defendant without regard to the fact that some of them ware liable to be sold at a revenue sale for revenue due on another estate, a fact which was probably unknown; to any member of the family. It really, made no difference to the defendant whether they were purchased at the revenue sale by the plaintiffs or by a stranger.

11. Section 43 of the Transfer of Property Act was also referred to, but it has been held by the Subordinate Judge that it is not shown that Upendra made any representation to the defendant, and, therefore, there is no room for the operation of the section. This question of estoppel does not appear to have been pressed in the High Court, as it is not referred to in the judgment.

12. In their Lordships opinion this appeal fails and should be dismissed with costs, and they will humbly advise His Majesty accordingly.