1. This appeal is by the plaintiffs in a suit for the recovery of possession of the disputed lands on a declaration that the same appertain to taluk No. 1079/7 Bakar Mahmud. The taluk No. 1079/7 was sold for arrears of revenue on 22nd September 1921 and was purchased by the plaintiffs at that sale. This sale was confirmed on 17th July 1922 and the plaintiffs took delivery of possession of the taluk on 10th June 1923. The present suit was instituted on 17th July 1934. The plaint related to the lands of several moujas. The appeal before us however relates only to the lands of mouja Baneshwarpur. As regards these lands the case of the plaintiffs as made in the plaint is: (1) That from the time of the permanent settlement lands measuring 111 acres 1 rood 26 pole and recorded as residue chak (abashishta) in thak map No. 3992 relating to mouja Baneshwarpur appertained to the taluk no. 1079/7 Bakar Mahmud: (para 4 of the plaint). (2) That the principal defendants taking advantage of their position as previous proprietors of the mahal kept the plaintiffs out of possession of this land. Three sets of defendants contest this claim. Defendant 104, the Secretary of State for India in Council (now, the Province of Assam) claims this as ilium lands. Defendants 122 to 140, 142 and 143 claim portions of the land as appertaining to their separate accounts carved out of the taluk no. 1079. Defendants 44-46, 51, 52, 55-64, 68-81, 84-87, 90, 101 and 103 are the settlement holders from the Government as illum lands. The case of defendant 104 (now the Province of Assam) is to be found in paras. 9, 12 to 15 of its written statement. In para. 9 the,defendant asserts that the thak survey is full of inaccuracies. Paragraphs 12 and 13 run as follows:
12.The lands claimed as appertaining to the residuary Chak of Mouza Baneshwarpur, were really Illum, i.e., unsettled lands, and were surveyed as such by Lt. Fisher in the year 1244 B.S., which was long before the date of the Thak survey. These lands have since been treated all along as Illum lands, and have been included in all the later Illum surveys made from time to time. It appears that as far back as in the year 1848, these lands were settled with one Dhan Earn Ghosh and others for a period of 10 years. A dispute having arisen in that connexion, the said Dhan Earn Ghosh and others ultimately instituted a suit in the Court of the Sadar Munsif at Sylhet, being Suit No. 172 of 1862, claiming those lands as Illum unsettled lands. The said suit was decreed in favour of the plaintiffs and the decree was upheld on appeal by the District Judge as well as by the High Court.
13. It appears that in late years the said lands of Mouza Baneshwarpur along with other lands were settled first with Raja Rarn Ghosh and others under Potta No. 58368/17 fora period of 15 years from 1285 to 1299 B.S. and subsequently to that to various other people under similar periodic pottas, and were possessed as such by the settlement holders. The lands are still in the possession of the settlement holders under the Government and the owners of Taluk No. 1079/7. Bakar Mahmud never claimed or possessed them.
2. Paragraph 14 is a mere repetition of the statements contained in paras. 12 and 13 and in para. 15 it is stated:
The plaintiffs as purchaser at a sale for arrears of revenue are only entitled to the Taluk as it existed at the date of the permanent settlement. The fact that the disputed lands were shown in the Thak survey within the ambit of the plaintiffs' taluk is not necessarily evidence that it was so included at the time of the permanent settlement. But in the present case, the history of these lands prior and subsequent to the Thak survey completely demolishes any presumption arising out of the papers relating to the said survey.
