(1.) This appeal arises but of a suit in which the main relief claimed by the plaintiffs was the declaration of their title to some land in Mas khawar right, the eviction of the defendant from the land or assessment of fair rent therefor, and other incidental reliefs. The plaintiffs case was that the land was recorded as being in the defendant's possession in "bargabhag" under the plaintiffs, that the defendant used to deliver bdrga-produce but set up his jote right for the first time in 1914 in a suit for recovery of bargar produce and on this denial of the plaintiffs right to barga-produce the suit was dismissed The plaintiffs alleged that since then the defendant was holding the land as a trespasser. The defence, on the other hand, was that the defendant and his ancestors had jote right to the land, that it formed part of the defendant's tenancy under the plaintiffs and their co-sharers at a rental of Es. 34-3-5, that on partition the rental in the plaintiff's share became Its. 15-13-0 and that the plaintiffs were not entitled to anything extra for the land which was being held all along as a part of the said tenancy.
(2.) The Munsif decreed the suit declaring the plaintiffs khas khamar right and giving the plaintiffs khas possession and mesne profits.
(3.) The Subordinate Judge then reversed that decision and dismissed the suit holding that the defendant has succeeded in proving that the land forms part of the defendant's admitted tenancy under the plaintiffs and their co-sharer. This finding of the Subordinate Judge rests upon the following conclusions at which he arrived, 1st, the Kecord of Eights which was in favour of the plaintiffs does not raise any presumption as the entry therein was an unauthorised one; and the plaintiffs documentary evidence, viz., the chitta paitha and jamabandi are full of serious discrepancies, suggesting that they were prepared with a sinister motive and are, therefore, utterly unreliable; 3rd, the onus is upon the plaintiffs to show that the; defendant held the land in barga, and the plaintiffs have failed to prove that the defendant or his predecessors ever gave barga crops for it, while, on the other hand, the circumstances admitted or proved made it highly probable that the defendant's case was true. The learned Judge was also of opinion that even if the plaintiffs case was made out, namely, that the defendant was a bargadar in respect of the land in suit, the present suit was barred both for assessment of rent and for eviction of the defendant as he has been asserting since 1905 that the land is a part of his admitted tenancy and no additional rent is payable thereof.