JUDGMENT
Dawson Miller, C.J.
1. I have had an opportunity of perusing the judgment about to be delivered by my learned brother. I agree with the conclusions at which he was arrived and have nothing to add.
Foster, J.
2. These appeals arise out of two suits which were tried together and decided by the Subordinate Judge of Gaya in his judgment dated the 26th August 1919, The two suits came to be numbered 40 of 1919 and 41 of 1919, but in fact they were instituted before that year. The plaintiffs in Suit No. 40 are defendants in Suit No. 41 and the defendants in Suit No. 41 are plaintiffs in Suit No. 40. Both parties are interested in Dardha, a large village which has come under Settlement, the Record of Rights having been finally published in October 1914; and such party has sued for a declaration that certain of the entries in that record are incorrect. The suit now registered as No. 40 of 1919 was instituted in 1915 by representatives of the three branches of a family having a common ancestor. The most prominent persons of this family at the time of the Record of Rights were Bhikhari Singh and Raj Keshwar Singh in one branch, Sheobalak Singh and Lokenath Singh in another, and Ram Kewal Singh in the third. These persons have been for convenience sake called the plaintiffs in the judgment of the Trial Court, though they are defendants in the second suit; and the defendants, though plaintiffs in the second suit, are called defendants throughout. The second suit was instituted in 1917. Both parties hare interest as landlord in the village, but the plaintiffs are also possessed of extensive tenancies under direct cultivation.
3. Both the suits impeached as incorrect a very large part of the Record of Rights of villige Dardha, but the Subordinate Judge in each party’s case allowed only one of the least important of the claims arid di3misscd the rest. So with two very small exceptions the Record of Rights was upheld. Those whom it is convenient to call defendants are the appellants in each suit; and the so-called plaintiffs, as respondents, have filed a cross-appeal in connection with the appeal in the second suit. The two appeals and the cross-appeal cover much less ground than the original suits, and, moreover, many points have been abandoned in the course of argument. For the better understanding of the matters still in controversy it is necessary to make an outline, of the various interests shown in the Record of Rights of Dardha village.
4. There are 14 Khewats in the Record of Rights showing the interests of the proprietors and tenure-holders in the village. The proprietary interest of the whole village is held by the family of Khawpja Hasan Jan (Khewats Nos. 1 to 3). Under the proprietor are two mokarrari shares, 8-annas each, one of which was held at the time of the Settlement by Bibi Guna. The other 8-annas mokarran had been sub-let in darmokarrari and Bibi Guna had acquired the sub-lease. So Bibi Guna had 8-annas mokarrari share and 8-annas darmokarrart share, and this 16-aunas interest was leased to the plaintiffs by her predecessors-in-interest and by herself in successive terms under thicca lease since the year 1874. The last term ended in 1918 during the pendency of these suits. Bibi Guna transferred her 16-annas mokarran and darmokarrari interest to the plaintiffs and defendants; the plaintiffs acquired 4-annas of this in 1906 and the defendants the residue in 1912. So that the time of the final publication of the Record of Rights (14th October 1914) and at the time of the institution of these suits (1915 and 1917). the plaintiffs who Mere originally thiccadars of the 16-annas interest were in possession of the village as darmokarraridars of 4-annas share, and as thiccadars of 12-annas share paying rent for that 2-annas share to the defendants; and the lands held by the plaintiffs in these two capacities were shown in the Record of Rights as follows: (a) within the thicca tenure (Khewut No. 8), there is khata No. 82, a small area of road side land on which stood a mahua tree in the possession of Sheobalak Singh, one of the plaintiffs; (b) also in the thicca khewat, a large an a (khaia No. 3) shown as bakasht thiccaiar; (c) a still larger area held by cultivating tenants under the thiccadars. The lands in possession of the cultivating tenants include seven tenancies in connection with which disputes have arisen between the parties. There are six permanent tenures, having rent not fixed in perpetuity, and one occupancy holding : all these stand in the names of one or other of the plaintiff’s family in khewats Nos. 9 to 14 comprising Khatas Nos. 83 to 89 and 67.
5. The tenures are as follows:
(1) Khewat No. 9. Tenure-holder Ram Kewal Singh 3V33 acres, produce rent detailed in khatas Nos. 83 and 84.
(2) Khewat No. 10. Tenure-holder Bhikhari Singh, 9.89 acres, cash-rent, khata No. 85.
