1. In a Record of Rights published in 1896 the plaintiff was recorded as an occupancy raiyat in respect of a holding of 8 bighas under the 3rd party defendants. It is admitted that in 1909 there was a proceeding under Section 145, Criminal Procedure Code, between the plaintiff on the one side and the 2nd party defendants on the other, who are the proprietors and managers of Thikaha Indigo Factory and have obtained a lease from the 3rd party defendants of the mauza in which the plaintiffs' holding falls. In that proceeding the area in dispute was about 5 cottas and in a judgment, dated the 27th September 1909, it was held that the 2nd party defendants were in possession.
2. The plaintiff alleges that encouraged by this decision the 2nd party defendants dispossessed him from a further area of 2 bighas odd. The plaintiff accordingly sues for a declaration of his title and recovery of possession.
3. The defence of the 2nd party defendants is that the plaintiff has neither title nor possession; that the lands in suit are zerait lands of the Factory; and have been settled by the Factory with various tenants of whom the defendant 1st party is one.
4. The first party defendant files a separate written statement and supports the 2nd party defendants.
5. The Munsif decreed the suit but on appeal the learned District Judge, while finding the title of the plaintiff established, has apparently dismissed the suit on the ground that it is barred by limitation.
6. The plaintiff now appeals.
7. The first ground taken by the learned Vakil for the appellant is that the judgment of the Court below is not a sufficient judgment for the disposal of the case. In this view we agree.
8. The plaintiff starts his cause of action from the date of the order in the criminal proceedings, which is the 27th September 1909, and his subsequent dispossession on the 25th Agrahayan 1307 F.S. corresponding to 12th December 1899. The suit was lodged on the 19th March 1910.
9. Before the Munsif there was apparently no contention that the plaintiff was barred by special limitation under Schedule III of the Bengal Tenancy Act. The only issue which the Munsif was called on to decide was whether the plaintiff had been in possession within twelve years of the date of the suit and this question he answered in the affirmative.
10. The learned District Judge comes to no clear finding as to when the plaintiff was dispossessed and until he does come to such a finding, it is impossible to say whether his decree is correct.
11. The learned Counsel for the respondent has urged that in a suit for ejectment it is for the plaintiff to prove his possession within the statutory period. That is no doubt true, but in the present case the entry in the Record of Rights raises a presumption in the plaintiff's favour and shifts the onus on the defendants and makes it necessary for them to establish affirmatively that the plaintiff has been out of possession for more than the statutory period.
12. The learned District Judge must state clearly under what law the plaintiff's suit is barred and whether the facts necessary for applying that law have been established.
13. The next objection taken is that although the judgment of the Criminal Court, is evidence of possession [vide Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani 29 C. 187 ; 4 Bom. L.R. 167 ; 12 M.L.J. 83 ; 6 C.W.N. 386 ; 29 T.A. 21 ; 8 Sar. P.C.J. 224 (P.C.), the learned District Judge has improperly admitted into evidence the statements of witnesses who deposed in that Court. It would appear that some of these witnesses have not been examined in the present suit and that the statements of these are altogether inadmissible. If it is sought to use the previous statements of such witnesses as have been examined in the present trial, then those statements must first be put to the witnesses and duly proved before they can be treated as evidence. The learned District Judge does not state whether this has been done.
14. The third objection is that the learned District Judge has not decided for himself whether the account books of the 2nd party defendants should be admitted, but that he has relied upon the opinion of Mr. Lucas, the Deputy Magistrate who tried the criminal proceedings. There is some foundation for this allegation and the appellant is entitled to a clear finding upon this point For these seasons we set aside the judgment and decree of the learned District Judge and remand the case to him, so that he may dispose of it after due regard to the observations herein made.
15. Costs will abide the result.