1. The suit was brought for a declaration that the plaintiff was entitled to certain forest lands, that he was entitled to enjoy the same and that the Government was bound to grant patta for the lands without charging what the plaintiff calls 'seigniorage.' The District Judge has dismissed the suit. He has proceeded upon the documents filed by both sides in the case. He has taken no oral evidence and apparently the parties did not desire him to do so. There is nothing to show that the plaintiff wanted oral evidence to be taken which the Judge declined to record. There is no ground of appeal in the memorandum of appeal before us that the Judge has excluded evidence which he should have been taken in the case. We must, therefore, consider the question raised in the case on the documents filed by both the parties.
2. The first document which Mr. Naraina Row invited our attention to is Exhibit A which is called Durmathi Chittah, or the accounts of 1803. The forest land now claimed by the plaintiff is round his house beyond certain limits which are admittedly appropriated by him and as to which there is no question. Exhibit A is not of any use in so far as the plaintiff relies on it to show any title to the property. There is no reference in it to the pepper Kans. But what that term exactly signifies we are unable to say. There is no shist or revenue imposed upon the pepper Kans. The plaintiff contends that the forest land is part of his warg. He has mooti right in his warg. But Exhibit VIII does not show that the pepper Kans are part and parcel of the plaintiff's warg. There are, no doubt, some circumstances in the plaintiff's favour, such as the wells and ditches round the disputed lands. The walls are not complete in themselves, but they seem to be the remnants of some old boundary walls. Again it appears there are three tanks, bat whether they are merely natural hollows or they are constructions made by some ancestor of the plaintiff's predecessors in the disputed ground, there is no evidence as to how they came to be so planted. If these were the only pieces we might have been inclined to think that they showed possession of the disputed land on the part of the plaintiff in his own right. But in the face of the statements made by the plaintiff's predecessors in the inquiries of 1865 and 1875, we are unable to attach much importance to these items of evidence to which we have just referred.
3. What happened in 1865, was this. An Overseer of the Forest Department asked the Tahsildar to demarcate the lands in which the public should have a right to cut timber from the lands which should be treated as part of the plaintiff's warg. The Tahsildar directed the Shambogue to inquire and report. Exhibit II is a statement made by a predecessor of the plaintiff in answer to questions addressed to him, by the Tahsildar. Now carefully scanning that statement, we are unable to find an assertion of ownership on the part of the plaintiff in the disputed land. All that the plaintiff's predecessor seems to contend for is that the cutting down of trees in the disputed ground would affect the source of water supply to the tanks which feed his garden and also that by building a boundary wall and by appointing watchmen he had taken care to protect the forest. These statements of his are no indication of an assertion of proprietary right The answers so given by the plaintiff's predecessors are passed on by, the Shambogue to the Tahsildar and the Tahsildar makes a report in turn and finally the matter comes to be disposed of by the Collector. Exhibit VI is another petition of February 1856 by the plaintiff's predecessor against the Forest Department authorizing the cutting of trees in the lands claimed in the suit. Exhibit VII contains answers to interrogations by two persons, the predecessor of the plaintiff and his brother. Those answers also make it clear that they were not asserting proprietary right in the property. In the answer of the younger brother he says I pray that Government may pass orders so that there may be no obstruction to our enjoying the lands in the same way as we have been enjoying hitherto, that is, as Kumki lands for the cultivation of the property.' We think this language is almost decisive against any pretension of ownership in the disputed property. The order that was passed in 1866, and which we find as an endorsement on Exhibit XI, was simply to the effect that the Forest Department should not cut trees. But the plaintiff's predecessor was also interdicted by the same order from cutting trees. The interdiction against the Forest Department cutting, trees is explicable on the ground that such cutting would materially interfere, as the plaintiff's predecessor had himself alleged, with the source of water supply for his garden.
4. We come next to the order of 1875. The same man, who petitioned the authorities in 1865, petitioned in 1875 for permission to cut 25 trees beyond the hundred yards limit to which his Kumki right would extend. This is a clear acknowledgment on the part of the plaintiff's father that he had only Kumki rights beyond his warg to the extent of 100 yards and that he had no rights whatever in the forest. He, therefore, asked for special permission of the Collector to cut trees for the building of his house. The order passed on this petition was a mere permission to cut down and take 25 trees for the purpose. It is also clearly against the plaintiff's assertion of the proprietary rights. In the face of the documents of 1865, 1866 and 1875 it is impossible as we have already said, to attach much importance to the other items of evidence showing probably enjoyment on the part of the plaintiff not ordinarily referable to Kumki rights. Whatever may be the origin of such acts of enjoyment, we are bound to hold that the plaintiff has not sustained his claim to a declaration, of proprietary right.
5. We must, therefore, dismiss the appeal with costs.