(3) Khewat No. 11. Tenure-holder Bhikhari Singh, 3572, produce rent, khata No. 86.
(4) Khewat No. 12. Tenure-holder Sheobalak Singh 5.22 acres, khata No. 77, cash rent.
(5) Khewat No. 13. Tenure-holder Sheobalak Singh 31.76 acres, khata No. 88, produce rent.
(6) Khewat No. 14. Tenure-holder Sheo balak Singh 11.41 acres, khata No. 89-produce rent.
7. The single occupancy holding is a well and orchard standing in the name of Sheobalak Singh and described as free of rent. Its area is 1.64 acres and it is recorded in Khata No. 67.
8. It will be convenient to take the defendants’ two appeals in their order and then to come to the plaintiffs’ cross-appeal.
9. Appeal No. 34 concerns the six permanent tenures and part of the occupancy holding set out above, as well as the mahua tree which I have mentioned; and Appeal No. 35 concerns the remainder of the occupancy holding. I proceed to decide the questions raised.
Appeal No. 34.
(1) The contention as to Khatas Nos. 83 and 85, which are recorded as permanent tenures bearing rent not fixed in perpetuity and which at first the appellants claimed should be bakasht thiccadars, has been abandoned, and it is agreed that the Record of Rights should stand as it is.
(2) A similar claim in respect of Khata No. 86 has been pressed. It is necessary for the understanding of this point of appeal to. have a clear idea of what took place in the Settlement. In khanapuri and attestation there were many disputes between the parties, and the most serious was at to the extent of the plaintiffs’ raiyati holding. The plaintiffs had been thiccadars since 1874 and were in direct possession of considerable area in the village, and no doubt few people could speak with certainty as to the state of affairs forty one years ago, so as to identify the old raiyati hplding of this family. If the identity can be ascertained, a very substantial foundation will be found for coming to a decision in this dispute. The oral evidence shows that it is common ground that since 1874 the plaintiffs’ cultivation has greatly increased : the plaintiffs say the increase was due to purchase, but the defendants assert that a large part of it was due to reclamation, by which they imply uncultivated land bakasht thiccadar was brought under cultivation; and it is also contended that the few purchases definitely asserted were such as could not convey any personal title to the plaintiffs. It is clear that the cultivating tenancy of the plaintiffs can amount only to their original jote plus what they have legally acquired in their personal capacity; and the residue would have to be considered to be held by the plaintiffs in the capacity of thiccadars and so subject to the superior landlords’ reversion. Now at the attestation the defendants admitted only certain land, about 55 bighas in area, to be the ancient ancestral jote of the plaintiffs, and this admission was accepted : I refer to the dispute No. 70 of the Dispute List, order dated the 14th February 1914. The admission was restricted to bhaoli lands, and there were no admissions as to nakdi. In July 1914 the Settlement proceedings reached the stage of objections under Section 103-A of the Bengal Tenancy Act and Mr. Harihar Prashad, Assistant Settlement Officer, was deputed to make a local investigation. His report is on the record, and it appears to be a most painstaking work. What led to this proceeding is disclosed in the evidence of Siri Lal, an elderly man, who was servant of Dost Mohammad, who, we see from Raj Keshwar Singh’s deposition and the lease, Exhibit 2-B, had a one-third share (mokarrari) in the village in 1871 and afterwards. Enquiries were made of Siri Lal and he found amongst his deceased master’s records a bundle of papers including a measurement khasra. These papers were produced at a late stage in the Settlement, and this is suggested as a ground for distrusting them. The measurement khasra has been exhibited: it is of 1873, and is an elaborate list of the bhaoli tenancies of the village showing the kind of crops grown, the rough area and the locality (kita). No substantial grounds have been urged for distrusting its authenticity, nor in fact has the document ever been seriously impugned. No doubt, the attestation proceedings show that Bibi Guna had no old papers in her custody, but that would hardly throw doubt on evidence that her husband’s former co-sharer had some old estate records. The Settlement Authorities made use of the measurement khasra and other papers, and for some days Mr. Harihar Prasad was engaged in the presence of the parties and their Pleaders in identifying the plaintiffs’ old raiyati plots of 1873 with the Settlement plots, using the old measurement khasra for the bhaoli lands and some old leases produced by the plaintiffs for the nakdi lands, besides ascertaining what the plaintiffs had acquired by inheritance and purchase. The results are shown in his report Exhibits 35 and 36. I should mention that it had been already decided that as the plaintiffs held more than 100 bighas, it was to be presumed, under the provisions of the Bengal Tenancy Act that they had the status of the tenure-holders in respect of lands belonging to their ancient jote and their subsequent acquisitions. The defendants in their appeal urge that the Settlement Authorities came to a wrong conclusion in using the measurement khasra and removing land from the khata “bakasht of thiccadars” to the khatas ‘bakasht of tenure-holders’: on the other band, the plaintiffs in their cross-appeal want more bakasht for their tenures on the basis of this measurement khasra. It is urged that the road-cess returns Exhibits M and C show that the plaintiffs as thiccadars in 1886 and 1902 admitted a less area of raiyati lands than now claimed: but an examination of the entries of the holdings of Fakir Singh and Ram Kewal Singh in Exhibit M, and of Bhikhari Singh and Ram Kewal Singh in Exhibit C shows the reverse.
