1. In this case the plaintiff, Peari Mohun Mukerji, sues the defendants, Girish Chunder Chatterji and others, for khas possession. The plaintiff alleges that the lands in dispute are lands within his seputni, and that the defendants have no right or title to them. The defendants set up, first, that they have been more than twelve years in possession of the lands; secondly, that, with the exception of the plots mentioned in paragraph 2 of their written statement, the lands claimed by the plaintiff are held by them as their ayma; and thirdly, that of the plots mentioned in paragraph 2 of their written statement, some belong to other mouzahs, and some to certain lakhirajdars whose names are not given. The Subordinate Judge was of 'opinion that the defendants had proved their title to the lands; that the settlement [statement?] made by the plaintiff, or by the people^ who carried on the case for him, that he was in possession of the lands, was false; and he came to the conclusion that the plaintiff, or at least the people who carried on the case for him had fabricated the documents used in support of his claim. Against this decision the plaintiff has appealed.
2. Now, if we go back to the origin of the cause, we find a document purporting to be a copy of the original sunnud given for these ayma lands in 1194. This document is at page 136 of the appellant's paper-book. Objection to it has been taken to its reception in evidence that it is a copy of a copy, and is therefore inadmissible. No such objection was taken in the lower Court, and it is doubtful whether we should accede to the objection. But admitting that the document should not be received in evidence, we do not think that this in any way impeaches or destroys the title of the defendants. It is in evidence that a ease arose in 1799 between Ramkanto Roy and the predecessors in title of the defendants. In that case the ijaradar claimed, as the plaintiff now does, the land as mal, and in that case, as in this, the defendants set up the title that they held the lands under the sunnud of 1194 and the subsequent chucknama. The decison in that case recites as follows: 'The defendants, in their answer, state that in 1194 B.S. the zamindar of Burdwan gave a sunnud in respect of 2,000 bighas of chur lands to their father, Jagat Narain Mitra, deceased; that agreeably to that sunnud, the Maharajah made a chuchbust of 1,754 bighas 13 cottas of land in the seventeen mouzahs, Amerpur, &c; and that they have been holding possession-according to that chuckbust.' That suit was dismissed, and it was found that, with the exception of 16 bighas 16 cottas, the plaintiff was not entitled to the lands which he claimed. One thing is of some significance, namely, that in the judgment there is the following description of the nature of the suit. 'In the suit, on a claim for possession of 4,226 bighas of mal lands, the plaintiff in his plaint, dated the 3rd January 1792, stated that the defendants had forcibly taken possession of the six mouzahs, Amerpur, &c; and half of the lands of the other mouzahs, comprising an area of about 4,226 bighas. So that in that suit the plaintiff claimed the whole of Amerpur and five other villages and a portion of each of the remaining villages as mal. The suit being dismissed so far as the claim of ayma was concerned it was found that the defendants were in possession under the sunnud. Objection has been raised to this judgment that it is not inter partes, and is therefore inadmissible in evidence. As regards this objection we think that the document is admissible in evidence as showing the nature of the possession of the defendant's predecessor in title. As a rule judgments are evidence only between parties, but there is an exception to this. In the case of Davies v. Lowndes 1 Bing. N.C. 606 it was decided that decrees in Chancery between other parties, concerning the same lands, were admissible in evidence, to show the character in which the possessor enjoyed the lands. That decision is in consonance with the decision of their Lordships of the Privy Council in the case of Rameshur Pershad Narain Singh v. Kunjbehari Pattuck L.R. 6 I.A. 33. There, as here, the question was as to a right to certain property, and in that case criminal proceedings not inter partes and agreements entered into between parties not parties before the Court were held to be admissible in evidence. Their Lordships in that case say: 'It was objected that this razinamah does not bind the proprietor of Mahooet, but although it was apparently made between tenants, it seems to have been subsequently acted on, and may properly be used to explain the character of the enjoyment of the water.' We think, therefore, that this decree is admissible in evidence to show the nature of the enjoyment which the defendants then had in the lands.