3. Paragraphs 13 to 20 of the written statement by the second set of the defendants named above (namely defendants 122 to 140, 142 and 143) contain their case. According to them separate account No. 3 Mahammad Nazim was carved out of taluk No. 7 Bakar Mahmud in 1883 in respect of land of mouza Lakshmipur and separate account No. 8 Gouri Singh was carved out in respect of lands of mouzas Baneshwarpur and Lakshmipur in 1885 and portions of the residuary chak of mouza Baneshwarpur were allotted to these separate accounts. The settlement holder defendants (such as the defendants 44, 44Ka, 45,46, 51, 52, 54 to 64, 68 to 81, 84 to 101 and 103) in their written statements assert that the thak of mouza Baneshwarpur is erroneous and that the disputed lands do not appertain to the plaintiffs' mahal. On these pleadings 14 issues were raised. Of these issue 6 is the only issue material for the purposes of the present appeal. This issue is: 'Have the plaintiffs their alleged title to the lands of mouza Baneshwarpur and Baharpur ?' The issues were framed on 1st May 1985. On 24th May 1935, the plaintiffs filed a petition praying for a local investigation. On 8th June 1935, the plaintiffs and defendant 104 filed the documents to be relayed by the Commissioner. On 8th July 1935, the Court made the Order appointing a Commissioner for local investigation in the following terms:
It is necessary in this case to issue a commission to ascertain the lands in suit and also the lands covered by the different separate accounts carved out of the original mahal. It is therefore ordered that a Commissioner be appointed to hold a local investigation in the matter. The Commissioner is directed to survey the lands of the disputed mahal, to prepare a map and to ascertain the lands of the separate accounts appertaining to the mahal as claimed by the defendants....
4. The Commissioner prepared two maps for mouja Baneshwarpur. The Commissioner says:
In mouja Baneshwarpur as I had to compare a large number of survey papers and documents on behalf of defendant 104 I have drawn the comparative map of the disputed residuary chak on an en larged scale of 32' =1 mile.
5. In mouja Baneshwarpur the Commissioner found five different residuary chaks all of which were claimed by the plaintiffs. He numbered these chaks and found that Nos. 1 and 3 wholly and Nos. 2 and 4 substantially fell within the separate accounts, but that practically the whole Block No. 5 fell outside the separate accounts. Defendant 104, the Secretary of State, claimed only this Block No. 5 as Illum land. In support of their claim the plaintiffs relied on the thak papers, the records of the proceedings for opening the separate account out of the original mahal taluk Bakar Mahmud and on the Halabadi Chitta of Mr. Tucker. According to them this Halabadi survey was older than the alleged survey of Lt. Fisher of 1244 B.S. Defendant 104 relied on the following papers: (1) Chitta dated 1244 B.S. (2) Decree in Title Suit No. 172 of 1861. (3) Map, Field Book and Chitta of 1870-71. (4) Kabuliyat dated 1878. (5) Moulvi A. Rashid's map and chitta of 1924-25. As regards the land covered by the decree in Title suit no. 172 of 1861, the Commissioner observes:
It appears that the suit was instituted by one Dhanaram Ghosh along with other persons for the lands described in 6 different dags of the plaint. All these dags are described in terms of different plots of a Chitta, which was not either compared or produced before me; it appears that the Illum block was surveyed again after the survey of 1244 B.S. And in absence of that Chitta, I am of opinion that the dags of the decree could not, quite accurately, be shown to me.
6. Coming to the Chitta of 1244 B.S., the Commissioner compared it with the Chitta of 1871 and found that several plots shown as Illum in the Chitta of 1244 B.S. were excluded in the Illum Survey of 1871. Some of these are admittedly permanently settled lands. The learned Subordinate Judge decreed the plaintiffs' claim in part accepting the report of the Commissioner. In the course of his judgment the learned Judge observed:
1. From the thak statement (Ex. 7a) read with the thak map (Ex. 6A) it would be evident that the Taluk No. 1079/7 Bakar Mahmud which has been auction purchased by the plaintiffs at the revenue sale consists of the lands of residuary chaks in mouza Baneshwarpur. There was practically no dispute on the point at the trial.'
2. (a) The pleader Commissioner has relaid the thak map in the locality and shown that the Taluk No. 7 Bakar Mahmud consists of the lands of the five blocks of residuary chaks of the thak in mouza Baneshwarpur.' (b) 'The finding of the Commissioner on the point and the correctness of his relay of the thak map of Baneshwarpur mouza in the locality have not been challenged before mo and must accordingly stand.' (c) 'As a result of his investigation he has found that...the whole of the Block v. of the residuary chak of the mouza is within the residuary mahal in suit. This finding of the Commissioner is not challenged before me.