I find no reason for accepting the defendant-appellant’s contention that khata No. 86 should be declared to be the thiccadars’ bakasht.
(3) I come now to khatas Nos. 87 and 88, which are nakdi and bhaoli tenures of Sheobalak Singh. These are made up of lands said to have been partly inherited from the husband of Musammat Sundari Koer and partly to have been purchased from Musammat Talukraj Koer and three cultivators Sihn a rain, Isar and Chaka Lal.
The acquisitions from Musammats are not any longer impeached and it is agreed that the Record of Rights shall remain as it is in this portion of khatas Nos. 87 and 88. But in respect of the lands acquired from Sheonarain, Isar and Chaka Lai, the appeal is pressed, and it is contended that the plaintiffs could only acquire them as “bakaskt thiccadars.” Now the evidence shows that these three persons were tenants of Dardha to whom the plaintiffs had made takkavi loans for agricultural purposes; and that they found themselves unable to meet their debts and gave up their lands instead. The defendants have called the village Patwari Sarju Lal, son of Chaka Lal, as a witness, and he has denied that his father’s lands were so transferred. As the learned Subordinate Judge points out, quite justifiably in my opinion, this witness’s cross-examination shows that he is untruthful and the plaintiffs’ evidence remains unrebutted. The plaintiffs attempted to prove some entries said to have been made by these three tenants in the plaintiff’s cash-book, but as the documents purported to transfer the lands and were not stamped or registered, they were excluded. Sibnarain owed Rs. 118 and save up his lands in 1890; Isar’s debt was Rs. 77 and he gave up his lands in 1893; and Chaka did the same in 1902 for a debt of Rs. 269. As to the legal effect of these transfers, it is important to note that, when they were made, the Transfer of Property Act, 188c, and the Bengal Tenancy Act of 1S85 were in force, but not the Act of 1907 amending (inter alia) Section 22 of the Bengal Tenancy Act of 1885. The learned Vakil for the defendants contends, first of all, that these transactions were surrenders or abandonments of holdings, and that the provisions of Section 54 of the Transfer of Property Act preclude any contention that they were sales, at least where the value was more than Rs. 100. To treat them as surrenders in the sense of Section 86 of the Bengal Tenancy Act would be to ignore the important fact that the takkavi advances were from the plaintiffs’ private funds, and that the transactions were between the plaintiffs as creditors and the three tenants as debtors, and not between landlords and tenants as such. It should be noted that the question of transferability of holdings was not raised in the Trial Court and no evidence was adduced. A reference to the Settlement dispute list will show that both plaintiffs and defendants at that time selied on their purchases and the plea of non-transferability was not raised then. I think we have no reason for allowing the issues to be complicated with this new question, and the pica itself appears to me to have no material on the record to support it, I do not think these takkavi transactions were surrenders. Nor do I think they fulfil the legal requirements of an abandonment; for the tenants did not leave the lands without notice to the landlords. The learned Vakil for the defendants is on somewhat firmer ground when he relies on Section 54 of the Transfer of Property Act. But on the other side it is pointed out that the burden of proof that the entry in the Record of Rights is incorrect rests on the defendants; and these defendants have against them the fact that as between the plaintiffs and the tenants, Sibnarain, Isar and Chaka Lal, the former could point to the fact that the consideration in each case was a debt due to them, that they obtained possession with the consent of the tenants, and that they have been in possession ever since. So, it seems to me, as between the parties to these transactions, there has been such part performance on both sides as to leave to the tenants no room, in equity, for recovery of the lands. The cases in point are Mahomed Musa v. Aghore Kumar Ganguli 28 Ind. Cas. 930 : 42 C. 801 at pp. 816, 817 : 17 Bom. L.R. 420 : 21 C.L.J. 231 : 28 M.L.J. 548 : 19 C.W.N. 250 : 13 A.L.J. 229 : 17 M.L.T. 143 : 2 L.W. 258 : (1915) M.W.N. 621 : 42 I.A. 1 (P.C.); Salamatuz Zamani Begam v. Masha Allah Khan 43 Ind. Cas. 645 : 40 A. 187 : 16 A.L.J. 98 and Puckha Lal v. Kunj Behary Lal 20 Ind. Cas. 803 : 19 C.L.J. 213 : 18 C.W.N. 445.
