1. The suit out of which this appeal has arisen relates to some plots of char lands in the bed of the river Boiran. Both the Courts below have decreed the plaintiffs' suit mainly on the finding that that part of the river was within the Zemindari of the plaintiff and the pro-forma defendants. The defendants have appealed and three points have been urged in support of the appeal.
2. In the first place, it is contended that the Court of appeal below has not only not given due weight to the Thak map but on the contrary has attached undue weight to the revenue survey map. It is conceded that according to the Thak map this part of the river would be included in the Zemindari of the -defendants which is contiguous to that of the plaintiff. According to the Revenue survey map the position would be otherwise. With reference to the Thak map the learned Subordinate Judge has accepted the reasons given by the Munsif for accepting the revenue survey map as correct in including the river in question within mouza Alamnagar the plaintiffs taluk. The reason given by the Munsif for his view is that he was so satisfied on a consideration of the whole evidence in the case which consisted of Government Batwara Chittas of 1846, several chittas from 1275 to 13.L5 filed by the plaintiff, the pottos and jama-bandi papers. Giving due consideration to all these items of evidence, the learned Munsif records his conclusion in the following words: 'Considering the circumstances the thak loses much of the value usually attached to it.' The Court of Appeal below has also attached great weight to the report of the Commissioner appointed in the case who held a local investigation and whose report has not been successfully challenged by any party. It is, however, pressed upon us that all other evidence should be subordinated to the thak map which was prepared so long ago as 1851. The survey map was prepared the next year, namely 1852 and in laying down the boundaries between the plaintiff's mouza Alamnagar and the defendants mouza Mirzapur it makes some deviation from the line as shown in the Thak map. The thak map is only a piece of evidence. It has been held in the case of Jagadindranath Boy v. Secretary of State for India 30 C. 291 : 30 I.A. 44 : 7 C.W.N. 193 : 5 Bom. L.R. 1 (P.C.), that maps and surveys made in India for revenue purposes are official documents prepared by competent persons and with such publicity and notice to persons interested as to be admissible and valuable evidence of the state of things at the time they are made They are not conclusions and may be shown to be wrong; but in the absence of evidence to the contrary they may be properly judicially received in evidence as correctly made. In fixing the boundary line between the estates there is no reason to suppose that greater weight should be attached to the thak map than to the Revenue survey map. If any evidence supports the survey map, it is open to a Court of fact to consider its evidentiary value in connection with other evidence in the case. We have been referred to several oases in which the evidentiary value of thak maps has been considered. These oases are appeals from original decrees in which the Court was invited to consider the evidence on the record, one of which was the thak map and in the special circumstances of each case relative value was attached to those maps. This matter, however, comes before us in second appeal. We are not in a position to say in considering the judgment of the lower Appellate Court in second appeal that that Court ought to have given more weight to one piece of evidence than to any other. The question with regard to the weight of evidence to be attached to thak maps is a question of fact. Such a question went up to their Lordships of the Judicial Committee in the case of Jagadindra Nath Boy v. Secretary of State for India 30 C. 291 : 30 I.A. 44 : 7 C.W.N. 193 : 5 Bom. L.R. 1 (P.C.), which was an appeal from the decree passed in second appeal by this Court. The learned Judges who heard the second appeal differed on some points from the District Judge but as they were of opinion that he had not committed an error of law affecting the issues which related to the position of the disputed land they dismissed the appellant's appeal. Special leave to appeal was granted by their Lordships of the Judicial Committee. After considering several oases in which questions like these were sent back for further enquiry, their Lordships observed that in the case before them the same course might have been taken; but as no error in point of law was committed in deciding the case on the evidence as it stood, the decision of the District Judge must be upheld. The appeal was accordingly dismissed. We are unable to hold that we would be justified in second appeal in interfering with the conclusion arrived at by the Court below.
3. It is next contended that the lower Appellate Court has erred in law in holding that the onus of proof of adverse possession was on the defendants. The plaintiff's case was that she was in possession of the disputed land for some time before she was dispossessed by the defendants in 1318. The Court of first instance held that the plaintiff was in possession at least in the years 1315, 1316 and 1317 and that she was dispossessed about the time of the settlement in 1318-19. The suit was brought in 1919 and, therefore, was within time. The learned Subordinate Judge while not displacing that finding of the Munsif that the plaintiff was in possession up to 1318 records his finding on this point in the following sentence. 'The plaintff's evidence is that she was dispossessed at the time of the last cadastral survey in 1318 B. B. This appears to be probable.' In another part of his judgment he observes as follows 'The asli lands of. the tenants of the contending defendants are near to the disputed lands. So they got a golden opportunity to get forcible possession of the newly formed lands within the period of limitation.' The learned Judge then goes on to consider the law laid down by the Privy Council in the case of Basanta Kumar Boy v. Secretary of State for India 40 Ind. Cas. 337 : 44 C 858 : 1 P.L.W. 598 : 32 M.L.J. 505 : 21 C.W.N. 642 : 15 A.L.J. 398 : 25 C.L.J. 487 : 19 Bom. L.R. 480 : (1917) M.W.N. 482 : 6 L.W. 117 : 22 M.L.T. 310 : 44 I.A. 104 (P.C.), and he comments over the absence of evidence on the part of the defendants that they were in possession for more than 12 years. The cumulative effect of the findings of both the Courts is that both the Courts believed that the plaintiff was dispossessed in 1318; and moreover, there is the presumption of law in favour of the rightful owner and the defendants having taken forcible possession within the period of limitation it must be presumed that the plaintiff was in possession up to the date of the dispossession unless the defendants can show that they were in wrongful possession for more than 12 years before the date of the suit. In recording his conclusion on this point the learned Judge says 'I therefore hold that Article 142 I.L.A. applies to the case.' When read along with the context it appears that it was a slip of the pen and the learned Judge meant to say that Article 144 I.L.A. applies to the case. It seems immaterial as to which Article is applicable to the case. The finding of fact is that the dispossession by the defendant was within 12 years of the suit.
