1. These appeals arise out of two suits for the recovery of possession of certain lands in Mauzas Bagmara and Sujanagar in the District of Sylhet the suits were decreed in favour of the plaintiff and the defendants are the appellants before us.
2. The first point raised by the learned Counsel in support of the appeal is that the plaintiff's case rest : entirely on a thak-bust map prepared in the year 1864, which on the facts referred to the judgments of the Courts below is wholly unreliable and worthless, and which has not been and cannot be properly relied. The revenue survey, which followed the thak of the district of Sylhet was apparently not approved by the Local Government under Sections 3 and 4 of the Bengal Alluvion and Diluvion Act of 1847. In 1864 the lands were either jungle or submerged, and therefore, no proper thak could have been prepared. There was no field measurement : the trijunction or starting point could not be fixed, with accuracy and generally, it is urged, the attempt at relaying the maps was futile.
3. It is true, no doubt, that the revenue survey proceedings appear not to have obtained the approval of the local Government as contemplated by the Act of 1847. But, although that fact might be of importance if the case were one of the assessment of additional revenue on the basis of the revenue survey, that is not the case before us here. Moreover, it is the thak map we are now concerned with, and not the revenue survey map : and the fact remains that the thak was prepared in the presence of the persons concerned and was signed by them or by their agents, and that such maps have for years been accepted by the Civil Courts as evidence both of possession and of title. As the District Judge has remarked : It is unquestionable that as between proprietor and proprietor the thak has come to be regarded as a correct record of the boundaries of villages and estates.'
4. As to the impossibility of relaying the thak we are confronted by the fact that it has, in fact, been relaid. A Civil Court Amin was deputed for this purpose, and the report submitted by him was in favour of the plaintiff. In consequence of an objection taken by the other side, a Pleader Commissioner was appointed to check the Amin's proceeding. The Pleader Commissioner's report was also in favour of the plaintiff. The Subordinate Judge wont to the spot and wrote a note which has been placed on the record. The finding of the Courts is that the map is sufficient, that the trijunction was tested from six different points and was for practical purposes a fair starting point for the Amin's proceeding, that the thak agreed with the locality, that it was relaid with substantial accuracy, and that it proves the plaintiff's title.
5. Behind these findings I think we cannot go in second appeal.
6. The learned Counsel's second contention is that the lower Appellate Court has erred in law in holding that the thak is alone sufficient to prove possession as well as title. Now, it is clear (and the learned Vakil who has appeared for the respondents has frankly conceded) that in a suit for ejectment the onus is on the plaintiff to prove possession and dispossession within twelve years of suit, as well as title. In the case of the largest plot of land with which we are concerned in these appeals the Court of first instance held that the plaintiff had failed to prove possession within the statutory period and dismissed the suit as regards the area as being barred by limitation. The Subordinate Judge held that because the evidence on both sides was equally balanced and equally weak, no presumption in favour of possession following title could be made. The learned District Judge, however, arrived at a different conclusion and in doing so, expressed the opinion that it was doubtful if the plaintiff should be non-suited because he could not definitely show when he was dispossessed'. Mr. Caspersz urges that the view taken by the Subordinate Judge was clearly right, and that in the passage quoted above, the learned District Judge has found that he, plaintiff, had failed to prove possession within twelve years of suit, a finding which is fatal to the plaintiff's claim. The passage referred to is, no doubt, unfortunately expressed. But if the whole of the paragraph in which it occurs is read, it can hardly be concluded that the lower Appellate Court intended to come to any such finding as is suggested. The District Judge discusses the evidence as to possession and dispossession on both sides. He remarks that ten witnesses, who were tenants of the plaintiff, supported his case. The defendants examined an equal number of witnesses. But the documentary evidence adduced by the plaintiff was superior to that adduced by the defendants : and having regard to that circumstance and to the fact that the title was with the plaintiff, he accepted the plaintiff's evidence and concluded by saying that he reversed the finding of the lower Court. In our opinion, there is no error of law in this connection on the part of the learned District Judge and we consider that the findings of fact conclude the question of possession.
7. There remains the contention that the Court of first instance acted irregularly and improperly in itself making a local investigation in the course of the trial and supplementing the evidence by what was noticed on the spot. In the case of Wise v. Ameeroonissa Chaton 3 W.R. 219., it was held that a Court had power to make a local investigation. That was in 1865 and the ruling has never been dissented from. The wording of Section 392 of the former Code of Civil Procedure of 1882 in fact left no room for doubt in the matter, for it permits the issue of a Commission for the purposes of a local investigation only where the same cannot conveniently be conducted by the Judge in person'. Moreover the Subordinate Judge in the present case not only made his observations in the presence of the parties and their Pleaders, he also recorded the results in a written report. This report has not been placed before us and it has not at any time been shown to be erroneous in fact.
8. In so far as the learned Subordinate Judge based, his deduction from observation of the outstanding features of the locality, no sort of objection can be made. The only objection in which there is any substance relates to plot No. 2 in Suit No. 55. Here the allegation in the plaint was that an old khat had been diverted and that the defendants' homestead had been extended. The defendants in their written statement denied that they had diverted the khat at the time alleged in the plaint. The learned. Subordinate Judge directed his local investigation to this point. He noted the marks of the cutting of a new khat. He made borings in the earth and noted the character of the soil. He also noted the comparative levels of certain hollows in' the ground alleged by the defendants to be tanks. The defendants thereupon admitted that they had diverted the khat, but produced evidence to prove that this had been done more than 12 years before suit. The plaintiff produced evidence that the diversion had taken place within the 12 years. In deciding which evidence to believe the learned Subordinate Judge called in aid the result of his observation. He says : The defendant, Siddik Ali, deposed that no earth was thrown there after the earthquake. He did not however make such a statement after I examined the strength of the soil'. The Subordinate Judge had found the soil loose. We have carefully considered the matter and have come to the conclusion that in so dealing with the case the learned Subordinate Judge cannot be said to have committed an error of law. It is not possible to say that the looseness or compactness of the soil was matter upon which expert evidence was alone admissible or that the learned Subordinate Judge was not entitled to draw his inference from these 'matters before him'. (See definition of the word 'proved' in Section 30 of the Evidence Act). There is no decision of this Court that we know of to the contrary. The result is that this ground also fails.
9. The appeals are dismissed with costs.