1. This appeal arises out of a suit brought by the purchaser at a revenue sale to eject the defendants from the lands held by them. The area of the land in dispute in this suit is about 7 cot inks 7 dhurs and 7 powas. The defendants have been found by the lower Appellate Court to hold 3 cottahs and 7 dhurs as a lakheraj tenure from a time before the Permanent Settlement. It has, therefore, held that the plaintiff is not entitled to eject them. The learned Subordinate Judge, however, has stated that the claim for khas possession by the plaintiff and for the ejectment of defendants is dismissed.
2. The plaintiff appeals and on his behalf it has been argued (1) that as the learned Judge has found that only 3 cottahs 7 dhurs was the area of the defendants' lakheraj tenure, the plaintiff is, therefore, entitled to a decree for khas possession of the remaining 4 cottahs 7 powas; (2) that the finding of the Subordinate Judge as to the 3 cottahs 7 dhurs being a lakheraj tenure is wrong; (3) that the entry in the than map is not admissible in evidence; and (4) that the lower Appellate Court has misconstrued Section 6 of Regulation XIX of 1793.
3. We think that the first of these pleas must prevail. The defendants are in occupation of 7 cottahs 7 dhurs and 7 powas of land. The lower Appellate Court has found that the defendants are protected to the extent of 3 cottahs and 7 dhurs. Therefore, the plaintiff is decidedly entitled to eject the defendants from the remaining 4 cottahs and 7 powas of land in respect of which the defendants are obviously trespassers. We must, therefore, modify the decree of the lower Appellate Court to this extent with costs in proportion.
4. We see no reason, however, to interfere with the findings of the lower Appellate Court as regards the S cottahs 7 dhurs of land which the Subordinate Judge has held to constitute a lakheraj tenure existing from before the Permanent Settlement. The learned Pleader for the appellant contends that the finding has been wrongly arrived at because the entry in the thak map is not admissible in evidence. The thak map was made in 1856-57, that is, about 60 years ago. That entry-is, in our opinion, admissible in evidence. This has been pointed out in several cases, namely, in the cases of Maharaja Jagadindra Nath Roy Bahadur v. Secretary of State for India in Council 7 C.W.N. 193 (P.C.) : 30 I.A. 44 : 5 Bom. L.R. 1 : 30 C. 291 and Abdul Hamid Mian v. Kiran Chandra Roy 7 C.W.N. 849. The learned Pleader for the appellant relies upon the case of Secretary of Slate for India in Council v. Fazal Ali 18 C. 234. But that case has been discussed and distinguished in the case of Abdul Hamid Mian v. Kiran Chandra Roy 7 C.W.N. 849. The entry in the map was, therefore, admissible in evidence and was good evidence of possession and the lower Appellate Court was justified in presuming that the lakheraj tenure existed from before the Permanent Settlement. This being so, the defendants cannot be ejected from this land, because it is not an incumbrance which, the plaintiff can annul. The learned Pleader for the appellant maintains that the lower Appellate Court has misconstrued the pro visions of Section 6 of Regulation XIX of 1793. We, however, do not think that he has done so. In 1793 the Government resumed all classes of invalid tenures but it did not think it necessary to resume lekheraj tenures of insignificant area. That being so, the lower Appellate Court was entitled, to presume that the disputed land was one of those tenures of insignificant area, which the Government did not think it worth while to resume and, therefore, to hold that the defendants' tenure is a tenure dependent upon the estate of which it is a part. We, therefore, see no reason to interfere with the decree of the lower Appellate Court as regards 3 cottahs 7 powas of land and accordingly affirm it to this extent. As regards 4 cottahs 7 dhurs, as already mentioned, we decree the appeal with costs in proportion.