4. Lastly, it is argued that the plaintiff has no right to sue in ejectment and for mesne profits. This argument is based on objections under two heads. It is stated in the first place that the plaintiff's tenants having been in actual possession of the land in suit, they alone were entitled to maintain a suit in ejectment; and, secondly, it is maintained that as the tsnants of the defendants are not joined as defendants in the suit the plaintiff is not entitled to obtain a decree for khas possession as against the defendants who are the proprietors of the mouza.
5. With regard to this objection, we find that this point was not taken in the Court below. There is no mention of this objection in the written statement of the defendants. No doubt the learned Munsif in discussing the issue as to the maintainability of the suit in its present form which was raised on the other grounds has remarked that the absence of the tenants of the plaintiffs would not affect its maintainability. On, appeal the learned Subordinate Judge has not considered this point. It may fairly be presumed, considering the care and attention that he has paid to this case, that this point was not pressed before him. But an affidavit has been filed in this Court in which the defendant's pleader swears that the point was urged before the learned Judge. The learned Vakil for the respondent says that his client is unable to controvert this statement as the case was argued before the lower Appellate Court more than two years ago. The appeal was heard by the lower Appellate Court on the 3rd August 1921. The appeal to this Court was filed on 15th November 1921. The affidavit was sworn on the 17th July 1923 and a copy of it was served on the respondent on the 6th February 1924. In the grounds of appeal filed in this Court one of the grounds refers to the defect in the suit by reason of the absence of the plaintiffs tenants. So if the appellants' case is that the point was argued before the lower Appellate Court they should have filed an affidavit along with the memorandum of appeal, or, at any rate, before the respondent entered appearance. The respondent may justly contend that the matter having been dealt with so long ago as August 1921, it is not possible for her or her pleaders to remember what exactly happened at the time of the hearing of the appeal. Be that as it may, the point not having been taken specifically in the written statement and no issue having been framed on it, we are not in a position now to say that the lower Appellate Court was wrong in not considering it. It is a point which depends largely on evidence; and it cannot be said as an abstract proposition of law by that where land was in occupation of tenants the landlord has no right to maintain a suit for possession against the trespasser or if the land is in the occupation of the trespasser's tenants he cannot bring a like suit against him alone with regard to the first point alone. We may refer to the case of Buzlul Karim v. Satis Chandra Giri 10 Ind. Cas. 325 : 15 C.W.N. 752 : 13 C.L.J. 418, and with reference to the second point the principle of law is laid down in the casses of Bissesuri Dabeea v. Baroda Kanta Roy 10 O.C. 1076 : 9 Ind. Jur. 226 : 5 Ind. Dec. (N.S.) 719, Sita Bam v. Bam Lai 18 A.440 : A.W.N. (1896) 162 : 8 Ind. Dec. (N.S.) 999 (F.B.), Jogendra Nath Singh v. Secretary of State for India 17 Ind. Cas. 921 : 16 C.L.J. 385 : 17 C.W.N. 835. It appears that the question whether a suit for possession is maintainable by the landlord against a rival claimant depends very much upon the status of the tenants. In this ease, as has been observed by the pleader for the respondent, the tenants grew boro paddy on this land. We are told that the paddy is grown on lands which are not fit for growing more valuable crops. It is sown sometime before the rainy season and reaped before the floods set in. Ordinarily they are done by tenants having no permanent right to the land but who take it temporarily for the purpose. Then when one landlord is dispossessed by another landlord it is not necessary that the plaintiff should make all the tenants of the defendant parties to the suit; for, in the first place, it is difficult to ascertain the tenants who have got any tangible interest in the land, and, secondly, a suit may always be defeated by the defendant settling up new tenants to serve his purpose. Reference may also profitably be made to Order I. Ruler 9 and Section 99, Civil Procedure Code. The plaintiff is entitled to get such possession as he may be found entitled to as between parties to the suit.
6. All the contentions raised on behalf of the appellant fail and this appeal is dismissed with costs.