1. This is a suit by the plaintiffs for declaration of their title to, and recovery of possession of, certain chur lands alleged to be reformations in situ of mouzas Durlabpur, Jirat Mukundnagar otherwise called Mnkundpur and Hatikhanda with Gujarhat Ram Chandrapur. The plaintiffs claim to be entitled to one moiety of a 10 anna share in the said lands, the right to the other moiety being vested in defendants Nos. 16 and 17, and the remaining 6 annas in defendants Nos. 2 to 15 and 1.8. The Secretary of State for India in Council has also been made a party, defendant No. 1, to this suit. It may be mentioned that defendant No. 18 was not one of the original defendants but was added by order of 8th February 1905, so that the suit as against him must be taken to have been filed on that day. It is conceded that there are two estates one known as the 10 ani estate, Lot Mohamed Aminpur, mahal No. 3989 of the Towzi of the Hooghly Collectorate, and the 6 ani estate, Lot Gobindpur, No, 100 in the same Collector-ate. The first belongs to the plaintiffs and to the defendants Nos. 16 and 17 in equal moieties and the second to defendants Nos. 2 to 15 and 18. The plaintiffs' case is that the three mouzas Durlabpur, Jirat and Hatikhanda appertain to both mahal No. 3989 and mahal No. 100 in shares of 1.0 and 6 annas respectively. The contesting defendants contend that they appertain exclusively to No. 100. The further question arises whether the chur in dispute is in fact a reformation in situ of the lands of the three mourns above mentioned. The three plaintiffs the Kumars of Dighapatia claim under the will and codicil of their late father, Raja Promatha Nath Roy, who died in 1883. Two main questions arise in the case first whether the plaintiffs' suit is within time and secondly whether the plaintiffs have made out their title to the lands in dispute. The plea that the Nadia Court had no jurisdiction to try the suit was taken in the Court below, and also forms one of the grounds of appeal. It was, however, not pressed by the learned pleader for the appellants, as it turned only on the question whether the land in dispute was in the Nadia or Hoogly District. The mouzas-named were admittedly in the latter, but the river having changed its course the reformation was on the eastern or Nadia side. No good purpose, he said, could be served by having the suit tried over again in the Hooghly Court. The learned Subordinate Judge found all the issues in favour of the plaintiffs, and passed a decree in their favour, with mesne profits, costs, and interest. Defendants Nos. 6-11 and 18 have appealed.
2. The question as to the plaintiffs' title presents many difficulties. It is by no means so clear as the learned Subordinate Judge seems to think, that the mouzas Durlabpur, Jirat and Hatikhanda appertain to Towzi No. 3989. He has decided this point in plaintiffs' favour without any real discussion or consideration of the documentary evidence. He speaks too of it being proved ' by a host of competent witnesses,' although later on in his judgment ho pronounces the oral testimony on both sides to be unreliable, 'the witnesses having sworn hard without any regard to truth.' Even if it be proved that the 3 mouzas appertain to Towzi No. 3989 the difficulties by no means stop there. The identification of the chur in suit as a reformation of lands of these villages is far from easy to establish, and for the plaintiffs to succeed, it would have to be established with certainty. It will not, however, be necessary, to go into. this question in detail on this appeal, as the plaintiffs' suit, in our opinion, must fail as being barred by limitation. For the purposes of this question the facts may be stated briefly as follows:
The late Raja Promatha Nath Roy of Dighapatia by his will dated 27th Ckaitra, 1285 (April 1879) and a codicil dated 15th Baisakh 1290 (May 1883) bequeathed (inter alia) Lot Muhamed Aminpur being mahal No. 3989 to his three younger sons, the present plaintiffs. He appointed his eldest son Raja Pramada Nath Roy Executor of his will. Raja Promatha Nath Roy died in 1883, while his eldest son was still a minor. The estate was accordingly taken charge of by the Court of Wards who appointed first Rajkumar Sircar and subsequently Umesh Chunder Hitter as the manager. The estate remained under the control of the Court of Wards until 29th January 1894 when Raja Pramoda Nath Roy attained his majority and took over the management. Ho obtained probate of his father's will from the District Judge of Rajshahi on 12th Juno 1894, The youngest of the three plaintiffs attained his majority on 5th September 1898. Meanwhile in 1888 the chur in suit first; appeared as an island chur and was taken possession of by Government as such. It soon, however, by the action of the river increased in size and became united to the main-land. The Government retained possession of the whole of the newly formed lands and at first settled With tenants on the utbandi system. It was at that time (in May 1889) considered as an accretion to Government Estate chur Raninagar No. I and treated as khasmahal. It was named chur Raninagnr No. II and numbered 3523 in the Tonzi Register. From 1888 to 1890 it was unfit for regular assessment, and was, therefore, let on the utbandi system until the year 1894', when a raiyotwari settlement was made for 5 years with the utbandi raiyots. From 1st April 1899 it was again leased to these tenants jointly for an undefined term. In August 1902 a fresh settlement was made. In December 1902 the present appellants filed an application before the Collector claiming' the chur as reformation in stiu of their permanently settled estate chur Jirat and Dnrlabpur. After investigation the chur in dispute was released to them by the Collector's order of 15th November 1903. The plaintiffs also preferred a similar application but they failed to prove their, title by a copy of the extract from the D (or Intermediate) Register kept under the Land Registration Act. 1876 (Bengal Act VII of 1876), and their application was accordingly refused. The appellants were put in possession of the chur, the whole of which was considered to appertain to their estate No. 100. On 6th September 1904 the present suit was filed. The learned Subordinate Judge has dealt with the question of limitation in a most unsatisfactory manner, and we must confess ourselves unable to follow the reasoning by which he arrives at the conclusion that the suit is not barred. To begin with, he appears to think that