The last objection to these transactions urged by the defendant-appellant is that the plaintiffs as ijaradars were debarred by Section 22 of the Bengal Tenancy Act from acquiring a right of occupancy. As it stood at the time of these transfers, the Section provided that a o-son holding as an ijaraiir shall not while so holding acquire a right of occupancy in any land comprised in his ijara. In the amending Act of 1907 the words “by purchase or otherwise” were added. But before the amendment the word “acquire” was held to mean “acquire under the law” words used in Section 21 and evidently meaning, by force of the Statute: Ramrup Mahto v. H. Manners 4 C.L.J. 209. The correctness of this decision was doubted by Wukherji, J., in Raghubar Mahto v. Manners 11 Ind. Cas. 389 : 13 C.L.J. 568 a judgment passed after the amendment. In Pierpont Morgan v. Ramjee Ram 56 Ind. Cas. 366 : 5 P.L.J. 302 : (1920) Pat. 168 : 1 P.L.T. 310, the former decision was followed. The following consideration seems to me to point to the correctness of the first and third of these decisions. The word “acquire” in respect of occupancy rights is really used in the Act; but in the preceding Section 21, Sub-section (2) it occurs “shall be deemed to have acquired a right of occupancy under the law then in force.” but it appeal’s to be carefully avoided in Section 22, Sub-section (2) in the sentence commencing if the occupancy light in land is transferred to a person.” It would appear then from the context, that the “word acquire” implies the accrual to a raiyati tenancy of rights conferred by the Statute rather than the transfer of lights by another tenant.
The leaded Vakil for the plaintiffs points out that this has point is not material, for if the plaintiffs could not acquire occupancy rights by purchase, they would atleast acquire non-occupancy rights, which by virtue of Section 21 of the Tenancy Act would at once on the termination of the thicca lease ripen into occupancy rights.
The result of all this discussion of the third point taken in appeal appears to me to be that the learned Vakil for the appellants, in asking us to declare the Record of Rights incorrect, has propounded legal arguments based on Section 54 of the Transfer of Property Act and Sections 86, 87 and 22 of the Bengal Tenancy Act, but, on the other hand, there are weighty reasons based on legal principles which debar us from con* ceding that the plaintiffs hold these lands as thiccadars, subject to reversion to the superior landlord on expiration of their lease. In my opinion, the appeal should fail on this point.
(4) The next point urged concerns the lands in khata No. 89, which were raiyati settlements taken in two short term leases ten years and two years before the first thicca lease of 1874. It is agreed by both parties that the lands shall be declared to be a “non-occupancy nakdi holding and not ‘bakasht malguzar.’
This matter comes into the cross-appeal also.
