Asutosh Mookerjee J.
1. This is an appeal by the plaintiffs in a, suit for recovery of possession upon declaration of title, instituted so far back as the 27th February 1899. There were more than 100 defendants in the suit, with the result that frequent deaths amongst the parties litigants have delayed the trial of the suit both here and in the Court below.' The Trial Court was not able to dispose of the suit till the 5th September 1904, and although the appeal was lodged in this Court on the 18th February 1905, it could not be finally heard till more than ten years later.
2. The plaintiffs claim the disputed lands as included in Kismat Baldia, which they allege is comprised in estate No. 3846 purchased by them at a sale held for arrears of revenue on the 25th March 1897. This estate constitutes a 12 1/4-gandas share of Perganah Selimabad. Three of the defendants Nos. 58, 59 and 60 are the recorded proprietors of estate No. 3847, another No. 61 is the proprietor of estate No. 3848, and three others Nos. 62, 63 and 64 are the proprietors of estate No. 3849. These three latter estates constitute a 91/4 ganda each of Perganah Selimabad, so that the four estates taken together constitute a 2-annas share of Selimabad. The case for the plaintiffs is that the lands in dispute are comprised exclusively in estate No. 3846 and that the defendants are unlawfully in possession thereof under the colour of tenures and under-tenures which are either fictitious, or, if real, do not bind the plaintiffs as purchasers at a sale for arrears of revenue. The Court below has found that these under-tenures do not bind the property in the hands of the plaintiffs and as the first defendant who is affected by this adverse finding has not taken exception to it, either by an independent appeal or by way of cross-objections, the question does not directly arise for consideration in this appeal. The Subordinate Judge has further held that as the plaintiffs have failed to prove that the disputed lands are comprised exclusively in estate No. 3846, they must be deemed to be the joint lands of the entire original estate Selimabad, out of which the different estates claimed by the parties as also other estates have been carved out. In this view, the plaintiff would be entitled to a decree for possession of a 121/4-ganda share of the disputed lands; but the Subordinate Judge has given the plaintiffs a decree for 163/4-ganda share because the thak map shows that estate No. 3846 comprises such share of the lands in question. The plaintiffs are dissatisfied with this decree and have appealed to this Court. On their behalf three alternative aspects of the case have been put forward, namely, first, that the first defendant had acquired a good title to all the disputed lands by adverse possession as against all the other defendants and that as the first defendant had no substantial defence against the plaintiffs, the latter were entitled to a decree for all the land claimed; secondly, that as the two contesting defendants Nos. 58 and 59, the purchasers of estates Nos. 3842 and 3847, had title to 1 anna 7 1/4 gandas (or 1 anna 11 3/4 gandas according to the Thak Map), the plaintiffs were entitled to a decree for the remaining share; and thirdly, that the lands are the joint lands of the two-annas share of the original zemindari Selimabad and that the plaintiffs are entitled to a decree on that basis. Before we deal with these questions, we may advert to two preliminary points. It is clear, in the first place, that Perganah Selimabad was partitioned before the Permanent Settlement. This is conclusively shown from a letter addressed by Mr. G. Thompson, Collector of Dacca, on the 28th December 1793 to the President and Members of the Board of Revenue. This letter was not produced before the Subordinate Judge; in fact its existence was traced out from a passage in the history of Backerganj by Mr. Beveridge. The letter has been produced in this Court and has been admitted in evidence by consent of all the parties. As the letter contains the early revenue history of Perganah Selimabad, which is essential for the proper appreciation of the evidence in this case, we set it out below, though it is expressed in quaint phraseology:
W. Cowper, Esq.,
President and Members of the Board of Revenue.
'I now beg leave to address Your Board on the subject of Perganah Selimabad and to lay such information before you regarding it as will, I trust, enable you to furnish me with your final instructions on the mode to be adopted for concluding the settlement of it.