the case is governed by article 120 of Schedule II to the Limitation Act, 1877. How that can possibly be, he does not explain. Such a suit for possession, of immovable property must by the circumstances of the case fall either under article 142 or article 144. Here as the plaintiffs make no allegation of ever having been in possession or having been dispossessed it must be governed by article 144, which fixes the period of 12 years as commencing from-:. the time when the possession of the defendants becomes adverse to the plaintiff. -It was first argued for the respondents that from 1888 to 1894 the possession of Government was the possession of the Court of Wards and through them possession of the present plaintiffs. We are aware of no authority for the proposition that the Government , and the Court of Wards are in any sense identical, or' that the Court of Wards can be regarded as merely a department of Government. The' Court of Wards -is a statutory body, and in this Province, no doubt, the Board of Revenue is the Court of Wards. But that is' not enough to make the possession of Government the possession of the plaintiffs by the' Court of Wards. The distinction between the Collector in his official capacity and in the-capacity of a manager under the Court of Wards was pointed out in the case of Chowdhree Sheoraj Singh v. The Collector of Moradabad 2 N.W.P. 379. That was a suit to recover monies deposited by the Collector as an officer of the Court of Wards in the Government Treasury. It was held that the Government was not liable as a trustee by reason of the moneys having been deposited in the treasury' by an officer of the Court of Wards, though that officer was in fact the Collector. In this case the Wards were represented by non-official managers and there was nothing to prevent to a suit being instituted in their name against the Government, provided-that the sanction of the Court of Wards was first obtained. For, these reasons we think, that the possession taken and held by the Government of this chur which, as we have stated was an assertion of the title of Government to it as Mas mahal, was adverse to the plaintiffs.
3. It was next urged that that possession of Government did not in fact commence until 1894, when the chur was first settled for 5 years. This, however, is contrary to the evidence afforded by the three settlement reports (Exhibits 11, 12 and 13) and the learned Subordinate Judge himself says in his judgment It is admitted that immediately after the formation of the chur in suit Government enclosed and surveyed it as a new accretion and took possession (of it) as a newly acquired property, and possessed it for Home time as khas mahal. It was subsequently temporarily settled.' There can be no doubt whatever that from 1889 at least portions of the land were under cultivation by the utbandi tenants of the Government. It is. certain that Government took possession at once on the reformation, and their possession must be taken as dating at the latest from 1889.
4. The third contention for the respondents was that, when the chur lands were released to the appellants in 1902, their possession was that of the plaintiffs because the three mouzas were jointly held by the 10 anna and 6 anna co-sharers. There is no reliable evidence on the record to show that these mouzas were so jointly held. Then two Estates Nos. 3989 and No. 100, the 10 anna and 6 anna estates, have been in existence as separate estates for over a century. It is conceded as regards the majority of mouzas they are entirely separate. We think that if plaintiffs allege that these three mouzas are in a different category, and continued to be held jointly when the rest of the mouzas were held separately, the burden was upon them to prove it. This they most certainly have not done. The release by Government to the appellants was of the entire 16 annea of the land in dispute, and at the same time the title of the appellants was pronounced good, while the application of the plaintiff was rejected. This was a clear assertion of the appellants' exclusive right to possession as against the plaintiffs, and there was nothing in the circumstances of that release, which would prevent the possession of Government which had hitherto been adverse to the plaintiffs from ceasing to be so when it became the possession of the appellants. It was next urged that the reformation of the chur in suit was gradual, and that portions of it may have appeared above water within 12 years of the suit. If this wore so, the burden of proving, which portions of the land were of this description, would lie upon the plaintiffs. See Koomar Ranjit Singh v. Schoene Kilhnrn & Co. 4 C.L.R. 390 and hardly any attempt was made on their behalf to distinguish any portions of the chur on that ground. Such attempt was certainly not successful. Lastly the learned pleader for the plaintiffs relied upon the purchase of certain putni rights by the plaintiffs' manager in respect of this land. We are at a loss to see how this can in any way assist the plaintiffs. It appears from the sale certificate (Exhibit 147) dated 28th January 1889 that a putni taluk Lot Hati-kanda, in pergana Hatikanda with an annual Government revenue of Rs. 865 the putnidar being one Beni Madbab Majumdar, was brought to sale on 14th May 1887 under Regulation VIII of 1819 and purchased by Raj Kumar Sircar, the manager of the plaintiffs for a sum of Rs. 10. There is no evidence to show, when or by whom or in respect of what lands that putni was created. There is nothing to show that it has any connection whatever with the lands in suit.
5. To state then our conclusions on this part of the case, it is clearly established that the plaintiffs have never held possession, actual or constructive, of any portion of the chur in dispute since the reformation in 1888; that at least from 1889 the Government was in possession, adversely to the plaintiffs, until 1902, when they released the whole chur to the appellants, and that from 1902 that adverse possession was continued by the appellants. The suit was not instituted until far more than 12 years after that adverse possession had commenced, nor was it instituted within 3 years from the date when the youngest plaintiff attained his majority. It is accordingly barred by limitation.
6. In this view of the case it is unnecessary to discuss the question whether the plaintiffs have succeeded in proving their title. The appeal is allowed and the plaintiffs' suit dismissed with costs in both Courts.