3. The contention of defendant 104 that the entire lands of Block v. of Residuary Chak of Mouja Baneshwarpur are Illum lands cannot be given effect to. (a) The thak papers clearly raise a presumption that the entire lands of Block v. of the Eesiduary Chak of that Mouja are situated within the ambit of the Mahal in suit; (b) The contesting defendant 104 has filed the Chitta (Ex. A/104) dated 1244 B.S., petition (Ex. B/104) dated Magh 1255 B.S., the Order of the Commissioner (Ex. C/104) dated 6th December 1851 and the Kabuliat (Ex. D/104) dated 20th November 1848 and the petition (Ex. K/104) dated March 1851 for rebutting that presumption; (c) I don't think these documents are at all sufficient to rebut the presumption of correctness of the thak papers in the present case; (d) The Gov-ernment has withheld (i) the Chitta prepared at the Survey of Lt. Fisher during the years 1829 to 1834 (ii) the Chitta referred to in the settlement proceedings of 1244 B.S. and in the suit of 1861.
7. On appeal by defendant 104 and defendants 44, etc., the learned District Judge dismissed the claim of the plaintiffs to this land holding: (1) That the plaintiffs failed to establish their title to the Baneshwarpur lands as appertaining to the residuary mahal Bakar Mahmud. (2) That at any rate the title, if any, of the proprietors of the mehal to this land became extinguished by the adverse possession of the Crown and that adverse possession by the Crown is not an incum-brance within the Regulation. In arriving at the conclusion that the plaintiffs failed to establish that the disputed lands of mouza Baneshwarpur appertained to the mehal Bakar Mahmud purchased by the plaintiffs, the learned District Judge principally relied on his finding that the thak papers were incorrect. Dr. Sen Gupta, appearing for the plaintiffs-appellants before us, contends: (1) That the Court of appeal below went wrong in holding that adverse possession by the Crown would not be an encumbrance within the meaning of the Regulation. (2) That the finding arrived at by the Court of appeal below that the thak papers are incorrect is vitiated (a) being based on inadmissible evi-dence (b) not being passed on the whole evidence on the point. Dr. Sen Gupta contends that the reasons and findings of fact in the judgments in the 1861 suit are not admissible in evidence in the present case. In deciding the question whether the thak represents the correct state of things the learned District Judge has principally relied on the findings of fact and the reasons given in these judgments. Further the learned Judge has relied on Ex. A which has been shown to be a chitta not prepared by any public officer for any public purposes at all. The learned Judge did not at all take into consideration the fact that defendant 104 withheld some material documents in its possession.
8. Mr. Mukherjee, appearing for defendant 104, contends: That the finding that the land in suit does not appertain to the plaintiffs' estate is based on evidence admissible in law and is a finding of fact not assailable in second appeal. Mr. Mukherjee concedes that if the plaintiffs succeeded in showing that the lands appertained to their estate then any title acquired in them by adverse possession would be an incumbrance within the meaning of Section 71 of the Assam Regulation, 1 of 1886. He did not support this part of the judgment of the learned District Judge. The other defendants adopted the argument of Mr. Mukherjee in support of the decree in their favour.
9. In our opinion, Mr. Mukherjee rightly concedes that if the plaintiffs succeed in showing that the lands were included in their permanently settled estate, then the title acquired by any adverse possession will be no answer to their claim. The Assam Land and Revenue Regulation, 1886 (Regulation 1 of 1886) applies to this case. Section 6 of the Regulation lays down what rights may and what may not be acquired over such lands. Title by adverse possession is not one of the rights that can be acquired. An adverse possessor will, in our opinion, be only an incumbrancer. Section 71 of the Regulation lays down that the estate will be sold free of all such incumbrances. The Government does not claim to have been in possession directly and adversely to the proprietors. The only possession claimed in the case is of some private persons in assertion of the Illum character of the land or, more appropriately in denial of its settled character. The Government only claims to have been in possession through them. It is not even the case of the Government that the persons were inducted on the land by it. The title acquired by these persons by adverse possession was undoubtedly a mere incumbrance. The Government claiming possession through them could not have acquired any better title. Besides we do not see why even direct adverse possession by the Government shall not come within the description of 'incumbranees previously erea-ted thereon by any other person than the purchaser' as given in Section 71 of the Assam Regulation 1 of 1886. As regards the settlement holder defendants, they did not make any case of their interest being 'tenures created bona fide' within the meaning of the excepting Clause (b) of Section 71 of the Regulation. They, therefore, stand or fall with defendant 104.