On a view of my predecessor's correspondence with your Board respecting this mehal I find in his letter of the 8th October 1791 he states, as the cause of the decline of the public revenue in it, that it is the joint property of the several numerous sharers without any separation or division of the land composing it, consequently that every petty talookdar or ryot is subject to be harassed by being under the control and subject to the vexatious demands of 18 rapacious masters: and for the removal of this grievous evil, he proposes that a general division of the perganah shall be made, observing further that another essential benefit would result from the adoption of this plan in the ascertainment of the actual quantity of land possessed by the Salt Byparee Talukdars, many of which he states he has every reason to believe, from the information given him, hold their land at a very low rate, owing to the dishonesty of the mofussil servants, and Your Board relying on the information submitted by him respecting the state of the property in the perganah approve his proposal, and at your recommendation the Governor-General-in-Council, was pleased to direct under date the 20th June 1792 that the whole of the mehal should be held khas for the purpose of making a general division of it between the several proprietors, so that each should have his share of the land composing it allotted to him.
After such information furnished by the late Collector when he had been in the office nearly three years, and in this period it was to be presumed he had accurately informed himself of the state of the property in the mehal, it will no doubt be with some surprise, the Board are now informed that the division recommended was totally unnecessary, the perganah having undergone a complete division and each share being separate and distinct from the other with the exception of the Jabberaumul and which, being disputed property between the proprietors of the 111/2 anna and some of those holding the property of the 4 1/2 anna division, must necessarily undergo a judicial enquiry for the adjustment prior to any division of it being made.
'In order to show your Board that the perganah has undergone the complete division stated by me, I shall beg leave to state the periods when the various divisions were made and the causes which gave rise to them. The whole property in the perganahs having been usurped by Aga Backer during the period he held the Waddahdharee of it, the dispossessed proprietors in the year 1156 B.S. preferred a complaint to the Soubah of Bengal, who restored them to the possession of a 41/2 anna proportion of it, and in that year the division of it both of land and jumma was made by Uzmuttoollah Ammeen appointed by the Soubah for the purpose, and sometime afterwards the 4 1/2 anna division underwent a sub-division into ten shares between the respective proprietors of it and now stand as follows:
g. c.Shibnarain Roy ... 12 1Odoynarain Roy ... 9 1Doolabnarain Roy ... 9 1Luckinarain Roy ... 9 1Joychand Roy ... 17 2Raj Chandra Roy ... 5 0Kishenram Roy ... 10 1Ram Ram Roy ... 7 0Pertabnarain Roy ... 6 1Kissen Ram Roy ... 4 0'From the period of the above divisions the 111/2 and 41/2 annas shares as well as the sub-division of the latter have been separate and distinct and have had no connection with each other. Aga Backer remained in possession of his 11 1/2 annas proportion until the year 1160 when he suffered the punishment of death for the crime of rebellion, and Raja Ranje Ballav was appointed to attach the whole of his property and effects which became forfeited to the State, the latter were disposed of by the reigning Government but the land, the family of Rajbollav had sufficient influence with the Court to retain in their possession until the end of the Bengal year 1164, when in the Government of Mr. Nerulst (illegible) Sheevnarain, the son of Joynarain, one of the original proprietors assisted with the influence and patronage of Gocool Ghosaul, obtained restoration of the share of which the family had been unjustly deprived by the usurpation of Aga Backer, and for the assistance afforded by Gocool Ghosaul he was presented with a moiety of the recovered property or a 5 annas 15 ganda proportion of it and had it recorded in the zemindaiy sheristah in the name of Bowannay Charan Roy. Thus the 11 1/2 annas share of the perganah became the joint property in equal proportions of Joynarain Roy and Gocool Ghosaul and they jointly possessed it in these proportions until the Bengal year 1179, when at their mutual request to Mr. Barwell the division of it between them was made and each had his share of the land allotted to him. Gocool Ghosaul's share continues complete as allotted him in this, division and is now the property of Cassi-naut in consequence of the public sale made of it to him in the Bengal year 1196. The other share of 5 annas 15 gandas remaining with Joynarain Roy falling in arrear to Government the sale of a moiety or 2 annas. 17 gandas 2 kara division of it was made in 1189, B.S., of the liquidation of the balance and in the following year the division of it was made between the purchaser Joynarain Ghosaul in the name of his son Colly Sankar Ghosaul, and Joynarain, whereby each had, his proportion of the land allotted to him and in the same year, the heirs of the latter made a sub-division of their share of 2 annas 17 gandas 2 kara in the following proportions:
