1. The suit in which this appeal arises was brought by the plaintiffs, now appellants, for recovery of khas possession of the lands in suit after ejecting defendants therefrom. There is also a prayer for recovery of Rs. 64-6-0 as rent from defendant 1. Plaintiffs found their claim on the allegations that defendant 1 holds a kolekarsa under the plaintiffs and that she had been served with a notice to quit under Section 49, Ben. Ten. Act, on 6th April 1926 and as she did not give up possession the present suit had been instituted.
2. The main defence to the suit is that plaintiff is a tenure-holder and defendants have got a karsa right in the disputed land and they are not liable to be ejected. The Munsif in a judgment which does not seem to me to be very satisfactory found that the plaintiffs' interest bad been recorded as niskar chakran and the interest of the defendants as kolekarsa in the Settlement Record and that there was no evidence to rebut the presumption arising from the entry in the Settlement Record and that notice under Section 49 had been served. In this view he decreed plaintiffs' claim for recovery of khas possession as also his claim for rent. An appeal was taken by defendant 1 to the Court of the Subordinate Judge of Bakarganj and was directed only against that portion of the decree which ordered ejectment of the de-fondant. The Subordinate Judge was of opinion that as the area of the chakran land exceeds 100 bighas the niskar chakran must be presumed to be a tenure under Section 5, Clause (5), Ben. Ten. Act. He found further that in the Cadastral Survey Khatian No. 39 the disputed land is described as kolekarsa under the niskar chakran Raja Sardar in Khewat No. 34 and that the mention of the khewat number showed that it is a tenure and was treated as such in the Cadastral Survey. The lower appellate Court further found:
that there is nothing in the evidence given for the plaintiffs to show that they or their predecessor-in-interest ever cultivated any of these dags.
3. He further found that the description of defendants' holding as kolekarsa was a mistake and he dismissed plaintiff's claim in ejectment. In second appeal by the plaintiff against the decree of the Subordinate Judge dismissing their claim for ejectment two grounds have been taken by the appellants : (1) The lower appellate Court has erred in law in not at all taking into consideration the presumption arising in favour of the plaintiffs from the entry in the Record of Rights which records plaintiffs' niskar in karsa khatian No. 34 and that of the defendants in kolekarsa khatian; (2) that the lower appellate Court has proceeded on a misconception that there was no evidence that the plaintiffs or their predecessors cultivated any portion of the niskar chakran lands. Both these grounds seem to be well founded and must prevail. It appears that the Subordinate sludge has not considered the presumption arising from the Record of Eights in plaintiffs' favour on a misreading of the khatian. It also appears that in considering the question of the purpose |for which the tenancy was created the evidence of want of cultivation of the particular dags in suit has only been considered whereas it appears from the evidence that 5/8ths of lands are in possession, i. e., cultivating possession of the niskardar as would also appear from the evidence of the defendants. This misconception about want of evidence has vitiated the judgment of the lower appellate Court. I set aside the judgment and decree of the Subordinate Judge in so far as it dismissed plaintiffs' claim for ejectment and direct that he do re-hear the appeal after an examination of the oral and documentary evidence and such further evidence which the parties may produce. The decree for rent will stand. Costs will abide the result.