NANDA KUMAR DAS Vs. EMDAD ALI

JUDGEMENT

(1.) The Defendant No. 6 has preferred this appeal which is limited to Plots Nos. 655 and 656. It is argued on his behalf that the estimate of facts by the lower Court is not correct, that the Court has not given proper value to the presumption arising from the record of rights and that the suit is barred by limitation.

(2.) Admittedly the plaintiffs are the nimbhowladars within whose nim howla are included the disputed Plots Nos. 653 to 658. The defendants case is that they are the holders of osat nim howla under the plaintiffs nim howla and that the tands in suit are included within their nim osat howla. The lower appellate Court has found on an examination of the evidence and a consideration of the Ameen's map that these plots fall within the nim howla of the plaintiffs. On this finding the plaintiffs are entitled to a decree. But then the learned Subordinate Judge goes on to determine the question of limitation to find whether the plaintiffs right in all these plots was barred. On an examination of the evidence of possession he comes to the conclusion that the plaintiffs right to Plots Nos. 655 and 656 is not barred, the defendants having failed to prove possession beyond 12 years; with regard to the other plots the learned Judge found that the defendants had reclaimed those plots more than 12 years ago and therefore they acquired a limited interest adverse to the plaintiffs. In this view he has passed a decree partly in favour of the plaintiffs and partly in favour of the defendants. The Defendant No. 6 who is interested in Plots Nos.655 and 656 assails the findings of the lower Court and urges that they are based not on the facts of the case but upon certain assumptions by the learned Judge.

(3.) The learned Judge has found, that all these plots were at one time jungly lands. At the time when the record of rights was prepared, namely, 1905, no tangible possession of these plots (655 and 656) was possible. The other plots wore brought under cultivation before the preparation of the record of rights in which all those plots were entered as in the occupation of the defendants. The appellants, however, argue that it was the plaintiffs case that they were in possession of these two plots by taking hogla from the jungle and as the plaintiffs assert acts of possession they are bound to prove such possession within 12 years of the suit and the presumption of law that waste land is to be considered in the possession of the persons having title thereto should not be raised in their favour. With regard to this the only act of possession alleged by the plaintiffs is the taking of hogla which also the defendants claimed to have done. Hogla is a wild grass and in that part of the cuontry is not supposed to be the exclusive property of anyone. The cutting of hogla therefore is not an act of possession or dispossession by any party. The learned Judge is perfectly entitled as a judge of fact to give due weight to the evidence adduced by the parties to draw his own inference which may be inconsistent with the case of either party for it is the duty of the Judge to sift the truth and not to be pinned to the evidence of a party to the case in order not to defeat the ends of justice. The learned Subordinate Judge therefore observes that no tangible possession of those plots was possible at the time of the preparation of the record of rights by which he means to say that it was jungle land which was not capable of possession in such a way as to amount to dispossession of the person having title thereto.