1. The Defendant No. 6 has preferred this appeal which is limited to Plots Nos. 655 and 656. It is argued on his behalf that the estimate of facts by the lower Court is not correct, that the Court has not given proper value to the presumption arising from the record of rights and that the suit is barred by limitation.
2. Admittedly the plaintiffs are the nimbhowladars within whose nim howla are included the disputed Plots Nos. 653 to 658. The defendants' case is that they are the holders of osat nim howla under the plaintiffs' nim howla and that the tands in suit are included within their nim osat howla. The lower appellate Court has found on an examination of the evidence and a consideration of the Ameen's map that these plots fall within the nim howla of the plaintiffs. On this finding the plaintiffs are entitled to a decree. But then the learned Subordinate Judge goes on to determine the question of limitation to find whether the plaintiffs' right in all these plots was barred. On an examination of the evidence of possession he comes to the conclusion that the plaintiffs' right to Plots Nos. 655 and 656 is not barred, the defendants having failed to prove possession beyond 12 years; with regard to the other plots the learned Judge found that the defendants had reclaimed those plots more than 12 years ago and therefore they acquired a limited interest adverse to the plaintiffs. In this view he has passed a decree partly in favour of the plaintiffs and partly in favour of the defendants. The Defendant No. 6 who is interested in Plots Nos.655 and 656 assails the findings of the lower Court and urges that they are based not on the facts of the case but upon certain assumptions by the learned Judge.
3. The learned Judge has found, that all these plots were at one time jungly lands. At the time when the record of rights was prepared, namely, 1905, no tangible possession of these plots (655 and 656) was possible. The other plots wore brought under cultivation before the preparation of the record of rights in which all those plots were entered as in the occupation of the defendants. The appellants, however, argue that it was the plaintiffs' case that they were in possession of these two plots by taking hogla from the jungle and as the plaintiffs assert acts of possession they are bound to prove such possession within 12 years of the suit and the presumption of law that waste land is to be considered in the possession of the persons having title thereto should not be raised in their favour. With regard to this the only act of possession alleged by the plaintiffs is the taking of hogla which also the defendants claimed to have done. Hogla is a wild grass and in that part of the cuontry is not supposed to be the exclusive property of anyone. The cutting of hogla therefore is not an act of possession or dispossession by any party. The learned Judge is perfectly entitled as a judge of fact to give due weight to the evidence adduced by the parties to draw his own inference which may be inconsistent with the case of either party for it is the duty of the Judge to sift the truth and not to be pinned to the evidence of a party to the case in order not to defeat the ends of justice. The learned Subordinate Judge therefore observes that no tangible possession of those plots was possible at the time of the preparation of the record of rights by which he means to say that it was jungle land which was not capable of possession in such a way as to amount to dispossession of the person having title thereto.
4. It is next argued that the learned Subordinate Judge has not given due effect to the presumption available to the defendant by virtue of the entry in the record of rights and is wrong in holding that that presumption is to be overridden by the legal presumption of possession the argument is based upon a somewhat misconceived idea of the presumption arising from the record of rights and that arising under Section 114, Evidence Act. Under the record of rights the presumption attaches to the correctness of the entry therein. Under Section 114, in determining a question of fact the Court may presume the existence of certain things. The entry in the record of rights has only a probative value but the presumption which the Court draws under Section 114, Evidence Act, is a presumption of the existence of certain facts. There is therefore no clash of presumptions in a case of this kind; and in determining the title of the plaintiffs the Court is entitled to hold that so long as no one else can prove possession and the property is incapable of possession, it must be held to be in the possession of the rightful owner. The finding of the lower appellate Court being that the defendant reclaimed these plots within 12 years of suit, this point, as well as the point of limitation both fail.
5. There is a cross-objection filed on behalf of the plaintiffs-respondents. They claim a declaration from Court of their nim howla title to the plots in suit. It has been found by the lower appellate Court that the plaintiffs' nim how a title is not denied and that the defendants, being the plaintiff's tenants, have by adverse possession acquired a limited interest which I understand to be the interest of tenants as against their landlords (the plaintiffs) in Plots Nos. 657, 658, 653 and 654. The learned vakil who appeal's for the appellants does not seriously contest the plaintiffs' right to get the declaration prayed for by them. But he says that there are other parties interested in these plots and such a declaration could not be made in their absence. We think that the plaintiffs are entitled to the declaration asked for whatever its effect may be. Let the plaintiffs' nim howla right in all the properties in suit be therefore declared.
6. The next ground urged on behalf of the cross-objections is that there is the defendants' own evidence that the four plots in which their claim for khas possession has been dismissed were brought under cultivation within 12 years. A portion of the evidence is read to us but we are not in a position in second appeal to say that the evidence relates to these four plots and not to the other two plots 655 and 656 which have been decreed to the plaintiffs. This is a matter which should have boon taken and urged in the lower appellate Court as it depends upon the application of the entire evidence on the record.
7. The result is that the appeal fails and the cross-objection succeeds in part. In the circumstances we make no order as to costs.