THAKUR CHANDRA MOHAN SINGH Vs. BUTU MIAN

JUDGEMENT

(1.) The plaintiffs in 1859 obtained from the landlord a lease of a certain area known as Guruakanali. The area apparently consisted of certain comparatively low-lying land rising on the east and west bounded on the east by a larger area of low-lying land which was known as Barkagarha. The plaintiffs brought into cultivation the whole of the land settled with them with the exception of comparatively small portions contained in plots Nos. 186 and 188 of the survey which lie respectively on the east and west of the block. When the Record of Bights was prepared, these two plots were entered as waste land in possession of the landlord and subsequently the landlord leased out portions of plot No. 186 to tenants who have reclaimed the land.

(2.) The plaintiffs instituted the suit out of which this appeal arises for recovery of possession from the landlord and his tenants, and their suit was decreed in the trial Court. The Court found that the plain, tiffs had proved that the disputed plots formed part of the area settled with their ancestors in 1859; and that the plaintiffs should be regarded as having been continuously in possession. The ground on which the trial Court came to this finding on the question of possession was that the area in suit consisted of land on which at the time of the preparation of the Record of Bights neither party was exercising specific acts of possession; and that therefore in this case possession should be presumed to be with the persons who had title to the land. An objection was also taken that the tenant-defendants by their acts of reclamation had acquired special rights by converting the land into korkar within the meaning of Secs.61 and 67, Chota Nagpur Tenanoy Act but it was held that such rights could not be acquired in land which formed part of the holding of an occupancy raiyat. The defendants appeal was dismissed on substantially the same grounds as those of the trial Court, and a second appeal to the High Court has also been dismissed ; but the learned Judge of this Court gave leave to appeal under Clause 10, Letters Patent.

(3.) Mr. B.C. De on behalf of the defendant-appellants argues in the first place that the plaintiffs suit ought to have been dismissed as barred by limitation, because they bad failed to prove actual possession within 12 years of the suit. According to the Record of Bights, the land in question was waste land in possession of the proprietor; but in the present case the Courts have found that neither the plaintiffs nor the defendants have proved any specific acts of possession over these particular plots up to the time of the preparation of the Record of Rights.