(5) It is urged that.the houses of ktyatas Nos. 67 and 84 are homestead of raiyats of the village under the thiccadars and not houses standing on lands belonging to the raiyat {khata No. 67) or the tenure-holder (khata No. 84). It should be noted that part of the plots of khata No. 67 and all the plots of khata No. 84 are shown as sites of houses in the possession of certain persons. The contention has been abandoned as regards khata No. 67, but is pressed as regards khata No. 84. It is also to be noted that the occupants of these houses are defendants in the case, but they do not support the principal “defendants’ claim. On the other hand, some of them have filed written statements supporting the plaintiffs’ case and the Record of Rights. The oral evidence on the defendants’ side is surprisingly meagre. Deobehari Singh says he did not see the houses built, but he saw the raiyats live in them and repair them. This is not very convincing, for we want evidence that the sites of the houses are the raiyati land, held by raiyats as their homestead, under the village landlord. The other witnesses do not supply this information, nor is there definite evidence that the plaintiffs did not, as they allege, grant the materials. Now, the houses mentioned in this khata were under dispute in the settlement. The dispute list (tanaza No. 36) shows that as regards plots Nos. 772 and 774 of khata No. 84 the defendant Deobehari Singh, who appears to have been representing the defendants’ interest admitted that he had no right over the houses and that he had no right on which to found a dispute. As regards most of the other plots of this khata the disputes are Nos. 50, 52 and 53, and the khanapuri and attestation officers looked into the matter and passed decisions adverse to the defendants’ claim. The attestation officer found that in this village it is the custom for tenants to build on their lands houses for their own labourers. All this shows that the entries in the Record of Rights were not made without investigation. The plaintiffs have always had extensive cultivation of theii own, apart from their thicca interest, and it is not surprisng to find that they have built houses for their labourers. After considering the defendants’ evidence, I do not think it can be regarded as sufficient to rebut the Record of Rights, fortified as it is by oral evidence of ownership on the plaintiffs’ side.
(6) Both parties appear to have misapprehended the Record of Rights as to the entry inkhata No. 82, which is plot No. 671, and is a village path. The entry in the margin is “Mahua tree, in possession of Sheobalak Singh resident of the village, plum trees 3″…. (et cetera). The claim of the defendants was based on a supposition that all the trees were entered in the name of Sheobalak Singh, and they contended that after his name should be added the word “thiccadar.” The only entry in this part of the khatian to which exception can be taken by the defendants is in respect of the mahua tree. The oral evidence consists merely in a statement of each party’s case and there is no particular evidence about the mahua tree except that it is about five years old. I do not find any ground for discrediting the Record of Rights.
10. The only matter of contention in Appeal No. 35 was as regards four plots in khata No. 67, comprising an orchard and a well; but this claim has been withdrawn.
11. I turn now to the cross-appeal of the plaintiffs, which has reference to Suit No. 40 and Appeal No. 35. This involves three claims which I shall discuss in order (a) that certain land entered in khata No. 35 as bakasht thiccadar should he declared to be part of the ancestral batai holding of the plaintiffs; (b) that certain other lands, mostly from khata No. 3 should be declared to be part of the ancestral nakdi holding of the plaintiffs; (c) that two plots Nos. 296 and 321 of khata No. 3 should be entered as in the possession of Raj Keshwar Singh as mokanaridar. On the last point the parties agree that the plaintiffs have darmokarrari rights in the two plots, and the contest is concluded. The two other points raise the question of the extent of the plaintiffs’ n old holdings on the produce-rent and cash-rent. The two claims have a common ground, as will be seen in the following general summary of the plaintiff’s contentions as I have understood them:
We had extensive ancestral raiyati lands which in our long period of thicca lease since 1874 almost lost their identity, but still we were entitled to them as against the landlords’ right of reversion on determination of our thicca term. Fortunately we were able to secure the old measurement khasra of 1873 to identity our bhaoli lands, and we discover old leases to show that we were entitled to certain nakdi lands. The Assistant Settlement Officer Mr. Harihar Prasad in the proceedings under Section 103-A went to the spot and identified the plots which we are now claiming under these two heads as our anceint bhaoli and nakdi holdings, but his superior Mr. Duncan must have overlooked these details, or the Settlement staff made mistakes, and the result is that the lands were not so recorded in the final publication. Then the learned Subordinate Judge in his judgment agreed with Mr. Harihar Prasad’s identifications, but by oversight he failed to give us a decree, probably under the impression that Mr. Harihar Prasad’s note had been followed in toto in the Record of Rights as finally published.
12. I proceed to consider the two claims in detail:
(a) The claim is that certain plots and parts of plots entered in khata No. 3 as bakasht of the thiccadars should be declared to be the ancestral batai raiyati jote of the plaintiffs. They amount to 32 bighas 8 kathas 15 dhurs and are only a portion of the original Schedule I of the plaint in Suit No. 40, the claim being now restricted to those plots which; were identified on the spot by Mr. Harihar Prasad in the proceedings under Section 103-A of the Bengal Tenancy Act. The defendant’s reply is that the fact that these plots were not included in the Record of Rights, finally published three months after Mr. Harihar Prasad’s investigation, shows thar Mr. Duncan, his superior officer, did not accept the identifications. But we have no clear evidence as to Mr. Duncan’s opinion, and the defendants’ argument would be more convincing if they could have pointed to some reason why this tract of 32 bighas odd should be differentiated from the rest of the bhacli lands identified by Mr. Harihar Prasad. An attempt was, in fact, made in this direction in respect of six plots, on the notes put against these plots Mr. Harihar Prasad has not specifically mentioned what he means by ‘identity’ for he has not mentioned expressly the old measurement khasra. The argument does not impress me for the context shows clearly what is meant.
