P L D 1952 Dacca 214 (PLP)

AHMAD. J.‑This is an appeal by the plaintiff against the judgment and decree of the learned Additional Subordinate Judge, Sylhet, dated the 31st August 1942. The plaintiff's suit was for a declaration of his title to 101 plots of land distributed over seven villages, namely plots Nos. 3 to 11 in Laiyarkul ; plots Nos. 12 to 28 in Alisharkul ; plots Nos. 29 to 53 in Bade Alisha ; plots Nos. 54 to 85 in Rajpara ; plots Nos. 86 and 87 in Sashan ; plots Nos. 1 and 2 and 88 to 100 in Gandharbapur and plot No. 101 in Jatrapasha, situated in the sub‑division of Maulvi Bazar in the district of Sylhet. These plots were described in schedule 1 appended to the plaintiff's plaint. Out of these plots six were included in schedule 2 to the plaint and the remaining 95 plots were included in schedule 3 to the plaint The total area of all the plots comprised in the plaint is 47 hals, 1 kedar, 3 powas, 6 laishas, 3 rekhs, 1 pan ; 1 hal according to local measurement being roughly about 10 standard bighas. The plaintiff's case as made out in the plaint was that he was formerly an owner in possession of 13 annas 8 gandas and 3 karas share in separate account of Taluk No. 51783/1 Golam Ali, paying revenue to the Sylhet Collectorate and that all the lands in the plaint belonged to the said Taluk Golam Ali. That the plaintiff filed a suit for imperfect partition in case No. 1 of 1920‑21 in the Revenue Court of Moulvi Bazar for having his said share separated and demarcated and that as a result of that partition the lands in suit described in schedule 1 to the plaint were included in the separate allotment made in favour, of the plaintiff and the plaintiff thus became the sole owner of those lands and that as a result of that partition in the month of July, 1926, he took possession of the lands allot ted to him under the partition through the Revenue Court. That appeals were preferred to the Commissioner of Surma Valley Division against the decision in the said partition suit, which were dismissed on the 14th July, 1927, and then an appeal was preferred to the Governor‑in‑Council who by his order, dated the 7th July, 1928, made some slight alteration in the allotment made but confirmed the partition. That on the 28th April, 1929, a fresh proclamation was published on the land and the plaintiff again took possession of the land of his altered allotment The plaintiff states in paragraph 3 of the plaint that six plots of lands mentioned in schedule 2 ‑to the plaint were "Chira Patit" which the learned Additional Subordinate judge rendered into English as 'perennial waste'. With regard to these lands the plaintiff asserted that according to the law of fallow that he was in khas‑possession. With regard to the lands in schedule 2 to the plaint it was stated that before the decision of the partition suit they were in khas possession of the co‑sharer defendants. It may be stated here that as many as 183 persons were impleaded as defendants in the suit. Out of them defendants Nos. 159 to 181 were stated to be plaintiff's co‑sharers and proprietors of the rest of the share of the said Taluk Golam Ali No. 1, but it was definitely stated that the defendants were in possession of the lands of schedule 3 at the date of the suit. In paragraph 4 of the plaint, the plaintiff states that after taking possession through Revenue Court, he asked the defendants to pay rent and to execute kabuliyat in favour of the plaintiff and take settlement of the land from the plaintiff of schedule 3 to the plaint. But that the defendants in collusion and through illegal conspiracy with each other are not taking settlement ; nor are they giving up the possession of those lands to the khas possession of the plaintiff; and that they are enjoying the usufruct from them as trespassers. In the paragraph 6 of the plaint the date of the cause of action was given as July, 1926, when the first publication of the said partition had come into force as then made, and also 7th July, 1928, on which date some altera tions were made in the allotment made in favour of the plaintiff. On these facts the plaintiff prayed for a decree for a declaration that the plaintiff was in possession and owner ship of all the lands in schedule 1 to the plaint and his next prayer was that with regard to the land described in schedule 2 to the plaint his khas possession may be confirmed or if in the meantime, meaning thereby evidently that after the filing of the suit, he is found to have been dispossessed from any part of these lands, he prayed for recovery of possession of the same. With regard to the land in schedule 3, he prayed for khas possession and if they were found to be in possession of tenants, then his prayer was to be put in possession through these tenants ; and he further prayed for mesne profits and costs. At the end of the plaint a paragraph was added in which it was stated that defendants Nos. 152 and 153 took settlement from the plaintiff of the lands mentioned in item No. 100 and items Nos. 84 to 95 of the 1st schedule to the plaint ; but in collusion with other defendants they surren dered the lands; and that the kabuliyat, dated the 28th Sraban, 1344‑B.S., was not acted upon. With regard to defendants Nos. 1 and 2 there was a statement in the 2nd paragraph thus added to the plaint that they were possessing plots Nos. 17 to 26, 42 to 51,68 to 83 of schedule 3 to the plaint on the basis of a collusive document from other proprietors of the said taluk Golam Ali No.

1. About 30 sets of written statements were filed by various defendants and the common point raised in all the written statements was that the plaintiff's suit was bad for misjoinder of causes of action and parties. Of the defendants who filed written statements, most of them .did not contest the plaintiff's claim and disclaimed liability for mesne profits; and some, though they filed written statements, contesting the plaintiff's claim, did not contest the suit at the hearing. One of the sets of defendants who filed written statement was defendant No. 74 who disclaimed all connection with the, said lands although his relations who claimed under a common, title, namely, defendants Nos. 75 and 76 put forward a claim to some of the plots in the suit. The suit was contested by two sets of defendants, namely, defendants Nos. 1 and 2, Girish Chandra Deb and Suresh Chandra Deb and defendant No. 113, Brojanath Das. The defence of defendants Nos. 1 and 2 inter alia was an objection to the frame of the suit which was stated to be bad for misjoinder of parties and causes of action with multifarious ness, inasmuch as several persons joined as defendants had no title to or connection with the property in the written statement it was stated that the imperfect partition by the Collector on the basis of which the plaintiff instituted his suit was illegal, void and ultra vires; and that the plaintiff was not entitled to any relief on the basis of that suit. It is also stated that the father of these defendants, although his name was registered in the Collectorate, was not made a party to the partition suit; and, therefore, the partition was illegal and beyond the jurisdiction of the Deputy Com missioner ; and that the father of the defendants Nos. 1 and 2 and these defendants themselves were not bound by the partition. They also stated in paragraph 13 of the written statement that there has been a previous partition among the co‑sharers including the land in suit and, therefore, the Deputy Commissioner had no jurisdiction to make an incom plete partition including the land in suit ; and that the present partition was invalid, void, and ultra vires. Another objection taken in the written statement was that many recorded pro prietors of taluk Golarn Ali No. 1 besides their father were not made parties to the said incomplete partition proceedings and no notice of the proceeding was served on many recorded proprietors ; and some persons men tioned in the written statement as being proprietors were not made parties. The area and the boundary of the land in suit was also stated as not being correctly described in the schedule to the plaint and some lands were not covered by the partition. These defendants in para. 18 of their written statement stated that plots Nos. 19, 75, 86, 87 of schedule 1 to the plaint were not in possession of the defendants, but that they were only in possession of plots Nos. 18 to 27, 42 to 51, 68 to 72, 74 to 81, the eastern portion of plot No. 40 and plot No. 44 except the tank portion and of plot No. 54 of 3rd schedule to the plaint and Nos. 3 and 4 of the 2nd schedule to the plaint. These defendants had no title to or connection with any other land in suit. In paragraph 20 of the written statement they stated that the "Path Digi" measuring about one hal in plot No. 44 of schedule 3 was not in possession of these defendants and they had no title to it and that the defendants were wrongly alleged to be in possession of the said "Digi". These defendants then went on to state that no proclamation regarding the said imperfect partition was made on the land ; and that the lands in the 2nd schedule to the plaint were not fallow lands and were not according to the rule of fallow land in khas possession of the plaintiff. They stated under what title they were holding the plots of land out of the suit land which they claim as belonging to them and possessed by them. They stated that they were in possession of plots Nos. 18 to 22 of the 3rd schedule to the plaint which were situated in village Alisharkul in jote right from the time of their father under the plaintiff and that out of these plots Nos. 21 and 22 were in their khas possession. That with regard to plots Nos. 25 and 26 of the 3rd schedule to the plaint corresponding to Nos. 27 and 28 of the 1st schedule also in the village Alisharkul it was stated that they were held by them under jote right under a different proprietor. These defendants claimed proprietary right to several other plots, namely, plots Nos. 29, 48, 51, 53 under rent‑free Brahmottar right, the proprietors of which were enjoying and possessing them for more than 100 years without paying any rent or revenue ; and that the plaintiff or his cosharers were never in possession of the said plots and never received any rent or kabuliyat either from defendants Nos. 1 and 2 of their predecessor. That the plot No. 29 was included in the Brahmottar named Ram Kumar Sarnia, the then proprietors of which, namely, Ram Kumar Sarnia and others sold to the father of the defendants Nos. 1 and 2 eight annas share of the said plot No. 29 together with other lands by a kabala, dated the 17th Kartic, 1310 B. S., corresponding to the 3rd November, 1903, from which date the defendants possessed the said plots through tenants. That these defendants in herited the share along with other lands in plot No. 48 of the 1st schedule which appertained to another Brahmottar of the name of Kaliram Sarma, the then proprietor of this Brahmottar, Kanideb Sarnia, sold this plot by conveyance, dated the 11th Falgun, 1238 B. S., corresponding to February, 1832 to Ram narain Deb, the grandfather of defendants Nos. 75 and 76 and grand‑uncle of defendants Nos. 1 and 2, as a result of which Ramnarain Deb and Harekrishna Deb were in ownership and possession and as a result of a family settlement the father of defendants Nos. 1 and 2became the owner of the said plot. The plot No. 49 of the 3rd schedule which corresponds to plot No. 51 of schedule 1 to the plaint was claimed by defendants Nos. 1 and 2 as a part of Lakheraj Brahmottar, Shib Shankar Sarnia, the then proprietors of which, namely, Krishna Kundu Sarnia and Ram Kundu Sarma sold the same land by a kabala executed in the name of the grand‑uncle of defendants Nos. 1 and 2 on the 20th Falgun, 1239 B. S., corresponding to March, 1833 ; that thereafter the father of defendants Nos. 1 and 2 was in ownership and possession by demarcation by which evidently the defendants mean that there was an amicable partition with other co‑sharers. These defendants' title to plot No. 51 of the 3rd schedule corresponding to plot No. 53 of the 1st schedule according to their written statement .was derived by a kabala, dated the 27th Chaitra,1241 B.S., corresponding to April, 1835, executed by Shibnanda Sarnia, the then owner of Brahmottar Gopal Sarnia, to which the land appertained and the defen dants Nos. 1, 2, 75 and 76 were in possession by right of inheritance. With regard to plot No. 47 of the 3rd schedule corresponding to plot No. 49 of the 1st schedule the defence of these defendants was that this land was nishkar for more than 100 years ; and that they acquired this land by a kabala; dated the 8th Sravan, 1343 B. S., corresponding to 1936. With regard to plot No. 70 of 1st schedule, the defence case was that it appertained to Brahmottar Mahadeb Brahmachary; and that the then owners of the said plot sold it to these answering defen dants together with other lands by a kabala, dated the 26th Falgun, 1339 B. S., corresponding to 1933 ; and with regard to the aforesaid plots the case of these defendants was that they were not included in taluk Golam Ali. With regard to plot No. 44 of the 3rd schedule corresponding to plot No. 46 of the 1st schedule the case of these defendants was that these lands originally belonged to the predecessor of defendants Nos. 169 to 174, named, Shambhu Nath Dutt in 10 gandas share in mauza Bade Alisha, taluk Golam Ali, which was sole] by a kabala in favour of Ramnarain Deb, the grand‑unlce of these defendants, and on the basis of a family arrangement was acquired by the grandfather of these defendants, named, Hare Krishna Deb, and thereafter their father and these defendants themselves are the owners of this 10 gandas share ; and on the share 9 kedars of land on the western portion except the eastern portion from the Digi of this plot No. 46 of mauza Bade Alisha as also the whole of the plots Nos. 42, 43, 45, 48 and 50 and plot No. 46 of the 3rd schedule corresponding to plots Nos. 44, 45, 47, 50, 52, and 48, respectively, were in ownership and possession of their father when the incomplete partition proceeding was started. With regard to plot No. 44 and the six other plots the father of these defendants claimed ten gandas share in mauza Bade Alisha and applied for being made a party to the said incomplete partition suit ; but as at the time his name was not mutated in the register of the Collecto rate, his application was rejected. Then again after getting his name mutated the father of defendants Nos. 1 and 2 applied to be made a party during the pendency of the said partition case but the Sub‑divisional Officer again rejected his applica tion. These defendants stated that in the circumstances the title of their father and his possession to the said plot in mauza Bade Alisha could not be destroyed and that he was not bound by the said partition. The defendants claim plot No. 23 in schedule 3 corresponding to plot No. 25 to schedule 1 to the plaint as appertaining to another taluk named as taluk Manik Roy which was sold by the then proprietor Krishna Chandra Datta with other lands to one Palu Patni by two kabalas, dated the 7th Ashar, 1284 B. S., and the said Palu Patni got his name mutated in mutation case No. 37 of 1879. One Gonai Majhi and others, the heirs of Palu Patni, sold the said land‑to these defendants in the benami of their mother, defendant No. 3 by a kabala, dated the 31st Chaitra, 1338 B. S. According to the defendants' case plot No. 26 of schedule 1 corresponding to plot No. 24 of schedule 3 appertained to another taluk named Halabadi Rai Kishore Syam Kishore Adhikari and others which was mortgaged by Taranath Dutt of Alisharkul, the then owners and possessor, to Uday Narayan Deb by a mortgage, dated the 23rd Jaistha, 1294 B.S., corresponding to 1887, which was followed by a kabala executed in favour of the same Uday Narayan Deb in Sraban, 1295 B.S., corresponding to the 30th July, 1888. Uday Narayan Deb's successors in interest Sarada Chandra Deb and others sold the land of this plot to these defendants by a kabala, dated the 8th Sraban, 1343 B. S., corresponding to 1936. The defendants claim plot No. 69 of the 3rd schedule cor responding to plot No. 71 as appertaining to a different taluk namely, taluk No. 51964/5 Gangamehra, which its owner Sefatulla of Rajpara sold to Kinkar Ram Dhar by a kabala, dated the 25th Ashar, 1289 B.S., corresponding to the 8th July, 1882, which Kalikinkar Dhar Sukumar Dhar and others, the successors in interest of Kinkar Ram Dhar sold along with other lands to these defendants by a kabala, dated the 12th Baisak, 1342 B. S., corresponding to the 25th April 1935 ; and the defendants since their purchase possess these lands as appertaining to taluk No. 5 Gangamehra. These defendants claim plot No. 70 of the 3rd schedule corres ponding to No. 72 of the 1st schedule as appertaining to another taluk No. 51828/47 Keshar Muhammad which was sold along with other lands by auction for default made by Radha Mohan Goswami, the then owner, and purchased by Gopal Chandra Deb, the father of these defendants in execution case No. 64 of 1924 ; and since then the land has been held and possessed by these defendants as appertaining to, taluk, No. 71 3rd schedule corresponding to plot No. 73 of the 1st schedule as appertaining to taluk No. 51821/39 Ramgobinda Sarma of mauza Rajpara and it was sold by Chandra Nath Vas and Amarnath Das the then owners along with other lands apper taining to the said taluk Ramgobinda Sarma to the father of defendants Nos. 1 and 2 by a kabala, dated the 26th Falgun, 1329 B.S., corresponding to the 10th March, 1923. Defendants claim plots Nos. 72, 74, 75, 76, 77 and 78 of the 3rd schedule corresponding to plots Nos. 74, 77, 78, 79, 80 and 81 of the 1st schedule as appertaining to taluk Joynarain Dutta No. 51823/41 in mauza Rajpara. These lands were sold by a kabala, dated the 9th Pous, 1301 B.S., corresponding to the 23rd December, 1894, by the then owners, Yasin Ulla and Masih Ulla to one Uma Kanta Acharyya whose two sons Ishan Chandra Acharyya and Surendra Kumar Acharyya being heirs of their father Uma Kanta Acharyya sold the same land to Gopal Krishna Deb, father of these defendants by kabala, dated the 28th Baisak, 1336 B.S., corresponding to the 3rd May, 1929 ; and since their purchase the defendants were possessing the lands through tenants. The defendants claim plot No. 79 of the 3rd schedule corresponding to plot No. 83 of the 1st schedule as appertain ing to a different taluk, namely, No. 51971/3 Faizbux Fakir in Rajpara which was sold by the then owner Bagla Sundari Goswami to these defendants by a kabala, dated the 24th Chaitra, 1340 B.S., corresponding to the 9th December, 1933. The defendants claim plot No. 80 to the third schedule cor responding to plot No. 84 of the 1st schedule as appertaining to another taluk, named, Mahal Ram Narayan Sarma. Taluk No.51830/49 of mauza Rajpara of which the eastern half measuring 2 powas 3 jaista and one pan was transferred by its then owners Golak Chandra Bhattacharyya and others of Swarna‑Rek by a kabala, dated the 26th Ashar, 1331 B.S., corresponding to the 10th July, 1924, iii favour of these defen dants. The western portion of the said plot measuring more or less 2 powas 3 jaistas was mortgaged by its then owner, Sadir Mia, to the father of defendants Nos. 1 and 2 by a deed of mortgage, dated the 24th Mag, 1335 B.S., and later sold along with other mortgaged lands by his son Waser Mia by a kabala, dated the 30th Falgun, 1344 B.S., corresponding to the 14th March, 1938, in favour of the defendants Nos. 1 and

