1. This is an appeal on behalf of the defendants in an action in ejectment. The case for the plaintiff-respondent is that he is the proprietor of the estate within which the disputed lands, now in occupation of the defendants, are situated, that they form zerait lands and that consequently he is entitled to recover possession thereof from the defendants. The defendants resisted the claim, mainly on the ground that these lands were not the zerait lands of the proprietor but were part and parcel of the raiyati holding for which they paid rent to the landlord. The Court of first instance dismissed the suit. Upon appeal the Subordinate Judge has made a decree in favour of the plaintiff. He his found that the Settlement Khatians, the entries wherein are admittedly against the plaintiff, are not binding upon him, but he has held that the plaintiff has failed to prove that the land is verait as alleged by him. The Subordinate Judge has held, however, that though the plaintiff has failed to establish the specific case alleged by hint, he should get a decree for ejectment on the ground that as proprietor he is entitled to recover possession, unless the defendants establish their alleged tenancy. From this point of view, the Subordinate Judge has examined the evidence on the part of the defendants and come to the conclusion that they have failed to discharge the burden that lay upon them to establish a tenancy right under the plaintiff in respect of the disputed lands. He has rot, however, considered the question of the length of time during-which the defendants have been in occupation, because, in his opinion, possession even for a considerable length of time does not indicate any tenancy right in the land. On the present appeal, the defendants have contended that the judgment of the Subordinate Judge is open to objection on three grounds, namely, first, that he has on an erroneous ground considered the settlement proceedings to be a nullity, secondly, that the burden of proof has been erroneously thrown upon the defend-ants, and thirdly, that the question of possession ought to have been tried. There is no substance in the first of these contentions but the second and third grounds must prevail.
2. In so far as the first ground is concerned, there can be no room for dispute that the settlement records afford prima facie evidence in support of the case alleged by the defendants, The plaintiff is bound to rebut that evidence: and although the conclusions of the Subordinate Judge upon this part of the case are not very accurately expressed, it is plain that he has found in substance that the plaintiff has rebutted that evidence. He has pointed out that there was no trial of the objection taken by the landlord; under a misapprehension the objection was treated by the Revenue Authorities as falling under a clause within which it could not be included; in other words, the Settlement Authorities treated the case as if it raised a question of the nature and amount of rent payable and did not involve any question of the status of the tenants and the true character of the land in dispute. There was, therefore, in substance no decision of the objections taken by the landlord; and the rejection of his objections by the Revenue Authorities was thus obviously erroneous. Udder these circumstances, the Subordinate Judge has correctly held that the evidence furnished by the Record of Rights has been amply rebutted.
3. In so far as the second objection is concerned, it is clear that the judgment of the Subordinate Judge cannot be supported. He has held, upon the authority of the decision in Narsing Narain Singh v. Dharam Thakur 9 C.W.N. 144, that the onus is upon the defendants to establish the tenancy as alleged by them. The cape relied upon, however, is clearly distinguishable. In that case the landlord sued to recover possession of land. The defendant contended that he held a tenancy right in the disputed property. The burden, therefore, was rightly cast upon him to establish the tenancy as alleged by him. In the case before us the defendants are tenants of the plaintiff. The only dispute is whether the lands now in controversy are included within the boundaries of that tenancy or lie outside them. The plaintiff relies upon the decision in Nanda Lal Goswami v. Jaineswar Haldar 6 C.W.N. 105 in support of the proposition that the onus is upon the tenants to establish the tenancy, while the defendants rely noon Rajendro Kumar Bose v. Mohin Chandra Ghose 3 C.W.N. 763 in support of the view that the burden lies upon the plaintiff to show that the lands of which he seeks to recover possession are outside the tenancy held by the defendants. It may seem difficult, at first sight, to reconcile these two decisions. But the true rule is that laid down by Mr. Justice Banerjee in Sheodeni Roy v. Chowdhury Chatoorbhuj Roy 8 Ind. Cas. 785 : 12 C.L.J. 376, where that learned Judge pointed out that the burden of proof in a case of this description must depend upon the relative situation of the land in controversy and the admitted land of the tenancy held by the defendant. The Subordinate Judge has not examined the case from this point of view. The matter, therefore must be reconsidered.
4. In so far as the third ground urged by the appellant is concerned, it is clearly well founded and must prevail. The Subordinate Judge has not considered the length of time during which the defendants have been in occupation of this land. If they have been in possession for over twelve years and have treated this land as part of their tenancy, the only remedy of the landlord is by a suit for assessment of rent, because the claim for recovery of actual possession has been extinguished by the adverse possession of the defendants, Ishan Chandra Mitter v. Raja Ramranjan Chakarbutty 2 C.L.J. 125. The length and character of the possession of the defendants are from this point of view very important elements for consideration.
5. The result is that this appeal must be allowed, the decree of the Subordinate Judge set aside and the case remanded to him in order that these two questions may be decided. As the true bearing and importance of these questions do not appear to have been appreciated in either of the Courts below, the Subordinate Judge will be at liberty to take additional evidence; such evidence may be taken either by him or under his direction by the Court of first instance. The costs of this appeal will abide the result.