In S.A. No. 3335 of 1910.
1. The plaintiffs, as purchasers of a revenue-paying estate at a sale under the Revenue Sale Law, brought the suit out of which this appeal arises, to recover possession of the lands in suit, on a declaration that the lands appertained to the estate purchased by them.
2. The defendants pleaded that the lands formed part of a taluk called Taluk Mohamaya which was held from the time of the Permanent Settlement, and was, therefore, protected under the provisions of Section 37 of Act XI of 1859.
3. The Court of first instance found that a portion of the lands, appertains to the estate purchased by the plaintiffs and that finding has-been affirmed by the Court of Appeal below. The Courts below have also concurred in finding that Taluk Mohamaya is a taluk existing from before the Permanent Settlement and is, therefore, protected under Section 37 of Act XI of 1859.
4. With respect to the question whether the disputed lands appertain to Taluk Mohamaya, the Court of first instance, referring to certain chiitas of 1229 and 1259 and certain Kabuliyats beginning with the year 1811 which were found by the Commissioner to include the lands in dispute, held as follows: 'The thak map being silent as to the position of any tenure, and as it does not contain any line demarcating any such tenure, the said chittas are good evidence, under Section 13 of the Evidence Act, to show that at the time of preparation of them, the disputed lands formed part and parcel of the tenure named Mohamaya; Having regard to these facts and circumstances as well as to the presumption arising, from the long possession of the disputed land as part of the Taluk Mohamaya, I find that the disputed land is comprised within Taluk Mohamaya, and that the said taluk had been in existence at the time of the Permanent Settlement as well as at the time when the plaintiffs' estate was carved out, and that it, therefore, cannot be annulled, and that the plaintiffs are not entitled to get khas possession of the lands in suit.' That Court accordingly declared plaintiffs' title to the portion of the lands found to be included in the estate purchased by them, but disallowed the claim for khas possession of the said lands and dismissed the claim for the rest of the lands.
5. The learned Subordinate Judge, however, held that the lands do not appertain to that taluk, because the defendants in their written statement (paragraph 7) stated that at the time of the butwara in 1208 the taluk fell under two other zeminlars. It appears that the Pargmnah, out of which the estate purchased by the plaintiffs was created, consisted of two shares, viz., 4 annas and 12 annas, respectively. The 12-annas share was subsequently partitioned into 4 estates, 'one of which was a 4-annas share, which is the share purchased by the plaintiffs. The defendants in their written statements pleaded that Taluk Mohamaya fell into two of the other shares under the butwara and that they had been paying rent to the zemindars of the said shares. The learned Subordinate Judge, with reference to this statement, says, or in other words, no lands of the plaintiffs' zemindari appertain to this taluk. It follows, therefore, that the plots which appertain to the plaintiffs' zemindari cannot appertain to the defendants' taluk,'' and again, the fact that at the time of the butwara no part of this taluk fell in the plaintiffs' zemindari goes to show that these lands did not form any part of the taluk, for in that case, the taluk would have been shown as appertaining to the plaintiffs' zemindari too.' The reasoning of the Subordinate Judge is that as the lands appertain to plaintiffs' estate, and as the taluk does not appertain to that estate, the lands cannot appertain to the taluk. But that conclusion does not necessarily follow, because the lands, although appertaining to the plaintiffs' estate, might have been treated and held as part of the taluk which fell into other estates as found by the Court of first instance. However that may be, the learned Subordinate Judge is in error in holding that the presumption relied upon by the Court of first instance does not apply to the present case. He does not refer to the kabuliyats, but refers to the chittas and observes that they merely show that the defendants were in possession of these lands alleging that they appertain to their Taluk Mohamaya, but that they do not prove that the lands appertained to that taluk from b fore 1208.
6. Referring to the cases of Nityanund Roy v. Banshi Chandra Bhuiyan 3 C.W.N. 341 and Nagendra Lal Chowdhury v. Nazir Ali 10 C.W.N. 503 relied upon on behalf of the defendants, he observes: 'But these decisions do not help us in any way. In neither of the cases cited was there any question as to which lands appertain to a particular taluk. In these cases, the existence of the taluk at the time of the Permanent Settlement was presumed from long possession.' It is true that in those cases the question was as to the existence of the taluk at the time of the Permanent Settlement. But the principle of proesumitur retro is not confined to such cases only, and there is no reason why the principle should not apply to a case like the present.
7. In the case of Anangamanjari Chowdhrani v. Tripura Sundari Chowdhrani 14 I.A. 101 : 14 C. 740 : 5 Sar. P.C.J. 45 : 11 Ind. Jur. 350 : 7 Ind. Dec. (N.S.) 490 the Judicial Committee held that on a question of parcel or no parcel when possession for a long period of years has been satisfactorily proved, in the absence of evidence to the contrary, praesumitur retro.
8. In the present case the defendants proved that the lands in dispute were in their possession and 'held by them from the time of their ancestors as part of Taluk Mohamaya, and the evidence goes back to 1811, i.e., more than a century ago. The Court of first instance, having regard to the facts and circumstances and the presumption arising from long possession of the disputed land as part of the Taluk Mohamaya, held that the disputed land was comprised within the taluk both at the time of the butwara and at the time of the Permanent Settlement.
9. The presumption is no doubt one of fact; it is open to the Court to attach such weight as it likes, or to hold, having regard to the other facts and circumstances of a case, that it is of no assistance to a party. But the learned Subordinate Judge appears to have held as a matter of law that the principle of presuming backwards is not applicable to a case where the question is, whether certain lands have been held as part of a taluk. We think he ' was wrong in the' view he took, and as the question was decided by the Court of first instance to a large extent upon the presumption, we think that the case should be remanded to the lower Appellate Court for a fresh decision of the question, whether the lands in dispute have been held by the defendants as part of their Taluk Mohamaya from the time of the Permanent Settlement, after taking the said presumption into consideration, and disposal of the case according to law. It is needless to say that it will be for that Court %o attach such weight to the presumption as it thinks proper. Costs will abide the result.
In S.A. No. 119 of 1911.
10. The judgment that we have just delivered in Appeal No. 3335 will govern this appeal also.