1. This appeal arises out of a suit for mesne profits.
2. In respect of the lands now in question, the plaintiffs brought a suit, No. 459, against the present defendant and obtained a decree on the 23rd December 1913. They took possession through the Court on 26th July 1914 (1321) and now claim mesne profits in respect of the years 1319 and 1320.
3. The suit for declaration of title and recovery of possession was brought in the Court of the Munsif : while the claim being over Rs. 1,000, the present suit has been brought in the Court of the Subordinate Judge.
4. The Courts below have held that the lands now in suit are identical with the lands in respect of which the plaintiffs obtained a decree in the earlier suit and are also identical with plot gha of the lease granted to the plaintiffs on the 19th of June 1906 (1313), and that this lease granted by the landlord and his chief manager must prevail over an earlier lease granted to the defendant by an unauthorised naib.
5. The contentions of the defendant appellant before us are that the earlier lease ratified by acceptance of rent should prevail over the later lease in favour of the plaintiffs, and that the lands in suit have been incorrectly identified with plot gha of the plaintiffs' kabuliyat, that in any event in this case area (11 pakhis 15 gandas) should be preferred to the description of boundaries, that the claim for mesne profits for the year 1319 is barred by limitation and that the defendant should in any case be granted compensation for improvements.
6. It was admitted in the Courts below that the naib in question had no authority to grant leases or make settlements. There is a finding in the Court of first instance that the defendant Rohim, after the settlement with him in 1312, took possession and paid rent to the same naib; see for instance Exhibit H 3 of 1321. It is clear, however, from the judgment of the District Judge that on first appeal this point was not taken. We have, therefore, no finding by him that the Exhibits relied on by the Sub-Judge are genuine; and there is nothing to show that the rent paid to the naib was accepted by the landlord with knowledge of the facts. The land in suit is a strip of culturable land in the depressions between ridges of Sal tree bearing ground in a Sal jungle or 'gar.' These ridges or tongues of Sal bearing land are known as teks. Plot gha of the plaintiffs' kabuliyat is described as bounded on the east by the preceding plot gha and by Deochala Tek, on the west and north by the same Deochala Tek and on the north by the cultivated lands of Saiyad Ali, i.e., by the boundary of Faridpur. The area is stated to be 11 pakhis 10 gandas 1 kara.
7. Now if the boundaries given can be identified it is clear that the ordinary rule must be followed, and that the statement of area must give way to the description of boundaries. The boundaries have been located by the Courts below and indeed they found difficulty only with respect to the boundary on the north. The reference there to Saiyad Ali, it was found, was a mistake for Safiruddin, but the alternative description, the boundary of Faridpur, left no doubt as to this boundary also. Whether the land in suit has been correctly identified with the subject-matter of the previous suit and with plot gha of the plaintiffs' kabuliyat, is a question of fact and we need discuss it no further.
8. In the plaint it was stated that the season for cutting paddy is in the month of Poush. The present suit was instituted on the 7th Magh 1322. The claim for 1919, it is said, is, therefore, barred by limitation. But the statement in the plaint is a general statement and in the Court of first instance no issue was raised upon, and no evidence directed to, this question.
9. The claim for compensation is based on the allegation that the defendant reclaimed the land. No such claim was made in the written statement, or in either Court below. We, therefore, find no reason for distinguishing this case from any ordinary case of trespass. The appeal is, therefore, dismissed with costs.