1. This second appeal is preferred by the defendants in a suit in ejectment. The suit relates to a tank claimed by the plaintiffs as appertaining to an estate No. 718 of the Birbhnm Collectorate, their 'title to which as patmdars has now been conclusively established. As to the question of limitation, there are materials on the record to support the District Judge's finding that the plaintiffs' predeoessor-in; interest was in possession of the tank within 12 years of the institution of the suit. That finding, therefore, is also conclusive.
2. The only question for our consideration is whether the learned District Judge's further finding that this disputed tank does in fact appertain to Estate No. 718 does or does not rest on evidence which is admissible in law.
3. It is common ground that in the year 1852 there was a partition of the lands common to four revenue paying estates of which the present Estate No. 718 was one. The partition was carried out, as the parties also agree, under Regulation XIX of 1814. That Regulation related to the partition of estates payiug revenue to Government. The law on the subject is now contained in the Estates Partition Act of 1897 (Bengal Act V of 1897) which superseded and repealed a previous Act of the year 1876.
4. In dealing with this part of the case, the District Judge has founded himself mainly, if not entirely, on certified copies of certain chittas and a map produced by the plaintiffs. The learned Pleader for the defendants contends that those papers are not evidence and are not within Section 35 of the Evidence Act. In support of that contention he has cited the cases of Perma Roy v. Kishen Roy 25 C. 90 : 13 Ind. Dec. (N.S.) 61 and Nanda Lal Pathak v. Chanurpit Das 18 Ind. Cas. 143 : 17 C.L.J. 462 : 17 C.W.N. 779. The latter of these two cases rests on the former and that case again rests on the earlier case of Mofii Ohowdhry v. Dhiro Misrain 6 C.L.R. 139.
5. In all three cases the papers were apparently papers prepared by a Government official in the course of proceedings taken under the Act of 1876. In none of the cases, however, did the question arise in a contest between rival claimants to the Zemindari or proprietary title.
6. In Mohi Chaudhry's case 6 C.L.R. 139 the question was the amount of rent payable by a tenant whose name appeared ito the batwara papers. In Perma, Roy's case 25 C. 90 : 13 Ind. Dec. (N.S.) 61 the contesting parties were rival tenants; and in Nanda Lal Pathak's case 18 Ind. Cas. 143; 17 C.L.J. 462 : 17 C.W.N. 779 they were landlords and persons claiming possession under a rent-free title.
7. The distinction to which I have adverted between cases in which the parties to the dispute are parties claiming under the partition and other cases is clearly vital. Reference may be made to Gopal Chunder Shaha v. Madhub Chunder Saha 21 W.R. 29 which was decided in 1873. There again the contest was between persons claiming as tenants and it was said: 'The batwara was between the Zemindars: it is not binding in any way upon the raiyats, and any statements made in the batwara chittas are no evidence as against the parties to this suit.'
8. It may be observed in passing that the law has been differently and more broadly laid down under the Act of J897. In Janki Hobey v. Kirtarath Roy 4 Ind. Cas. 316 : 13 C.W.N. 93 it was held that batwara papers were admissible in evidence for the purpose of proving the amount of rent payable by a tenant. No express reference is made to Section 35 of the Evidence Act, but stress is laid on the similarity of the procedure prescribed by Chapter VI to the procedure laid down in the Bengal Tenancy Act for the preparation of a Record of Rights.
9. In the present case the controversy arises between persons claiming as proprietors or standing in the shoes of the proprietors. The proceedings under the Regulation were proceedings to which admittedly ffae plaintiffs' predecessor-ininterest and the defendants' predecessorin-interest were parties. The chittas are not signed, but the map to which they relate purports to be signed by a Deputy Collector and the words which follow his name imply that he was attached to the western Survey Division. According to the procedure laid down in the Regulation, the division of the common lands among the different estates was first to be made by an Amin on the spot. The Amin was to prepare certain papers and transmit them to the Collector under Section 18. Under Section 19, the Collector was required to examine the papers submitted by the Amin and after hearing the parties to draw out a paper of partition. He was then to give the parties 5 days within which to make objections. If no objections were made (and there is no suggestion that any were made in this case) the next step was to put the parties inprovisional possession of the lands attached to them respectively. The paper of partition was then to be forwarded to the Board of Revenue or to the Board of Commissioners for confirmation.
10. It is said that the documents produced may be merely the chittas and map prepared by the Amin on the shop, but that is hardly consistent with the signature of the Deputy Collector on the map, to which the ehittcs are an index. Then it is said that it is not shown that the partition as confirmed by any superior Revenue Authority. Lapse of time, however, and the absence of any dispute at the time requiring settlement by such authority may account for the order of confirmation not being forthcoming.
11. The copies produced are copies of papers in the Colleotorate. The map is authenticated by a Deputy Collector. Prima facie the papers appear to me to be the record of the partition which was in fact made and, made in a proceeding between the predecessors-in interest of the present parties. If so the certified copies produced are good and admissible evidence, quite apart from anything in Section 35 of the Evidence Act.
12. The Commissioner appointed to make a local enquiry reported that according to the map in question the tank was included within Estate No. 718 and that report has been adopted by the learned District Judge.
13. In my opinion the appeal must be dismissed with costs.
14. Walmsley, J.--I agree.