1. This appeal has arisen out of a suit to recover possession of a tank with its banks on declaration of the plaintiff's title therein. The suit has been dismissed by both the Courts below.
2. The tank and its banks were recorded in the Record-of-Rights, eight annas, as held by defendant 1 in Niskar right and the remaining eight annas, as held by defendants 2 to 50 in different tenure rights under the plaintiff. The plaintiff instituted a suit under Section 106, Ben. Ten. Act for correction of the entry in so far as it related to the former eight annas, alleging that it was his mal property but failed therein. He then instituted the present suit alleging as regards the former half that it is not the niskar property of defendant 1 but is part of his own mal property, and as regards the latter half that defendants 2 to 50 have no concern with or rights to the same.
3. The Courts below have held that the decision in the suit under Section 106, Ben. Ten. Act operates as a bar to the present suit. This view is challenged and it is said that as the Revenue Officer had no jurisdiction to go into the question of title and could not make a decree for recovery of possession the decision cannot bar the present suit.
4. From the decree in the suit under Section 106, Ben. Ten. Act which is on the record it appears that the plaintiff prayed therein that the entry in the khatian might be corrected by recording that defendant 1, had no niskar right and that the land was held by the defendant under the plaintiff and was liable to assessment of rent. It is quite true that the prayer for possession was not and could not be included in the suit under Section 106. This is a proposition for which no authority is needed; but as this relief will not be available to the plaintiff until he can get some sort of title established, what has to be seen is whether the declaration of the title that he seeks for, is barred by reason of the decision in the suit under Section 106. In support of the proposition that the Revenue Officer had no authority to determine the question, reliance has been placed upon certain decisions, which, as well as those in which a contrary view has been taken, will now be noticed.
5. In the case of Mohunt Padmalav Ramanuj Das v. Lukmi Rani  12 C.W.N. 8 there is a passage in the judgment of Wood-roffe, J-, which would seem to indicate that the question of possession alone should be considered in a suit under Section 106; but Coxe, J., observed that
it is evident that in proceedings under the Bengal Tenancy Act no disputes of title between rival proprietors, considered merely as proprietors, can legitimately arise
and again that suits under Section 106 are
suits between tenant and tenant or between landlord and tenant in which questions other than those of possession may legitimately arise.
6. The observations of Woodroffe, J., should, therefore, be taken as limited to the peculiar facts of the case, namely that the dispute concerned two rival proprietors without any question arising between any of them and the tenants. The case of Ram Chandra v. Nandananda  19 C.L.J. 197 in which Mohunt Padmalav's case  12 C.W.N. was referred to, does not help the appellant because there the question of possession had not at all been investigated, and while remanding the case for an investigation of that question it was observed that the Bengal Tenancy Act deals with relations of landlords and tenants and it is not part of its purpose to regulate disputes between rival proprietors except in so far as such disputes affect their relation with their tenants, and the view of Coxe, J., in Mohunt Padmalav's case  12 C.W.N. was adopted and affirmed by the learned Judges. The view of Coxe, J., in Mohunt Padmalav's case  12 C.W.N. was agreed in by Carnduff, J., in Ensar Alt v. Yakub Ali  13 I.C. 311. Another case on which considerable reliance has been placed on behalf of the appellant is that of Aswini Kumar v. Sarada Charan  24 C.L.J. 79. In that case there was an observation to the effect that
these matters (meaning prayer for declaration of title and recovery of possession) are entirely foreign to the jurisdiction of the Revenue Officer under Section 106.
7. The suit, in that case, as far as may be gathered from the report, was a suit between two rival proprietors, but whatever that may be not much weight was attached to this observation in the latter decision in the case of Apurba Krishna v. Atarmani  64 I.C. 889 in which all these Cases were reviewed and it was said that in a suit under Section 106, Ben. Ten. Act for correction of the Record-of-Rights, when the Revenue Officer proceeds to decide the dispute, he has to determine not merely whether certain words should or should not remain unchanged in the records but also whether the facts described by these words are correct. In the case last mentioned the contention that the scope of the suit should not extend to questions of title was overruled. There are a few other cases upon which reliance was placed on behalf of the appellant and so they deserve specific mention. One is Kali Sundari v. Girija Sankar 16 C.W.N. 974. That case decided that where a plaintiff not only seeks for correction of entry in the Record-of-Rights which is in favour of the defendant but also asks for recovery of possession from the latter, whom he concedes, has been in possession from before the date of final publication, those reliefs could not properly be secured by a suit under Section 106 and the proper course for the plaintiff was to bring a civil suit, because as between landlords of neighbouring estates the only question that can be raised in a proceeding under Section 106 is as to possession at the date of the final publication. Another case is Pran Krishna Saha v. Trailakya Nath Choudhuri  19 C.W.N. 911 where it is held that a person who is not in possession of land which is claimed as rent-free at the date of the Record-of-Rights, cannot have the mere question of his title to hold the land rent-free tried in a suit under Section 106 and as the Revenue Officer cannot give him possession he can get only complete remedy in a civil suit. These two decisions were passed in appeals in suits under Section 106, and if in the present case the plaintiff had alleged in his suit under Section 106 that he was out of possession and merely asked for declaration of his mal right, it might on the authority of these decisions have been held that the suits were incompetent.
8. We are not, however, concerned with any such question in the present case it should be noted that in the suit under Section 106 the plaintiff never admitted that he was out of possession but on the other hand he proceeded there on the footing that the land was held under him by defendant 1 Another case relied upon on behalf of the appellant is that of Asrafannessa v. Hem Chandra Chaudhury : AIR1927Cal216 . That was a case in which the dispute raised in the suit under Section 106 was one between rival co-owners only and was a dispute with which the Bengal Tenancy Act had little to do. Lastly was cited the case of Ram Narayan Singh v. Sukhdeo Teli A.I.R.1928 Pat. 579; but beyond the fact that it approves of the decision in Aswini Kumar Aich v. Saroda Charan Basu  24 C.L.J. 79 it has no relevancy. That a question of title of the present character may be gone into by a Revenue Officer and if decided by him concludes the parties under Section 107 has been held in Apurba Krishna v. Shyama Ch. Pramanik  24 C.W.N. 223. It is not possible, in view of the pleadings so far as may be gathered from the decree under Section 106 and the pleadings in the present suit, to say that the dispute was between two rival proprietors.
9. The decisions of the Courts below, so far as the first contention of the appellant is concerned, appears to us to be correct.
10. As regards the other eight annas share it has been urged that the onus of proof has been wrongly placed. We are of opinion that the Settlement khatian is against the plaintiff, the plaintiff has to rebut the presumption of its correctness ; and although apart from that presumption it would be for the defendants to establish the limits of their tenures which lie within the zamindari of the plaintiff, still where, as here, that presumption exists the point of view from which the Subordinate Judge dealt with the matter cannot be said to be incorrect. It has also been urged that the question of the plaintiff's title by purchase of one anna share should have been gone into, but the Subordinate Judge in our opinion has given sufficient reason for declining to accede to the appellant's prayer in this respect.
11. We accordingly dismiss the appeal with costs