2. The defendants claim plot No. 81 of the 3rd schedule corresponding to plot No. 85 of the 1st schedule as appertaining to taluk No. 51883/1 to Subhankar Sharma in mauza Rajpara which was sold by its then owner Jafarulla along with other lands to Gopal Krishna Deb, the father of defendants Nos. 1 and 2 by a kabala, dated the 14th Bhadra, 1330 B.S., corresponding to the 21st August, 1923 ; and since then this land was owned and possessed by these defendants. According to these defendants' case the eastern portion of plot No. 40 of the 3rd schedule corresponding to plot No. 42 of schedule 1 to the plaint appertained to taluk No. 51800/18 Sonaram Chakra in mauza Bade Alisha. The then owners Ramdayal Chakra borty and Rajani Kanta Chakraborty along with other lands of Bade Alisha sold this land by a kot kabala to one Abdus Sattar of Bade Alisha by a deed, dated the 13th Mag, 1325 B.S., corresponding to the 27th November, 1919. The said Abdus Sattar arid his co‑sharers in their turn sold the same to defendants Nos. 1 and 2 in the benami of their mother defendant No. 3 on the 3rd Ashar, 1339 B.S., corresponding to the 17th. June, 1932. Lastly these defendants claim plots Nos. 3 and 4 of the 2nd schedule corresponding to plots Nos. 76 and 82 of the 1st schedule to the plaint as appertaining to a different taluk namely No. 51823/41 Joynarayan Dutta, which was transferred to the father of defendants Nos. 1 and 2 by the then owners, Masiulla and Easinulla by a kabala, dated Agrahayan, 1317 B.S., corresponding to the 3rd December, 1910, since when these defendants have been possessing those lands. We now come to the defence of the other contesting defendant, namely, defendant No.

113. He also raised ques tions as to the form of the suit, defect of parties and multifariousness ; and contended that the suit was barred by limitation. He objected to the vagueness of the plaint, and to the plaintiff not disclosing the history of his title. He generally denied the plaintiff's claim and stated that he was not a party to the imperfect partition suit No. 1 of 1920‑21, mentioned in the plaint, and he was not aware of anything with regard to that suit; and that he was not bound by the said partition suit or by the delivery of possession in respect thereof. In paragraph 11 of the written statement this defendant traversed the statement made with regard to the lands of the 2nd schedule in the plaint and stated that the lands of that schedule were not fallow lands for ever as alleged in the plaint and were not in the khas possession of the plaintiff according to the rule relating to fallow lands, as claimed by the plaintiff. The defendant denied the allegation made in the plaint that the defendants colluded with one another and joined in an illegal conspiracy to keep the plaintiff out of possession. This defendant claims that he was entitled to and was in possession by full proprietary right of the lands of plots Nos. 88, 90, 91, 92, 94, 97 and 100 of the 1st schedule to the plaint ; and that the plaintiff had no title to or possession in the same. With regard to the note added at the end of the plaint by the plaintiff, where it was alleged that the defendants Nos. 152 and 153 had executed a kabuliyat in favour of the plaintiff, he stated that the ‑said defendants Nos. 152 and 153 did not get possession of any land on the basis of the kabuliyat, which was fraudulent and collusive and never came into force. The defendant then stated his own case as to his title to the several plots of land claimed by him. Plots Nos. 88, 90, 97 and 100 were purchased by this defen dant's father Dasarath Saba from Brahmananda Bhattacharjee of Bhatiajuri, who was then the owner in possession by a registered kabala executed on the 18th Chaitra, 1298 B.S., corresponding to the 30th March, 1892, along with other lands; and this defendant was holding those plots through tenants, and the fallow portion of plot No. 100 according to the rule relating to fallow lands. This defendant is the only son and heir of Dasarath Saba, and he is holding these lands in his own right after his fathers' death. The defendant claimed to own and possess plot No. 91 of the 1st schedule of the plaint by a purchase at an auction sale in execution of a money decree against one Dwarikanath Bhattacharjee, who was the then owner, and the above lands were in possession of this defendant through his tenants, defendants Nos. 114, 115, 116, 117, 118, 119, 121, 127, 128, 1299, 130, 131, 132, 133, 134, 135, 136, 137 and

142. Giving the history of the title to the land this defendant stated that the plot No. 88 of schedule 1 to the plaint originally appertained to the separate account No. 6, Sanat Kumar Roy, carved out of No. 1 taluk Golam Ali ; and while his father's vendor Brahmananda Bhattacharjee was in possession of the said lands through his tenants Gour Singh and others, Maharaja Bir Bikram Manikya Bahadur the plaintiff's father brought the title suit No. 1505 of 1874 in the Court of the Munsif at Nabiganj against the said Brahmananda and Gour Singh claiming title to the land. A local investigation was held and the plaintiff's claim was dismissed. The appeal of plaintiff's father, being appeal No. 446 of 1875 to the District Judge of Sylhet was dismissed and there was a second appeal taken to the High Court, being second appeal No. 1999 of 1876 by which the judgment of the Munsif was affirmed. The defendant, therefore, stated that the plaintiff's claim to this plot was barred by res judicata. With regard to plot No. 90 of the 1st schedule the plaintiff's said predecessor brought the title suit No. 1504 of 1874 in the Court of the Munsif at Nabiganj and appeal No. 490 of 1875 in the Court of the District judge at Sylhet and another second appeal No. 1994 of 1876 in the High Court, in all of which the plaintiff's predecessor's claim was dismissed and the decision of the Munsif upheld. The High Court's final order was made on the 17th March, 1880. With regard to this plot also the defendant raised the plea of res judicata. This defendant claimed plots Nos. 91 and 92 of the 1st schedule as rent‑free Brahmottar Surat Bhatta khown as Kismet Surater Khil of taluk No. 1 Golam Ali. At a partition between the co‑sharers Dwarkanath Bhattacharjee and Krishna Dhan Bhattacharjee the lands were amicably divided and the registered deed of partition was executed on the 25th Agrahayan, 1318 B.S. The lands of these plots fell to the share of Dwarikanath Bhatta who was an officer working under this defendant. As a large sum of money was owed by him, this defendant got a decree in money suit No. 61 of 1913 against him in the Court of Munsif at Moulvi Bazar and by the said decree in execution case No. 74 of 1917 he pur chased in auction on the 6th February, 1918, the lands of these plots. The defendant further states that as the said Dwarika nath Bhatta had executed a collusive benama mortgage with out consideration in favour of one Kunja Dhupi on the 4th Aswin, 1332 B.S, corresponding to the 21st September, 1915, in respect of the said land, the defendant after his auction purchase obtained a deed of release from the son of the said Kunjaram Dhupi and since then he has been possessing the land. With regard to plot No. 94 of the 1st schedule, the defendant's case was that it did not appertain to taluk Golam Ali, but that its eastern portion is comprised within Mahal taluk Krishna Charan Chakraborty No. 51200/14 and its northern and western portions are comprised in Patta No. 52201/1 Iswar Debya and Bhairbi Debya Brahmottar No. 4474 Krishna Deb Chakraborty, while the southern portion of this land was comprised in taluk Chandra Dharma No. 52093/7. This land was purchased from its last owner Brahmananda Bhattacharjee by the father of this defendant by the kabala, dated the 18th Chaitra, 1298 B.S., corresponding to the 30th March, 1892. That after the purchase of the said land from Brahmananda Bhattacharjee, the father of this defendant had a survey made and a chitta was prepared in 1300 B. S., corresponding to 1893‑

