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Judgment
Kulwant Sahay, J.—Mauza Majharia Shaikh in Tappa Khadda, District Champaran, originally belonged to the Bettiah Raj and it was granted by the Raj as a rent-free tenure to the predecessors of the plaintiffs more than 60 years ago and it is now owned by the plaintiffs and they are in possession thereof. Within the said Mauza there is a lake which has been surveyed in the last Cadastral Survey and bears Khasra Nos. 1 446, 1448, 3233 and 1446-3275, to 1446-3298. Out of these survey plots, plots Nos. 1446, 1448 and 3233 measuring about 163''48 acres are under water and the parties claim jalkar rights therein. Survey Nos. 1446-3275 to 1446-3298, measuring about 2.33 acres, are culturable lands. The defendant is the Manager of the Lalsaraya Factory and Mauza Lalsaraya and several other Mauzas are held by the Factory under a mokarrari grant, dated the 3rd November 1888, under the Bettiah Raj and in the mokarrari deed the jalkar right in Tappa Khadda is expressly excluded from the grant. The plaintiffs allege that they have been in peaceful possession of the jalkar bearing Survey Nos. 1446, 1448 and 3233, but during the last Revisional Survey the plaintiffs came to know that the defendant had settled Survey Nos. 1446-3275 to 1446-3298 with several tenants and wrongfully appropriated the rental in respect theieof on the allegation that the said lands appertain to Mauza Jawakatia covered by their mokarrari, but ultimately those plots were recorded in the Record of Rights as appertaining to the plaintiffs'' Mauza Majharia Shaikh and the tenants with whom the lands had been settled abandoned the same, and the lands are now in the khas possession of the plaintiffs. As regard the jalkar 1446-1448, and 3233, there was a proceeding u/s 145 of the Code of Criminal Procedure between the defendant and the servants of the plaintiffs wherein the Magistrate found the defendant to be in possession and the plaintiffs allege that they have been dispossessed from these jalkar plots by reason of this order u/s 145 of the Code of Criminal Procedure. The plaintiffs brought the present action on the 21st October 1918 praying for adjudication of their title to plots Nos. 1446, 1448 and 3233 and for recovery of possession thereof with mesne profits and for the recovery" of Rs. 117-9-0 being the amount of rent alleged to have been realised by the defendant and appropriated by him on account of the rent of plots Nos. 1446-3275 to 1446-3298. The defendant raised various pleas and contended inter alia that the plaintiff did not disclose any cause of action as against him, as he was merely the Manager of the Factory; that the disputed jalkar wasin possession of the Factory for more than 70 years, and that "the plaintiffs were never in possession thereof and he denied the plaintiffs'' title to possession and their right to recover mesne profits and damages. The learned Subordinate Judge has found that the jalkar plots Nos. 1446, 1448 and 3233 are situated within and appertain to Mauza Majhariah, but that the plaintiffs have failed to prove possession within 12 years of plots Nos. 1446 and 1448, and that the defendant has proved adverse possession for more than 12 years. He has, therefore, dismissed the plaintiffs'' suit as regards those two plots. As regards plot No. 3233, he has found that the plaintiffs have proved their possession within 12 years and has made a decree in their favour in respect of this plot. As regards the claim for damages for plots Nos. 1446-3275 to 1446-3298 the learned Subordinate Judge has dismissed the plaintiffs'' claim and the earned Counsel for the plaintiffs does not press his claim as regards'' the damages in this appeal. There were two plaintiffs in the suit, but the present appeal has been filed only by the plaintiff No. 2, and the plaintiff No. 1 who is a ward of the Court of Wards has been made respondent in the appeal. The only point pressed in the appeal is as regards the plaintiffs'' right to plots 1446 and 1448.