In this matter little assistance can be got from the oral evidence, in which no details are stated. The area of the old batai holding and the plots comprised “ill that area can only be ascertained by the old records. The question whether the plots comprising the 32 bighas odd are parts of the plaintiffs’ anceint holding can be answered only by the measurement khasra of 1280 Fasli, provided that it is authentic and trustworthy. I have discussed this question before and shown how the khasra was produced and followed in Settlement, and how little the defendants have to say against its authenticity or veracity. It is on the record, and my opinion is that it would be a most difficult task to fabricate such a record of^ the conditions of the village holdings existing more than 40 years ago, without betraying the forgery. The learned Subordinate Judge has recorded an emphatic opinion. He says, Mr. Harihar Prasad’s “judgment and notes are very careful and extensive documents written after a thorough and scrutinizing investigation of the locality and the consideration of the documents produced by the parties before him…. ” “The Assistant Settlement Officer believed the papers to be genuine and acted upon them. He went to the very lands with the chitta and other papers and verified the entries by comparison with the actual lands. This was his advantage and he embodied the result in his note Exhibit 36. I compared the notes by looking at the maps of the village, and found the result arrived at by Assistant Settlement Officer to be absolutely correct. The Record of Rights based on these notes must, therefore, remain unaltered.” It is not understood how on this finding of complete accuracy, Mr. Harihar Prasad’s note was not followed completely by the learned Subordinate Judge, and I can only consider the final order in the judgment so far as it omitted a declaration as to the plaintiffs’ title to 32 bighas odd of bhaoli kaskt, to be made by oversight or under a misapprehension. So I arrive at the conclusion that the plaintiffs should succeed in obtaining a declaration as to this area, which is defined in their cross-appeal read with their original Schedule and Mr. Harihar Prasad’s note.
(b) The claim concerns 40 bighas odd, alleged to be the ancestral holdings, on cash-rent, of the plaintiffs. This area comprises the whole of the plaintiffs’ Schedule II. It may be noted at once that out of this area nine khasra plots having an area of 18 bighas 5 kathas 2 dhurs are now outside the dispute, for the parties have agreed that these plots, Nos. 241 to 494 of the Schedule, which belong to khata No. 89, shall be recorded as the non-occupancy nakdi holding of the plaintiffs. These were claimed as coming under the patta of 1278 Fasli. Another matter to note n that 5 bighas 13 kathas 18 dhurs of khata No. 83 have already on the defendants’ admission been recorded as the plaintiffs’ bhaoli lands, but the plaintiffs contend that they are nakdi lands settled with them as such under the patta of 1261 Fasli. Some tabulation of the areas is necessary to makethe position clear. It should be remembered that the two pattas of 1278 comprise one holding demised by two co-sharers.
A. The area lying within khata No. 5 entered as bakasht thicadar is 16 bighas 2 kathas 13 dhurs made up of:
bighas. kathas. dhurs.
Kita Lodipur ... 8 I 9
Kita Kurarpur ... I 0 0
Kita Nagahia ... 3 18 3
Kita Dih Ke Utter ... 3 3 1
-----------------
16 16 9
The plaintiffs show pattas for these areas, with the exception of Kita Dili Ke Utter plots Nos. 666 and 670 of khata No. 3. Deducting the area of these two plots, we are left with the Lodipur, Kurarpur and Nagahia lands having a Survey area of 12 bighas 19 kathas 12 dhurs.’ The pattas show of course a rough measurement, but Mr. Harihar Prasad identified the plots, and the difference in aren is insignificant.
bighas. kathas. dhurs
1261 F. Patta Lodipur ... 6 11 9
1278 F. Patta Lodipur ... 1 10 0
1278 F. Patta Kuarpur ... 1 0 0
1278 F. Patta Nagahia ... 3 15 0
-------------------------
12 16 9
-------------------------
B. The area of Khata No. 83 claimed as nakdi is 5 bighas 13 kathas 18 dhurs out of the Hamathpur Ahar Ke Pit area, and is said to be included in the patta of 1261 Fasli. This was identified by Mr. Harihar Prasad as plot No. 1307.