94. That the total area of this land comprising 1 hal 3 kedars 2 powas 6 jaistas and 1 rek were in exclusive possession of this defendant through tenant. The defendant further states that if any part of this land has been shown as being covered by taluk Golam Ali, it must be through mistake, negligence and collusion and the defendant is not bound by it. With regard to plot No. 97 of the 1st schedule, the defendant's case is that it appertains to taluk No. 52099/13 Harekrishna. This was also comprised in the kabala executed by Brahmananda Bhattacharjee, and with respect to this land also Sadhansari chittas were prepared by defendant's father's predecessor in 1286 B.S., as well as by his father in 1300 B.S., corresponding to 1880 and 1893. The plot No. 100 of the 1st schedule to the plaint which was also purchased by defendant's father from the said Brahma nanda Bhattacharjee did not appertain to taluk Golam Ali but to pargana Kismat Satgaon, taluk No. 52092/5 Jibanram. While the said Brahmananda Bhattacharjee was in ownership and possession of this plot, he gave settlement of the jalkar known as Balla to fishermen and possessed the fallow portion of the plot by grazing cattle through tenants and acquaintances ; that the plaintiff or his predecessor had never any title to or possession in the said land. That a rent suit brought in 1862- 1863 by two persons, Lalu Singha and Bhairab Chandra Singha claiming to be ijaradars under the plaintiffs predecessor in the Sylhet Collectorate was dismissed by the Collector in 1863. That the defendant's father after purchase from Brahmananda Bhattacharjee granted settlement of this land to several fisher men and different tenants, till 1350 B. S., when the defendant's father died and the defendant inherited this land along with other lands. The defendant granted settlement to fishermen by a registered kabuliyat, dated the 17th Pous, 1331 B. S., corresponding to the 1st January, 1925 ; and obtained rent decrees against the said fishermen in the rent suit No. 123 of 1929 in the Court of the Munsif at Moulvi Bazar. Another tenant of the defendant, Sarat Chang, who was ejected, from this land brought a suit, being suit No. 160 of 1913 against this defendant under section 9 of the Specific Relief Act to recover possession ; but the said suit was dismissed on the 5th June, 1915. The defendant's father while he was in possession was once dispossessed by one Ganga Prosad Dutta Chowdhury ; and he brought title suit No. 828 of 1900 in the Court of the 1st Munsif of Moulvi Bazar against the said Ganga Prosad Dutta Chowdhury and others in respect of this land and obtained a decree and took khas possession through Court. This decree was confirmed by the High Court. That, thereafter, the plaintiff's predecessor Maharaja Radha Kishore Manikya Bahadur instituted the title suit No. 27 of 1906 in the Court of the Munsif, Moulvi Bazar, against the defendant's father's and after his father had filed written statement contesting the claim of the Maharaja, a local inspec tion of the land by a Civil Court Commissioner was made .The plaintiff's predecessor realising that he would not get any relief withdrew that suit by a petition, dated the 27th July, 1907, to the Court with liberty to bring a fresh suit ; and costs were decreed against the plaintiff's predecessor in favour of the defendant's father. That after that no other suit was brought against the defendant by the predecessor of the plaintiff laying further claim to the land of plot No. 100 of which the defendant's father continued to be in possession adversely to others. The defendant further stated that he and his predecessor have been possessing this land as appertaining to Taluk Jibanram since the time of the permanent settlement and that the plaintiff's claim was barred by res judicata as well as limitation. Sometime after the present suit was, filed the plaintiff by several applications amended the boundaries of plots Nos. 91, 92 and 94 of the 1st schedule to the plaint and the defendants filed additional written statements. The plaintiff applied for holding a local investigation and a Pleader Commissioner was appointed to hold local investigation who after survey of the land and relying various documents produced by both the parties prepared a set of maps and filed his report. Twelve issues were framed in the suit of which issues Nos. 1, 4, 5, 7 and 8 may be mentioned as having a bearing on the present appeal before us. Out 'of these issues, issues Nos. 1 and 3 were heard by the learned Subordinate Judge as preliminary issues and disposed of by him by his order, dated the 22nd December, 1939, which is to the following effect "This suit was fixed for hearing issues 1 and 3 to‑day. Issue No. 1 is as to multifariousness and issue No. 3 is as to non‑joinder. Issue No. 3 is not pressed. I find it in plaintiff's favour. As to issue No. 1 the suit is for khas possession by the plaintiff on the allegation that he got all the lands in suit by a Collectorate partition but could not get possession on account of the resistance of the defendants. Defendants' point is that they are in possession of some plots only and have no connection with other plots and they are not in collusion with other defendants. But here a common question of plaintiff's title to all these plots is involved. So under Order I, rule 3, there is no misjoinder. I find this issue in plaintiff's favour." After the Pleader Commissioner filed his report both plaintiff and defendants filed objection to the same. The objection was taken up for hearing on the 5th February, 1942, by the learned Subordinate judge when the Pleader Commis sioner was put in the box and he was examined and cross -examined. After a short examination‑in‑chief and one or two questions put by the defendants Nos. 1 and 2 in cross-examination, the plaintiff stopped the cross‑examination and filed a petition which was disposed of by the learned Subordinate judge by an order which is to the following effect : "Plaintiff files petition No. 296 informing that he will point out the mistakes of the Commissioner with reference to documents at the time of final hearing of the suit. "The learned Pleader for the defendants although they cross‑examined the Pleader Commissioner on certain points have made it clear that they will not ask for supplementing the Commissioner's enquiry by a fresh investigation. "The learned Pleader for the plaintiff has also taken the of which the right to relief against the several defendants is alleged to exist ; there must also be present the further circumstance that if separate suits were brought against the defendants some common question of law or fact would arise and such common question of law or fact must have sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matter should be disposed of at the same time . It was argued that no nexus or one act or transaction or series of transactions were alleged or proved against the present defendants. The Allafrabad case referred to above has one feature which is distinguishable from the present case. In that case as observed at page 11 of the report their Lordships in the statement of facts of the case stated as follows : "There was no allegation in the plaint of any joint action or community of interest as between the different sets of defendants". Reference was also made to the case of Karam Singh v, Kunwar Sen A I R 1942 All. 387, where it was held as follows : "Order 1, Rule 3, does not enable a plaintiff, as of right, to join various causes or action against different defendants in the same suit because in the first place, as Order 1 contains no provision corresponding with that in Order 2, Rule 6, no Court would have any power to prevent any inconvenience which might arise out of a joint trial and in the second place, in order that the provisions of Order 1, Rule 3, should be applicable it is necessary that the right to relief should arise out of the same act or transaction or series of acts or transactions which implies, that the acts or transactions, where they are different, should be so con nected as to constitute a single series which could fairly be described as one entity or fact which would constitute a cause of action against all the defendants jointly" The learned Advocate for the appellant on the other hand contends that the question whether a suit is bad for multi fariousness or misjoinder of causes of action should be decided only with reference to the allegations made in the plaint, and in support of this proposition lie relied on the case of Dattatraya Gobind Shaligram v. Gopal Sakharam Pandhare A I R 1931 Bom. 330, which was decided by Patkar and Broomfield, J J. and where it was held as follows : "In deciding the question of misjoinder of parties and causes of action, what is to be looked at is the allegations made in the plaint and they should be assumed to be true. It would not be unfair to dismiss the plaintiff's suit on the assumption of the truth of the allegations in the plaint if they justify that course; but it would be manifestly unjust to dismiss the plaintiff's suit on allegations in the written statement which are not proved by the defendant." I agree with the view held in the Bombay case cited above and should like to observe that whenever an objection of this nature as to the frame of the suit is raised in the written l' statement it is desirable that the particular issue should be decided as early as possible in the present case also the issue was heard and decided long before the evidence in the suit was led ; and after the decision on that issue was given it was open to the defendants to come up on revision against the decision on that issue to the High Court as was done in the case in 51 C W N page 29.3). Relying on the allegations in the plaint I find that there is the allegation that the defendants in collusion and conspiracy with one another had dispossessed the plaintiff from the lands in suit, although it was not proved by the evidence and is contrary to the circumstances as brought out and proved at the trial. The learned Advocate for the appellant argues that his case is protected by sec tion 99 of the Code of Civil Procedure, and it has not been shown that the joinder of parties or causes of action have affected the merits of the case or jurisdiction of the Court. As a matter of fact it has not been pointed out to us anywhere that in this case the merits of the case or jurisdic tion of the Court were affected. Section 99 of the Code runs as follows :‑ "No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court." Reliance was also placed on the case of Mahant Ramdhan Puri v. Chaudhury bachml Narain A I R 1937 42 P C where it was observed as follows :‑ "Upon the first contention their Lordships are of opinion that the joinder of so many distinct causes of action against so many sets of defendants might well have led the trial Court to decline to entertain so many matters in one suit, even if they were within a sound construction of the rules .It is desirable to point out that under the rules as they now stand the mere fact of misjoinder is not by itself sufficient to entitle the defendant to have the proceedings set aside or action dismissed. Section 99 of the Code is in plain words, but their Lordships may repeat what was said by Lord Justice Pickford in (1918) 1KB5551atp.565: "Whatever the law may have been at the time when (1894) A C 4942 was decided, joinder of parties and joinder of causes of action are discretionary in this sense, that if they are joined there is no absolute right to have them struck out, but, it is discretionary in the Court to do so if it thinks right. "Their Lordships are of opinion that in the present case no effect can be given to this objection of misjoinder, the merits of the case having been satisfactorily disposed of in spite of the complication of the proceedings." I agree with the above observations and in the circumstances stated above overrule the objection of the respondents on this point. A point taken in support of the appeal was that the learned Subordinate Judge was in error in holding that the defendants Nos. 1 and 2 and defendant No. 113 were not bound by the results of the imperfect partition case No. 1 of 1920‑21 by which the lands claimed in the suit were allotted exclusively to the share of the plaintiff. The plaintiff at the time of the partition owned a 13 annas and odd gandas share in Taluk Golam Ali in three separate accounts and in support of his title to this share the plaintiff relied on several documents amongst which may be mentioned Exh. 14 (a) dated the 16th January, 1924, which is the order in a mutation case when the plaintiff's name was mutated in respect of the separate account held by him, namely, separate account No.

