Francis W. Maclean, K.C.I.E., C.J.
1. This is a suit by certain purchasers under Act XI of 1859, asking in effect for a declaration of their right to khas possession of certain lands marked and described on the map, made by the Civil Court Ameen in this suit, as Abbus Mudafat howla, for a declaration that the defendants have no rights in such lands, and that, even if they have, they are not valid as against the plaintiffs under the above Act, and for consequential relief. The present appellants are defendants 7 to 9 and 11 to 15, and their defence put shortly is that the lands in question are included in a certain howla which was created before the Permanent Settlement, and consequently that their howla is a 'protected interest' within the meaning of Section 37 of Act XI of 1859. This virtually is the real issue between the parties. The Court below has decided against the present appellants, and hence the present appeal.
2. There is no question that the plaintiffs purchased the zemindari No. 3847 at a revenue sale on the 26th June 1888, which was confirmed on the 3rd October in that year, and the only question is, whether they are entitled to khas possession of the land in dispute, or whether the present appellants have, on the ground I have stated, a 'protected interest' in that land.
3. The various issues and contentions of the two sets of litigants are stated in detail in the judgment appealed against, but few of the arguments apparently addressed to the lower Court have been addressed to us, and I scarcely think any useful object would be attained by my recapitulating in detail those issues and those contentions, but I propose to content myself with referring to the particular points which have been urged before us.
4. Prima facie the plaintiffs, as purchasers at a revenue sale, are entitled to avoid the under-tenure set up by the appellants, unless the latter can bring themselves within some one of the exceptions specified in Section 37, and to my mind the onus, any way in the first instance, is cast upon them of bringing themselves within such exceptions [see Rash Behari Bosu v. Hara Moni Debya (1888) I.L.R., 15 Cal., 555, and the substantial question for our decision is, have they done so
5. The suit was instituted in April 1894, and there is no doubt but that the present appellants and their predecessors in title had been in possession of the disputed land for some thirty or forty years before suit, and we are invited to presume from this possession that, even if the documents upon which the appellants rely are not genuine, the howla was existent from before the date of the Permanent Settlement.
6. The appellants, however, did not launch their case in the Court below upon any such presumption, but based it upon a variety of documents, including the actual pottah creating the howla, and which purports to be dated the 2nd June 1773, certain dakhilas alleged to have been given by the then zemindar to the howla tenure-holder between the years 1776 and 1792, and certain deeds alleged to have been executed in 1833 and 1838. If the first of the above documents be genuine, the appellants ought to succeed, but unfortunately the Court below has found against its genuineness, holding that there are indications on the face of it, which clearly show its recent preparation. The learned Judge in the Court below has probably much more experience in these matters than myself. I lay no claim to being an expert in them, but apart from his reasons, the document in appearance strikes me as almost too venerable, whilst the almost symmetrical tearing of the edges is calculated to excite suspicion. Anyway, I am not prepared to say that the Judge below was wrong in holding that this document is not genuine, whilst to my mind he gives cogent reasons for discrediting the three deeds of 1833, viz., Exhibits A3, B7 and Dl, and his adverse and somewhat pungent criticisms on the three deeds of 1838, viz., Exhibits A4, B8 and D2 appear to me to be well founded and fatal to the genuineness of those documents. If, then, as the Judge in the Court below has found--and I think rightly--these documents are fabricated and not genuine, no reliance can be safely placed on the dakhilas between 1776 and 1792 as genuine documents. No doubt Exhibits Fl and F2, the returns of Mr. Scott in 1857, mention this howla; but I do not think too much stress can safely be laid upon these returps, for the reason that the zemindari had been then attached, the zemindar was under a cloud, he was not there to test any returns which might be made, and it was just the time when a designing person or persons, with a view to subsequently setting up a howla tenure, might get the same entered on the return. But, be this as it may, it only carries us back to 1857, which is a long way from the date of the Permanent Settlement. And it is worthy of comment that the registered deeds of 1865 contain no reference to the previous unregistered documents which I have mentioned above, whilst it is at least open to question, upon the evidence, whether these documents can be regarded as having been produced from the proper custody.
7. In my opinion, then, the appellants have failed to prove the genuineness of the pottah of 1773, or the various deeds of 1833 or of 1838, and have equally failed to show an under-tenure existent before the date of the Permanent Settlement, and so protected.
8. Being of this opinion, it is not necessary to decide whether or not the quinquennial papers referred to in the case are or are not admissible in evidence under Section 35 of the Evidence Act. I consider it very doubtful; but, even if admissible, they do not afford very cogent evidence against the appellants, for they only show that no such howla as is now set up is mentioned in those papers.
9. In regard to the point that the plaintiffs are not purchasers of an 'entire' estate within the meaning of Section 37, the learned Vakil for the appellant relies upon the statements in paragraphs 2 and 4 of the plaint, and he contends that, as the estate sold consists partly, at least, of undivided shares in certain mouzahs or villages whereof the remaining shares appertain to other estates, the plaintiffs cannot be regarded as purchasers of an entire estate. In our opinion this contention is not sound. The mere fact of the estate sold comprising undivided shares in certain villages does not prevent its being an entire estate, when it is recorded under a distinct number on the touzi or rent-roll of the Collector with a separate revenue assessed upon it, and when the sale certificate granted to the auction-purchaser under Section 28 of Act XI of 1859 (Ex. 7) shows that the estate sold was an entire estate. The view we take is in accordance with that taken by this Court in Kamal Kumari Chowdhrani v. Kisan Chandra Roy (1898) 2 C.W.N., 229.
10. Then it is said that, having regard to the possession of the appellants from the year 1857, the burden of proof, originally upon them, to make out their protected interest is shifted, and that, in the absence of any evidence adduced by the plaintiffs to the contrary, the Court ought to presume that the howla existed before the Permanent Settlement, and reliance is placed on the Privy Council case of Forbes v. Meet Mahomed Hossein (1873) 20 W.R., 44 (45), and the recent case of Nityanund Roy v. Banshi Chandra Bhuiyan (1899) 3 C.W.N., 341. I do not think the possession here is long enough to raise any such presumption or to shift the onus of proof, least of all when the appellants have not launched their case upon any such presumption but upon a series of documents which are found not genuine. In the case of Nityanund Roy v. Banshi Chandra Bhuiyan (1899) 3 C.W.N., 341, it was found that the taluq had been in existence and in possession of the defendants from the year 1798, that is, only five years 'after the date of the Permanent Settlement. Here the possession only goes back thirty years or so before the plaintiffs' purchase, and may reasonably be attributed to some source of title other than the creation of a tenure before the Permanent Settlement.
11. Agreeing then in the conclusion of the Court below, we think the appeal fails, and must be dismissed with costs.
12. I concur.