C. Then there is the area of khata No. 89, 18 bighas 5 kathas 2 dhurs which is now not disputed. This comes under the pattas of 1278 F.
Adding A, B and C we get-
bighas. kathas. dhur.
A (1) ... 3 3 1, Kita Dih Ke Utter.
(2) ... 12 19 12, Kitas Lodipur,
Kuarpur and Nagahia
B ... 5 13 18, Kita Hamathpur Pit
C ... 18 5 2, Khata No. 89
-------------------
40 I 13
-------------------
13. I proceed now to a more particular examination of the evidence. The pattas of 1261 Fasli and 1278 Fasli were produced late in the Settlement at the stage of Section 103A proceedings. The patti of 1261 Fasli stands in the names of Radhu Singh and Ugrah Singh, so at once the question arises how and when did these lands pass to the plaintiffs? To this question I can find no definite reply. From the evidence of Raj Keshwar Singh, plaintiff, I gather that Radhu had a son Rupnath, and Rupnath’s son was Harihar whose widow Dakho Kuer was alive at the time of trial of this case. Radhu was Raj Keshwar’s grandfather’s cousin, but it is not asserted that the plaintiffs succeeded to the lease-hold properties as heirs of Radhu or his successors. In fact, Jagdeo Singh another plaintiff and also Raj Keshwar himself depose that Dakho Kuer sold her lands to the plaintiff. Then Ugrah the other lessee of this patta of 1261 Fasli had a son Thakur, and Thakur’s son was according to defendant Deotehari Singh’s evidence Deonath, who is still alive. Raj Keshwar deposes that Thakur was in some way related to his aunt, and Thakur Singh’s widow made over her lands to him : the time is nowhere stated. There is in fact no evidence to show acquisition of the land of this patta by the plaintiffs in their private capacity, as distinct from their position as thiccadars. Their evidence merely amounts to this: they hold the lands and they have possession of the instrument of lease, a lease 10 others than themselves.
14. As to the lands of khata No. 83–5 bighas 13 kathas 18 dhurs–I have already noted that these lands stand in that khata because the defendants admitted them to be the plaintiffs’ bhaoli lnads; the plaintiffs’ contention in appeal is that these are not bhaoli but nakdi lands settled with them by the patta of 1261 Fasli. In my opinion this contention should prevail, for when the defendants have gone so far as to admit that this tract in held by the plaintiffs as part of their raiyati tenancy, when the plaintiffs have shown that so long ago as 1261 Fasli the lands were subject to cash rent, and when the defendants have no evidence to show that the rent was bhaoli, there is no other reasonable conclusion but that this pait of khata No. 83 is held en cash-rent, at the rate mentioned in the patta.
15. I come now to the lands of patta. of 1278 Fasli which, as I have already shown in the table above, comprise about 6 bighas 5 kathas in Kitas Lodipur, Kuarpur and Nagahia. The plots were identified by Mr. Harihar Prasad and there is nothing on the record to discredit his identifications. The learned Subordinate Judge checked the identifications with the village map and found them correct. These leases which are of 1278 Fasli have an appearance of genuineness and the only points urged against accepting them are those I have already discussed, namely, their late production at the time of the settlement and the argument, already shown to be incorrect, as to the extent of the plaintiffs’ holiings, deduced from the plaintiffs’ old road-cess returns. In my opinion these leases can be accepted as genuine and as showing that at the time when the plaintiffs first took the thicca lease (from 1874) they had possession of a non-occupancy holding at least to the extent of the area found by Mr. Harihar Prasad; for this is all that has been identified on the map and not already conceded by the Settlement Authorities.
16. In my opinion the interest of the plaintiffs in these lands must be held to be the same in extent and quality at the end as at the beginning of the thicca lease, and so the lands must be a non-occupancy holding. I rely on Thomas Savi v. Punchanun Roy 25 W.R. 503, a case decided on the basis of the tenancy law existing between 1869 and 1885. The Tenancy Acts that have followed, in 1885 and subsequent years, have in no way, disturbed this decision, but have rather confirmed it. The case of Jasimnddin v. Beni Madhab Das 19 Ind. Cas. 635 : 17 C.W.N. 881 rests on a special provision as to chur lands (Section 180 of the Bengal Tenancy Act), and is not applicable to this case.