5. By Exh, 18, Gated the 7th April, 1872, the plaintiff showed that he was the proprietor of another share of the said Taluk Golam Ali by auction purchase on the basis of which he applied for mutation of his name by Exh. 15, dated the 23rd August, 1887, which was allowed by an order, dated the 28th June, 1888. By Exh. 13, dated the 6th July, 1908, the plaintiff proved that his predecessor‑in‑interest purchased at a revenue sale on the 10th January, 1906, another share in the said Taluk Golam Ali which became operative on the 4th March, 1908. On the basis of these purchases the plaintiff's predeces sor acquired 13 annas and odd gandas share in the said Taluk. In 1920 the plaintiff started imperfect partition case No. 1 of 1920‑21 by an application to the Deputy Com missioner of Sylhet under Assam Regulation I of 1886 and the order sheet of that case which is Exh. 19 has been relied on for the purpose of showing the various orders passed in that case from time to time. We find from that exhibit that an order was made for the issue of notice under section 99 of the said Regulation. Another order was made on the 19th June, 1922, by which a survey was ordered to be made of the lands in the Taluk to be conducted on the Lhak map and chak only, leaving any person claiming land within the thak as belonging to another Taluk to establish his right in the Civil Court. Lakheraj and rent‑free lands admittedly were excluded from this partition, and I find from the order sheet, Exh. 19, that some applications were made by holders of Lakheraj lands to exclude their lands ; and I also find from the order, dated the 30th December. 1923, that a general notice was issued on the persons of the mauza concerned to submit their claims with respect to rent free lands within the thak area of Taluk Golam Ali. In the same Exh. I come across a report, dated the 14th February, 1924, by an officer signing his name under the designation S. D. C. in which it was stated :‑ In obedience to the notice issued papers for 148 or thereabout records of Niskar mahals have been submitted direct to me here. This may kindly be noted in the order sheet also. But I understand there are about 20 or 25 or more such Niskar mahals records of which are still wanting I have just talked to the Sub‑Manager of the Tripura Maharaja (the applicant) who has promised to supply these records without delay. It is, however, necessary to ascer tain officially from our Sadar Record Keeker the exact number of Niskar mahals in Taluk Golam Ali No. 51783‑1 in pargana Satigaon by reference to the Register so that we can satisfy ourselves as to this point that no such mahal is left out in the preparation of the partition record. There is, however, no order showing that the register of the Collectorate referred to in this order was ever produced containing exact number of Niskar mahals. On the other hand there is an order under the date 18th February, 1924, where it is recorded as follows:‑ "News of the possible holders of. Niskar mahals were supplied on the 16th February, 1924, by the Maharaja and the notices issued on the 18th February, 1924, hence no delay in issuing notices by the office." There is also an order, dated the 6th June, 1924, where it is ordered as follows :‑ "Partition will be effected in respect of 9 annas 10 gandas 3 karas in terms of the prayer of the applicant. Rupees 1,475 must be deposited at once." It must be noted that at the time of ‑ application the plaintiff was recorded as the owner of 9 annas and odd gandas share and that it was in 1924 that the plaintiff's name was mutated with regard to the other shares. The amount of Rs. 1,475 was evidently required for the costs of the survey. Plaintiff filed copies of notices that were issued under the order, dated the 18th February, 1924, referred to above as Exhs. 11, 11 (a) and 11 (b). In Exh. 11 there were several names mentioned of which No. 26 is the name of Gopal Krishna Deb who was the father of defendants Nos. 1 and 2 ; and 27, Jogendra Nath Deb, and 28, Abdus Satter of Bade Alisha. The operative portion of the notice was as follows:‑ "Whereas it is intimated to you that anyone having any right or claim in respect of small rent‑free mahals in No. 1 Golam Ali Taluk in connection with the said partition suit, should within 7 days from receipt of this notice appear before the officer in charge of survey, failing which no objection will be considered." The peon's report on that notice endorsed by one Monothar Ali describing himself as a temporary peon states that he went to the mauza, found the persons mentioned in the writ present as identified by the identifiers, served upon them the copy of notices in their names. Persons Nos. 26 and 27 did not sign their names, person No. 28 granted a receipt and signed his name, on the back, dated the 1st March, 1924. The peon, Monothar Ali was not examined as a witness. Exh. 11 (a) is the certified copy of the notice in the said imperfect parti tion case purported to have been issued on the 18th February, 1924, on No. 15 Brojonath Roy of Bhimsi who is defendant No. 113 and the operative portion of the notice is exactly the same as in Exh.

11. The certified copy shows that it was signed by one Brojonath Roy. The serving peon in this case was one Sree Ali, a temporary peon, who also was not examined as a witness. Exh. 11 (b), dated 24th January, 1924, is another notice in the said imperfect partition case which was issued on the public inviting objections to the partition from persons who held any rent‑free land within the said Taluk. From the endorsement of the notice it appears that it was posted at several public places, for example, at some bazars and served on sarnanches ; and the report of the peon, Sree Asmatulla of the service of this notice states that it was duly served by fixing copies at various places and by making over a copy to each of the sarpanches mentioned therein. This Asmatulla was not also examined as a witness in the case. It appears from Exhs. 12 and 12 (a) which are certified copies that Gopal Krishna Deb made an application in the imperfect partition case No. 1 of 1920‑21 stating that he was in ownership and possession of 10 gandas share of land on separate account No. 3 Chandra Nath Dutta in Taluk Golam Ali and praying that any allotment in the name of Sasi Mohan Dutta and others should be separately allotted on which the only order passed appears to be "keep this file". There is another document Exh. V (1), dated the 26th June, 1925, which is a petition made by the said Gopal Krishna Deb, describing himself as the owner of No. 3 hissa of mauza Bade Alisha where he states that no separate allotment had been made in his name though he was entitled to get a separate allotment for the lands due to him of the hissa of Umesh Chandra Bhatta and others, as his name had been duly mutated. He also stated that he was the owner of 10 gandas share and his prayer in the petition was that an allotment in his name with regard to the lands of hissa No. 3 of Bade Alisha be made in his favour. There is a note on this Exh. by way of remark which is as follows "Although it was recorded in the Government Office (Collectorate) that I am one of the proprietors it has been illegal not to serve any notice upon me and not to prepare any saham in my name although there was a prayer to that effect consequently, prayer for the preparation of a separate allotment in my name, dated the 26th May, 1925." This was followed by another petition by the said Gopal Krishna Deb filed on the 15th August, 1925, a certified copy of which was exhibited and marked as Exh. V (3). In that petition the petitioner stated: "I applied for a separate saham after mutating my name the lands in my possession. But the Court is holding that as I am not a party it will not consider any of my state ments." There is a remark endorsed on that petition under the heading "grounds" "At present I came to learn on enquiry that the Maharaja wilfully without making all the owner of the mahal parties has served notice after making only some of them parties, upon thus, as a matter of fact prayer like these are not legal. Moreover, of those who never (sic) (were) made parties some did not have their names mutated." Then again the prayer is repeated "I pray that a saham be allotted to me according to previously made prayers." It appears that in spite of repeated efforts on the part of the father of the defendants Nos. 1 and 2 to be made a party to the partition case he was not made a party, although it appears from the order sheet, Exh. 19, that objections to the allotments were heard much later, viz., on the 12th December, 1925, on which date the allotments were confirmed. On the 29th August, 1928, proceedings were reopened under the orders of the Government as a result of an appeal and some altera tions were made in the allotments. The plaintiff relies on these facts to prove that notice of the partition case was served on both the father of defendants Nos. 1 and 2, and defendant o.

113. The defendants on the other hand denied that any notice was served on them, while the copy of the notice bearing the alleged signature of defendant No. 113, which does not bear the original signature, could not be used as evidence of the signature of the defen dants. All that these notices show is that objections from holders of rent‑free lands were invited with a view to ex cluding those lands from partition. It is only defendants Nos. 1 and 2 who were interested in a number of rent‑free plots or Brahmottars ; defendant No. 113, who was not claiming his land as rent‑free in Taluk Golam Ali but under a different title, was not concerned with the notice. Although the father of defendants Nos. 1 and 2 was certainly aware of the parti tion case, it was argued that having failed to assert his rent free Brahmottar right to the lands claimed by him, he is bound by the partition and cannot question the allotment. We have been referred to the previous order of the Revenue Court, where the Register of Lakheraj lands was directed to be produced, but there is nothing before us to show that this Register was ever produced before the Revenue Court to satisfy itself as to whether any Brahmottar was in the Taluk. There is nothing before us to show if the Brahmottar claimed by the defendants Nos. 1 and 2 were or were not already on that Register. It would be a travesty of justice to say that in the circumstances of this case when the party concerned was striving hard to be brought on the record of the partition case in order to be able to raise such objection as he might have, that this defendant is bound by the order made in that partition case. Alternatively it was argued on behalf of the plaintiff that even if there was some irregularity in the pro ceedings, or omission to serve any notice, it could not be questioned by reason of the provision of section 153 (2) of Assam Regulation I of 1886. The relevant subsection runs thus "No proceedings under this Regulation shall be affected by reason of any irregularity or omission in the publication or service of any notice or proclamation thereunder, unless it is proved that some material injury was caused by such irregularity or omission." I do not think the plaintiff can take shelter under this sub section. Moreover, it is a case of material injury if the defen dants' lands which were not liable to be included in the partition were included in it. It was next argued on behalf of the appellant that by virtue of section 154 (1), clause (f) of Assam Regulation I of 1886, the Court had no jurisdiction to deal with the claims of the defendants. Section 154 (1) run as follows "Except when otherwise expressly provided in this Regulation, or in rules issued under this Regulation, no Civil Court shall exercise jurisdiction in any of the following matters:" Clause (f) of subsection 1 of section 154 runs thus "the distribution of the land or allotment of the revenue on partition." From this it was argued that neither the share of the land given under the partition to the plaintiff nor the revenue fixed on that can be disturbed by the Civil Court. In view of sections 99 and 100 of the Assam Regulation I of 1886 it does not appear to be the intention of the Regulation to vest the Revenue Court with exclusive jurisdiction to adjudicate on questions of title. The distribution of the land as between such proprietors or landholders amongst whom there is no dispute of title the partition may be final under clause (f) of section 154 (f) of Assam Regulation I of 1886. But it cannot be said that persons not parties to the partition cannot raise the question of title to the lands, which were made the subject of that partition, in a Civil Court. In this connection I may refer to the case of Mst. Rukeya Bantu v. Mst. Nazira Banu 32 C W N 248, which was a case under clause (e) of section 154 (1) of Assam Land and Revenue Regulation and where the right to partition was involved. In that case it was held that under section 154 (1) (e) read with section 96 of the Assam Land and Revenue Regulation a partition whether perfect or imperfect, of revenue‑paying properties must be made by the revenue authority, but the jurisdiction of the Civil Court to determine the rights of the parties to the property in dispute as well as the shares to which they are entitled have not been taken away by the Regulation, and, the plaintiffs were entitled to obtain declaration from the Civil Court that they have got the right to obtain from the revenue authority a separation allotment of their shares in the estate according to their proportionate rights. In the case of Askar Mian v. Salted Bara Bhuiya 22 C L J 328 in which one of the two rival claimants had obtained settlement from the revenue authorities and got his name registered and the other came to the Civil Court for adjudication of his rights, it was held by Sir Asutosh Mookerjee and Richardson JJ. as follows : "We have arrived at the conclusion that it is competent to the Civil Court, not only to declare the title of the plaintiffs, but also to place them in possession of the dis puted property by ejectment of the defendant." Their Lordships went on to observe as follows "It is consequently plain that the mere fact that the defendants have obtained a renewal of the settlement from the revenue authorities, does not create in them a right which they do not possess." This was also a case under Assam Regulation I of 1886. In the case of Secretary of State v. Brojendra Kishore Rai Chowdhury A I R 1936 Cal. 629 which is also a case under Assam Land and Revenue Regulation I of 1886 it was held that although the validity of a mere settlement cannot be questioned in a Civil Court under section 154 (1) (a), there is no bar to the Civil Court pronouncing a composite proceeding partly a settlement and partly a partition entirely foreign to the regulation to be ultra vines. It was also held in that case that a right founded on adverse possession for more than the statutory period is a legally derived right within the meaning of section 6 (b) of the said Regulation. I, therefore, hold that on the facts of this case there was no bar to the Civil Court exercising jurisdiction over the lands which were the subject‑matter of the partition case decided by the revenue authorities ; and in view of my findings of fact stated above I hold that the learned Subordinate judge was right in holding that either defendants Nos. 1 and 2 nor defendant No. 113 was bound by the result of the imperfect partition case No. 1 of 1920‑21 One of the points raised before us by the defendants was that there was a previous partition in case No, 68 of 1839‑40 with regard to the Taluk Golam Ali to which the plaintiff's predecessor was a party, and, therefore, the present imperfect partition case No. 1 of 1920‑21 was barred and the proceedings in that connection were invalid. In support of that some allotment papers of that partition were exhibited, namely, Z (1) to Z (2) ; but they have not been printed in the paper‑book at the instance of the defendants‑respondents. Reliance, however, is placed by the defendants on Exh. V (4) which is a certified copy of the, plaint in suit No. 235 of 1882 filed by the predecessor of the present plaintiff against the prede cessor of defendants Nos. 155, 160 and 161 of the present suit along with others. In that plaint it was stated by the plaintiff as follows "Be it noted that after the land, etc., of Taluk No. 1 was partitioned in the years 1243, 1252 and 1253 between my predecessor and his co‑shares, and while all the co‑sharers were owning and possessing the partitioned lands jamas, I as well as some of the co‑sharers got the revenue payable being No. respectively for the same separated according to Act XI of 1859, and while I was owning and possessing for a very long time both before and after the kharij from the time of the Batwara, the lands thus partitioned the lands, etc., bearing the said revenue of Rs. 270.13‑1‑1‑l0kr. were auction sold." And this has been relied on by the defendants as an admis sion on the part of the plaintiff of the fact of the previous partition. I do not think any such absolute admission has been made in that plaint with regard to previous partition as I find in the latter part of the said paragraph it is stated " And so far as to Alisha, Bade Alisha, Rajpara and Hailhaor and Palan which were left out of partition, I am possessing the same jointly with my co‑sharers." This would go to show that all the lands were not partitioned. Besides that partition was evidently one under section 22 of Regulation XIX of 1814. Section 22 of the said Regula tion provides for the division of estates made by sharers themselves or by arbitrators under the inspection of the Ameen in certain cases. Here the partition alleged was one by arbitrators and the allotment papers are by themselves not evidence of a final partition, for the Regulation XIX of 1814 further provides by the said section 22 that the Collector shall proceed in the same manner as if the division had been made without the interference of the parties, or the arbitrator or arbitrators and all the rules contained in this regulation regarding divisions made solely by the Ameen shall be held applicable to divisions made by the parties or arbitrators under this section. The general provision with regard to partiton under this Regulation XIX of 1814 is contained in section 19 which pro vides that after the division of the property and the allotment of the jamas the papers shall be forwarded to the Board of Revenue or Board of Commissioners, and it is laid down in section 20 of the said Regulation that the determination of the Board of Revenue or the Board of Commissioners on the partition shall be final. In the present case beyond the allotment papers there are no documents available to show that approval of the Board of Revenue or the Board of Commissioners to the alleged partition was obtained. The learned Subordinate judge was, therefore, right in holding that no previous partition had been proved and that there was no bar to a partition of the estate as was done in the imperfect partition case No. 1 of 1920‑21 in the present case. In support of the appeal another point raised by the learned Advocate for the appellant was that the plaintiff having proved his title to the lands in suit and his possession of the same within the period of limitation before the suit, the trial Court was wrong in dismissing the plaintiff's claim with regard to several plots of land without coming to a distinct finding as to adverse possession of the defendants and without holding that there was an open ouster on declara tion of hostile title by the defendants to the knowledge of the plaintiff, which are the ingredients which must be found before the Court could arrive at a finding as to adverse possession. It was contended that the plaintiff had proved his title to the lands in suit by Exh. 14‑A, 13, 15, 18, 19 and the allotment papers in the said partition case, namely, Exh. 8 series, and also his possession by the chittas in the lands of the three villages, namely, Bade Alisha, Rajpara and Gandharba pur in the suit by partition chittas, Exhs. 7, 7 (b) and 7 (f) read with the order sheet, Exh. 19, in the imperfect partition case and the report of the peon showing delivery of possession. The plaintiff has particularly relied on Exhs. 10 and 10 (a), Exh. 10 is dated the 10th July 1929, and is a certified copy of the peon's report in the case No. 90 of 1928‑29 of delivery of possession. It appears from this report that pos session was given to the plaintiff in the villages of Laiyarkul and Bade Alisha from the 8th May 1929 to the 7th June 1929, by fixing bamboo poles and proclamation by beat of drums. This was done evidently after the final orders were passed by Government on appeal in the partition case. Exh. 10 (a) which is dated the 22nd July 1926, is the report of the delivery of possession in Miscellaneous Case No. 1 of 1925‑26, reporting that delivery of possession was given to the plaintiff in the villages of Laiyarkul, Alisharkul, Bade Alisha, Rajpara add Jatrapasha by fixing bamboo poles on the lands of the same after proclamation by beat of drums. There is a note added by way of explanation as to why the signature of the agent of the plaintiff was not taken on the writ of possession. The peon states that he delivered actual possession to the plaintiff's officers, and there is a later endorsement by the Ammokhtar of the plaintiff, dated the 6th August 1926, to this effect " Received delivery of possession according to the report of the Ameen and as directed by peon." It would appear from these exhibits that of the three villages which are the subject‑matter of dispute in this appeal and the cross‑objections delivery of possession was given only in Bade Alisha and Rajpara and there is no mention of village Gandharbapur in either of these reports. From these reports, which are relied upon by the plaintiff, it is evident that the possession delivered to the plaintiff was not by actual ouster and by driving away the occupiers of the lands ; but that it was what is known as symbolical possession. The law on the point is well‑settled as was pointed out in the case of Jobeda Khatun v. Tulsi Charan Das 36 C L J 472, where it is reported at page 475 as follows: "The rule deducible from the judicial decisions relevant to the subject is that delivery of symbolical possession does not in any way affect the possession of or give start to a fresh period of limi tation against persons who are not parties to a suit or execu tion proceedings". Lord Sumner's dictum in the Privy Council case of Radha Krishna v. Ram Bahadur was quoted with approval as follows at page 475 "Symbolical possession is sufficient to interrupt adverse possession when the adverse possessor is a party to the execution proceedings in which the symbolical possession is given : as regards persons not so parties, only actual dispossession can interrupt their adverse possession". And after referring to several other cases it was held in the same case, "The same principle has been extended to the case of purchasers as sales for arrears of revenue". It was necessary to mention this last principle in view of the fact that with regard to some of the plots the plaintiff having lost a previous litigation purchased the lands at a revenue sale in 1906, but did not get actual possession. It may be noted here that neither defendants Nos. 1 and 2 nor defendant No. 113 was a party to the imperfect partition case No. 1 of 1920‑21, or to the later miscellaneous cases by which symbolical posses sion was delivered to the plaintiff. This matter will be dealt with reference to specific plots of land when I shall deal with the case relating to the plot concerned. With regard to the possession of the plaintiff the learned Subordinate Judge records the following finding where he decides the issue No. 4 as to whether the plaintiff's suit is barred by limitation "Plaintiff is clearly out of possession. So, he is to prove that he was in possession within 12 years before the institu tion of the suit. The learned Pleader for the plaintiff contends that in 1934‑35 plaintiff had the lands surveyed and so exercised an act of possession thereunder. This survey is admitted by defendant No. 1 in Exh. 6 (b) and by P. W.

