1. The suit in which this appeal has arisen, was instituted by the plaintiffs, as the purchasers of a Patni Taluk, for establishment of their title to the lands in suit, for khas possession of the same, as also for realisation of mesne profits. The entry in the finally published record of rights was against the plaintiffs, inasmuch as it showed defendants 1 and 2 had a nishkar, called an upajibika carved out of the patni, purchased by the plaintiffs, and that the defendants were in possession in that niskar right. The case of the plaintiffs was that the lands never appertained to any upajibika or nishkar, and even if defendants 1 and 2 possessed the lands on assertion of a nishkar right, that possession could not affect the plaintiffs' right to get possession of the lands appertaining to the patni purchased by him, free from all incumbrances.
2. On the pleadings of the parties, the issues raised in the suit relevant for the purpose of this appeal, were these: Are the lands in suit covered by nishkar upajibika as alleged by the defendant? Can the plaintiff get khas possession of the suit lands? Can the plaintiff get any mesne profits?
3. The Courts below decided the case against the contesting defendants in the suit, and directed khas possession to be delivered to the plaintiff with the exception of lands in the possession of defendants 11 to 15.
4. In exhaustive judgments dealing with the evidence in the case, both documentary and oral, the Court of first instance,;as also the Court of appeal below, came to the conclusion that the lands in suit were not covered by the nishkar upajibika set up by the defendants. On this part of the case, the question raised before us related to this, that the onus of proof was wrongly placed on the contesting defendants in the suit, so far as the existence of the nishkar right was concerned. We are wholly unable to give effect to the contention urged in this behalf and we agree in the view expressed by the lower appellate Court, that the question on whom the initial onus lay was of no importance, after the parties had full opportunity of placing all evidence in support of their respective cases. Strong comments were made, in support of this appeal, on certain documents which negatived the right claimed by the contesting defendants and the existence of the nishkar set up by them; and it was said that the Court of Appeal was not right in holding that the khatian in favour of the defendants could not be deemed to be correct inasmuch as the sanad and the Hukumnama on which the defendants mainly based their title could not be treated as valid and genuine documents creating a lakheraj. It was contended that there was other evidence, which supported the case for the defendants. It was not possible for us to appreciate the arguments advanced before us in this part of the case, as the Courts below have concurrently arrived at the conclusion on all the evidence in the case, that the nishkar interest set up by the contesting defendants had not been established and that the entry in the settlement record upon which the defendants relied could not therefore be held to be correct. Arguments based on some of the documents used as evidence in the case were advanced in support of the appeal; but there can be no question that the conclusions on evidence, partly documentary, are as much binding on us on in second appeal, as conclusions on oral evidence. On the findings arrived at by the Courts below, on full consideration of all the evidence in the case, the plaintiffs in the suit had established their case before the Court, that the lands in suit appertained to the Patni taluk purchased by them, and that there was no nishkar interest in regard to the same by virtue of which defendants 1 and 2 could be held entitled to resist the possession of the plaintiffs as claimed by them in the suit.
5. It would appear that some of the tenant defendants resisted the plaintiffs' claim for khas possession claiming protection from eviction under Section 11, Clause (3), of the Patni Regn. (8 of 1819). It has been concurrently held by the Courts below that none of the tenants defendants besides defendants 11 to 15 had proved that he was a khudkast or resident cultivating raiyat of the village in which the lands of the Patni are situate; and the Court of Appeal below has held that inasmuch as protection from eviction extended only to khudkast or resident cultivating raiyats, before Section 195, Bengal Tenancy Act, was amended in the year 1928, the tenants defendants other than defendants 11 to 15, although raiyats with rights of occupancy, could not resist the claim for khas possession as made by the plaintiffs. The suit in which this appeal has arisen was instituted on 21st December 1927 and the amendment made in Section 195, Bengal Tenancy Act, had no application. The decision of this Court in Jogeshwar Mazumdar v. Abed Mahomed Sarkar (1899) 3 C W N 13. has a direct bearing on the case before us, so far as the application of S. 11, Clause (3) of the Patni Regn. (8 of 1819) is concerned, and we give effect to the same. In our judgment, raiyats having rights of occupancy only in holdings were liable to be rejected at the instance of the auction--purchasers in the position of the plaintiffs in the case before us, if they were not khudkast raiyats that is resident and hereditary cultivators of the lands in regard to which khas possession was claimed by the purchasers of a Patni at a sale for arrears of rent. This is the only view that could be taken under the law as it stood before the amendment of Section 195, Bengal Tenancy Act, in the year 1928; and the decision of this Court Janaki Nath Nandi v. Amarendra Nath Biswas 1933 Cal 490 on which reliance was placed on behalf of the defendants respondents seeking to resist the plaintiffs' claim for khas possession, entirely loses sight of the legal position of parties, so far as this part of the case before us is concerned.
6. The only other question that was raised in support of the appeal, was the one relating to the principle of assessment of mesne profits in the case. In view of the position appearing from the judgments of the Courts below, that mesne profits were determined with reference to the kabuliats filed by the plaintiffs and the contesting defendants, and the rents recorded in the settlement khatians, we are unable to hold that in assessing mesne profits allowed to the plaintiffs, any wrong principle has been followed by the Courts below. The result of the decision arrived at by us on questions raised in this appeal, is that the appeal fails, and it is dismissed. The plaintiffs respondents are entitled to their costs in the appeal.