1. The plaintiffs who are the appellants to this Court brought a suit for declaration of title to and recovery of possession of a ditch (doba), recorded as O.S. Plot No. 1616 of the settlement records of 1937. Their case was that this plot appretained to a jama of Rs. 16-13-3 comprising 8 bighas and 2 cottas of land, which at one time was a jama of Rs. 19-14-6 comprising 9 bighas aad 19 cottas of land. The larger tenancy originally belonged to one Sashi Bhusan Hazra who made a gift thereof to his nephew Anukul and plaintiff 1 and the father of plaintiffs 2 and 3 acquired the lands by two purchases, one from Anukul and the other from the widow of Anukul's brother Sucharan who also claimed an interest in the gift. Thereafter the plaintiffs settled the lands in bhag with two persons named Umesh and Dayal and on a dispute having arisen with them, compromised it by relinquishing in their favour an area of 1 bigha and 17 cottas of land. The reduction of the original jama to its present proportions is explained by that circumstance, The plaintiffs alleged that the record of rights wrongly recorded plot No. 1616 as held in tenancy right by the defendants and that the defendants were wrongfully in possession thereof.
2. The defence of the defendants was that the plaintiffs had the superior interest in the land as claimed by them, bat they were only entitled to recover fair and enquitable rent and were not entitled to khas possession. According to them, Plot No. 1616 appertained to a tenancy of five plots which one Ramchandra Karati, a predecessor of theirs, held under Sashi Bhusan Hazra. The superior interest of Sashi Bhusan Hazra had since been acquired by the plaintiff and the tenancy right of Ram Chandra Karati had devolved upon the defendants. It was farther pleaded that the defendants or their predecessors in interest had been in possession of the plot for upwards of 12 years and had thereby acquired a tenancy right therein.
3. The trial Court decreed the plaintiff's suit. It held that Plot No. 1616 appertained to the jama of Rs. 16-13-3 as alleged by the plaintiffs and did not appertain to a jama of five plots as alleged by the defendants; that the defendants were in possession since 1932 but had not been in possession before; that their possession was not possession in the capacity of tenants; that accordingly the plot was not assessable to rent, as recorded in the record of rights; and lastly that the record of rights was wrong and should be corrected.
4. On appeal, this decision was reversed by the lower appellate Court and the plaintiff's suit dismissed. The learned Judge held that the defendants had been in possession for long over 12 years and had acquired the limited interest of a tenant by. adverse possession. The record of rights was therefore correct and the presumption attaching thereto had not only not been rebutted but had been corroborated.
5. In the present appeal by the plaintiffs Mr. Jana urged before me three points: (1) that the judgment of the lower appellate Court was not a proper judgment of reversal; (2) that the Court of appeal below had erred in finding a tenancy by adverse possession in the absence of any specific issue raised on the question; and lastly (3) that the lower appellate Court had wrongly relied upon a previous deposition of plaintiff 1, EX. E, which did not relate to Plot No. 1616 at all.
6. On behalf of the respondents Mr. Hiralal Chakravarty contended that even if one item of evidence was excluded, the remainder of the evidence was sufficient to support the record-of-righta. In his submission the record of rights had not been rebutted and the finding of the learned Judge to that effect could not be disturbed in second appeal.
7. As regards the first ground urged by Mr. Jana, I do not think that it is of any substance. The only item of evidence which could be said to have been considered by the trial Court and not considered by the Court of appeal was a decision in a previous rent suit, namely R.S. No, 697 of 1925 which the plaintiffs had brought against the defendants with respect to two other plots, namely, Nos. 1629 and 1627. In the course of that suit the plaintiffs had stated that to the east of the land of that suit lay the ditch of the plaintiffs. It was sought to be argued from that statement that at the time of the institution of that suit the plain. tiffs were in possession of the present plot. It will, however, appear that between the present plot and the lands of the former rent suit, there are other lands and therefore the description given in the schedule to the plaint of the former suit could be of no real assistance to the plaintiffs. In my opinion the omission by the lower appellate Court to consider this item of evidence does not in any way affect the correctness of its findings.
