1. This is an appeal on behalf of the first defendant in a suit for recovery of possession of land which the plaintiff-respondent claimed to have acquired free from all incumbrances at a sale for arrears of revenue held on the 21st June 1895. The case for the plaintiff was that the lands now in dispute are included in Taluk Tafazzal Ali which bears No. 1530 on the Revenue Rolls of the Collectorate of Faridpur, that the defendant was in possession without any title and that consequently the plaintiff as purchaser of the estate was entitled to eject him. The defendant resisted the claim substantially on the ground that the lands were not included within the estate purchased by the plaintiff; but that they were part of another estate owned by the defendant himself. The Courts below have concurrently made a decree in favour of the plaintiff.
2. The first defendant has now appealed to this Court, and on his behalf the decision of the District Judge has been assailed substantially on three grounds, namely, fast, that as the plaintiff is not a certified purchaser under Act XI of 1859, he is not entitled to the benefit of the provisions of Section 37 of Act XI of 1859; secondly, that as the defendant has admittedly held possession of the disputed lands for more than half a century, the suit is barred by limitation, because he cannot be properly treated as an incumbrancer within the meaning of Section 37, and, thirdly, that there is no evidence to show that the disputed lands were included at the time of the Permanent Settlement within the estate purchased by the plaintiff.
3. In so far as the first of these points is concerned, the answer must depend upon the construction of Section 37 of Act XI of 1859. Our attention has not been drawn to any judicial decision on the subject, and apparently the question raised before us is one of first impression. The learned counsel for the appellant has argued that the expression 'purchaser' in Section 37 means 'certified purchaser', in other words, that it is confined to the person who has been declared the purchaser of the estate under Section 22, In answer to this contention, our attention has been invited by the learned Vakil for the respondent to Section 37 where the expression certified purchaser' is not used, and it has been suggested that if the Legislature had intended to restrict the applicability of Section 37 to cases of certified purchasers only, the expression certified purchaser' would have been used instead of the term par-caser.' In our opinion, there is considerable force in this argument. No doubt, the use of the expression 'certified purchaser' in Section 36 and of the term purchaser' in Section 37 is by no means conclusive, because it is clear that in other sections, for instance, Sections 22, 28, 29 and 30, the intention of the Legislature was to restrict the operation of those provisions to the certified purchaser. But there is a substantial difference between the scope of Section 37 and the sections to which reference has been made. In so far as Sections 22, 28, 29 and 30 are concerned, they clearly raise matters for consideration between the Collector on the one hand and the person declared as the purchaser on the other. Under such circumstances, it is reasonable to hold that what the Legislature had in view was that the Collector should recognize the certified purchaser and him alone. On the other hand, when we consider Section 36, we find that it deals with a case of conflict between the certified purchaser and a person who claims to be beneficially interested; there the Legislature expressly provides that all suits brought to oust the certified purchaser on the ground that the purchase was made for another-person, though by-agreement the name of the certified purchaser was used, shall be dismissed with costs. This section, however, though it places the real purchaser at a disadvantage when he happens to be the plaintiff in a suit for ejectment brought against the certified purchaser, has been uniformly given a restricted interpretation, and it has been repeatedly held that the operation of the section is not to be extended to cases not manifestly comprised within its terms. Finally, when we consider Section 37, it becomes clear that the question, which arises, is raised neither between the Collector and the person declared as the purchaser, nor between the certified purchaser and a person claiming to be beneficially interested, but between the purchaser on the one hand and strangers who claim certain interests in the property on the other. In oases of this class, there is no intelligible principle upon which we may restrict the operation of the section only to suits commenced by the certified purchaser. In fact, Section 37 defines the status of the purchaser and confers upon him a very valuable right, namely, that he acquires, for all practical purposes, the property in the condition in which it was at the time of the Permanent Settlement. This principle is obviously applicable to the real purchaser, no matter who may have been declared as the purchaser under Section 22. In our opinion, there are no good grounds to justify the view that the term purchaser, in Section 37, means the certified purchaser. We may here observe that Section 37 has, in this respect, been always liberally construed, as shown by the case of Narayan Chandra Kansabanik v. Kasiswar Roy 1 C.L.J. 579, where the expression 'purchaser' in Section 37 was interpreted to include a transferee, a sub-lessee, as also a person who has succeeded to the estate of the purchaser by inheritance. The first ground upon which the decision of the District Judge is assailed must, therefore, be overruled.