15. The chitta of 1334‑35 Exh. C (1) has not been filed. There is, however, no reason to disbelieve P. W. 15 on this point. Hence on evidence I find that in 1334‑35 the plaintiff had the entire suit land surveyed and thereby exercised an act of possession on the lands in dispute". This finding is questioned by the respondents as being erro neous. It was contended on behalf of the respondents that there is no evidence worth the name to support the find ing of the learned Subordinate judge that all the lands in suit were surveyed by the plaintiff. With regard to the alleged survey the learned Subordinate Judge has mainly relied on the evidence of P. W.

15. All that he says in his evidence about the survey is : "Our Ameen in 1334‑35 prepared chitta and naksa of the lands allotted to plaintiff by the Batwara proceedings". Chittas, naksa or map which normally would be the object of the survey have not, however, been produced. There is some other oral evidence coming on the side of the plaintiff to support the story of the survey which, however, has not been referred to by the trial Court but which I may mention here. P. W. 1 was plaintiff's officer for about 28 years and he deposed about the survey as follows : "After the Batwara we had our survey in 1334‑

35. Probably Nibaran Chandra Dhar and Promode Das were Ameens". Although four Ameens were examined as witnesses on the side of the plaintiff, this Nibaran Chandra Dhar was not examined. Promode Behari Das Gupta, P. W. 5, was also one of the plaintiff's Arneen who was examined and deposed to his being present at the partition survey. He made a statement in cross‑examination which would go to show that though before the partition there were some private surveys made by the plaintiff, there was no survey after the partition. His statement is as follows : "After Batwara we had no other survey. Our private survey was compass survey. Our previous survey papers are of plane‑table survey". The learned Subordinate Judge in this connection has also relied upon what he states is an admission by defendant No. 1 in Exh. 6 (b) which is a kabuliyat alleged to have been executed by the father of defendants Nos. 1 and 2 in favour of the plaintiff on the 3rd November 1929, where the lands covered by the kabuliyat have been referred to as having an area of 3 kedars and odd found out on measurement according to plane‑table survey with a standard nal of 14 pals in length and 8 nals in breadth as prevailing in the plaintiff's sherista. In the schedule, there is reference to plots Nos. 483, 500 and 499 of the Batwara chitta, plots 473, 474 and 472 of the chitta 1337‑38 (Tippera) which according to the Advocate for the appellant corresponds to 1334‑35 B. S., and has been taken as being an admission made by the defendants' father. I do not think a mere reference to a plane‑table survey without any date and to the chitta is a sufficient ground for holding that there was an admission of actual survey of the entire lands in suit after the partition made by the plaintiff. In the absence of the map and the chitta with regard to which there is no evidence that they were not in possession of the plaintiff and the absence of evidence showing the manner and operation of the survey it is very difficult to hold that the plaintiff had the entire suit lands surveyed after the partition. It was urged on behalf of the respondents that the allotment papers relied upon by the plaintiff to prove his possession as also the entries of the Collectorate record are inadmissible is against them. In support of the contention that Batwara papers were not admissible reliance was placed on the case of Nandlal Pathak v. Mohanth Chanurpat Das 17 C L J

462. I can at once say that that case is distinguishable, and what was held inadmissible there was Batwara khasra of the draft Batwara papers and not the finally adopted Batwara papers which have been exhibited in the present case. Entries in the Batwara record relating to revenue partition were held to be admissible D under section 35 of the Evidence Act, though they may not be conclusive evidence, in the case of Binoda Chayan Chakra varti v. Ramanee Kishore Chakravarti I L R 61 Cal.

302. The record of existing rents and assets of an estate under Estate Partition Act were also held to be admissible under section 35 of the Evidence Act in subsequent suit between the owners of the partitioned estate and the owner of an adjoining estate over a plot of land, an entry in such record showing the disputed land as appertaining to the partitioned estate against the owner of the adjoining estate. This was the view held by Nasim Ali and Edgley, JJ., in the case of The Chatterjee Estates, Ltd. v. Dhirendra Nath Roy 40 C W N 821, and I agree with this view. In reply to the latter part of the plaintiff‑appellant's contention that in the present case the onus of proof showing adverse possession was on the defendants, the respondents have relied on the case of Rakhal Chandra Ghose v. Durgadas Samanta 26 C W N