The first point which arises for decision in this appeal is as to whether the suit if maintainable as against the defendant in the case as he is merely the Manager of the Lalsaraya Factory, the proprietors whereof have not been made defendants. Mr. Kennedy for the respondent argues that the action being in ejectment and the defendant being merely a Manager of the Factory, the suit is not maintainable without the properietors of the Factory being made parties. To my mind there is no substance in this objection. The cause of action alleged in the plaint is the dispossession by the defendant on account of the proceeding u/s 145 of the Code of Criminal Procedure. In that proceeding Mr. Lees, the defendant, was declared to be in possession and the plaintiffs have got a cause of action against the person who has actually dispossessed them. Moreover, the suit cannot be defeated on account of non-joinder of the proprietors of the Factory. If it be shown that they are not properly represented in the present action by the Manager, the defendant No. 1, they might not be bound by this decree, but that is no reason for dismissing the suit.
The main question, however, for decision in the appeal is as regards the title of the plaintiffs to the Jalkar. The learned Subordinate Judge has found that the Jalkar appertains to Mauza Majharia Shaikh and it is apparent on a refrence to the Thukbust Map of 1845 and the Revenue Survey Map of 1846 that the disputed Jalkar is situated within the ambit of Mauza Majharia. The plaintiff; would, therefore, be prima facie entitled to possession of this Jalkar unless they have lost their title by being out of possession for more than twelve years. The learned Government Advocate for the appellant argues that the title being in the plaintiff;, the onus was on the defendant to prove adverse possession for more than twelve years but the action being in ejectment it is incumbent upon the plaintiffs not oily to prove their title but a1so that they hive been in possession within twelve years of the date of the suit. The question of onus, however, is not of any importance in the present case inasmuch as both sides have produced evidence and the Court is entitled to come to a finding upon the evidence as a whole as to whether the plaintiffs or the defendant have been in possession within the statutory period. As regards the evidence of possession, the plaintiffs rely on the Survey Map of 1846, which shows the western portion of the Jalkar to be in Majhariah. They also rely on the Khatian of 1895, Ex. 20, which shows the disputed Jalkar in the possession of Dhanukdhari Singh and others, ancestors of the plaintiffs, in Mauza Majharia Shaikh through their tenant Teka Kamkar. They also rely on Jamabandi papers, Exhibits 1 to 12, for the years 1904 to 1913 which show settlements made by the 8-annas proprietors of village Majharia arid realization of rente for the Jalkar. In addition to this, they have produced oral evidence to prove the fact of their possession and they argue that the evidence on the record proves their possession from the years 1846 down to 1913. As against this, the defendants rely on the Thakbust Map, Exhibit A. A. of the year 1845 wherein there is an entry as regards the disputed Jalkar to the following effect: "River Mun Jalkar appertains to Mauza Sundaria and land belongs to this Mauza." (The translation in the printed paper-book to the effect that the land belongs to the "said Mauza" is clearly a mistake for "this Mauza", the word in the original being haza which means ''this'' and not ''said''). Now the defendant''s case is that the Jalkar in dispute, although situated within the ambit of Mauza Majharia Shaikh, is a part of a continuous Jalkar which is known as Jalkar Sinduria and which belongs to the Factory and reliance is placed upon the Thakbust Map to show that in the year 1845 the Jalkar in dispute was found to be a part of the Sundaria Jalkar although lying on the lands of Majhariah. No doubt, these Thak Maps are good evidence of possession at the time they were made, but they are no evidence of title acquired by prescription or adverse possession. The object of the Thakbust Survey, which preceded the Revenue Survey, was to ascertain the position of boundaries1 and area of estates and villages and it was no part of the duty of the Revenue Officers conducting the Thakbust operations to record prescriptive rights, (See notes on the old Revenue Surveys of Bengal, Bihar, Orissa and Assam by Captain F.C. Hirst, and the remarks of their lordships of the Privy Council in the case of Satcowri Ghosh Mondal v. Secretary of State for India in Council 22 C. 252 , : 11 Ind. Dec 170. The value of the entry in the Thakbust Map is further very much diminished by the Revenue Survey Map which was prepared the next year 1846, wherein this Jalkar is shown as belonging to Mauza Majharia