10. As regards the second point urged by Dr. Sen Gupta, we must at the outset, point out that the judgments in question were not inter partes. Even the then proprietors of the estate were not parties to the suit in which these judgments were pronounced. The suit No. 172 of 1861 was governed by the Code of Civil Procedure of 1859 (Act 8 of 1859). Section 73 of the Act provided for intervenors. Where an intervenor claimed adversely to both the plaintiff and the defendant, he was not entitled to be added as a party as his interests would not be affected by the result:Joy Gobind Doss v. Gouree I'rashad Saha ('67) 7 W. Rule 201. Obviously, the then proprietors of the taluk Bakar Mahmud attempted to intervene in the suit under this Section73 of the Code. The recital in the appellate judgment in that case shows that they claimed adversely to both the plaintiff and the defendant in that suit. As far as can be gathered from the documents on the record, they were not added as parties to the suit either as the plaintiffs or as the defendants. The decree of the first Court (Ex. x) does not at all contain the names of these proprietors. The decree of the first appellate Court (Ex. Y) names them as objectors as distinguished from the appellants and the respondents. The decree of the High Court (Ex. y) also does not at all contain their names. Admittedly, the Crown was not a party to this suit at all. In these circumstances the judgments (exs. z, z-l and Z-2) in that suit are certainly not judgments inter partes so far as the present plaintiffs, defendant 104 and the defendants claiming through defendant 104 are concerned. Those judgments not inter partes might be admissible in evidence only under Section 13, Evidence Act, as establishing a particular transaction, if any, by which the relevant right was asserted, recognised, etc. Findings of fact in or reasons for the judgment are irrelevant and not admissible in the present case:Gobinda Narayan Singh v. Shamlal Singh . As was pointed out by Mookerjee J. in Bashinath Pal v. Jagat Kishore ('16) 3 A.I.R. 1916 Cal. 176, at p. 585,
although a judgment not inter partes may be used in evidence in certain circumstances, as a fact in issue, or as a relevant fact, or possibly as a transaction,. .,, the recitals in the judgment cannot be used as evidence in a litigation between other parties. The principle is that all judgments are conclusive of their existence, as distinguished from their truth; judgments as public transactions of a solemn nature, are presumed to be faithfully recorded. Every judgment is, therefore, conclusive evidence, for or against all persons, whether parties, privies or strangers, of its own existence, date and legal effect, as distinguished from the accuracy of the decision rendered; in other words, the law attributes unerring verity to the substantive as opposed to the judicial portion of the record.
11. The judgment itself may not be a transaction and the question whether a suit is a transaction within the meaning of the Evidence Act, is not altogether free from difficulties. Only by a somewhat strained use the term may be held applicable to proceedings in a suit, and if this extended use be taken to have been the intention of the Legislature in framing the Indian Evidence Act the result would be to effect a departure from the English Rule of Evidence, as was pointed out by Sargent C. J. in Ranchoddas Krishnadas v. Bapu Nashar ('86) 10 Bom. 439. at p. 442. In Gobinda Narayan Singh v. Shamlal Singh . neither the judgment itself nor the suit was taken to be a transaction. It was ' the partition resulting from the 1793 suit' which was taken to be the relevant transaction, relevant under Section 13, Evidence Act. The judgment was held to be admissible only to prove this transaction. The right claimed was the partibility of the estate. A partition was certainly a transaction by which partibility could be said to have been claimed, asserted or recognised.