724. In that case a number of Privy Council decisions on the point along with other decisions were reviewed; and it was held that where the plaintiff while in possession has been dispossessed and is out of possession at the date of the suit the onus is upon him to prove that he was in possession and was dis possessed‑ within 12 years of the suit. This principle would apply to the lands mentioned in Schedule 3 of the plaint of the appellant's suit. It was further held in that case that "Possession is not necessarily the same thing as actual user. The nature of the possession to ‑be proved by the plaintiff, and the evidence of its continuance must depend upon the character and condition of the land in dispute. Where the land is incapable of actual enjoyment, as in the case of dilu vion by rivers, if the plaintiff shows his possession down to the time of diluvion, his possession is presumed to continue so long as the lands continue to be submerged. "In cases where the land is not incapable of enjoyment, but may produce some profit though trifling in amount and only of occasional occurrence, as is so often the case with jungle land, all that can be required is that the plaintiff should show such acts of ownership as are natural under the existing condition of the land and in such cases when he has done this his possession is presumed to continue so long as the estate of the land remains unchanged unless he is shown to have been dispossessed. "The cases of diluviated lands or jungle or waste lands are thus no exception to the general rule that a plaintiff who is dispossessed and brings a suit for recovery of possession must show that he was in possession within 12 years of the suit. "In the case of jungle or waste lands if the plaintiff proves his title, there is a presumption of possession in his favour, where having regard to the nature of the land, possession cannot be expected to be proved by acts of actual user and enjoyment. If, however, the plaintiff asserts that he exercised acts of ownership and adducess evidence in support thereof, which is disbelieved by the Court, he cannot turn round and rely upon any presumption, because the case set up by him negatives the existence of circumstances which would give rise to the presumption, and is inconsis tent with it". With regard to the lands in schedule 2 of the plaint the plaintiff relied upon the 1st part of the last mentioned rule but during the trial he abandoned his case that the lands were perennial waste but led evidence of possession with regard to them which was disbelieved by the trial Court. Even if the evidence of the alleged survey is left out of consideration, the plaintiff by the evidence of possession of his allotment papers and chittas along with the peon's report of delivery of posses sion coupled with the oral evidence can be taken as sufficiently to have discharged the initial onus that his suit at least with regard to the plots in Bade Alisha, and Rajpara was not barred by limitation. Of course, it was open to the defendants to rebut that evidence by proving that they had dispossessed the plaintiff for a period of 12 years or more before the date of the suit. With regard to the plaintiff‑appellant's conten tion that the Court having not found that an ouster of the plaintiff by the defendant was to the knowledge of the plaintiff, I should like to point out that knowledge of assertion of hostile title on the part of the real owner is only necessary to be made out in cases where the adverse possessors have originally been in possession on behalf of the owner of the land either as co‑sharers or as agents. In the case of a stranger dispossessing a person all that need be proved to constitute adverse possession is that there was actual dis possession for more than the statutory period in assertion of a hostile title. In the present case the plaintiff has not shown that he vas originally in possession of the land through the defendants either as his co‑sharers or as his agents. I, there fore, hold that the findings arrived at with regard to possession by the learned Subordinate judge were sufficient to hold that there was adverse possession in the plots in which he has given a decree in favour of the defendants on the basis of adverse possession. I would now proceed to deal with the appeal and the cross‑objections as they relate specifically to the various plots of lands which are the subject‑matter of this appeal and cross -objections. Plot No. 29.‑With regard to this plot it was argued by the appellant that the area given in the kabala Exh. B (9) on the footing of which the defendants claimed the plot is one powa two jaistas and fifteen pans; but the Commissioner found by local measurement the land to be over 3 powas in area. It was, therefore, argued that the decree in favour of the defendant could not have been for more than that found by the Commissioner and the rest of the land ought to have been decreed in favour of the plaintiff. I do not think there is any substance in this argument. The learned Subordinate judge has found that the defendants Nos. 1 and 2 had succeed ed in proving that this plot appertained to Brahmottar Ram Sankar Sarma in Taluk Golam Ali, and being rent‑free land it could not be the subject‑matter of the partition suit. In coming to its finding the Court has relied on Exh. B (9), kabala of 1310 B. S., corresponding to 1903, wherein the land is described as part of revenue‑free Brahmottar Ram Sankar Sarma ; and the defendants proved their possession by oral evidence and by Exh. W (2) and several chittas supported by oral evidence. It appears from the Commissioner's report that the boundaries as given in the defen dants kabala fairly agree on three sides and also agree with the locality and so the small discrepancy in area is immaterial. I see no reason to disagree with the findings of the learned Subordinate Judge. It is true that there is an observation of the learned Subordinate Judge that the said kabala describing the land as niskar is not admissible in evidence for the purpose of proving niskar and the Court refers to the case of Kanta Mohan Malik v. Basudeb Ghora 39 C W N 311, to support this observation. From this observation of the learned Subordinate Judge it does not follow that he rejected the documents as inadmissible for any other purpose and in fact his finding shows that he relied on this document for the purpose of showing that the defendants held the land in assertion of a revenue‑free title. Plot No. 44.‑It was argued that the defendants Nos. 1 and 2 only claim 7 kedars 4 jaistas of land in this plot, which is the eastern portion, while the area of the entire plot is 9 kedars and odd. The defendants‑ obtained this plot along with plot No. 50 by exchange of some lands which appertains to their 10 gandas share in Taluk Golam Ali. The defendants coud not produce any document except relying upon their posses sion of 7 kedars 4 jaistas of land in support of their claimed. Defendant No. 1, Girish Chandra Deb, in his evidence stated as follows :‑ "Out of dag 42 (of Schedule III) we claim 7 kedars and odd on the basis of the chitta Exh. W. 5 as dag 43 of that chitta as a part of Khanebari Madhab Roy." As the defendants have not been able to produce documents of title to prove exchange and rest their title only on possession of 7 kedars 4 jaistas, the learned Subordinate judge was not justified in dismissing the plaintiffs suit with regard to the entire plot which is situate in mauza Bade Alisha in Taluk Golam Ali. Plot No. 46.‑With regard to this plot it was urged on behalf of the appellant that the defendants did not claim the digi and we are referred to the written statement of the defen dants Nos. 1 and 2 where in paragraph 23 of the written statement the defendants state that on the basis of an amicable partition they obtained certain lands measuring about 9 kedars on the western portion except the digi (tank) of dag No. 44 (of Schedule III) of mauza Bade Alisha. Reference is, therefore, to the plot number which corresponds to plot No. 46 of the 1st schedule. It is in evidence also that defendant No. 1, Girish Chandra Deb stated as follows :‑ "Plot 44 (excluding the Digi) 45, 46 (except 3 Poyas of Brahmottar) we claim as part of our 10 gandas share in Taluk Golam Ali except the Digi we are in possession of 9 kedars and odd of plot 44, 7 kedars and odd to .the eastern portion of plot No. 44 appertains to Khanebari Debiprosad which is the rest of our hissa No. 3". Reference in this evidence to the numbers is as given in schedule 3 to the plaint. Plot No. 44 indicates plot No. 46 of schedule

1. In the face of this pleading and evidence and the fact that the land is situate within the village Bade Alisha comprised in Taluk Golam Ali, I think the learned judge was in error in not passing a decree in favour of the plaintiff with regard to the digi. Plot No. 47.‑It was urged by the appellant that the de fendants did not claim this plot ; but I find in his evidence that defendant No. 1 made a specific reference to this plot as plot No. 45 of schedule 3, which I have quoted above. In coming to the finding in favour of the defendants with regard to this plot along with other plots the learned Subordinate Judge relied on the kabala Exh. B 38 of 1851, chitta, Exh. W. 5 of 1861, and Exh. Y, Hukummana along with the oral evidence of D. Ws. 7, 8, 9, 11, 12 and

24. Of the documents relied on by the Court reference has been made in the Judgment to Exh, Y which has not been printed in the paper book and under the rules of the Appellate side the appellant is debarred from challenging any finding based on that document The appellant's contention, therefore, with regard to all the plots Nos. 44 to 47 are, overruled except 2 kedars and odd land in plot No. 44 and the digi in plot No. 46 which the defendants themselves did not claim to possess and which I have dealt with earlier. Plot No. 50.‑It was argued that the defendant has taken two different positions in regard to this plot. In his written state ment the defendant claimed it as part of his 10 gandas share in separate account in Bade Alisha ; but in his evidence the defendant claims it by exchange as revenue‑free land part of Brahmottar Fechai Sarnia obtained from Ram Gobinda Dutta. The trial Court held that the lands in this plot appertained to Brahmottar Fechai Sarnia and relied on the defendant's chitta, Exh. W. 5, and the evidence of D. Ws. 1, 12 and 24, I see no reason to disagree with the finding of the trial Court with regard to this plot. Plot No. 53.‑This plot originally belonged to defendants Nos. 1 and 2 as part of Brahmottar Gopal Sarma and the other half to defendants Nos. 74, 75 and

76. In decreeing this plot in favour of the defendants Nos. 1 and 2 and defendants Nos. 74, 75 and 76 the learned Subordinate judge relied upon the defendant's kabala, Exh. B. 33, an ancient document of 1835, kabuliyat, Exh. C 5 of 1880 and Exh. W. 3, chitta of 1894 coupled with the oral evidence of D. Ws. 6, 7, 12, 23 and

24. The trial Court was, therefore, justified in holding that the defendants had title to that plot. But in doing so he over looked the written statement of defendant No. 74 wherein he himself disclaimed any interest in this plot. He, therefore, ought to have held that defendants Nos. 1, 2, 75 and 76 only had title to the plot. I shall deal now with three plots in mauza Rajpara with regard to which the appeal was not seriously pressed. With regard to plot No. 71 it was argued that the appellant's claim was disallowed on the finding that this plot apper tained to Taluk Ganga Mehra and not to Taluk Golam Ali; but this was only based on the recitals in defendant's two docu ments ; and similar criticisms were made with regard to plot No. 72 which was held by the Court to appertain to Taluk No. 47 Kesar Muhammad. With regard to plot No. 71, the trial Court relied on the kabala. Exh. B 14, dated the 25th April, 1935, by which the property conveyed included the land which were identified as lands of plot No. 71 and sold as part of Brahmottar Patta No. 51964/5 Ganga Mehra. This supports the description of the land in the kabala, Exh. B 34, dated the 8th July, 1882, by which the land was sold to the predecessor- in‑interest of defendants Nos. 1 and

2. These lands were sold as lands of 51964 Patta Ganga Mehra in mauza Rajpara and the land was identified by the Commissioner as the land of this plot. I see no reason to disagree with the finding of the trial Court with regard to this plot. Plot No. 72,‑‑With regard to this plot a similar objection was raised and it was held by the trial Court to appertain to Taluk Kesar Muhammad who relied on Exhs. D and E sale certificate and order‑sheet and the oral evidence of D. Ws. 15, 16, 20, 21 arid

24. No error has been shown in the finding of the trial Court. Plot No. 13.‑With regard to this plot the plaintiff in the Batwara chitta. Exhibit 7, his own document, is shown as being out of possession. The trial Court has relied on defendants' documents supported by oral evidence that the plot appertains to Taluk Ram Gabinda Sarnia to which the plaintiff has no title. Nothing has been pointed out to show that there were not sufcient materials to support the lower Court's findings, except that the various different Taluks to which these lands were claimed to be appertaining have not been located by the production of the thak, map, etc., of those Taluks. I do not think it is necessary for the defendants to prove affirmatively their title in this suit. It was enough for their purpose if they showed that in assertion of their claim to hold the lands in different Taluks they had kept the plaintiff out of possession of the land. But in this case they had produced sufficient evi dence to show that the lands were known as appertaining to other Taluk than Golam Ali and held as such. Plots Nos. 74, 16 and 78.‑These plots were claimed by defendants Nos. 1 and 2 as belonging to a different Taluk No. 41 Joy Narayan Dutta and a number of documents were produced in support of this claim. It was argued in the absence of thak of the said Taluk Joy Narayan Dutta the Court had come to a one‑sided finding. Besides this it was pointed out that two documents were relied on by the defen dants, names, Exhs. B 16 and B 20, dated the 13th May, 1929, and the 3rd December, 1910, respectively. Some of the lands appertaining to Taluk Joy Narayan Dutta No. 51823/41 appear to have been sold by Exh. B 20 by Masiulla and Yasinulla to Gopal Krishna Deb and the same lands appear to have been sold by Exh. B 16 by Ishan Chandra Acharjee and Satindra Kumar Acharjee to Gopal Krishna Deb. The genuineness of these two documents it is urged is not free from doubt. I may point out here that this question was not put in cross‑examination to the witnesses who proved these two documents and who might perhaps be able to offer some explanation over the same. It is quite possible that having obtained the lands under the earlier document and possessed it the defendant's father in order to retain it obtained a further kabala from two parties having a pretence of some rival claim to the lands in order to perfect his title. In coming to a finding with regard to these plots being part of Taluk Joy Narayan Dutta the learned Subordinate Judge relied upon a number of other documents besides the two above‑mentioned documents, namely, Exhs. K B 6, B 21, B 35, B 19, B 22, B 23 and B 25 and on the fact that the lands were identified by the Commissioner on spot during the local investigation. I do think there is anything wrong with the finding arrived at by the trial Court with regard to these plots. There is another point raised with regard to one plot of the group of these plots, namely, plot No. 80 and it was argued that the learned trial judge has failed to consider the plaintiff's case with regard to this plot because he does not specifically mention this plot by number. I find from the judgment while dealing with this group of plots to which he referred in the beginning as plots Nos. 74, and 76 to 82, he included this plot also and referred to all these plots towards the end of his finding as the "aforesaid plots". Defen dant's case with regard to plot No. 80 is supported by Exhs. B 16, K B 37 and the Commissioner's report who found that this land was covered by defendant's documents. Exhs. B 20, B 21 and B

35. It is, therefore, not correct to say that the learned Subordinate judge had overlooked this plot and omitted to consider it. Plots Nos. 84 and 85.‑These plots were found by the trial Court to appertain to Taluk Ram Narayan Sarma and Suvankar Sarnia, respectively. It was argued that one of the documents relied upon by the defendant was Exh. B 2 which was of a very recent date, namely, March 1938, which it was urged, only covered tote right anti covers the north portion of plot No.

