JUDGMENT
1. This is an appeal by the plaintiffs against a decision of the Second Additional District Judge of Mymensingh which reverses a decision of the Second Munsif of Kishoreganj. The plaintiffs are tenure-holders under the defendants and this suit was brought by the plaintiffs to recover possession of what they alleged formed part of their tenure under the defendants and of which they say they had been dispossessed by the defendants. The defence was a denial that the lands in suit formed part of any permanent tenure of the plaintiffs held under the defendants. The first Court found in favour of the plaintiffs’ contention and decreed the suit. The second Court reversed that decision. Now, three points have been urged before ii n second appeal. First, it is said that aligh the Record of Rights which was publied some time after May 1916 shows one Amiruddi as the tenant of the lands in suit under the defendants the presumption of the record has been rebutted by reason of the fact that the plaintiffs have given evidence of realisation of rent from Amiruddi for eight years from 1315 to 1323. The date of the last rent-decree obtained by the plaintiffs against Amiruddi was August 1917 which was ior the rent up to August 1916. Further, the plaintiffs say that they also show realisation of runt from one Nemai in the year 1895.
2. Secondly, they contend that the defendants have adduced no evidence whatsoever that any rent was ever realised by thekm in respect of these lands from Amiruddi or from Nemai.
3. Thirdly, it is urged that the learned Additional District Judge was wrong in not taking into account the evidence of a certain chitta prepared during partition proceedings under Act VIII of 1876 and also of the Schedule prepared by the Deputy Collector under Section 111 of the Act. So far as the third point is concerned, it is not necessary for us to decide whether the learned Additional District Judge was wrong in saying as he did, that the chitta was not admissible in evidence in reliance on the cases to which he referred for it seems to us that if his judgment is considered that it would appear that he did take into account such evidence as contained in the chitta and also in the Schedule prepared under Section 111 of the Partition Act (VIII of 1876). He specifically states in. his judgment that the partition record was obviously wrong in respect of the rental and of the area and he refers to as certain mistake or what he alleges is a mistake appearing therein. It appears that he clearly took into consideration for what it was worth the evidence to be adduced from the partition proceedings. Nothing, therefore, turns on this point.
4. So far as the second point is concerned there was no obligation on the defendants to show payment of rent to them by Amiruddi or by Nemai in respect of the lands and they were entitled to rely, as they have done, on the presumption raised by reason of the entry in the Record of Rights, in their favour. Accordingly, it seems to us that the whole question really resolves itself into this namely, whether the learned. Additional District Judge has drawn the right inference from the evidence with regard to the realisation of rent by the plaintiffs from Amiruddi for the eight years from 1315 to 1323. Some question was raised in argument on behalf of the respondents and it is also referred to in the judgment of the learned Judge with regard to a question of adverse possession. It. seems to us that no question of adverse possession arises. The question really for the Court was whether there was sufficient evidence of possession by the plaintiffs of the land in suit to rebut the presumption raised by the entry in the Record of Rights and, in my opinion, the learned Judge has not drawn the correct inference from the evidence which was before him. After all the presumption raised by the Record of Rights is very slight. There seems to have been no evidence whatsoever of any realisation of rent by the defendants in respect of the land in suit. Accordingly, it did not require very much to rebut the presumption raised by the entry in the record. When you have the fact as here of realisation of rent by suit from Nemai in 1895 and also for eight years from 1315 to 1323 by decrees against Amiruddi it does seem to us that there is evidence which rebuts the presumption raised by the entry in the Record of Rights.
5. We think, therefore, the learned Judge in the Court of Appeal below drew the wrong inference from the evidence which was before him and he should have held that the presumption raised by the record had been rebutted and that the plaintiffs’ suit should succeed.
6. The result is that the appeal succeeds and the plaintiffs will be entitled to their costs in all Courts.