12. In this particular case the recitals in the judgment of the first appellate Court (Ex. z-l) show that the then proprietors of the mahal Bakar Mahmud claimed the lands in dispute in that suit as appertaining to their estate. The question whether or not the lands appertained to any settled estate or to unsettled illums was expressly left undecided by the High Court, as according to this Court, the then plaintiffs were entitled to succeed in that suit only on the strength of their long possession. Further, as the plaintiffs in that suit did not and could not claim under any settlement from the Government, the question whether the lands were Illum lands or not was irrelevant for the purpose of that suit and would not have advanced the case of the plaintiffs or detracted from it. The fact that there was this litigation or that as a result of this litigation the then plaintiffs recovered possession of the lands may be relevant under Section 11, Evidence Act. The judgments in that case will be evidence only to the extent of showing the existence of these facts. Assuming that a suit is a transaction within the meaning of Section I3(a), Evidence Act, the existence of the suit itself will be a relevant fact and for this purpose the judgment will be evidence to show the factum of the suit as also to show its nature and scope so as to enable the Court to see whether or not it can be said that by it the right in question was claimed, recognised, asserted or denied. It should be remembered that Section 13(a),Evidence Act speaks of transactions by which the right is asserted and not those in which the right is claimed. The nature and scope of the transaction is thus a pertinent consideration: Jogendra Krishna v. Subashini Dasi : AIR1941Cal541 . The proposition to be proved is the right claimed or denied in the suit. A transaction by which this right might have been asserted or denied, etc., is only a material evidencing the proposition. The ultimate factum probandum is the right claimed or denied in the suit. The transaction is only an evidentiary fact, the factum probans. This factum probans itself in its turn may require proof and may thus become an intermediate proposition to be proved. A judgment may come in under Section 13, Evidence Act only as an evidentiary fact to establish this intermediate proposition. When established, the proposition only brings in a factum probans and nothing else. In this particular case, the then plaintiffs really did I not claim any right on the basis that the lands were Illum lands. They did not claim by or under any settlement of the lands as Illum lands. The only right which they could claim or assert there was one acquired by long possession. The suit might be an instance in which certain rights might have been claimed or recognised, etc., within the meaning of Section 13 (b), Evidence Act. Even then the judgments will be admissible in evidence only for the limited purposes of the Clause, namely, to prove 'the instance.' In no case the reasons and the findings of fact arrived at in them would be admissible in evidence in the present case.
13. The learned District Judge, however, made frequent references to these reasons and the findings and mainly relied on them in Order to decide against the thak papers. In one place he set out the reasons given in the judgment of the first Court in that case seriatim and pointed out that the appeal to the District Judge against this decision failed. He then proceeded to examine how far these findings were affected by the decision of the High Court and observed that whatever the High Court might have remarked about these findings and reasons was merely obiter and could not be availed of by the present plaintiffs. In another place he referred to certain findings as findings of both Courts that there was no land of mouza Baneshwarpur in taluks 19, 69 and 88 and also relied on the reasons given for rejecting the Halabadi maps and accepting the mouzawari papers. In fact, the major portion of the judgment of the learned District Judge is devoted to the consideration of the findings of fact and reasons given in the judgments in the suit of 1861. Reading the judgment of the learned District Judge as a whole, we are of opinion that the learned Judge was very much influenced by the findings and reasons given in the judgments in the suit of 1861 and altogether ignored the fact that the materials before the Court on that occasion were not placed before the Court on the present occasion. In these circumstances the contention of Dr. Sen Gupta must be accepted. Apart from the question that the reasons and findings of fact in that suit are not admissible in evidence against the present plaintiffs, the High Court in that case expressly left the question as to whether or not the lands in suit then appertained to any settled mahal undecided and considered this question irrelevant for decision there in view of the nature of the then plaintiffs' case. Further, it should be remembered the lands of that suit could not definitely be identified with the present suit lands. The Commissioner in his report observed:
It appears that the suit was instituted by one Dhanaram Ghosh along with other persons for lands described in difierent dags of the plaint. All these dags are described in terms of different plots of a chitta, which was not either compared or produced before me; it appears that the Illum block was surveyed again after the survey of 1244 B.S. And in the absence of that chitta I am of opinion that the dags of the decree could not, quite accurately, be shown to me.