84. This document was relie6 upon only for the purpose of showing that the lands covered by the document appertains to Taluk Ram Narayan Sarnia and not to Taluk Golam Ali which belong to the plaintiff. It was further argued that on the footing of this document defendants Nos. 1 and 2 only acquired the jots right which was possessed by their vendor and, therefore, the defendants, if at all, could obtain only the jots right under the plaintiff in these lands. This argu ment is absolutely unacceptable, for there is no mention of the persons under whom the joie right was held, and the very fact that it was described as part of another Taluk Ram Narayan Sarma, there could be no implication that the right was held by the vendor under the plaintiff. In coming to the finding that these two plots Nos. 84 and 85 did not appertain to Talur Golam Ali belonging to the plaintiff, but to two other Taiuks, namely, Ram Narayan Sarnia and Suvankar Sarma, the learned Subordinate judge has relied upon a number of other docu ments besides the identification of the land by the Commis sioner, namely, Exh. B 1 of 1924, Exh H of 1929 and also Exh. B 3 of 1923 and referred to Exh. B 39 of 1906. He apparently rejected this last mentioned document being un registered as wholly inadmissible, as it will appear from the observation : "Exh. B 39 is an unregistered kabala and we can brush it aside". It is true that this document was not admis sible for the purposes mentioned in section 49 of the Registra tion Act, but in the circumstances of this case it ought not to have been wholly rejected. It was at least admissible for the purpose of explaining the nature and character of the posses sion thenceforth held by the vendees under the document from whom the defendants Nos. 1 and 2 derived their right, That such documents are admissible for the limited purpose mentioned above was held in the case of Barrada Pillai v. Jeevarathnammal by the Privy Council 15 I L R 43 Mad. 244 (P C). The documents were supported by oral evidence of the defendant No. 1 who stated in his evidence that this plot No. 84 appertained to Taluk Ram Narayan Sarcna which they acquired from two different parties. With regard to plot No. 85 he stated that it appertained to Taluk Suvankar Sarma and was purchased by his father by the kabala, Exh. B 3 ; and that at the time of the purchase they received the old docu ments of title from their vendor. I see no reason to disagree with the findings of the trial Court with regard to these two plots. This disposes of the appeal with regard to defendants Nos. 1 and 2 and mauza Bade Alishah and Rajpara. I shall now deal with the appeal in so far as it is directed against defendant No. 113 and relates to 7 plots, namely, plots Nos. 88, 90, 91, 92, 94, 97 and 100 situate in village Gandhar bapur. So far as these plots, except plot No. 100, are concerned the plaintiff in Exh. 7 (b), the Batwara chittas of mauza Gandharbapur, dated the 27th May 1325, and relied upon by him, has been shown to be out of possession. These plots in that exhibit are indicated by the corresponding Batwara plots, namely, the plots Nos. 239 to 244 of that chitta, corresponding to plot No. 88, plots Nos. 274 to 275 of that chitta, corresponding to plot No. 91, plots Nos. 276 and 277 corresponding to plot 92, plot No. 374 corresponding to plot No. 90 and plots Nos. 380 to 384 corresponding to plot No.

94. I have already found in the earlier part of the judgment that the appellant who relied as proof of his taking delivery of possession on Exhs. 10 and 10 (a) has failed to prove that he was given possession of any land in the village of Gandhar bapur. In view of these facts the plaintiff's claim with regard to these plots is barred by limitation. But as certain points were raised in this appeal with regard to these plots, I may as well deal with them. With regard to plots Nos. 88 and 90 which were formerly comprised in the separate account No. 6 Taluk Golam Ali standing in the name of Sarat Kumar Roy and were acquired by Dasarat, the father of defendant No. 113, by the kabala, dated the 30th March 1892, Exh. B 26, the defendant pleaded the bar of res judicata as well as adverse possession. I agree with the learned Subordinate judge that there would be no bar of res judicata by reason of the decision in the two title suits No. 1504 of 1874 and No. 1505 of 1874 which were lost by the predecessor‑in‑interest of the plaintiff appellant to the predecessor‑in‑interest of defendant No. 113, inasmuch as the plaintiff‑appellant has proved that the separate account No. 6 in which these plots were compris ed was sold for arrears of revenue on the 18th January 1906, and purchased by the predecessor‑in‑interest of the plaintiff appellant. The appellant is, therefore, now litigating not on the old title but under a new title acquired in 1906, and the pre vious decisions will not operate as res judicata. But at the same time the judgments and decrees of these suits will serve as evidence of defendant's possession of the land at the time. It wag urged before us in this appeal that by purchase at the revenue sale the plaintiff's predecessor acquired the land free from encumbrances and even if the encumbrance created by the defendant's possession continued he could at the utmost hold the land as a tenant under the plaintiff ; and it was further argued that it being a separate‑ account it could not be adversely held unless it was in assertion of a hostile title against each and everyone of the co‑sharers. 1 do not think these reasons are sound or that they help the appellant. After the purchase at the revenue sale the plaintiff's predecessor was entitled to take possession of the land and remove the defen dant's predecessor, but this was not done and the latter continued to possess these lands adversely not only against the plaintiff but also against his co‑sharers, as all of them were ousted by the defendant and the defendant by his various collection papers, chittas and other documents supported by oral evidence has successfully proved that in spite of the revenue sale he continued to possess and enjoy the lands as of old even after 1906 till the date of the present suit. The learned Subordinate judge is, therefore, right in holding that the, plaintiff lost his title to these lands and the title was ac quired by the defendant No. 113 by adverse possession. With regard to plots Nos, 91 and 92 it was argued that although the defendant had relied on some partition papers and deeds of mortgage, not having called for the record of the. Collectorate to show that these lands were revenue‑free lands of Brahmottar Surat Bhatta the learned Subordinate judge ought to have held that the defendant had failed to prove his right. Among the large number of documents relied upon by the defendants there is Exh. D (1), sale certificate dated the 27th July 1918, by which he acquired these lands and where in these lands have been described by the Court as the lands of rent‑free mahal Surat Bhatta and there is evidence that the defendant held these lands under this right ever since. There is no point in the plaintiffs argument in this behalf, and I agree with the findings of the learned Subordinate Judge. The appeal was not seriously pressed with regard to the portion of plot No. 94 lost by the plaintiff as also with regard to plot No. 97 with regard to which the plaintiff had filed an application for withdrawal of his case. The main contest both in the suit and the appeal seems to have been concentrated on plot No. 100 which comprises an area of about thirty hals out of a total of forty‑seven hals and odd comprised in the plaint. This plot is recorded in the Batwara chitta, Exh, 7 (b), dated the 27th May 1925, where this land is described as waste land with reference to the corresponding Batwara chitta Nos. 390 to 393 and recorded as Mirasi Maharaja, evidently indicating thereby that as it was a waste land the plaintiff was deemed to be in possession; and this is the case that the plaintiff had actually made out in the plaint, ‑viz., that he had title to this land and it was a waste land. But at the trial the plaintiff went back on his case and led evidence to show that the land was capable of enjoy ment and it was actually possessed by the plaintiff inasmuch as his tenants used to graze cattle and catch fish with his permission. In view of the fact that even if the Batwara chitta, Exh. 7 (b) which is dated 1925 is accepted and the fact that the plaintiff has failed to prove that he got possession of any land in Gandharbapur after partition as already stated above the plaintiffs' suit would be barred by limitation, unless he proves that he possessed this land within 12 years of filing the present suit which was instituted on the 19th April 1938. In order to prove his actual possession of this land the plaintiff relied entirely on oral evidence. With regard to this plot P. W. 1 states as follows "I know most of the lands of Schedule II. I know the 30 heels 5 kedar dag for the last 20 years. It is my duty to know my master's land. We have nothing to show that fish is caught without our permission. The fishermen gave some fish but no rent". The next witnesses who deposed to plaintiff's possession are P.Ws.7 to

11. P. W. 7 plaintiff's tahsildar makes a similar vague statement that the plaintiff's tenants used to catch fish in the 30 pals land in suit; but he could not give names of the fishermen. He further stated that the plaintiff let out grassy plots at Rs. 1‑8‑0 per year but there was no collection paper or any document produced. He also does not give any date or name any specific person who caught fish or took grass from the land with the permission of plaintiff's officers. P. W. 8 goes further and says that the catch of fish from the Beel daily amounted in value to Rs. 10 or Rs. 20 ; and that the Namasudras of Gandharbapur sometimes caught fish in the Beel but no rent was demanded from them by the plaintiff's men. His evidence is also as vague as that of the previous witnesses. P. W. 9 stated that the people of the village, he and other Namasudras who deal in and catch fish for the last 25 years have been seeing plaintiff's men catching fish there. If the daily catch of fish amounted in value daily to Rs. 10 or 20 as the previous witness deposed and if professional fishermen used to catch fish in this land, and if the plaintiff was really in possession of this land, it appears strange that such a valuable fishery like this was not let out and made to yield rent, The evidence of P. W. 10 is to the effect that he was the plaintiff's tenant and he used to catch fish and nobody objected to his catching fish and he also confirmed that the price of a total catch in a day might be Rs:

20. P. W. 11 who is the plaintiff's tahsildar states that the plaintiff's tenants used to catch fish and graze cattle with the permission of the plaintiffs officers and stated under cross‑examination: "We have no papers to show that such permission was granted". The next witness is P. W. 13 who is an Assistant tahsildar of the plaintiff. He was posted and placed in charge of other villages including Gandharbapur in 1935. His evidence is as follows "In 1340‑41 (corresponding to 1933‑34) I saw the patit lands for the first time, 30 or 31 hals of land of Schedule II of the plaint belong to plaintiff but are in possession of defendant No.

113. I have been seeing defendant No. 113 in possession of the said lands after the partition". P. W. 17 deposing about this plot said that fish was reared there and that for the last 10 or 12 years permission of the officer of the plaintiff was only necessary for catching fish there. P. W. 18 also spoke in the same strain and so deposed P, Ws. 20 and

21. The last witness further adds that the plaintiff never tried to settle the land, and that the people of remote villages like Foolpur also came to catch fish there. This is all the evidence adduced by the plaintiff to prove his possession. As against this there is a large volume of evidence both oral and documentary in support of the defendant's case that this plot does not appertain to the plaintiff's Taluk Golam Ali at all but to Taluk Jibanram : and that he has been in possession of this land throughout by letting it out to tenants under a series of kabuliyats, about 10 in number, Exh. C series ; and that the land was in occupation of his tenants at the date of the suit. The defendant also relied or the record of a previous litigation between the predecessor of the plaintiff and the father of the defendant No.

113. Amongst the numerous documents exhibited by the defendant in support of his case the most important is Exh. P. which is the certified copy of the plaint in suit No. 27 of 1906. It was filed by the predecessor of the plaintiff on the 12th February 1905, in the Court of the 1st Munif at Moulvi Bazar in which the defend ant's father had been the principal defendant. He is described in the plaint as the main co‑sharer and I may add here by way of digression that although he was described as the main co sharer in 1906, the defendant No. 113 was not made a party to the imperfect partition case No. 1 of 1920‑

21. In paragraph 4 of that plaint Exh. P the plaintiff states as follows : "The defendant No. 1 after suppressing the real state of affairs, unjustly with the motive of obtaining possession, etc., of the lands schedule 2 included within schedule I of the plaint, giving out that it appertains to a different Taluk after manufacturing from before fraudulent documents, etc.. instituting suit No. 828 of 1900 in this Court in the name of some of the‑ defendants, out of defendants Nos. 2 to 14 and in the names of predecessors of other defendants, obtained a fraudulent and collusive decree on establishment of pro prietary title along with the defendants Nos. 2 to 14 with lands of schedule 2 in suit on the strength of fraudulent and collusive documents and papers, etc., and false evidence and in execution of the said decree in execution case No, 326 of 1904 obtained possession on the 14th February 1905. The plaintiff is not bound thereby as he was not a party to the said suit and as he was not previously aware of such a collusive decree and delivery of possession". And then the plaintiff prayed for the establishment of his title and in schedule 1 described the land as having the same boundaries as were given in the defendant's documents, but the area was described as 8 hals and 4 kedars "more or less". It may be noted that this is the area which is also mentioned as 8 hals 4 kedars more or less in some of the documents produced by the defendant. It was argued before the trial Court that as the area of 8 hals and 4 kedars was mentioned in the defend ant's document he was not entitled to a decree for more than that. It may be noted that the mention of the area appears to have been given by guess and the boundaries which are definitely given were relied on by the Commissioner and depicted on the case map of this village prepared by him. In the said suit of 1906 a local investigation was held and after the local investigation the plaintiff's predecessor withdrew that suit and there is no evidence that he again claimed these lands against defendant No. 113 before the present suit. With regard to the appellant's argument regarding discrepancy between the area and the boundaries the learned Subordinate judge was right in holding that in such cases the boundaries were to prevail. I may refer in this connection to the case of Annanda Prosad Mukhopadhya v. Mathura Nath Nag Mazumdar 13 C W N 702 p. 705‑8 wherein a similar question was raised and Vincent J. laid down the principle applicable to such cases in the following words "This contention cannot, however, be accepted for, it has always been held in India for obvious reasons that, where there is a description of land in a conveyance or lease setting forth the boundaries and specifying the area, the land within the boundaries passes by the deed. In the present case, the boundaries have been ascertained and there is no reason why the lease should not be held to cover all the lands included within them." Chitty J. also agreed with this view but with a slight reser vation which is as follows "It is true that speaking generally the boundaries given in a conveyance are the true criterion of the amount of land conveyed. It is not, however, an absolutely hard and fast rule." In the present case where the area has been given as "more or less" I think on the facts of the case the trial Court is right in holding that the lands within these boundaries or in other words the entire plot No. 100 in the suit was covered by the documents produced by the defendant and also by the plaint, Exh. P. of the unsuccessful suit by the plaintiff's predecessor. The P. W. 13 also admitted that when he saw the land he found it in possession of defendant No.

