1. This appeal arises out of a suit for recovery of khas possession of certain lands appertaining to Taraf No. 38 Alam Khan, which were sold for arrears of revenue and purchased by defendant No. 6 free from all incumbarances. The plaintiff alleges that the defendant No. 6 settled the Taraf with the plaintiff in sadar putni taluka right with the rights of an auction-purchaser and to receive the outstanding rent. The defendants Nos. 2 and 3, who alone contested the suit, amongst other things, contended that the lands in suit along with other lands, making a total of 5 kanis 4 gandas 3 karas, appertained to their mourasi ryoti jama, that they had acquired occupancy ryoti right in these lands, that in the survey of 1200 M.E. the lands in suit were recorded in the name of the predecessors of the defendants and that they appertained to 16 dags of the survey chitta of that year, and that inasmuch as the plaintiffs bad not obtained sadar putni taluka right in the entire land of the jama of the defendants, they are not entitled to get khas possession of a portion thereof. The lands of dags 221, 242, 1318 and 1699 were not included in suit. The trial Court held that the plaintiff was entitled to the lands in suit and had acquired the right to avoid or annul all incumbrances upon the potta granted to him by defendant No. 6, the purchaser. He relied upon the cadastral survey khatian Exhibit B, which showed that the defendants were recorded as talukdars. He also found from the cess return Exhibit 5 and the survey khatian that some other lands bearing the cadastral survey dags 242, 221, 1318 and 1699 of other mahals came to be added to the previous jama of the defendants, and, therefore, the question of the plaintiff as co-sharer talukdar did not arise. He held that the defendants had no protected interest and that the plaintiff as sadar putnidar was entitled to annul their incumbrances and bring the land in suit into his khas possession.
2. On appeal the learned Subordinate Judge held that there was no satisfactory evidence whatever to show that the defendants had got a right of occupancy in the lands. There was no potta or kabuliyat for such a right, and he also relied upon the cadastral survey khatian as showing the defendants' predecessor to be a talukdar in respect of the lands in suit. With regard to the road cess returns he held that they were no evidence against the tenants and could not be taken as rebutting the survey khitian. He found that all the lands mentioned in the khatian formed the taluk of the defendants. He held that the plots 221, 242, 1318 and 1699 not being included in the plaintiff's sadar putni, the plaintiff was not entitled to set aside the defendants' tenure, inasmuch as it had been held in Sooharam Burma v. Doorga Charan Das 5 C.L.J. 264 that a suit for annulment in part did not lie. He held that the plaintiff's claim for khas possession could not be granted. He modified the decree of the first Court accordingly, declaring the plaintiff's title to the lands in suit and directed that the plaintiff was to get possession through the tenants as tenure-holder. In this case both the parties dispute the correctness of the entries in the cadastral survey.
3. Upon the findings of the learned Subordinate Judge the decision in Sooharm Barma v. Doorga Charan Das 5 C.L.J. 264 clearly governs this case. The earlier authorities support the same view. Section 37 of the Revenue Sales Law must be strictly construed and if the road-cess return, Exhibit 5, is excluded from consideration as against the tenant, as it ought to be, there is nothing which contradicts the cadastral survey khatian, which must be taken to be correct unless there is evidence to the contrary.
4. The appeal is, therefore, dismissed with costs.