JUDGMENT
Jamuar, J.
1. This is a defendant’s appeal against the judgment and decree of the learned Additional Subordinate Judge, 4th Court, Patna, dated 16th September 1949, by which he affirmed a judgment and decree of the Munsif, 1st Court, Patna, dated 16th February 1949, decreeing the plaintiffs’ suit.
2. The plaintiffs are brothers and their suit was for a declaration of their title and for recovery of possession of certain kasht lands situated in villages Rampur Ismail, Nagwan and Bahpura having an area of 4.40 acres as described in the plaint. The plaintiffs also claimed mesne profits. There was a further relief sought by them, namely, for a declaration that they are entitled to perform the duty of a road-chaukidar, which office they alleged to be hereditary in their family, as the kasht lands, which are the subject-matter of the suit, were granted to their ancestor in lieu of his services as a road-chaukidar.
3. The lands have been recorded in the survey khatian as “jagir obakrahi” in the name of one Chaitu Dusadh who was the grandfather of the plaintiffs’. Chaitu Dusadh died in Ashin 1326 Fasli and than, according to the plaintiffs Dharkheli Dusadh, the son of Chaitu Dusadh worked as a road-chaukidar and held the lands until his death in Chait 1336 Fasli The plaintiffs are the sons of Dhurkheli Dusadh and at the time of the death of Dharkheli Dusadh plaintiff 1 was a minor, aged about 5 years; plaintiff 2 was born six months after the death of Dhurkheli Dusadh. It is then the case of the plaintiffs that as plaintiff 1, being a small child at the time of the death of his father Dhurkheli Duaadh, could not succeed him on his death as the road chaukidar, one Feku Dusadh, a brother of Chaitu Dusadh, became the road-chaukidar and as such was in possession of the lands in suit. When Feku Dusadh died the plaintiffs were still minors. Hence the plaintiffs’ mother entered into an arrangement with one Falakdhari Dusadh to work as the road-chaukidar in place of the plaintiffs and to hold the lands in suit as a bataidar. Patakdhari Dueadh died in 1337 Fasli and then the plaintiffs’ mother entered into a similar arrangement with the defendant Suba Dusadh, a brother of Palakdbari Dusadh, to officiate as the road-chaukidar and cultivate the lauds on the same terms as a bataidar, and he divided the produce of the lands making over half to the plaintiffs’ mother.
4. In January 1939, plaintiff 1 became physically fit to work as a road-chaukidar and then, it is stated, he asked the defendant to relinquish possession of the lands and to allow him to work as a road-chaukidar, but the defendant refused to comply with this demand. The plaintiffs, therefore, filed an application before the Sub-divisional Officer of Dinapur to give them them (Sic) the relief which the defend ant had refused to give them, but the Sub-divisional Officer rejected their prayer. The plaintiffs then preferred an appeal to the District Magistrate of Patna, who, while affirming the order of the Sub-divisional Officer, directed the plaintiffs to establish their claim in the civil Court before any redress could be given to them, Hence the plaintiffs filed the suit out of which this appeal has arisen.
5. The defence was that the jagir land in suit is not hereditary in the family of the plain, tiffs but that, being attached to the office of the road-chaukidar, it is to be held by the person who is appointed as a road-chaukidar. The defendant claimed, in brief, that as he had been appointed to this office he was entitled to this land. The defendant furthermore denied to have entered into any arrangement with the plaintiffs’ mother to hold the land in batai. A further defence was that the suit was barred by the law of limitation.
6. In my view this appeal can be disposed of on the short point that the plaintiffs’ suit being in ejectment, the plaintiffs had to prove not only their possession within 12 years but also their title to the land and as they have failed to prove their title, the suit is liable to be dismissed.
7. The entry in the survey khatian shows that the land has been recorded in the name of Chaitu Dusadh as his kasht land in a separate khata and it was thus argued that this entry was in support of the argument of absolute grant in favour of Chaitu Dusadh. I do not think that this inference can be drawn from this entry. The fact of Chaitu Dusadh having been recorded separately is explained by the circumstance that at the time he was the road chaukidar rendering his services and was in possession of this land as such. The Court below has clearly found that :
“the origin of the said tenancy is unknown. There is no evidence to show how and why the said grant was made and to whom it was originally made.”
Unless there be some evidence showing how and in what circumstances the grant had been made to Chaitu Dusadh, I do not think that any inference can be drawn in his favour that a mere record of his name in the survey khatian would prove that there was an absolute grant of the land to him. The Court below has repeated that observation by stating “There is nothing to indicate as to when, why and to whom the grant was originally made,” and it has also been found :
“On the evidence adduced, therefore, it cannot safely be said as to who worked as a road-chaukidar before Chaita who died in Aawin 1326 which will be sometime in September 1918.”