113. The trial judge also relied upon some observations in the remark column of thak settlement papers, dated the 18th April, 1861, wherein Brahmananda, the predecessor‑in‑interest of the defendant challenged the correctness of the record showing plot No. 100 as part of Talak Golam Ali. This document although relied upon by the trial Court does not appear to be included in the paper book. Apart from the question of title, on a consideration of the large volume of documentary evidence produced on behalf of the defendant it is clear that the defendant and his predecessor have been in exclusive possession of this land from before the year 1906 and so the defendant No. 113 has acquired the right by adverse possession as is correctly held by the trial Court. I now pass on to the cross‑objection by defendant No.

1. This relates to plots Nos. 20, 21, 23, 24, 26, 42, 48, 49, 51, 52, 70 and

83. Out of these plots the cross‑objection was not pressed with regard to plots Nos. 20 21, 24, and

49. With regard to plot No. 23 it was contended by the defendant cross‑objector that it was decreed in favour of the plaintiff on the only ground that it was included in plaintiff's allot ment in Talak Golam Ali; but this does not appear to be correct as 'the ground besides this given in the decision of the learned Subordinate judge is that the defendants failed to identify this land with plot No. 34 of their Exh. W‑1 and thus failed to prove that this was their Brahmottar land. 1. do not think there is any substance in this objection ; and hold that the trial Court was right in coming to the decision that it did. With regard to plot No. 26 it was urged that the defendants ought to have been held to have proved their claim by means of the documents that they produced. It appears that the defendants' claim was rejected because in the documents relied on by the defendants the description of the land was such as it could not be a safe guide to assure identification, and their document of 1937 was of very recent date ; and on the other hand the plaintiff's docu ments had shown that this plot was not included in Talak No. 1 Halabadi Rajkishore Adhikary as claimed by the defendants but in plaintiff's Taluk Golam Ali. It was on this ground that the defendants' claim was rejected and title was found with the plaintiff. I see no reason to disagree with the finding of the trial Court. Plot No. 42.‑With regard to this plot it was urged that the trial Court was in error in throwing the onus on the defendants to prove that the lands formed part of Taluk No. 18 Sonaram Chakra as claimed by them. Although the trial Court begins with the defendant's case, it does not appear that it threw the onus on the defendants and relieved the plaintiff of his duty to prove his case. The trial Court has noted that the defendants have not produced any chitta and has relied upon the plaintiff's document to show that this is within Taluk Golam Ali. I do not see any ground for disturbing the finding of the trial Court with regard to Plot No.

48. This plot relates to three powas of land with regard to which the defendants' claim was disallowed on the ground that it was not comprised in the rent‑free holding known as Kashi Ram Varma. The only evidence on which the defendants relied in suport of their case was Exh. B‑30, an unregistered and unstamped deed of February, 1832. It was urged that this document was wrongly rejected by the learned Subordinate judge as inadmissible. What the learned Subordinate judge observed was that it was not admissible to prove niskar right and to that extent he was correct ; but, of course, this document would be admissible for the purpose of showing the nature of the claim and the circumstances under which the defendants claimed to have possession of the land. But there another ground on account of which this document cannot be relied upon to support the defendant's case. The boundaries of the land given there appear to be extremely vague. The western boundary is given as Gohat and the east, north and south boundaries are given as the zemindary of Sheik Golam. In coming to its finding the trial Court also relied upon the Commissioner's report ; and I do not think that exception can be taken to the finding of the trial Court with regard to this land. Plot No. 51‑

The defendant cross‑objector claimed this plot on the basis of Exh. B‑32, a deed of sale, dated the 11th March, 1833, in order to show that it was comprised in Brah mottar Sibsankar Sarma. It is urged in support of the cross- objection that this document should have been relied upon by the learned Subordinate judge as also the kabuliyat, dated the 12th Baisak, 1285 B. S, on which the defendants relied before the Commissioner. It appears that the latter document the kabuliyat was not proved as an exhibit in the case; and that the learned Subordinate judge rightly held that merely a description in the document Exh. 32 of this land as Brah mottar was not sufficient to prove the rent‑free character of the land, for which purpose it was inadmissible. Although this document under which the defendant's claim their pre decessor‑in‑interest derived his right is dated 1239 B. S, and although the defendants produced their chittas of the years 1267, 1286 and 1300 B. S., of later date there is no chitta supporting their possession of this land ; and the defendant No. 1 himself admitted in his evidence that there was no chitta with regard to the land. In the circumstances it cannot be said that the learned Subordinate Judge was not right in relying on the evidence of allotment and other documents in favour of the plaintiff and holding that the plaintiff had his title to this plot. Plot No. 52.‑--With regard to this plot it was argued by the cross‑objector that the learned Subordinate judge was under a misapprehension as to the report of the Commissioner when he said that the boundaries did not tally, as the Commis sioner was able to find out the land. It appears from the judgment that the reference to the boundaries by the learned subordinate judge was to its vagueness. The boundaries given in the only document, namely, Exh. B‑31, an unregistered kabala of April, 1830, of the land covered by that kabala were as follows : "South, east and west Zamindaries, and, north land purchased by Hazibon Dhar". It was almost impossible to identify the land by this document; and there was no other evidence to connect the vendee of that document with the defendant. On the other hand the evidence adduced on behalf of the plaintiff shows that the plot was in Taluk Golam Ali and was allotted to him in partition. There was no error in the finding arrived at by the learned Subordinate judge with regard to this plot. Plot No. 70.‑With regard to this plot the defendant argued that the learned Subordinate Judge ought not to have decreed this plot in favour of the plaintiff without considering the question as to whether the plaintiff was in possession or was dispossessed by the defendant. It appears that the defendant's claim was disallowed with regard to this plot, as the very document on which he relied to show that the land was part of the revenue‑free Brahmottar Mahadeb Brahmachary itself mentions revenue payable for the land, which dis proved the defendant's claim. The learned Subordinate judge relied on the fact that this land was found in Taluk Golam Ali and allotted to the plaintiff in the imperfect partition case No. 1 of 1920‑

21. There is further evidence that the land is situate in Rajpara in which possession was given to the plaintiff. The defendants did not produce any chitta and the document on which they relied to prove their claim, namely, Exh. B‑13, is dated March, 1933, only a few years before the filing of the suit when apparently the dispute between the parties was going on. The trial Court, was therefore, right in holding that plaintiff had his title to this plot. Plot No. 83.‑With regard to this plot the cross‑objector had nothing further to say than that his document Exh. B‑4 should not have been rejected. The defendants claimed this plot as appertaining to jote Faizbux and rested their claim on kabala, Exh. B‑4 of 1933. The learned Subordinate judge rejected this document as being of a very recent date, but we are unable to see that be was not justified in doing so, Plaintiff"s document on the other hand showed the plot as appertaining to Taluk Golam Ali which was included in the allotment and being in mauza Rajpara was in possession of the plaintiff. We have, therefore, no reason to disagree with the finding of the trial Court with regard to this plot. It now remains to deal with the cross‑objection of defend ant No. 113 in respect of a portion of plot No. 9'

4. This plot to prove his possession of this plot within 12 years of the suit. The Batwara chita, E.xh. 7 (b), dated the 27th May, 1925, on which the plaintiff himself relies, shows that the plaintiff is out of possession, and there is no evidence that he subsequently got possession of this plot. With regard to this plot there appears to be overwhelming evidence in favour of the defend ant cross‑objector. In fact there appears to have been some misapprehension in the mind of the learned Subordinate Judge inasmuch as apparently inconsistent findings have been recorded so far as this plot is concerned. While dealing with this plot for the first time the learned Subordinate Judge records the following finding "But kabala Exh. B 26 of 1298 Exh. W. 6‑A chitta of 1286 (plot No. 183) Exh. K 2 deed of release 1298 and Exh. W 7 chitta of Dasarath of 1300 (Chak Nos. 243 to 258 and part of 259) taken along with the fact that the Collectorate chitta shows that the Maharaja was out of possession and the collection papers, namely, Touzis, Amdanis Checkmuries and Dakhilas filed by the defendants support the defendants' case." Then he goes on to say : "The Pleader Commissioner has found that the western part of this plot is within Chak No. 408 appertaining to Taluk Chandra Dharma and that in the north a slice falls to Chak No. 409 as, appertaining to Taluk No. 14 Krishna Chandra Chakravarty." After this he comes to the conclusion : "Hence on evidence on record I hold that the plaintiff has his alleged title to the suit land, namely, dag No. 94 of schedule I of the plaint except the western part and the northern part to which defendant No. 113 has his title as found by the Pleader Commissioner." In the‑latter part of his judgment, however, while dealing with issue No. 4 the learned Subordinate judge again records the following finding : "It appears from the evidence that defen dant No. 113 is in possession of plots Nos. 94 and 97 since 1298. This story of possession is supported by the kabala Exh. B 2,6 and chittas W 6 and W 7 taken along with the oral evidence adduced. Hence I find that with regard to these plots defendant No. 113 has acquired title by adverse possession." In view of the contradictory nature of the findings which are more in favour of the defendant and the paucity of evidence on the side of the plaintiff I am of opinion that the plaintiff ought not to have been given a decree with regard to any portion of this plot ; and that the defendant had established his title to this plot by adverse possession as found by the learned Subordinate Judge. At the hearing of the cross‑objection a question was raised as to the Court‑fee that should have been paid on the Memor andum of cross‑objection of defendant No. 113 on the valuation of the costs. The defendant No. 113 along with a number of his tenants filed this cross‑objection. The question of costs was raised only in the cross‑objection on behalf of the defend ants other than defendant No. 113, who sought his main relief with regard to the question of plot No. 94, which was decreed in favour of the plaintiff. The question of costs raised by him was ancillary to the main relief sought and I do not think required to pay extra Court‑fees for the relief he sought as regards costs. I need not go into the question of costs further as the parties who raised the question of costs' as their main relief not having filed a Vakalatnama in this Court, are not before us. I do not think it necessary to go into the question further. In the result, the appeal is allowed in part against defend ants Nos. 1 and 2 and the decree of the learned Subordinate Judge with regard to plot No. 44 is modified to this extent, namely, that the plaintiff will, get a decree for about 2 kedars and odd land in excess of 7 kedars and 4 jaistas with regard to which the decree in favour of defendants Nos. 1 and 2 will be maintained and the decree with regard to the excess over 7 kedars 4 jaistas in favour of defendants No. 1 and 2 is hereby set aside. With regard to plot No. 46 the plaintiff will get a decree with regard to the digi (tank) in this plot and the decree of the learned Subordinate judge will be altered to that extent. In view of the fact that there has been innumerable mistakes in the paper‑books prepared in the office of the plaintiff's Advocate, I make no order as to costs in favour of the appellant. The cross‑objection of defendant No. 1 is dismissed, but without costs. The cross‑objection of defendant No. 113 is allowed. The decree passed by the learned Subordinate judge in favour of the plaintiff with regard to the portion of plot No. 94 is set aside and his suit is dismissed with regard to the whole of this plot. The defendant No. 113, the cross‑objector, will get his costs of stamps paid on the memo of cross‑objection and Wakalatnama and the hearing fee, which is assessed at 5 Gold Mohurs. The defendant No. 113 will also get costs incurred by him in the Court below, proportionate to his success. Subject to the modifications with regard to plots Nos. 44, 46 and 94, and costs as indicated above, the judgment and decree of the trial Court are affirmed. AFZAL, J.

‑I agree. A. H. Order accordingly.