Ernest Fletcher, J.
1. This appeal has bean preferred by the defendants 2nd party under the provisions of Clause 15 of the Letters Patent.
2. The suit was instituted by the plaintiffs asking for a declaration of their right to joint possession with the defendants 2nd party of 41 bighas and 4 dhurs of land, on the allegation that the same formed part of the khudkasht lands of the maliks. Alternatively the plaintiffs asked for a partition of such lands.
3. The defendants 2nd party, who alone contested the suit, denied that the land in suit was khudkasht and alleged that the same was held by two tenants, Awadh Behari and Isri Prasad. The learned Subordinate Judge at the trial decided the suit in favour of the plaintiffs. Against that, decision the defendants 2nd party preferred an appeal to this Court. The appeal came on for hearing before Sharfuddin and Coxe, JJ.
4. As regards the portion of the land in suit alleged to be held by Isri Singh, the learned judges were both of opinion that the judgment of the Subordinate Judge must be affirmed. But with regard to the land said to be held by Awadh Behari the learned Judges were divided in their opinions. Sharfuddin, J., was of opinion that the view of the learned Subordinate Judge should prevail whilst Coxe, J., was of the contrary opinion. Hence the present appeal by the defendants 2nd party.
5. Now it is an admitted fact that the Mouza within which the lands in suit are situate belongs to the plaintiffs and defendants 2nd party in equal shares. Further that the defendants 2nd party held a lease of the share of the plaintiffs and were in possession of the whole of the Mouza until 1312 F.
6. Prior to the lease of the 8 annas of the plaintiffs to the defendants 2nd party, the plaintiffs' share was let out in lease to the Daulatpur Factory. The Record of Rights published in April 1898 shows clearly that these lands were khudkasht lands, although it does not show when the lease to the Factory terminated.
7. Having regard to the entry in the Record of Rights the onus is on the defendants 2nd party to show that the entry is wrong. It is most material that from the date of the publication of the record on the 8th of April 18-8 down to the institution of the suit in September 1910, it was never alleged by any party that the entry in the Record of Rights was incorrect. Against the entry in the record the defendants 2nd party called certain witnesses and produced certain rent receipts. Both the learned Judges appear to have discarded the oral evidence called on behalf of the defendants and I am not disposed to disagree with the view they took. With regard to the rent receipts and other documents produced on behalf of the defendants 2nd party as pointed out by Sharfuddin, J., even if all these documents be taken as genuine, they do not establish the fact that Awadh Behari and Isri Prasad were in possession of and cultivating the lands in suit.
8. Moreover, I think that on the view that Coxe, J., took, namely, that the plaintiffs had established their case, as regards the lands alleged to be in the possession of Isri Prasad, it is impossible to come to the conclusion that the story put forward by the defendants 2nd party can be true as regards the lands said to be in the possession of Awadh Behari. I am clearly of opinion that the conclusion arrived at by Sharfuddin, J., was right. The present appeal, therefore, fails, and must be dismissed with costs. Hearing fee one hundred rupees.
9. I agree.
Shamsul Huda, J.
10. I agree.