1. This appeal arises out of a suit brought by the Raja of Barhar for the ejectment of the defendants-appellants Jagannath Prasad Singh and Baijnath Prasad Singh, as thekadars from the village of Naugawan in Pargana Barhar. The suit has been decreed. The dispute in appeal, so far, at any rate, as the appeal has been pressed, relates only to one-half of the village in respect of which the defendants claim to be under-proprietors. They rely entirely on a rubkar of Mr,. Roberts, Settlement Officer, in the year 1852 which is claimed as establishing their under-proprietary right. The learned District Judge holds that this document is not conclusive, and on a review of all the evidence, including the fact that the defendants have never been recorded as under-proprietors in the revenue Courts, comes to the conclusion that their under-proprietary right is not established. The suit was originally tried by an Assistant Collector of the First Class who decided in favour of the appellants. In appeal the learned District Judge rightly considered that the case was one to which Sections 199 and 200 of the Tenancy Act applied. He considered that the Assistant Collector had not dealt with the case in the manner in which a civil Court would have done if the case had been tried in a civil Court, and that he had not before him all the materials necessary to decide the question. He, therefore, framed issues under Section 200(b) of the Tenancy Act and referred them for trial to the Court of the Subordinate Judge. The Court of the Subordinate Judge recorded his findings in favour of the plaintiff, and the District Judge accepted those findings and decreed the suit. In appeal two pleas have been pressed:
1. That the learned Judge was not justified in remitting issues under Section 200.
2. That the rubkar of 1852 conclusively establishes the appellants' title.
2. The first point is not really now material, as it is admitted that, though some fresh evidence was produced on remand, the evidence on which the District Judge has relied in deciding the appeal is evidence which was on the record prior to the remitting of issues. The substantial point in the case is whether the rubkar of 1852 conclusively establishes the appellants' right as a matter of law. If the rubkar is merely a piece of evidence, even though it may be evidence telling in favour of the appellants the District Judge was entitled to consider it along with the other evidence in the case, and the finding at,which he has arrived, that the defendants have not established their proprietary right is a finding of fact. I have been taken through the rubkar in question, and I am satisfied that it is not conclusive, and that it cannot be said, as a matter of law, that the learned District' Judge was bound to decide in favour of the appellants on the basis of this rubkar. The rubkar appears to have been drawn up in pursuance of the duty cast upon Settlement Officers by Regulation VII of 1822 to enquire into the proprietary rights in the villages which they were settling. It is a very lengthy document. It commences by setting out the previous history of the village, the contentions of the parties, and the various steps which were taken to record evidence. It sets out that the entire village, not merely half of it, had been settled from time to time at gradually increasing amounts of revenue with the plaintiff's ancestors. At one time the village was settled with the Raja, but owing to non-payment of revenue it was taken under direct management and a theka of half the village was given to the defendants' ancestors. From Fasli 1249 to 1258 a ten years' settlement was again made with the Raja who let it to a thekadar, and at that time the defendants are said to have taken a lease of half the village from the plaintiff's thekadar.
3. After setting out all this history the rubkar proceeds to state that under these circumstances the first party, namely the defendants, are entitled to half the proprietary right (milkiyat) in the village, and as to the other half, though the whole village had at one time been settled with their ancestors, yet in Fasli 1239, in the time of Mr. James Cuming, Settlement Officer, they became farmers of a half and afterwards in the time of Bhikai Ram Dube (the thekadar to whom the Raja had given the village from Fasli 1249 to 1258 as already stated) they do not appear to have had possession of the entire village but only a half. Finally it is said that half the village is the Raja's khalsa and as to the other half the appellants' ancestors are directed to go before the Raja and settle with him according to their pleasure in whatever way may be proper the jama which they are to pay.
4. This document is not a judicial decision in a dispute between the parties which can have the force of res judicata. It is a record made by a public servant in the discharge of his duty which is entitled to considerable weight as being made by a Settlement Officer who was specially directed to make an enquiry into titles. It is in the last resort, however, only a piece of evidence, however strong, and on an examination of the document itself it is quite clear that the statement that the appellants have milkiyat in half the village, if the word milkiyat is taken to refer to under-proprietary right, is a conclusion which does not follow from the facts previously recited in the rubkar itself. I find, therefore, that the rubkar is not conclusive in favour of the appellants, and that the finding of fact at which the District Judge has arrived on a consideration of the entire evidence is not open to challenge in this appeal.
5. I, therefore, dismiss the appeal with costs.