1. Only two points of any substance have been taken by Mr. Pakrashi on behalf the appellants; but in order to understand them it is necessary to note certain facts. The suit was brought against the defendants in a representative capacity as representing the Mahomedan public. It is common ground that the disputed plot formed a gote of one Gedu. The plaintiffs based their title on two successive transfers. The case of the defendants is that the land was dedicated to the Mahomedan public by Gedu. While purchasing the whole of the jote the plaintiffs also have a share in the superior interest to the extent of 4 annas 6 gandas. The first point taken is that the plaintiffs cannot maintain their action for ejectment as the raiyati interest has been extinguished and the plaintiffs only own a portion of the superior interest. The learned Subordinate Judge found that the holding was a transferable one and that the case was governed by Section 22, Ben. Ten. Act, before the amendment made in 1907. This finding of the learned Subordinate Judge has been challenged on the ground that it is not based on any evidence. There can be no question that this criticism is well founded and Dr. Mukherji did not attempt to support this finding. The plaintiffs never even pleaded that they there was a custom of transfer ability and it is, therefore, not surprising that did not adduce any evidence in support of such a proposition. The finding of the learned Subordinate Judge that a custom was proved, if such be his finding, by the fact that this particular jote was transferred twice could not possibly be supported. On the other hand, if he intended merely to find that this particular jote was transferable inspite of there being no such custom because two transfers were recognized by the landlord, this is a finding which is equally unsustainable.
2. It is, therefore, common ground that the jote was not transferable. In these circumstances, Mr. Pakrashi has contended that the raiyati jote was extinguished under the general law and in support of that contention he has relied upon certain observations made by their Lordships of the Judicial Committee of the Privy Council in Midnapur Zamindary Co. Ltd. v. Naresh Narayan Rao 1924 PC 144. That was a case between co-sharers. It is there laid down that no co-sharer can obtain any jote rights not against third persons but against a co-sharer. This case is an authority for the proposition that in purchasing this jote the plaintiffs did so for the benefit of all the cosharers; but this is not a case between the cosharers; on the contrary, the appellants are trespassers; and Dr. Mukherjee has contended that the purchase is good against every body except the co-sharers. The well-known case reported in Dayamoyi v. Ananda Mohan Roy 1915 Cal 242 is an authority for that proposition. The plaintiff's are in occupation of this particular land without objection by their co-sharers. They can certainly let it to a tenant and they can certainly eject such a tenant should the necessity arise. It would be somewhat strange if they were unable to eject a trespasser who had us title to be on the land at all. I therefore hold that the plaintiffs may eject the appellants. The other question raised is one of limitation. It is common ground that the case is governed by Article 142, Lim. Act. The dispossession alleged in para. 9 of the plaint is that defendants 3 and 15 dispossessed the plaintiff's in Falgoon 1934 by entering upon the land and cultivating it at the instigation of the other defendants. The learned Munsiff considered this case and found that it was untrue. He further held that the plaintiffs were not in possession within 12 years of the suit. The learned Subordinate Judge held that the Munsiff had placed the onus on the wrong side. He discussed some of the evidence in a somewhat inconclusive manner and felt rather doubtful whether the defendants had established that their possession had been as long as a period of 12 years.
3. The finding of the learned Subordinate Judge is based upon a certain entry in the settlement record which raises a presumption that plaintiff's 5 and 6 were in possession of the property at the date of the final publication. This is clearly very important evidence on the question whether the defendants' story of a dedication by Gedu is true; but it affords no assistance whatever on the point of limitation inasmuch as the record was finally published more than 12 years before the institution of the suit. There is a presumption that plaintiffs 5 and 6 were in possession at that time. It is common ground that they have been dispossessed subsequently and it is, therefore, for them to show that such dispossession took place within 12 years of the suit. They made a specific case in their plaint; that case was not supported even by their own witnesses. The question would, therefore, immediately arise whether, if this case is untrue, the actual dispossession took place within 12 years of the suit.. In drawing a presumption that the plaintiffs were in possession within 12 years of the suit the learned Judge was clearly not correct and he should have considered whether the plaintiffs had discharged the burden of showing that they were in possession within 12 years of the suit. The appeal must, therefore, be allowed. The decree of the lower appellate Court is set aside and the case is remanded for the appeal to be reheard on the point of limitation. Costs in this Court and in the lower appellate Court will abide the result.