14. The learned District Judge was also wrong in relying on the chitta Ex. A. The chitta on the basis of which the settlement of 1244 B.S. was made was that by one Gouri Charan Deb. Exhibit A is the chitta made by one Brojonath Gupta. Defendant 104 relied on this chitta as made by Lt. Fisher. Both the Courts found against this case of the defendant. There is nothing on the record to show who this Brojonath is and how he was connected with any public office. It has not been shewn that this chitta was prepared for any public purposes. In these circumstances it is difficult to see how this chitta is at all admissible in evidence. The learned Judge says that it is an important piece of evidence of the fact that the Government in those days was asserting Illum title to these lands. But we do not at all know in connexion with which transaction or in which instance this document was made. It can be evidence of certain transactions and instances only under Section 13, Evidence Act. We cannot, therefore, allow the finding of the learned Judge in this respect to stand.
15. As, however, the case is an old one and as the question shall have to be determined on the evidence already on the record wo asked the parties to place the entire evidence on the point before us so as to enable us to determine this issue of fact here in the present appeal. The evidence on the record has been placed before us, and on a careful consideration of the same we are of opinion that the plaintiffs have succeeded in establishing that the lands of block v. of the residuary chak of mouja Baneshwarpur appertain to their permanently settled mahal 1079/7 taluk Bakar Mahmud. It is not disputed that the lands measured in blocks I to v. by the Com-missioner in the present case are the lands of the residuary chak of mouza Baneshwarpur as recorded in the thak papers. The Commis-sioncr found, and that finding was accepted by the Courts below, that the lands of blocks I to IV are the lands of this residuary chak now appertaining to the separate accounts carved out of the original taluk Bakar Mahmud. The separate accounts were opened during the years 1883 to 1889: vide Ex. 9, 9(a), 9(b), ate), 9(d). The documents Ex. 9 series are the records of the proceedings for the opening of the several separate accounts under Section 11 of Act 11 of 1859. They contain the detailed descriptions of the lands claimed as apper- taining to the mahal and these descriptions read with the report of the Commissioner in the present case clearly establish that in these instances the cosharer proprietors of the original taluk Bakar Mahmud were asserting to the knowledge of the revenue authorities that the residuary chak of mouza Baneshwarpur appertained to taluk Bakar Mahmud. The several separate accounts were opened on the strength of these assertions and on each occasion the right claimed or asserted was thus recognized by the revenue authorities.
16. In every case the question whether any particular land was included in the permanent settlement is a question of fact and not of law and the onus of establishing this fact is on those who affirm that such was the case. Subsequent survey papers will only be relevant evidence for the purpose. The question may or may not be satisfactorily proved by such subsequent survey papers. It will be wrong even to say that the burden of proof is shifted on to the other side by such survey papers. It cannot again be said as a matter of law that such survey papers should be held sufficient proof of the fact. It would not be right to act on the thak treating it as decisive in the absence of evidence to the contrary. At the same time the thak is a valuable piece of evidence and where, as in the present case, there is no question of any change since the permanent settlement caused by the erro-sive action of any large and violent river, its probative value is really very great. (After considering the documents relied on by the defendants his Lordship proceeded.) In our opinion, the documents relied on by the defendants do not in the least detract from the correctness of the thak survey and we are satisfied that the lands of block v. of the residuary chak of the thak appertain to the estate purchased by the plaintiffs at the sale held under Assam Regulation, 1 of 1886. In the result, therefore, this appeal is allowed. The judgment and decree of the Court of appeal below relating to the lands of block v. of the residuary chak of the thak as relayed by the Commissioner in the present case are set aside and the decree of the Court of first instance in respect of these lands is restored. The parties will bear their own costs in this appeal. As regards the costs in the Courts below, the plaintiff will get the costs from the defendants, but respondents 32 to 34 will not be liable for costs in any Court.
17. I agree.