8. Taking the last point now, I am of opinion that Mr. Jana was right in contending that the previous deposition of the plaintiff, Ex. 3, had been wrongly relied upon by the learned Judge. Mr. Jana put his objection on the ground that Ex. E, which by the way is a record of the plaintiff's deposition in a suit for ejectment 'brought by one Surendra Nath Hazra against the present defendants in respect of plots Nos. 1617 and 1618, related to other lands and not to the land of the present suit at all. Prima facie that objection appears to be correct, but I would prefer to base my decision on another ground, namely, if it was intended to rely upon an admission made by the plaintiff on a previous occasion, it could not be done unless that previous admission was put to him. It does not appear from the record of the plaintiff's evidence in the present case that he was ever confronted by Ex. E and consequently it must be held that Ex. E ought to be left out of account altogether.
9. This brings me to the last and in fact the most substantial point urged by Mr. Jana. The exclusion of Ex. E might itself be sufficient to compel me either to decide the issue of fact myself on the balance of the evidence or to order a remand; but it seems to me that it is possible to dispose of the appeal on a broader ground. It cannot be denied that no specific issue directed to the question of adverse possession was ever framed. So far as pleading is concerned, it is possible to read the written statement of the defendants as containing a case that they had acquired a tenancy by advesse possession, but the principal trend of that written statement undoubtedly is that such possession as they had exercised was as tenants of the tenancy of five plots which they had set up, Be that as it may, it seems to me that even assuming that adverse possession was pleaded by the defendants and the issues framed in the case were sufficient to cover the question, yet, there is no evidence at all on the record on which any tenancy by adverse possession could be founded. It is undoubtedly true that the record of rights records a tenancy. It is equally true that a presumption of correctness attaches to the entry. But the plaintiffs, by proving that the land belonged to them and that they had never granted any tenancy to the defendants, discharged the initial burden which lay upon them. It may be noted here that according to the finding of both the Courts, the plot does not belong to any tenancy of five plots as set up by the defendants. There is thus no grant specifically made by the plain, tiffs. The only other way in which a tenancy could be said to have been created and therefore correctly recorded in the record of rights, would be by occupation. Now, it is an old principle that with regard to agricultural lands, a tenancy can be created in this country not only by express grant but also by occupation. That however is a principle which enures to the benefit of the landlord who can either treat trespassers found upon his land as trespassers or treat them as tenants. If the person on the land wants to establish a tenancy right by occupation, he has to prove the various elements which are required for the accrual of a right by adverse possession. It is also doubtful whether the principle to which I have referred would apply to this case at all, since the subject-matter is only a tank and it has not been found in the case that this sheet of water is an essential part of any agricultural holding. But, in any event, the defendants cannot, as I have already pointed out, make out a tenancy without proving the various ingredients of adverse possession. They have adduced some evidence in the case, but such evidence only amounts to evidence of mere possession without anything to suggest that such possession was adverse in the sense that the landlord had notice of it or that it was of such notoriety that the landlord must be presumed to have known of it. It follows in my opinion that such possession as is disclosed by the evidence cannot amount to adverse possession sufficient to create a title and accordingly the evidence adduced by the defendants, even if fully believed does not disclose any foundation for the entry contained in the record of rights.
10. It does follow that the evidence in the case makes it perfectly clear that there is no foundation for the entry, either in any express grant made by the plaintiffs or in any tenancy right acquired by adverse possession. Accordingly, the finding of the learned Subordinate Judge cannot in my opinion stand.
11. It appears, however, that the defendants have a ghat on one side of the ditch and that in the decree made in Title Suit No. 35S of 1932, relating to Plots Nos. 1617 and 1618 which also are parts of the ditch, the rights of the defendants to the use of the water and certain other incidental rights were reserved by reference to observations made in the judgment. It may be that the defendants have similar right in the present ditch which has now become a part of the same sheet of water. It must, therefore, be understood that nothing in this decision will affect any rights which the defendants may have to the use of the water of the tank or any other prescriptive right which they may have acquired.
12. In the result the appeal is allowed. The judgment and decree of the lower appellate Court are set aside and those of the learned Munsif restored, subject to the observation that the decision in the present case will not affect any prescriptive or other right which the defendants may have to the use of the water of the ditch and rights incidental thereto.
13. Each party will bear its own costs throughout.