Richard Garth, C.J.
1. The suit out of which this proceeding arose was commenced some ten years ago. It was brought by the present plaintiffs against Raja Pramatha Nath Roy to recover certain land which they had purchased from Umakant Mozumdar and others.
2. The plaintiffs obtained a decree for possession in 1874 and were proceeding, to execute it when they were opposed by one Radharaman Munshee, who claimed it as part of a patni taluq which he held under a potta from Raja Krishna Chund, which was granted in the year 1241 (1834).
3. Radharaman's claim was at first rejected; but he appealed, and after two remands this case came on to be tried between the plaintiffs and Radharaman under Section 229 of the Code of 1859.
4. It has now been tried by the two lower Courts, and comes up to this Court on second appeal; but meanwhile, pending the proceedings, Radharaman sold his patni to one Radhamadhub, who again sold it to one Brojolal Mundul, who has since died; and his widow Shyama Sundari is the present defendent.
5. The land in dispute is a plot of deora land, which the plaintiffs claim under a darpatni lease as part of a mehal called Bheel Bharat Gobindpur; and the Munsiff finds that it was formed many years ago by the drying up of the water, or the silting up of the bed of Bheel Julkur Gobindpur, the defendant's taluq. Bheel Bharat Gobindpur and Bheel Julkur Gobindpur are mehals held under different patnis from the same zamindar.
6. The Munsiff further finds that this silting up occurred more than thirty years ago, and that possession was taken of it first by the plaintiffs' vendors, and then by Raja Pramatha Nath Roy, against whom the plaintiffs brought their suit, and obtained the decree.
7. He also finds that there is no reliable evidence that Radharaman, the claimant, ever had possession of this land, that it has not been proved to form a part of Bheel Julkur Gobindpur.
8. He, therefore, gave the plaintiffs a decree.
9. The District Judge, as we understand, agreed with the Munsiff as to the question of possession, and. confirmed his decree.
10. Having now heard the case argued on appeal, we have no reason to believe that the conclusion at which the lower Courts have arrived is otherwise than correct.
11. But it has been contended by the appellant that the Judge has made two mistakes in point of law:
(1st)--That he has thrown the onus of proof on the wrong party; and
(2nd)--That he has erroneously laid it down as a rule of law that the settlement of a julkur as such implies exemption of the sub-soil; or, in other words, that the grant of julkur carries with it prima facie no right to the soil.
12. As regards the first of these points we see no sufficient ground for impugning the lower Court's judgment.
13. The Judge says, if we understand him rightly, that upon the question of possession he agreed with the Munsiff, and the Munsiff finds that upwards of thirty years ago the land in question silted up or became dry; and that since that time Radharaman had never held possession of it.
14. On the other hand, he finds that the persons who had possession of it during that time were first the plaintiffs' vendors, and afterwards Raja Pramatha Nath Roy, against whom the plaintiffs brought their suit in 1874, and obtained a decree.
15. It is argued that under Section 229 the onus of proof is thrown upon the plaintiffs, and no doubt that is so. The onus of proof was thrown upon the plaintiffs in this ease. They had to prove, to the satisfaction of the Court, that they, or the judgment-debtor, whose rights they had acquired by the decree, either had or were entitled to have possession as against the claimant. They proved this to the satisfaction of both the lower Courts, and so established a prima facie case; and it was then incumbent upon the claimant to answer that prima facie case, and show, if he could, a better title.
16. It does not at all follow that because the Court considers the claim of the claimant under Section 229 to be a bona fide one, the claimant is in point of fact in possession of the property. Bond fide claims to possession are constantly made by persons who never had possession and who are not entitled to it.
17. Whether the claimant really had or was entitled to the possession which he claimed under Section 229 was a question to be tried in this suit; and the plaintiffs, as I consider, fulfilled prima facie the onus which the law casts upon them, when they proved that the judgment-debtor, whose rights they had acquired, held possession as against the claimant at the time when the latter made his claim.
18. If this were not so, Section 229 would be productive of the greatest injustice. A man who holds possession of property has a right to retain his possession, until some other person can show a better right to it. But if a man who merely claims possession under Section 229, without in fact being in possession, is to be entitled in law to possession as against the actual possessor, unless the latter proves his title, the consequences would be serious indeed. A claimant under that section, although he had no possession, would then be in a better position than the actual possessor.
19. The section may often operate unjustly enough against the decree-holder as it is; but the injustice would be far greater if the appellant were right in his contention.
20. The plaintiffs in this suit, having shown that at the time when the question arose in the execution proceedings they and their judgment-debtor, whose rights they had acquired, had held possession of the land for 30 years, and that the claimant had never been in possession, were prima facie entitled to a decree; but then comes the second point, that the Judge was wrong in laying down as law, that the settlement of a julkur implies no right in the soil. We quite agree that the Judge laid this down too broadly; more specially as, in. the present case, we find that in the defendant's patni potta, the julkur mehal in question is called a mouza.
21. If, having regard to the acts found by the lower Court, we considered this question to be material to the determination of the suit, we should be disposed to remand the case to the Court below, to ascertain what passed by the patni grant. That question might depend in great measure upon what was the state of the locality at the time when the grant was made.
22. But as the lower Courts have found that the land in dispute silted up from the julkur more than 30 years ago, and that since that time the only persons in possession of it have been the plaintiffs and the Raja, against whom they obtained their decree, and that the claimant has never been in possession of it, it seems to us that whatever the rights of the latter may have been under the patni they must long ago have become extinguished by lapse of time. (See Section 28 of the Limitation Act of 1877.)
23. The appeal is therefore dismissed with costs.