4. In so far as the second ground urged on behalf of the appellant is concerned, the learned Counsel has frankly conceded that his contention is opposed to a long series of decisions of this Court. It has been held, now for more than half a century, that an adverse possessor is an encumbrancer within the meaning of Section 37 of Act XI of 1859. The earlier authorities on the subject are to be found reviewed in the case of Nuffer Chandra Pal Chowdhry v. Rajendra Lal Goswami 25 C. 107, and we are not prepared at this distance of time to adopt a different view of the scope of Section 37 from what has been hitherto treated as the correct interpretation. The second ground also, therefore, fails.
5. In so far as the third ground urged on behalf of the appellant is concerned, it raises a question on the merits, not altogether free from difficulty, and involves in substance two questions, namely, first, whether the estate purchased by the plaintiff as Estate No. 1530 of the Faridpur Collectorate, is identical with Estate No. 1669 of the Jessore Collectorate, and, secondly, whether the lands now in dispute are included within Estate No. 1530 of the Faridpur Collectorate. The first of these questions arises under somewhat peculiar circumstances. The plaintiff has admittedly purchased the Estate No. 1530 and, in ordinary course, therefore, the sole question in controversy between the parties ought to have been, whether the lands are included within Estate No. 1530. But in order to enable the Court to decide the question, the plaintiff found it necessary to rely upon a thak map made in 1888, that is, before the estate purchased by the plaintiff became 1530 of the Faridpur Collectorate. At the time of the thak survey, according to the plaintiff, the estate was No. 1669 of the Jessore Collectorate and the map prepared by the thak authorities is a map of Estate No. 1669. In order to entitle the plaintiff to avail himself of the thak map, it is, therefore, necessary for him to establish the identity of Estate No. 1530 of the Faridpur Collectorate with Estate No. 1669 of the Jessore Collectorate. The learned Judge of the Court below, in concurrence with the Subordinate Judge, has found in favour of the plaintiff upon this point. After a careful consideration of the arguments addressed to us upon this part of the case, we are of opinion that the judgment of the District Judge cannot in this respect be successfully assailed in second appeal. The learned Subordinate Judge relies upon what he calls an unauthorised register kept in the Jessore Collectorate. which shows that Estate No. 1669 of that Collectorate subsequently became Estate No. 1530 of the Faridpur Collectorate. He also refers to a Mahahweari Register and to details about the amount of revenue payable, the lands comprised in different mouzas and similarity in names, to show that the two estates must be identical. in our opinion the materials upon which the conclusions of the District Judge are based are amply sufficient to support the inference drawn. The first question must, therefore, be answered in favour of the plaintiff. The next point which requires consideration is, whether the disputed lands are comprised within Estate No. 1669 of the Jessore Collectorate. The Subordinate Judge stated the question for decision in these terms: is the fact that in 1858-1859 the lands in suit were thaked as belonging to Estate No. 1669, alone sufficient to enable the Court to hold that the lands really belong to this estate''. He answered the question in these terms: ' I hold on the strength of the thak that the lands in suit belong to plaintiff's estate and belonged to it at the time of the Permanent Settlement.' Upon appeal the District Judge overruled the contention of the defendant that the thak map was not by itself conclusive, because it showed on the face of it that the lands now in dispute were, at the time when the map was prepared, in the possession of the predecessors of the defendants. Now it cannot be disputed that the thak map is valuable evidence of possession, and as evidence of possession, it is also valuable evidence of title. In support of this proposition, reference need be made only to the case of Satcouri Ghosh v. Secretary of State for India 22 C. 252, which was subsequently approvedby their Lordships of the Judicial Committee in the case of Jugadindra Nath Roy v. Secretary of State for India 30 C. 291 : 5, Com. L.R. 1 : 7 C.W.N. 193: 30 L, A. 44. In ordinary cases, the thak map is used primarily as evidence of possession of the party who relies thereupon and as soon as it is established from the thak map that the claimant was in possession at that time, such possession may legitimately be