17. As to the area of 3 bighas 3 kathas of Kita Dih Ke Utter, plot’s Nos. 666 and 670 of khata No. 3, the plaintiffs’ difficulty is that they have no evidence to show how they came to hold this area in nakdi kasht. The sole evidence that these lands were ever nakdi kasht of the plaintiffs is to be found in the Schedule annexed to a petition of compromise filed in Court by the parses of this case who were then litigating. The compromise included among the properties there dealt with a certain jagir, and of that jagir the south boundary is described in the Schedule annexed to the compromise to be “Sheobalak Singh’s nakdi.” Mr. Harihar Prasad noted the results of his investigation in the last paragraph of his report thus:
These lands are claimed as nakdi maurosi but not under any patta. In the sulehnama dated the 27th June 1911 made between the parties “and filed in the Court of the Sub-Divisional Officer of Aurangabad regarding a contiguous plot of land (No. 321) to the north of these plots the southern land is stated to be the nakdi kasht of the objector. The other gotias of the objector too have got their ancestral kasht lands at this place and are in possession. The rent is Rs. 9-6-0 exclusive of cesses as stated by the objector. The defendant says that he made the admission in the sulehnama under coercion. There is no evidence of this. These plots will also be entered as objector’s nakdi with a jama of Rs. 9-6-0 exclusive of cesses.
18. In his evidence Raj Keshwar Singh, one of the plaintiffs, who has cone into the withers-box evidently for the purpose of stating the whole of the plaintiffs’ case, says nothing specific about this area and in fact omits it from his list of nakdi lands. So there is no evidence oral or documentary of a lease of these lands, and in my judgment the statement of a boundary in a compromise petition is not sufficiently strong evidence by itself to rebut the Record of Rights.
19. In my opinion the appeals and the cross-appeals should succeed or fail as set out in the following statement:
Appeals Nos. 34 and 35.
A. The claim in respect of khatas Nos. 67, 82, 84, 85, 86, 87 and 88 will be dismissed.
(B). 5 bighas 13 kathas 18 dhurs, plot No. 2-1307 of khata No. 83 should be declared to be plaintiffs’ raiyiti nakdi kasht (kaimi). The rest of this khata No. 83 is not found to be incorrect and the appeal fails.
(C) The lands comprised in khata No. 89 are declared to be non-occupancy raiyati nakdi holding and not bakasht malguzar. This is according to the agreement of the parties : in other respects the Record of Rights is not declared correct.
Cross-Appeal.
(A) The following plots, in whole or part, as shown in the plaintiffs’ First Schedule annexed to his plaint should be declared to be the plaintiffs’ bhaoli raiyati kasht (batai) with occupancy rights:
Plots Nos. 1241, 1227, 1207, 1005, 596, 597, 237, 266, 288 and 338.
The situation and identity of these bhaoli lands are to be as fixed by Mr. Harihar Prasad, Assistant Settlement Officer in his statement (Exhibit 36 of this case) dated the 16th July 1914.
(B) Khata No. 89 should be declared to comprise the non-occupancy nakdi holding of the plaintiffs.
(C) The areas identified by Mr. Harihar Prasad in his statement (Exhibit 36) as parts of plots Nos. 1005, 237, 1241 and 1229 and as the nakdi kasht settled with the plaintiffs in the patta of 1278 Fasli are declared to be the non-occupancy raiyati nakdi holding of the plaintiffs. These areas are within the Kitas Lodipur, Kuarpur and Nagahia.
(D) The rest of the claim for the declaration of the plaintiffs’ nakdi kasht should be dismissed, excepting the area of 5 bighas 13 kathas 18 dhurs of khata No. 83 herein before declared to be nakdi raiyati kasht.
(E) Plots Nos. 296 and 321 of khata No. 3 should be declared to be in possession of Raj Keshwar Singh as mokarraridar, as agreed by the parties.
20. I feel some hesitation in, awarding either parties their costs. The learned Subordinate Judge directed that the parties should bear their own costs. No doubt the plaintiffs have succeeded to some extent in their claim, but it is to be remembered that at the time of the settlement they were undoubtedly in possession of old village records which they did not produce or only produced at the eleventh hour. The result was that the Record of Rights was not as complete and accurate as it might be. Moreover, both parties have in this litigation put forward excessive and unreasonable claims. I would make no order as to costs.