1. This appeal arises out of a suit brought by the plaintiff to recover khas possession after declaration of his title of a tank known as Bara Bhatpukur with its banks. The plaintiff's case is that this tank is situated in Mouza Nari and within his zemindari Touzi No. 29b9 of Hughli Collectorate formerly Touzi No. 568 of 24-Parganas Collectorate in respect of 8-annas and in respect of other 8-annas share it was within the zemindari of Maharaj Kumar Tagore under whom Defendants Nos. 5 and 6 were patnidars that the plaintiff was in possession but subsequently Defendant No. 1, as lessee under the Maharaja of Burdwan came into possession-The Burdwan Raj having had the tank recorded as being within Mouza Kallayanpore within its zemindari in the record-of-Rights, which was finally published in 1896. The learned Munsif found that originally the plaintiff with his co-sharers had title to this tank but that by adverse possession they had lost title and, therefore, he dismissed the suit. In appeal before the Additional Subordinate Judge the plaintiff urged that the claim of the Maharaja and his lessee to title by adverse possession had not been proved, the Maharaja in supporting the first Court's decision further urged that the plaintiff had no title to the tank at all and that it had always appertained to his zemindari. The learned Subordinate Judge found in favour of the plaintiff on both these points and the Maharaja of Burdwan, who is Defendant No. 2 in the suit has appealed. No appeal has been filed on behalf of the lessee the successor-in interest of the original lessee Defendant No. 1.
2. The facts as to this tank as appear from the findings of fact, which have been arrived at by the lower Court may be briefly stated as follows: It lies just on the boundaries between Mouzas Kallayan-pore and Nari; and when the Thak Survey took place in 1855, there was a dispute as to the mouza to which it belonged. The tank is described by the learned Additional Subordinate Judge as a ' mathan ' tank, i.e., situated in the midst of fields. It appears to have been covered with weeds and jungles in recent times until is was re-excavated and put in order in about 1907 by Defendant No. 1. In 1855, however, at the time of the Thak Survey as we said, there was a dispute as to which mouza it belonged and on that occasion it was found that it belonged to Mouza Nari, Touzi No. 564 of 24-Parganas Collectorate and not to Kallayanpore Mouza and the Thakbust map was ordered to be corrected accordingly. There is no evidence that after this any act of possession was exercised in respect of this tank; but when the record-of-rights was prepared of lands within the ambit of the burdwan Raj in 1896, it appear; to have been entered in Mouza Kallayanpore and subsequently, in 1901 a pattah was given to the present Defendant No. I, on behalf of the Burdwan Raj for it. After that it would appear that Defendant No. 1, paid some tent. But the finding of fact arrived at by the learned Subordinate Judge is that he did not exercise any act of possession beyond occasional catching of fish and there was no real act of possession openly adverse to the plaintiff exercised by Defendant No. 1, up till about the year 1906, and after that time the Defendant No. 1, did, as a matter of fact, clear out the weeds, re-excavating the tank, and let out some of the banks. Finally, however, in 1916 the plaintiff's servants caught fish in the tank and thereupon Defendant No. 1, brought a Small Cause Court case (being Case No. 488 of 1918) and obtained a decree against the plaintiff for the value of the fish so caught. Thereupon this suit was brought. The learned Subordinate Judge found, as a matter of fact., that in view of the decision of 1855 the title to the tank was with the plaintiff and that since then though there has been this record-of-rights, and though Defendant No. 1 had taken lease from Defendant No. 2, so far back as 19.01, there was no adverse possession by Defendant No. 1 and Defendant No. 2, to the plaintiff till about the year 1907 when, as a matter of fact, the Defendant No. 1 actually cleared the tank and lot out the banks for agricultural purposes. He holds, therefore, that as adverse possession only began to run in 1907, the suit to recover possession was not barred in November 1918 and he, therefore, decreed the plaintiff's suit.
