1. These are three appeals by the defendant and arise out of three suits commenced by the Maharaja of Tripura for recovery of khas possession of lands mentioned in the respective schedules to the plaint in the three suits on declaration of his title by auction-purchase, The case stated in the plaint in each of these suits is that the disputed lands in these suits appertained to taluk Uddhab Ram Deb which is admittedly held under the zemindari of the plaintiff-respondent, that so far back as the year 1877 the Maharaja became the owner of this taluk by purchasing the same in execution of a decree for rent against the holder of the taluk, that in the year 1880 in execution of that decree for rent the Maharaja obtained delivery of possession. The plaintiff states that the defendant has been in actual possession of the disputed lands without obtaining any settlement from the plaintiff or without payment of rent and that they are trespassers and as such they are liable to be evicted. The defence of the defendant in each of these three suits is that these lands did not appertain to taluk Uddhab Ram Deb the title of which is now vested in the plaintiff but it appertains to taluk Ram Chandra Thakur which is also a taluk situate within the zemindari of the Maharaja and that the defendant held under leases from the talukdars of the said taluk. The defendant also raised the plea of limitation.
2. The Court of first instance dismissed all these three suits. On appeal to the District Judge of Tippera the learned District Judge has reversed the decision of the Court of first instance in part and he has given a decree to the effect that the plaintiff is entitled to recover possession in suit lands of Appeal No. 9 before him which corresponds to Second Appeal No. 1431 before us in regard to all the lands except parts marked in the Commissioner's map as A.B.B. and D. In the suit to which Second Appeal No. 1432 corresponds the learned District Judge has given a decree to the plaintiff in all the lands except a part marked M in the Commissioner's map and in the suit to which Second Appeal No. 1433 corresponds the learned District Judge has given a decree to the plaintiff for the part marked P in the Commissioner's map.
3. Against the decision in these three suits as modified by the learned District Judge the present appeals have been preferred to this Court and three points have been taken by the learned Advocate for the defendant who is the appellant before us.
4. It is argued in the first place that the decision of the lower Appellate Court is wrong with regard to the question of title seeing that the said Court has treated the Record of Rights as being the basis of the plaintiffs title to taluk Uddhab Ram Deb in other words, it is suggested that the learned District Judge had treated the Record of Rights as having created the title of the plaintiff in taluk Uddhab Ram Deb. With regard to this ground it is sufficient to state that this is not a fair criticism of the judgment of the learned District Judge. The learned District Judge has not attached to the Record of Rights greater weight than it is in law entitled to. He has given to the plaintiff the benefit of the presumption which arises from the entry in the settlement record which shows that the suit lands in these three suits were part and parcels of taluk Uddhab Ram Deb. After giving the benefit of that presumption to the plaintiff he has considered the evidence given on behalf of the defendant to rebut the presumption arising from the said entry and the learned District Judge points out that there is very little evidence on the side of the defendant to show that the owners of the rival taluk Ram Chandra Thakur took the least interest in the land or had possession of it through tenants, in other words, the learned District Judge holds that he is not satisfied that the presumption arising in favour of the plaintiff has been rebutted by any evidence given on the side of the defendant. In this view, we think, the first ground which has been taken on behalf of the appellant must fail.
5. The second ground urged before us is that the lower Appellate Court has gone clearly wrong on the question of limitation. It is said that as Article 143 of the First Schedule to the Limitation Act applies to the case and as the plaintiff is out of possession for more than 12 years of suit the plaintiff's suit should have been dismissed in respect of all the lands in these three suits. We are unable to agree with this contention. The finding with reference to the lands in the three suits in respect of which the learned District Judge has granted decrees to the plaintiff is that they are jungle lands, that they are lands incapable of being possessed, that they are jungle lands in contrast with other cultivated lands in respect of which plaintiff's claim has been dismissed in respect of the three suits. But having regard to the nature of the lands although Article 142 is the proper article which is applicable, the possession of the rightful owner must be held to continue up to the time when the lands are shown to be capable of being possessed. The true rule in cases of this kind has been laid down in the decision of this Court in the case of Mahomed Ali Khan v. Khaja Abdul Gunny 9 C. 744 : 12 C.L.R. 257 (F.B.) which was the decision of the Full Bench. This matter has also been recently considered by the learned Chief Justice and two other learned Judges of this Court in Letters Patent Appeal No. 2 of 1926. In that ease the learned Chief Justice laid it down that in an action for ejectment the plaintiff has always to show, that he was in possession within 12 years of suit but in the application of this rule there is a difference between land which is ready for use or cultivation, land which is under water and incapable of any use and land such as jungle land. In the case of jungle land, for example, it was further pointed out by the learned Chief Justice that it is not enough for the plaintiff to prove his title but he can make a case by showing as an additional fact either that the land in question was incapable of possession by any one or that in fact no one was interfering with his right. It is possession, not user that has to be shown. See Gopal Chandra v. Manmohini Dasi : AIR1928Cal118 . The learned District Judge rightly describes that these are wholly jungle lands and are incapable of any use and that the portions that have been brought under cultivation were certainly capable of being possessed. The learned District Judge has rightly dismissed the claim of the plaintiff in respect of those lands. We think, therefore, that the contention that the learned District Judge has gone wrong on the question of limitation is of no substance and must be overruled.
6. The third ground taken is one which is peculiar to Second Appeal No. 1433. It is said that this case stands on a somewhat different footing from the other two appeals seeing that in this case a decree was obtained by one Chandra Kumar Chakravarty who purported to hold this land as tenant under the talukdar of taluk Ram Chandra Thakur for possession so far back as 1908 and plot No. P in respect of which the plaintiff has got a decree was one of the plots included in that suit, and that consequently so far as this suit is concerned at any rate the plaintiff's claim must be held to be barred by the statute of limitation. I do not think that the fact that there has been the decree to which the plaintiff zemindar was no party' is of any assistance to the appellants. The findings in the judgment which have culminated in the decree of 1906 are no evidence against the plaintiff who was no party to the same. The decree though not inter partes can be received as evidence of a transaction in which an assertion was made by the defendant's predecessor Chandra Kumar Chakravarty of his right to possess this land but there being this clear and distinct finding with regard to the plot No. P in Appeal No. 1433 that the land is still jungle the same rule of limitation which would apply to jungle lands with reference to the other two suits would also apply to the present case. There is, therefore, no efficacy in the special ground taken in Second Appeal No. 1433 which must fail.
7. All the grounds urged in the three appeals fail which must be dismissed with costs.
8. Two cross-objections were preferred by the Maharaja in Appeals Nos. 1431 and 1432 which have not been pressed. They are accordingly dismissed without costs.
9. I agree.