In a record-of-rights published in 1896 the Plaintiff was recorded as an occupancy raiyat in respect of a holding of eight bighas under the third party Defendants. It is admitted that in 1909 there was a proceeding under sec. 145, Cr. P.C, between the Plaintiff on the one side and the second party Defendants on the other, who are the proprietors and managers of Thikaha Indigo Factory and have obtained a lease from the third party Defendants of the mouza, in which the Plaintiff's holding falls. In that proceeding the area in dispute was about five cottahs and in a judgment, dated the 27th September, 1909, it was held that the second party Defendants were in possession.
The Plaintiff alleges that encouraged by this decision the second party Defendants dispossessed him from a further area of two bighas odd. The Plaintiff accordingly sues for a declaration of his title and recovery, of possession.
The defence cl the second party Defendants is that the Plaintiff has neither title nor possession; that the lands in suit are zarait lands of the Factory; and have been settled by the Factory with various tenants of whom the Defendant first party is one.
The first party Defendant files a separate written statement and supports the second party Defendants.
The Munsif decreed the suit but on appeal the learned District Judge while finding the title of the Plaintiff established has apparently dismissed the suit on the ground that it is barred by limitation.
The Plaintiff now appeals.
The first ground taken by the learned Vakil for the Appellant is that the judgment of the Court below is not a sufficient judgment for the disposal of the case. In this view we agree.
The Plaintiff starts his cause of action from the date of the order in the criminal proceedings which is the 27th September, 1909 and his subsequent dispossession on the 25th Agrahayan 1307 (F.S) corresponding to 12th December, 1909. The suit was lodged on the 19th March, 1910.
Before the Munsif there was apparently no contention that the Plaintiff was barred by special limitation under Sch. 3 of the Bengal tenancy Act. The only issue which the Munsif was called on to decide was whether the Plaintiff had been in possession within 12 years of the date of the suit and this question he answered in the affirmative.
The learned District Judge comes to no clear finding as to when the Plaintiff was dispossessed and until he does come to such a finding it is impossible to say whether his decree is correct.
The learned Counsel for the Respondent has urged that in a suit for ejectment it is for the Plaintiff to prove his possession within the statutory period. That is no doubt true, but in the present case the entry in the record-of-rights raises a presumption in the Plaintiff's favour and shifts the onus on the Defendants and makes it necessary for them to establish affirmatively that the Plaintiff has been out of possession for more than the statutory period.
The learned District Judge must state clearly under what law the Plaintiff's suit is barred and whether the facts necessary for applying that law have been established.
The next objection taken is that although the judgment of the Criminal Court is evidence of possession [vide Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani(1)], the learned District Judge has improperly admitted into evidence the statements of witnesses who deposed in that Court. It would appear that some of these witnesses have, not been examined in the present suit and that the statements of these are altogether inadmissible. If it is sought to use the previous statements of such witnesses as have been examined in the present trial, then those statements must first be put to the witnesses and duly proved before they can be treated as evidence. The learned District Judge, does not state whether this has been done.
The third objection is that the learned District Judge has not decided for himself whether the account books of the second party Defendants should be admitted, but that he has relied upon the opinion of Mr. Lucas, the Deputy. Magistrate, who tried the criminal proceedings. There is some foundation for this allegation and the Appellant is entitled to a clear finding upon this point. For these reasons we set aside the judgment and decree of the learned District Judge and remand the case to him, so that his may dispose of it after due regard to the observations herein made.
Costs will abide the result.
S.C.M
Case remanded.