g. c.Shibnarain ... 18 2Doolabanarain ... 13 0Odoynarain ... 13 0Luckinarain ... 13 0'The Board will perceive from the above that so far from the perganah being the joint undivided property of the several shares as stated by my predecessor it has undergone the most perfect and complete division practicable, into sixteen portions which accord with the number of the present proprietors, as well as with the number of shares stated in the public Rent Roll of the District, and from the information obtained on the fullest enquiry, I can with confidence assure the Board a more perfect division of it between the numerous shares cannot be made than the one which now stands. The late Collector mast, I apprehend, have been led into the error of stating it as the joint undivided property of the numerous proprietors from the representations of some of the talukdars stating the inconveniences which they suffer from having their Revenue to pay to three or more sharers; this is an inconvenience which I admit some of them do labour under, but I submit it to the Board whether it could have been avoided in the division of a perganah among so many proprietors, and whether it was not the less to be avoided in the one in question where many of the talukdars hold land paying a Revenue exceeding several of the proprietors' proportion in the perganah and which consequently rendered the division of it between them unavoidable, and although the instances where a talukdar pays his Revenue to plurality of sharers are many in Selimabad, yet I must observe there are few where the lands composing the taluks have not undergone a division between them, so as to define to each proprietor the proportion and particular soil responsible to him for the Revenue as comprised and included in his share of the perganah and upon the whole, I beg leave to offer it as my opinion that for the reasons above-mentioned the inconveniences which exist in the present division of the zemindari could not be remedied by a new one, while the latter on its operation would make an exchange of the property between the shares to the benefit of some and proportionate disadvantage of others.
'The Board will, therefore, judge how far it may be advisable to make the division directed by the Governor-General in Council at their recommendation given under the erroneous information submitted to them by my predecessor, indeed whether it be practicable or not, without giving just cause of complaint to some of the sharers, who will be sufferers, by the exchange of their property. I am so fully satisfied, gentlemen, in my own mind that it cannot be effected without giving this just cause of complaint and that the new division can, but in a very few instances, remedy the inconvenience complained of in the present one, that I have thought it best not to proceed in it, persuaded it was never your intention to recommend a division where it had this tendency, and at the same time could not but very partially remedy the inconvenience proposed by it. Although for the above reasons I have not proceeded in the division, yet I have deemed it proper to avail myself of the measurement made of the perganah for it to ascertain by a jamma-bundy its actual assets in order to form a judgment how far these would admit of the resumption of a part of the large abatement, amounting to Rs. 13,000, granted to the 11 1/2 annas division of it since year 1193 B.S., exclusive of the loss which Government has sustained annually on this reduced jamma amounting average to Rs. 19,000. I conceived an investigation of the nature the more necessary as a perusal of Mr. Douglas's correspondence with your Board on the subject of this mehal gave great reason to suspect that the abatement in question had not been altogether rendered necessary by any actual decline of its resources, but partly by the refractory conduct of some of the talukdars refusing to pay the proper and just revenue of their lands to the zemindars and partly by the intrigues of others with the zemindari servants obtained from them improper deductions as stated in his letters under date the 14th January, 12th April and 8th of October 1791.
'As far as a judgment can be formed from the jammabandy, these suspicions seem to be well grounded inasmuch as the assets thereby appear nearly sufficient to admit of the resumption of the whole amount of the abatement but to obtain it will require rigorous measures both towards the zemindars and talukdars, and am fully satisfied, gentlemen, that neither have one just objection to make to the jammabandy and so far from its being oppressive that it is fair if not very moderate. I can have no hesitation to give my recommendation that such measures be taken in all instances requiring them and that the lands, whether the instance be with the zemindar or talukdar, be formed where refused by either on the terms of the jammabandy and where they cannot substantiate any reasonable and just objection to it. I am compelled to call upon Your Board for this authority in the conviction that without it no exertions of mine will effect the resumption of any part of the abatement in a perganah, the renters whereof have ever shown themselves disobedient and of the most refractory-disposition, and whose conduct has annually baffled the attempts of the executive officers to realize even the Revenue which they are pleased themselves to admit as justly payable by them, but it cannot be necessary for me, gentlemen, to dwell on the misconduct of these renters where so much of it already appears upon your records in the repeated representation made by my predecesors in my office.