3. The first matter for consideration is, whether the lands held as ayma include the whole or only a part of the villages. If we turn to a copy of the chucknama given at page 141 of the appellant's paper-book, we find the headings as follow: Description Dhamla--the next heading gives the total quantity of land by ayma standard; the next heading gives the land transferred; the next heading gives the mal lands; the next heading gives the baja land; the next heading gives the Government land; the next heading gives the remaining land held as ayma. It is said that, looking at the top of the chucknama itself, it would appear that only the ayma mehal was measured, and that there is nothing to show that it contains the whole of the village. We think, on a construction of the document itself, especially looking at the decision of 1199, that what it did intend to describe was the lands of the whole village of every denomination.
4. But as the ayma lands were given according to the ayma measurement there arises the question, what was the standard pole according to the ayma measurement. The evidence on this point consists of several documents. The learned Subordinate Judge was of opinion that, as the ijaradar in the year 1799 sued for 4,226 bighas of land, and the predecessors of the defendant in the present suit claimed 1,754 bighas by ayma measurement, these 1,754 bighas by ayma measurement were equal to 4,226 bighas by ordinary measurement. This of course is evidence to a certain extent, but it is not conclusive of what the ayma measurement was. Then there is the chucknama of 1199, which shows that 56 guz--which ordinarily means a yard--are required for every ayma rassi or bigha: 40 auz are only required in the ordinary standard pole; and if it be admitted that the guz in both cases is the same, an ayma bigha would be greater than two bighas by ordinary measurement. This, however, is uncertain, because we do not know what the length of an ayma que is or was. Then, again, in the judgment referred to at page 52 of respondent's paper-book, it was found between the same parties that two bighas nine cottas by ayma measurement were five bighas by the current ordinary measurement. This also is very good evidence but still not conclusive, because we do not know whether the lands described were the same lands that were measured in 1199.
5. There is another point, too, which also goes to support the idea that the ayma measurement was at least much larger than the ordinary measurement. In the defendant's written statement, paragraph 2, they pleaded that certain plots, namely, 32, 52, 56, 57, 58, 63, 65, 66, 67, 70, 137 and 382, were lands not in their possession, but were lakhiraj lands belonging to certain other people. The Subordinate' Judge held that these lands were the plaintiff's mal lands within the original eight chucks of Dhamla, and that these lands as now measured amounted to 206 bighas. It is contended before us by the learned pleader who argued the case for the appellant that this finding is erroneous. But this finding was not contested in any way in appeal, and there was nothing brought to our notice in argument which would lead us to believe that it is erroneous. If the 45 bighas, held by the plaintiff's predecessor is now found to be 206 bighas, the defendants would be entitled to hold more land than they actually hold.
6. Looking at these facts and the important fact found by the lower Court that the plaintiff and his predecessor in title have never been in posession of these lands, the only conclusion we can come to is that from the 5th of January 1799, the date of the order in the suit between the ijaradar and the predecessor in title of the defendants, the defendants have held these lands under an ayma title. The case then comes within the decision of their Lordships of the Privy Council in the case of Huro Pershad Rai Chowdhuri v. Gopal Dass Butt I.L.R. 9 Cal. 255 decided on the 26th of May 1881. In that case the plaintiff sued for certain land, asking khas possession, the defendants set up a chuckdari title, and they were able to prove that from 1838 they had held these lands under a colour of title. In that case their Lordships of the Privy Council said: 'The result is, their Lordships think, that the defendants, even if not in possession under a well-proved legal title, are in possession under a colour of title which might have been avoided as far back as the year 1838; and that, inasmuch as no proceedings were then taken to avoid it, time has run in their favour. Their Lordships will therefore humbly advise Her Majesty that the decree of the Courts below must be affirmed, and that this appeal be dismissed.' Following that case we think that the present case should also be dismissed. But even if that decision were not final of the matter, as we think it is, the plaintiff would fail on another ground, namely, that as regards the lands in dispute he has shown neither title nor possession. That he was never in possession was found, and we think rightly, by the Court below, and he is not able to show us any title whatever to lands not ayma lands. In this view also the suit must fail.
7. The appeal is dismissed with costs.