JUDGMENT
Lancelot Sanderson, J.
1. These are two consolidated cross-appeals from a decree of the High Court of Judicature at Patna, dated June 12, 1923, which reversed a decree of the learned Subordinate Judge at Chapra. dated September 20, 1919.
2. The issue between the parties is as to ownership of the lands in a village or mauza called Babhangawan, in the Saran district, except a portion of it which measured 33 bighas and 3 kathas; and which is admitted to belong to and to be in the possession of the plaintiffs.
3. Proceedings were instituted under the provisions of Section 145 of the Code of Criminal Procedure, and the Magistrate decided that the defendant-appellant was in possession of the lands in dispute, and was entitled to remain in possession until ousted by due course of law.
4. Thereupon, the plaintiffs filed the present suit on December 21, 1914.
5. They alleged that the entire lands of Mauza Babhangawan were within Mahal Raiputti, Tauzi No. 3142, which belonged to them, that they had been dispossessed by the order of the Magistrate; that the defendant had no title thereto, and they claimed a declaration that the entire Mauza Babhangawan was within their Mahal No. 3142, possession and means profits.
6. The first defendant admitted that the plaintiffs were in possession of 33 bighas 3 kathas of the land in Babhangawan, but disputed the plaintiffs’ title to any more land therein. The learned Subordinate Judge held that the lands in dispute appertained to the defendant’s Mahal Tauzi, No. 3143, and that the plaintiffs had no title thereto.
7. He, accordingly, dismissed the plaintiffs’ suit with costs, and directed that his finding regarding the 33 bighas 3 kathas should be embodied in the decree. From this decree the plaintiffs appealed to the High Court of Judicature at Patna.
8. The learned Judges of the High Court allowed the appeal in part, and set aside the decree made by the learned Subordinate Judge. By the High Court’s decree, it was declared that the plaintiffs were entitled to one-third of 771 acres 2 roods 37 poles, shown in the revenue survey as Mauza Bubhangawan, with the exception of 83 bighas 3 kathas with respect to which the Court had already given the plaintiffs a decree. It was further ordered that the plaintiffs should be awarded possession over the aforesaid area (minus the 33 bighas 3 kathas) with mesne profits to be determined by the lower Court from 1320 until delivery of possession or three years from the date of the decree, whichever is earlier.
9. It was further ordered that there should be no mesne profits with respect to the 33 bighas 3 kathas which were declared by the Court below to be in the plaintiffs’ possession.
10. Directions as to costs were included in the decree of the High Court.
11. As already stated, both parties have appealed against the High Court’s decree.
12. Jaigobind Pandey, who was the defendant No. 1 in the suit, in his appeal alleged that the plaintiffs’ title as constituted by the permanent settlement, was limited to a specific and definite area, viz., the 33 bighas 3 kathas of land hereinbefore referred to, and that, with the exception of the said area, the plaintiffs had not proved a title to any portion of the village of Babhangawan.
13. His printed case contained allegations as to limitation and adverse possession but it may be stated at once that it was admitted by the learned Counsel for both parties in this appeal that, owing to the nature of the lands, their periodical diluviation by the water of the river and the disputes relating thereto, no question of title by adverse possession or prescription could arise.
14. The position adopted by the appellant Jaigobind was that he was in possession of the lands in dispute under the Magistrate’s order, that the onus was on the plaintiffs to prove title thereto, and that they had failed so to do.
15. There is no doubt that the defendant was in possession of the lands in suit, and that the plaintiffs had to prove their title in order to support their claim to the whole of the lands in the village of Babhangawan.
16. The learned Counsel on each side with much care drew their Lordships’ attention to the many documents, registers and maps Lancelot exhibited in the case, and their Lordships are indebted to the learned Counsel for the assistance which they rendered not only in that respect, but also by their argumentspresented both in detail and in a summarised form.
17. The High Court decided that the plaintiffs had not proved their title to the whole of the village of Babhangawan.
18. The question which their Lordships have to consider is whether the plaintiffs have succeeded in showing that the decision of the High Court was wrong.
19. The evidence has been referred to very fully in the judgments of the learned Judges in the High Court, and their Lordships think it is unnecessary to set it out again in detail. It is sufficient to say that with the assistance of the learned Counsel they have considered it fully, and they are of opinion that there was ample evidence to justify the above-mentioned conclusions at which the learned Judges of the High Court arrived, and the decree which was made in accordance therewith.
20. Their Lordships therefore are of opinion that both the appeals should be dismissed, and that in view of this result no order should be made as to the costs of the appeals to this Board.
21. They will humbly advise His Majesty accordingly.