'The vesting me with the requested authority to form all lands in the cases stated will, I have every reason to believe, enable me to complete the settlement of the perganah in the course of the current year, with the resumption of a great part of the abatement, but without such authority I must here again repeat it to the Board the very, and I may say incredible, refractory disposition of the people, will not allow me to entertain the hope of realizing the present rated jamma, and to conclude a settlement without an abatement from it, will be altogether impracticable. Your Board will, therefore, decide under the information herein submitted respecting the capability of the mehal whether such conduct shall benefit the object which instigates it and whether the abatement shall be allowed and the resumption proposed, be foregone, or whether it will not be more proper to notice it by punishment, bearing out of the consideration the justice of the claim which Government has to the resumption.
'In conclusion, permit me to pledge myself to Your Board for the measures proposed by me proving efficacious and that it is my opinion, few instances will occur to render the exercise of the requested discretionary power necessary, it being my belief the knowledge that I possess it will in general prove sufficient. The Board at all events may rest assured that I will in no instance avail myself of it to oppress and I do hope that I hold a better place in their opinion than to be suspected of soliciting it with any such intention.
'Allow me to beg your instructions on the subject of the address as early as convenient.
I have the honour to be,Gentlemen,Your most obedient humble servant,(Signed) G-. Thompson,Collector.'Dacca
The 28th December 1793.'
3. It is interesting to compare these shares with the shares now registered in the books of the Collector-
No. of Shareestate. Annas gandas3834 ... ... 0 6 1/4 3836 ... ... 0 73840 ... ... 5. 153841 ... ... 2 17 1/23842 ... ... 0 18 1/23843 ... ... 0 133844 ... ... 0 133845 ... ... 0 133846 ... ... 0 12 1/43847 ... ... 0 9 1/43848 ... ... 0 9 1/43849 ... ... 0 9 1/4
4. This requires to be supplemented by a share of 1 anna 163/4 gandas to make up 16 annas. This missing share was composed of 171/2 gandas, 5 gandas, 101/4 gandas and 4 gandas mentioned in the above letter.
5. It may be observed that estates Nos. 3842-3845 make up 2 annas 171/2 gandas, which together with estate No. 3841, make up 5 annas 15 gandas; this taken with estate No. 3840 makes a share of 111/2 annas. Estates Nos. 384-649 make up a 2 annas, and these together with the remaining shares, namely estates Nos. 3834 and 3836 and the four shares aggregating 1 anna 16| gandas, make up 41/2 annas. If these shares are borne in mind, the various documents may be easily understood; this also bears out that there was originally a division of the perganah into two shares 111/2 annas and 41/2 annas respectively:
6. In the second place, it is plain that absolute reliance cannot be placed upon the thak map. It is clear that the mahal milani statements were prepared only on reference to the original state of the mahal pending the decisions in the adam nisani and miscellaneous oases then under contest. This must be borne in mind in the examination of the long series of documents in the case.
7. As regards the first position taken up by the appellants, we have only to observe that it cannot possibly be sustained. Assume that the first defendant had annexed the disputed lands to the under-tenure claimed by her and had acquired a good title thereto by adverse possession for the statutory period against the true owners. That does not avail the plaintiffs, as th6y have purchased estate No. 3846 and nothing beyond it. Take two continuous estates A and B, held by X and Y. Suppose X annexes a portion of B and professes to hold it as included in A, till the title of B is extinguished. If thereafter X makes default in the payment of Government revenue, what does the Collector expose for sale? Obviously estate A as it stood at the time of the Permanent Settlement; he does not put up to sale the portion of B annexed to A by X. Similarly, if Y had defaulted to pay revenue, the Collector would expose for sale estate B as it stood at the time of the Permanent Settlement and would not exclude from the sale the portion annexed by X. The substance of the matter is that the purchaser at the revenue sale is not prejudiced by an encroachment against the defaulting proprietor; nor does he reap the benefit of an encroachment by the defaulter. To put the matter in another way, the effect of the adverse possession by X with regard to the lands of B is to make him a joint proprietor of B along with Y. The Collector is nowise affected by the adverse possession between the proprietors of A and B and if he has occasion to sell either estate, he sells the estate as it was at the time of the Permanent Settlement. Here the plaintiffs have purchased estate No. 3846; they are entited to all lands included in the estate at the time of the Permanent Settlement; they cannot have the advantage of, any more than they can be prejudiced by, adverse possession subsequent to that date. The first contention, consequently, fails.
