1. The suit out of which this second appeal arises relates to a dispute regarding what is known as a kheraj estate in Assam, that is, revenue paying estate. The plaintiffs and defendants derived title from a common ancestor who lived some 130 years ago. He possessed several lakhar or nisf-kheraj estates, and he also had (sic) venue paying estate of 78 bighas which is(sic) in dispute. The plaintiffs are found by (sic) Courts to have been holding 29 bighas, that is, almost 2/5th of this land in a demarcated plot for at least 100 years. Their possession has been recognised in the Cadastral Survey, pattas have been granted and they have had to go to Court to have their title declared because the defendants went to the Revenue Officer and claimed to make a partition under which the estate would be divided into four and the plaintiff's share would only be one fourth.
2. Now the facts in this case are all found in the plaintiffs' favour by the Judge in the lower Appellate Court. He found that 'evidence was adduced to prove that the plaintiff's branch had long been in possession, of a part of the estate in suit which corresponds roughly to 2/5th of the whole, that they paid the revenue separately in accordance with that division. This is proved by the record of the Cadastral Survey and by the record of the re-Settlement Survey and also by the rent receipts which have been proved in the case. In the Cadastral Survey, there was a large plot of 29 bighas which was shown as possessed by the plaintiffs and this plot which has been split up into several at re-Settlement is still in their possession. Witnesses admit that it has always been so. On the other hand, the shares in possession of the other branches in the estate in suit do not correspond to l/5th each. Some of them have sold parts of this estate to others.' This is quite sufficient to account for their not amounting to l/5th each and does not affect' the previous finding in the least. Then he says: 'in fact, there has been private partition and separate possession of part at least of this estate for a long time, though not of the whole, for 16 bighas is held by bhakals, and the bhakals with their lands have not been divided between the four branches.'
3. This finding ousts the jurisdiction of the Collector altogether. There has been a partition by metes and bounds; 2/5th share has been held by these plaintiffs for 100 years or so under this private partition according to the findings and how can there be a fresh partition by the Revenue Authorities, for not only has this share been held in, (sic) under the private partition but have of the revenue had been paid to the (sic) by the plaintiffs for all these years, Where then does the jurisdiction of the butwara Court come in? The learned Judge having thus set out the evidence suddenly turns round and says, the evidence, as a whole points to the conclusion that the plaintiff's branch is entitled to 1/4th of the family property. He then makes a number of presumptions which he was not entitled to make, and he finally says that it is impossible to make a butwara of this estate without throwing the whole of the nisf-kheraj, lakheraj and any other property, there may be into the hotchpot and having a general partition on the footing of a quarter share each.
4. Now this finding is wholly incompetent. The learned Judge was not entitled to go further than to declare that the plaintiffs had established their title to the 2/5th of this particular plot which they claim, or that they had established their claim to 1/4th and on a reference made to him by the butwara authorities he was entitled to issue a precept to the Collector stating that the Collector should make over the share to which the plaintiffs were entitled. It is urged that the decision of the learned Judge is a decision on facts and that no point of law arises in this appeal. But it is obvious that if all the learned Judge's findings of fact paint to a directly opposite conclusion to that to which he has come, that must be an error in law. An erroneous decision based upon erroneous findings which are contrary to the facts found by both the lower Courts certainly raises a point of law. Bat a perusal of the grounds of appeal, which have been extremely carefully and well drawn up and which do not contain, in our opinion, anything superfluous or anything which is not sound, shows that this case bristles with law, and that the lower Courts seem to have erred upon several of them. They have entirely misconceived the nature of the case. They have gone beyond their jurisdiction in ordering that the other joint estates of the family, not the subject-matter of the present dispute, should be partitioned. They have found that there has been a private partition and that the plaintiffs have been in exclusive possession of the disputed ancestral property for a long time and i hereby ought to have held that the plaintiffs have acquired a good title, or if that holding was by acquiescence, as we shall presently show that the Munsif has said that it is not, then the partition when it is followed by possession would be sufficient evidence of title by family grant. It is non-sense to talk about the requirements of the co-sharers. There is no evidence what the requirements of the various branches were. The only possible meaning of holding according to requirements would be according to convenience, and that would mean that the holding had varied from generation to generation. But the finding is that the plaintiffs have held 2/5th continuously. Therefore, there has been no holding on account of convenience or according to the requirements of the various branches at various times. The appellant, therefore, have rightly contended that they have prima facie title on account of long possession based upon private partition and paying Government revenue separately, and if the defendant failed to disprove this prima facie title, the plaintiffs are bound to succeed. This, of course, would give rise also to the question of limitation which we need not here deal with. Then again it is urged on behalf of the appellants that the private partition followed by long possession of specific shares in this particular revenue paying estate bars the jurisdiction of the Collector, and that we have already held is a sound ground.
5. Then we come to the curious presumptions which the lower Courts have made upon points on which there is no evidence. The plaintiffs' case was that the original proprietor had five sons, two of them were of the same mother and, therefore, they jointly held 2/5th of the estate. The contention on behalf of the defendants, on the other band, is that one of these sons died before his father and the lower Courts say, there is no evidence which can be apparently accepted that one of them did die before his father. Now it is needless to point out that if there is any presumption at all, the presumption is that the son did not die before his father. The ordinary presumption in human nature is that the elder man died first, and as the facts point excluding to the conclusion that there must have been this 2/5th joint share formed which the plaintiff had been holding ever since, the proper presumption to make would be that the son did not predecease his father, We are asked to hold that there must have been other evidence upon which the learned Judge came to this general conclusion and that we cannot but be bound by the findings of fact to which became. But he does not tell us what those other facts are. He has referred us to the judgment of the learned Munsif in the first Court which appears to us only to make the matter worse. The Munsif says that mutations have always taken place of the entire estate on the footing of four equal shares, but for this the Munsif relies on admissions made by the respondents or their predecessors, that is, admissions, in their own favour and these cannot help them. The Munsif also unconsciously makes out a case of adverse possession which would put the respondents out of Court. He says that the plaintiffs being in possession of one of the small plots into which this land was divided and that plot being the only one capable of cultivation at that time, the plaintiffs went to the Settlement Officer and got him to enter their names as in possession of the whole, that is, they have publicly asserted possession adverse to the respondent.
6. And the finding of his is that the coincidence of revenue can be explained away in one way and the coincidence of area in another way, and that these extraordinary coincidences which point to the truth of the plaintiffs' case are apparently in his opinion to have no evidential value whatever. We need hardly say that this is an erroneous way of dealing with evidence.
7. It has always been held that dealing with the evidence piecemeal is a vicious practice, so that we are unable to say that the learned Judge was in any way justified in coming to the conclusion of law which he has come to. The question of title is a question of law as well as of fact.
8. The judgments and decrees of both the lower Courts must be set aside and the plaintiffs' suit decreed and it must be declared that they are entitled to 2/5th of this kheraj estate of 78 bighas.
9. The appellants are entitled to their costs in all the Courts.