The Court of appeal below has been much influenced by certain observations made by the District Magistrate of Patna in his order (Ex. 2) dismissing the appeal preferred to him as against the order of the Sub-divisional Officer of Dinapur rejecting the prayer of the plaintiffs that posssession of the land in suit might be restored to them on their being appointed as road-chaukidars in place of the defendant. The learned Additional Subordinate Judge in the Court below has pointed out in his judgment that the District Magistrate of Patna stated in his order (EX. 2) that:
“strictly speaking the Collector cannot exercise any disciplinary control over the road-chaukidar nor can he resume the ancestral jagir land and that the appointment of the defendant by the S. D. O. would amount more to the public recognition of the private arrangement made by the family of the plaintiffs than to a new appointment.”
The learned Additional Subordinate Judge then gave his finding :
“Thus the order (Ex. 2) clearly shows that the suit land IB ancestral jagir land of the plaintiffs, and that there is no provision of law authorising the executive to appoint any person as a road-chaukidar and vest the suit land in him.”
I have no doubt in my mind that the learned Additional Subordinate Judge has been much influenced by this order (EX. 2). Whatever has been stated in the order (EX. 2), the statements can be no more than mere observations made by the District Magistrate and they cannot in my judgment be used as evidence in this case to prove title in favour of the plaintiffs : indeed, the learned Additional Subordinate Judge in the Court below considers that the plaintiffs have succeeded in proving their title by reason of those very observations quoted above, for, the learned Additional Subordinate Judge has stated :
“. . . Keeping in mind the aforesaid order of the District Magistrate the point for consideration is whether the plaintiffs have title to the salt land. They have clearly alleged in the plaint that the land is hereditary and is coming down from the time of their ancestors. The defendant asserts that the land goes with the office of road-choukidar and the person appointed as Bach by the 3. D. O. is entitled to hold the land in his own right. The said assertion is not supported by any official record and is negatived by the said order of the District Magistrate.”
7A. I cannot agree with this finding as this is not a finding baaed on the evidence in the case but rather influenced by the observations made by the District Magistrate in his order (Ex. 2). In the present suit filed by the plaintiffs, in my opinion, the plaintiffs have totally failed to prove the origin of the grant to their ancestor Chaitu Dusadh and thus their title to the land in suit. On the facts of the present case, the question of resumption of the land by Government does not arise. On the evidence adduced in the case, the only conclusion which can be drawn is that the person appointed as the road-chaukidar by the proper authority is the person entitled to the land.
8. With regard to the oral evidence adduced in the case, the Court below has rightly stated that this goes no farther than oath against oath. One witness (D. W. 6), however, stated in his evidence that one Dukhit, who is one another road-chaukidar, had given some of his Jagir chakrohi chaukidari land in rehan to one Chander, and the Court below has drawn the inference that :
“That being so it appears that the jagir is transferable, and this indicates that the person holding the jagir land has an absolute Interest in it and that it can not be taken away by appointing another chaukidar in his place.”
It is not known why and in what circumstanced Dukhit had given some of his land in rehau to Chander but it is clear that this one instance can not make a custom and no general inference can be drawn from this one instance as governing all cases. In this view of the matter, I am unable to uphold the finding of the Count below which is to the effect that Chaitu Dusadh had obtained an absolute interest in the land in suit and thus his title to it could not have been affected by his ceasing to work as a chaukidar.
9. In this view of the cage, I would hold that there is no evidence in support of the plaintiffs’ claim that their ancestor Chaitu Dusadh had obtained an absolute interest in the land in suit and as the plaintiffs’ have failed to prove their title to this land they cannot succeed in their suit.
10. I would accordingly allow the appeal with costs and dismiss the plaintiffs’ suit.
Reuben, J.
11. I agree. It has been urged that the decision of the Courts below is based on a finding of fact which is binding in second appeal. The finding, such as it is, was arrived at in reliance on observations of the District Magistrate in his order, EX. 2, which are not evidence. We are therefore, entitled to disregard it.
12. Further, the findings actually indicate a decree against and not in favour of the plaintiff.
The suit is for recovery of possession. The plaintiff can only succeed if he proves his title. His case is that of a permanent heritable grant of land in favour of one of his ancestors burdened with the performance of a duty. The learned Subordinate Judge finds that there is no satisfactory evidence to show when, why and to whom the grant was made or as to who was in possession of the land before Chaitu. He finds that Chaitu’s father did not work as Choukidar and that it cannot be ascertained whether Chaitu became a Choukidar in succession to a stranger or to a member of the family. Further, he finds that there is no satisfactory evidence that Chaitu’s son Dhurkeli succeeded him as Choukidar. How then can it be held that a permanent grant in favour of the plaintiff’s family has been established ?