8. As regards the second position taken up by the appellants, obviously it cannot be sustained. The plaintiffs in an action in ejectment must succeed on the strength of their own title they cannot succeed, merely because the defendants may not be able to establish title to all the lands in their possession; in other words, the plaintiffs as purchasers of estate No. 3846 cannot oust the defendants from lands, which, though not included in the estates claimed by them, are equally outside the estate purchased by the plaintiffs.
9. As regards the third point taken up by the appellants, we may observe that this covers the real controversy between the parties. The Subordinate Judge has rejected without discrimination the documents adduced by the plaintiffs to prove that the disputed lands are the joint lands of estates Nos. 3846-3849, No doubt, many of these documents are not registered, but they are of some antiquity : many of them were mentioned in the litigation of 1863. It is further clear that they have not been fabricated by the present plaintiffs, and the very fact that they are inconsistent with the extreme case of the plaintiffs that the disputed lands are included in estate No. 3846 alone, removes them from the sphere of indiscriminate suspicion; if the plaintiffs had manufactured these documents for the purposes of this suit, they might well have been drawn up to support their maximum claim. These documents, which disclose the dealings of the various parties with separate parcels of land as included in one or other of the shares on definite partitions by metes and bounds in Perganah Selimabad, are obviously of value, as embodying assertions of title in times now long past. The letter of Mr. Thompson, as we have seen, proves conclusively that there was a partition prior to 1793, and that many of the estates then and now existing had separate parcels of land allotted to them before the Permanent Settlement. The question thus narrows down to this: have the plaintiffs proved that the disputed lands or any portion thereof were at the time of the Permanent Settlement the separate lands of the 2-annas share now represented by estate Nos. 3846- 3849. In the investigation of this question, we are materially assisted by the proceedings in a suit for assessment of rent brought by Manikya Chandra Das against Mahes Chandra Biswas and decided by the Deputy Collector of Bakergunj on the 23rd November 1864 and by this Court on the 17th November 1865 (Exhibits 618, 619).
10. [After adverting briefly to the facts of that suit and discussing evidence in the present case His Lordship concluded as follows: ]
The conclusion follows that the plaintiffs have established that there was a partition prior to 1793, and that plots Nos. 3, 6, 7, 9, 10 and 11 of the map of 1864 fell to the 2-annas share now represented by estates Nos. 3846-3849. Consequently the plaintiffs are entitled to a decree for possession of these plots only, in respect of a 121/4-gandas share out of 2 annas, that is, if the 2 annas be treated as 16 annas the plaintiffs are entitled to a decree for possession of 4-annas 18-gandas share of plots Nos. 3, 6, 7, 9, 10, 11 only. The Subordinate Judge, however, has given them a decree for 163/4-gandas share of all the plots in suit. As the defendants have not filed an independent appeal or preferred a memorandum of cross-objections, we cannot on an appeal by the plaintiffs, deprive them of the benefit of any portion of the decree already made in their favour by the Subordinate Judge.
11. The result is that this appeal is allowed in part and the decree of the Subordinate Judge modified. The decree in favour of the plaintiffs for 163/4-gandas share of all the lands claimed in the suit is maintained. In addition to this, the plaintiffs are awarded in respect of plots Nos. 3, 6, 7, 9, 10, 11 of the map of 1864 a further decree for 4 annas 11/4-gandas share, so as to bring up their share in those plots only to 4 annas 18 gandas. The plaintiffs will have joint possession of the lands now decreed in their favour and also mesne profits in the way directed by the Subordinate Judge. We set aside the order for costs made by the Subordinate Judge and direct that all parties pay their own costs both here and in the Court below.