3. In this appeal, the first point urged on behalf of the appellant is that the plaintiff has failed to prove his title to the tank; the second point is that the finding as to adverse possession is wrong, that Defendants Nos. 1 and 2 have, as a matter of fact, been in adverse possession for a period considerably more than 12 years from the date of the institution of the suit.
4. As to the first point, it is urged that there were no papers put before us of the Permanent Settlement to show that the tank actually fell within the ambit of the village Nari at that time, it is next urged that the Thak and Survey papers of 1855 are insufficient to decide the question and that the proceedings that arose in 1895 show that the Burdwan Raj was in possession before that time but had been dispossessed. The fixing of the Thak boundaries was made after the decision of the dispute between the parties by the Revenue authorities and it must go to establish that from 1855 on wards possession was with the plaintiff; nor does it appear that the Burdwan Raj ever contested that position for 40 years after that decision by bringing a suit in the civil Court. But it would appear that when the record-of-rights was prepared in 1896 under the old Chap. X of the Bengal Tenancy Act, the Burdwan Raj pointed out this tank as being within the ambit of Mouza Kallayanpore and in the finally published record the tank was so included. It is urged, however, on behalf of the respondent that the presumption, which arises in consequence of this entry is of little value. In the first place, there is nothing to show that the zemindars of the mouzas lying on the boundaries of the Burdwan Raj Estates, mouzahs were present at the Survey or knew at all of the entries in this record-of-rights; and in this connexion reference is made to the decision in the case of Bidhu Mukhi Debi v. Bhugwan Chunder Roy Chowdhury  19 Cal. 643, where it was held that an Executive Officer, acting under the provisions of Section 103, Bengal Tenancy Act as it stood in 1896 has no power to determine the boundaries between conterminous estates as to, which a bona fide. controversy exists between the owners of such estates. In this case as I have already said, there is no evidence to lead us to hold that the owners of the conterminous estates were before the Revenue Officer in these proceedings. We must, therefore, hold that the decisions of the two Courts below that the plaintiff had title to the tank in question any how by 40 years' adverse possession is fully established.
5. The next point is whether he has lost that title by adverse possession, Now, here we are bound by the findings of fact found by the first appellate Court. It is clear that in 1901 the Burdwan Raj granted a pattah to Defendant No. 1, in respect of this tank. But the learned Judge find; that after that period and up to 1906, the evidence of possession on behalf of Defendant No. 1 is of a very meagre character. The tank was full of weeds and the evidence of his possession consists of isolated acts of catching fish once or twice a year and it was not until within V years of this suit being brought that Defendant No. 1 really took any real interest in the tank at all. It appears that about 1907 he did let out some of the land; on the banks of the tanks and he took the trouble to clear the weeds. But as has been pointed out In the case of Radhamoni Debi v. Collector of Khulna  27 Cal. 943 to prove title by adverse possession, as Defendants Nos. 1 and 2 seek to do the possession required must be adequate in continuity, publicity and ex-tent. As we read the findings of fact of the learned Subordinate Judge the evidence of fishermen going into the tank, catching some fish and giving to defendant No. 1 a share of them did not amount to such possession; and on this finding we can only conclude that until 1907 there is no adequate adverse possession by Defendants Nos. 1 and 2 at all. Anything done up to that was done merely behind the back of the plaintiff and his co-sharers. Accepting this finding of fact we must, therefore, hold that Defendants Nos. 1 and 2 have failed to prove adverse possession for a period of 12 years prior to the institution of the suit so as to destroy the plaintiff's title. Defendant No. 1 is now dead and is represented by his minor son. No appeal has been preferred on his behalf. It was sought on behalf of him to argue that independent of the lease of Defendant No. 2 he has at least an occupancy right in the tank. It does not appear to us that the lease given to his predecessor in 1901 was an agricultural lease at all. But apart from that we cannot further go into this matter as this question should have been a matter of appeal and no appeal has been lodged.
6. In the result of the above findings we dismiss the appeal with costs.