Lawrence Jenkins C.J.
1. This is a suit for recovery of possession of land on the ground that the defendants' possession of it was wrongful and illegal. The plaintiffs alleged that the land was their zerait. The defendants, in answer to that said that it was their Brahmottar land and that they had been in possession for a great number of years: and on that the parties went to trial.
2. The lower Appellate Court has negatived the plaintiffs contention that the land is their zerait. It has also negatived the defendants plea that the land was their Brahmottar land; and the result has been that it has passed a decree in the plaintiffs favour holding that the plaintiffs are entitled to recover possession. The defendants 1st party have appealed from that decree.
3. The first point taken is that the finding of the lower Appellate Court that the land was not Brahmottar was not justified by the relevant evidence on the record. It appears that the land has been recorded as the defendants' Brahmottar land, and that record would prevail until the presumption raised by it was proved to be incorrect The plaintiffs seek to establish this incorrectness by relying, amongst other things, on the Khasra in certain Butwara proceedings: and it is in reliance upon this Khasra and the indication it contains principally that the lower Appellate Court has held against the defendants plea of Brahmottar title in them-selves.
4. Now, these partition proceeding were not under the Act of 1897 but under the Act of 1870, and it has been held in Perma Roy v. Kishen Roy 25 C. 90 that the Butwara Khasra prepared under the Act of 1896 is not a 'record' within the meaning of Section 35 of the Evident Act. The lower Appellate Court seems to have considered that that ruling is not applicable, because the Act of 1876 was after wards superseded by the Act of 1897, and for this purpose reliance has been placed on the decision in Janki Dobey v. Kirtarath Roy 13 C.W.N. 93; 4 Ind. Cas. 316 But the fact is that this Act of 1897 had no application to these Butwara proceedings which were completed so far as the particular Khasra was concerned before Act of 1897 was passed. It there fore, follows that the lower Appellate Court was not entitled to rely on this Butwara, Khasra for the purpose of rebutting the presumption raised by the record on which the defendants rely. It is pointed out to us on behalf of the plaintiffs (defendants) that there was other evidence which goes to show that this land was Brahmottar land. But our difficulty in second appeal is that we are unable to form any opinion as to whether or not the Court would, on this other evidence, and without the aid of the Khasra, have come to the conclusion it did.
5. The result is that we must set aside the decree of the lower Appellate Court and send back the case for further consideration in the light of these remarks; that is to say, in determining whether or not this was the Brahmottar land of the defendants, the Court will not be entitled to take into consideration the Butwara Khasra. More than that, the Court must consider the point made on behalf of the defendants that they had been tenants of the land for a great length of time, and it will be for the Court to consider whether this fact is established and if it be established, then whether that does not afford an answer to the present suit, even though the Brahmottar character of the land be not established.
6. The costs hitherto incurred in the lower Appellate Court and in this Court will follow the result.
N. Chatterjea, J.
7. I agree.