1. The suit in this case is one for khas possession of land on a declaration of the plaintiff's title thereto. The defendant is the tenant of the plaintiff and claims a right to the possession of the land in question as part of his jote land.
2. The defendant's land is bounded on the north and south by the khas land of the plaintiff; in second appeal, no question arises as to the boundary of the land on the south, bat a question arises as to the northern boundary, The lower Appellate Court decided this question by starting from the north of the plaintiffs' khas land where there is a fixed boundary called Bandadih, and awarding to the plaintiff two khanis, equivalent to 2 bighas 2 1/2 cottas, on the south thereof. The case was remanded to the first Court in order that this measurement might be made.
3. This order cannot stand. The amount of the two khanis awarded to the plaintiff was arrived at, as to one khani by reference to a former suit between the parties; as to the other khani by reference to an admission by the present defendant in the same suit, that the plaintiff was entitled to about one khani of land on the north of the decretal land. It was not open to the Court to give this effect to the admission of the defendant. The plaintiff's title as landlord was admitted: the defendant put forward his title as jotedar, and maintained that it applied to the land in dispute and the onus was on him to prove that this was so, and not on the plaintiff to prove the contrary. Consequently, the admission of the defendant was irrelevant to the point at issue.
4. The result is that the judgment of the lower Appellate Court cannot stand. But on the findings of fact that have been arrived at, it appears that the only way in which this case can be decided is by a reference to the former suit, that of 1908, between the parties. There has never been any attempt to demarcate the boundaries of the defendant's jote land, and the land of which the plaintiff is entitled to have khas possession within the limits of plot 4 of the land now in dispute. We, therefore, have the order of remand of the lower Appellate Court standing, but set aside the purpose for which the Commissioner will be appointed, and direct that he shall ascertain the northern limits of the defendant's jote land according to the decree of the suit of 1903, the onus of proving his case being laid on the defendant in the first place.
5. The appellant is entitled to the costs of this appeal, the hearing fee being assessed at two gold mohurs.