attributed to title. This principle, however, is not directly applicable to the case before us, because here the thak. papers show on the face of them that although the lands now in dispute were surveyed as part of the estate of the predecessor of the plaintiff, yet they were at? the time in the possession of the predecessors of the defendant. Consequently the inference, which might otherwise be drawn from the thak map, is very much weakened. The question then reduces itself to this. In 1859, the disputed lands were depicted on the thak map as part of Estate No. 1669 of the Jessore Collectorate : is this fact sufficient to entitle a Court of fact to hold that the disputed lands were really included in such estate? In our Opinion, it is impossible for us in second appeal to hold as a matter of law that the inference cannot follow from the premises. The District Judge, as also the Subordinate Judge, has relied upon one very material circumstance, in support of this conclusion. They have pointed out that the owners of Estate No. 89, which is the estate claimed by the defendant, took steps to have the thak map corrected by an appeal to the superior Revenue authorities in respect of one particular parcel, but that they did not follow a similar course in respect of the disputed lands, although such lands were shown on the thak map as included in Estate No. 1669. It was undoubtedly open to them to take appropriate steps to rectify the error, if it was an error. No doubt they were at the time in actual possession of the lands, but they must have been aware that the very circumstance that the disputed lauds were shown on the thak map as part of Estate No. 1669, might, if allowed to stand unchallenged, be subsequently used against them upon the question of title : and their possession itself might be treated as the possession of a trespasser. This omission, therefore, to obtain a correction of the map, is significant and has an important bearing upon the case. We have thus the fact that in 1859 the disputed lands were treated by the Survey Authorities as included in Estate No. 1669, and that the predecessors of the defendant did not take any steps to have the map corrected although they took action in respect of other lands. Against this has to be set off the circumstance that the predecessors of the defendants were at the time in possession of the land. It is impossible for us to hold that the Courts below were not justified in inferring from these facts that the lands were as a matter of fact comprised within. Estate No. 1669. If, therefore, in 1858, the lands were comprisecd in Estate No. 1669, the question next arises, Whether this justifies the inference that the lands must have been comprised within that estate at the lime of the Permanent Settlement. No doubt, as pointed out by their Lordships of the Judicial Committee in the case of Jagadindra Nath Roy v. Secretary of State, for India, 30 C. 291 : 5, Com. L.R. 1 : 7 C.W.N. 193: 30 L.A. 44 and by this Court in the case of Gokul Chandra Das v. Hara Sundari, Dasi 9 C.W.N. 383 and Ananda Hari Basak v. Secretary of State for India 3 C.L.J.A 316, it cannot be affirmed as a proposition of law that merely because certain specified lands were included in an estate at the time of the thak survey in 1859, they must have been included within that estate at the time of the Permanent Settlement : yet it is open to the Court to draw such inference from all the surrounding circumstances. Possibly in some of the cases to be found in the books, specially in the cases of Nobo Coomar Das v. Gobind Chandra Roy 9 C.L.R. 305 : Abdul Hamid Khan v. Kiran Chandra Roy 7 C.W.N. 849 and Syama Sundari Dassya v. Jagabundhu Sootar 16 C. 186, the proposition is stated too widely and language is used which might justify the contention that the backward presumption prawsumptio retre applies as an inflexible rule. The decision, of the Judicial Committee, however, shows that this view cannot be maintained. But here we have not to deal with the case of chur land, the condition of which might vary from year to year according to the course of the river. The history of the disputed lands does not indicate that its area or situation had in any way been changed from the time of the Permanent Settlement and the Courts below were, therefore, justified in the inference they drew from all the circumstances of the case, namely, that the lands included at the time of the Thak Survey in 1858-59 within Estate No. 1669 were also included in the estate at the time of the Permanent Settlement. The third ground cannot, consequently, be sustained.
6. The result is that the decree made by the Court below is affirmed and this appeal is dismissed with costs.