1. This is an appeal by the defendants and arises out of a suit for possession brought by the plaintiff under the following circumstances. The plaintiff's case was that the lands in dispute belonged to his zemindari which after partition amongst his co-sharers fell to his exclusive share in the year 1325. The lands according to the plaintiff belonged to Mouza Lakshmipur and were held by a Kotwal as chakran lands and no rent was paid by him as he held them as service tenure. But the plaintiff further alleged that the chakran lands were resumed by an arrangement with the Kotwal who was to be paid his wages in cash and not by the profits of the lands as had been the arrangement' before the lands were resumed. The defendants were according to the plaintiff trespassers on the land although the plaintiff added that the defendants were in possession under same Settlement from the kotwal. The defence of the defendants was that the lands were never held by the kotwal in lieu of services but that the defendants held the lands directly under the zemindari although the profits of the lands were ear-marked for the wages of the kotwal. The defendants also alleged that the rent payable by them for the lands was Rs. 1-4 a year. The learned Munsif held that the plaintiff failed to prove that the lands were chowkidari chakran lands and that the plaintiff's story of resumption of any such chakran lands was not true. The learned Munsif further found that the defendants who were proved to have been in long possession of the lands even upon the evidence adduced by the plaintiff were tenants holding directly under the landlord and not under the kotwal. In that view he dismissed the suit. On appeal by the plaintiff 'the learned Subordinate Judge has reversed the decree of the Munsif and has given the plaintiff a decree for khas possession. The learned Subordinate Judge in considering the question whether the lands were chowkidari chakran lands or not relied upon certain entries in the batwara papers showing that the lands were recorded there as chowkidari chakran lands and there was no mention of the defendants as tenants of these lands. It appears that the defendants objected to the admissibility of these papers as evidence against them. The learned Subordinate Judge held that those papers were, admissible in evidence on the authority of the case of Janki Dobey v. Kirtarath Roy 4 Ind. Cas. 316 : 13 C.W.N. 93. These batwara papers were prepared by the Collector under Act V of 1897. In the case replied upon the question was as to the amount of rent payable by a tenant whose name appeared in the batwara papers as a tenant and this Court held that as a partition under Act V of 1897 was made after a proceeding by the Revenue Officers in the way of Record of Rights after notice upon all concerned the partition papers and the entries therein would be some evidence against the parties concerned. The judgment of this Court is as follows: 'We have, therefore, no doubt that entries in partition papers as to the amount of rents payable by tenants are evidence in the same way as entries in the Record of Rights prepared under Ch. X of the Bengal Tenancy Act are admissible as evidence under Section 103B. Prima facie they are evidence against the tenants, though that evidence may not be very valuable.' It was not laid down and it could not be that the presumption which arises as to the correctness of an entry in the Record of Rights under Section 103B of the Bengal Tenancy Act would also attach to an entry in the batwara papers. Now, in the present case the defendants were not recorded as tenants. They were strangers to the proceedings.' I do not think, therefore, the reasons upon which the batware papers were treated as admissible in evidence against a tenant in the case cited above apply to the case of a stranger to those proceedings. It appears to me that the finding that the lands were. chowkidari chakran lands is based wholly upon the record in those proceedings. So far as a stranger is concerned the only way in which those papers can be treated as evidence would be under Section 11 of the Evidence Act on the ground that in the partition proceedings the lands were claimed as chowkidari chakran lands. The entries in those papers could not be in any way binding upon a stranger to those proceedings. The evidentiary' value of those papers it appears to me has been considered from a wrong point of view altogether. I think, therefore, the lower Appellate Court ought to before setting aside the positive finding of the Munsif, find whether the evidence in proof of the plaintiffs claim as to the lands in suit being chowkidari chakran lands is sufficient when re-considered in view of the observations made above.
2. Then it appears that the lower Appellate Court finds that the defendants have not made out that they are tenants holding directly under the zemindar. It appears to ma that so long as the finding of the First Court stands- the finding that the plaintiff's story of resumption is a false one the plaintiff cannot eject the defendants who according to him were holding the land under the kotwal. Until the alleged resumption is established the right of the kotwal according to the allegation in the plaint would be subsisting.
3. A plea of limitation was also raised in the Courts below. The Court of first instance held that in the view that he took of the case the question of limitation did not arise. But the moment it is held that the defendants are trespassers, the plaintiff will have to prove his possession of the land within 12 years of the suit. He may succeed in doing so by showing that the defendants held under the kotwal and that the kotwal's right to hold the lands as service tenure has come to an end. In that case the possession of the defendants would be adverse from the time when the chakran right ceases on account of the resumption of the howkidari lands by the plaintiff. But as have pointed out above the lower Appellate Court has come to no finding upon the question as to whether or not the lands were chowkidari chakran lands and such were resumed by the plaintiff.
4. In this view of the case the judgment decree of the lower Appellate Court are set aside. The appeal should be re-heard by that Court in the light of the observations which I have made in this judgment.
5. Costs of this appeal and of the Courts will abide the result.