Lancelot Sanderson, C.J.
1. This is a second appeal by the first defendante, who are the sons of one Raj Chandra Bhakta. The suit was brought by the plaintiffs, Romesh Chandra Das, and Jogesh Chandra Das, sons of the late. Radhaballay Dass, against the first defendants, the Bhaktas, and against the other defendants, who may be called defendants Nos. 2 to 6.
2. The plaintiffs are the proprietors of an Estate No. 6308 and defendants Nos. 2 to 6 are the proprietors of the adjoining Estate No. 6307 and the suit was brought by the plaintiffs to establish their right to about 34 bighas and also to recover possession, and to eject the first defendants from the lands.
3. It has been held by the lower Appellate Court that the plaintiffs have established their title to a portion of the 34 bighas, and that such portion formed part of the plaintiff's Estate No. 6308 and that finding of the lower Appellate Court is not contested. But it is alleged on behalf of the first defendants that the plaintiffs cannot recover possession in this suit, because it is barred by the Act of Limitation, and it is said that the plaintiffs were not in possession of the land in dispute within twelve years before the institution of the suit.
4. The argument may be divided into two portions: It it first said that the matter is res judicata and then it is argued that if it cannot be said to res judicata there was no evidence upon which the lower Appellate Court could hold that the plaintiffs were in possession within twelve years of the institution of the suit. As regards the question of res judicata it arises in this way: In 1912 some suits were brought by the predecessor of the plaintiffs, as I understand he was the grandfather of the present plaintiffs, against Raj Chandra Bhakta, who is the father of the first defendants. Those suits were for rent alleged to have accrued in respect of the years 1909 to 1912 and the main issue in those suits was whether the, relationship of landlord and tenant existed between the plaintiff and the defendant, and that issue was decided in favour of the defendants, namely, that the relationship of landlord and tenant did not exist between the plaintiff and the defendant. But the learned Judge held, as one of his reasons for deciding that issue, that the defendant had produced evidence and satisfied him that he was in possession of these lands for something like twenty years before the institution of those suits. The learned Vakil who argued this appeal relied on that finding and argued that the question of whether the plaintiffs had been in possession of the lands in suit within twelve years before the institution of this suit was res judicata in the rent-suit by reason of the finding that the defendant in that suit had been in possession for twenty years before the institution of the rent-suit. In my judgment, it is not ret judicata. The issue in the rent-suit was whether at the date of the institution of the rent suits, the relationship of landlord and tenant existed between the plaintiff and the defendant and whether rent was due from the defendant to the plaintiff for the period mentioned in the suit, and the question whether the plaintiff bad been in possession within twelve years of the institution of this suit, which was in August 1913, was not in issue in the rent suit although that question may have been considered by the learned Judge as one of the reasons which induced him to come to the decision upon the issues in the rent-suit. Consequently, I think that the learned Vakil's first point is not good.
5. Then the question arises whether there was evidence upon which the learned Judge could come to the conclusion that the plaintiffs had been in possession within twelve years of the institution of the suit.
6. In 1904 there was a publication of the Record of Rights, and in that Record of Rights the plaintiffs were entered as being the owners of the land in question and the first defendants were entered as being tenants under them; and the learned Judge relied upon that entry as evidence showing that the plaintiffs were in possession, at all events in 1904; and inasmuch as the present suit was brought in August 1913 he held that the plaintiffs were in possession within twelve years of the institution of the suit. The learned Vakil argued that, although the Record of Rights which was published in 1904, would raise a presumption that at that time the plaintiffs were in possession, the Record of Rights was shown to be inaccurate and it was cancelled, to use his words by the subsequent Record of Rights which was published in 1912. I do not think that the Record of Rights in 1904, was cancelled by the subsequent Record of Rights. I think the subsequent Record of Rights merely dealt with the state of affairs as existed in 1912 which was the date of the subsequent Record of Rights. The other point upon which be relied in this respect was that, although a presumption would arise from the publication of the Record of Rights in 1904 that the plaintiffs were then in possession, that presumption would be completely destroved by the decision which was given by the learned Munsif in the rent-suit There, again, I do not agree with the learned Vakil's argument, because the judgment only went to this extent that, at the time the suit was instituted, the relationship of landlord and tenant did not exist between the plaintiff and the defendant, and that was in 1912; and 1 think it is impossible to say that there was not some evidence by reason of the publication of the Record of Rights in 1904 before the learned Subordinate Judge from which he could conclude that the plaintiffs were in possession within twelve years prior to the institution of the suit. Consequently, I think the second ground which the learned Vakil urged cannot be upheld.
7. Finally, the learned Vakil urgad that the first defendants were cultivating raiyats and that, inasmuch as they had taken a settlement of the lands in suit from the defendants Nos. 2 to 6 in good faith, they ought not to be disturbed in their possession of the lands in suit. I do not think that this point is open to the learned Vakil, because it appears that in the lower Appellate Court his client relied upon five grounds which are set out in the learned Subordinate Judge's judgment, none of which covers this point. For that reason, I do not think that we ought to entertain it now, for the first time, in second appeal.
8. For these reasons, I think that this appeal should be dismissed with costs.
9. This judgment, it is conceded, will govern the other five Appeals (Nos. 1029 to 1033 of 191?) which are accordingly dismissed with costs.
10. I agree. The title to the lands mentioned in the Subordinate Judge's judgment is not in question. The point taken is that the plaintiff, whose title has thus been established, was not in possession within twelve years of the institution of the suit. The answer to that objection is that the plaintiff was in fact in possession, as is shown by an entry in the Record of Rights of the year 1904, Now, if there were no other evidence in the case of possession than this Record of Rights of the year 1904, and if such record was (as one part of the argument goes) wholly inadmissible, then the appellant might have made out a case for consideration in second appeal. It is not, however, shown and this is necessary for the argument that the Record of Rights was wholly inadmissible. In the first place, the Record of Rights of 1904 was not in fact cancelled: and, secondly, the subsequent suit to which reference has been made did not operate as res judicata or wholly negative such effect as the law attributes to an entry in the Record of Rights. The issue in the rent-suit was confined to the years in that suit, and the fact that in coming to a finding on the necessary issues the Court may have gone into the consideration of the state of facts in an earlier period as reasons for its finding or otherwise, does not make the decree res judicata and cannot have the effect of fully negativing the effect of the Record of Rights of 19(sic)4. Therefore, in my opinion, the Record of Rights of 1904 was legally admissible in evidence. If that be so, the only other question as to the weight of evidence, as to whether the presumption the law attaches to the Record of Rights has in fact been rebutted by other circumstances in the case. This is not, however, in this case a question of law and is not a subject of consideration in second appeal. Therefore, I am of opinion that the ground taken as regards limitation fails.
11. The second point was this: So far as defendant No. 1 is concerned, even if the plaintiff's title is established, still defendant No. 1 could not be ejected, because a cultivating raiyat taking from a third party bona fide must be retained in possession. This point, as already mentioned in the judgment of the learned Chief Justice, was not taken in any of the Courts below, and involves a question of fact, namely (possibly amongst other questions) that of good faith. Therefore, this is not a question which can be raised for the first time in second appeal.
12. On these grounds, I think the appeals fail and should be dismissed with costs.