and not to Mauza Sundaria. In fact, the Survey Map of 1846 clearly shows that the eastern portion of the lake was included in Lalsaraya, and if the western portion which is now in dispute was also outside Majharia and included in Sundaria, the said western portion would also have been shown in the same way as the eastern portion. Therefore, the entry in the Thak Map is not of much help to the defendants in the present case. The defendant was produced baudobasti papers, Exhibits A to A4 and B to F8, from the year 1906 onwards to show that the Factory used to settle Jalkars with tenants, but in those papers there is nothing to identify the Jalkars settled, with the plots in dispute now. We only find a mention of Sundaria or Senwaria Jalkar and the Bandobasti papers by themselves are not sufficient to prove the defendant''s possession of the Jalkar now in dispute. The same remarks apply to tile1 cash books showing realization of rents in respect of the Senwari Jalkar. The defendant has also produced kabuliats Exhibit E series, the earliest of which is dated the 13th September, 1914. Tliese kabuliats show settlements by the factory of a large number of Jalkar Mahals, one of which is in Majharia Shaikh, but as I have already remarked they do not go far enough to establish adverse possession for more than twelve years. The defendant has also examined several witnesses to prove the fact of his possession. His witness No. 3, Jang Bahadur Singh, says that he took ssttlement of the disputed Jalkar from the Factory in 1306, 1307, and 1308, and his'' witness No. 4 Ealkshman Mallah, claims to have taken settlement of the same Jalkar from the Factory from 1301 to 1309 Fasli. This period overlaps with the lease of the witness No. 3, Jang Bahadur Singh, and the evidence of these witnesses who speak of having taken settelments of the Jalkar from the Factory is, to my mind, not reliable The learned Subordinate Judge has, however, placed reliance on the evidence of Mr. Reid and Mr. Finzel, who were Managers of the Factory before the present defendant Mr. Lees. As regards the evidence of Mr. Reid, he was Manager of the Factory from 1901 to 1910. He speaks of the possession of the Factory over the Jalkar and Narkat in the lake by the side of the Factory. It does not appear from his evidence that he was referring to the Jalkar now in dispute. He was examined on Commission and interrogatories put to him and the answers given by him do not, in my opinion, establish the possession of the defendant over the jdentical Jalkar now in dispute. There are admittedly other Jalkars in possession of the Factory and they are close to the Factory. Therefore, his evidence is not sufficient to establish adverse possession of the defendant. As regards Mr. Finzel, he was Manager from March to September 1911. He no doubt fays, that he knows the Jalkar in suit and that he made settlement of this Jalkar with certain persons, but in cross-examination he says that he has no idea of the boundaries of the disputed Jalkar or lake and in a vast sheet of water1 extending over several miles this sort of evidence is not sufficient to prove adverse possession over the disputed land. As regards Mr. Lees, he says in his evidence that he knows the Jalkar in dispute and that it is in the possession of the Factory. He, however, became Manager in September 1911 and he cannot speak of previous possession from his own knowledge. He gives reason for his opinion that the Factory is in possession of this Jalkar from a long time because the Thakbust Map of 1845 in~ eludes the Jalkar in Mahal Sonbaria. Another reason that he assigns is that in February 1897, he went to the Jalkar in dispute in the company of Mr. McLeod on a pigsticking (sic) cursion. Mr. McLeod set the reeds on fire and on asking who was going to pay the damages, Mr. McLeod said, that the whole of it belonged to him. Now this statement of Mr. Lees is, to my mind, not legal evidence as regards the possession of the Factory over the disputed Jalkar in the year 1897. This is the whole of the evidence on the record and in my opinion it is not sufficient to prove adverse possession of the defendant over the Jalkar in dispute. The only documentary evidence in support of the defendant is the Thakbust Map of 1845 and Mr. Lees in his evidence admits that he has got no other document to show that the Sonbaria Jalkar includes the disputed Jalkar. I think that the plaintiffs have succeeded in proving their possession within twelve years and they are entitled to a decree for possession of this disputed Jalkar 1446 and 1448 also.
I would, therefore, set aside the decree of the Court below as regards these two Jalkars and decree the suit in respect thereof with costs. The plaintiffs will be entitled to mesne profits in respect of these Jalkars the amounts whereof will be ascertained by the Court below.
Das, J.
I agree.