1. In the suit out of which this appeal has arisen the plaintiff sued for the recovery of some 4 bighas odd of land. His case was that the land in suit formed part of the mal land of th& zamindar of the village. The plaintiff took a lease from the patnidar, defendant 1 being, he alleged then, the patnidar's gomashta and having granted the lease, plaintiff has been dispossessed by defendant 1 and hence this suit.
2. The defence was that the lands in. suit did not fork part of the zemindar's mal land in village Kharagore but that it was lakheraj lands of which they; had taken settlement from the shebait.
3. The trial Court found the plaintiff had not made out any title and dismissed the suit.
4. On appeal to the District Court the appeal was dismissed. In dealing with the appeal the learned Judge found that it had not been proved that the land in suit was the mal land of the zamindar. The view that he took was that it was not sufficient to shew that the land was within the ambit of the zamindari. The fact that the land was within the ambit of the zemindary would not of itself shew that the land was mal land. Hence he dismissed the appeal.
5. The plaintiff has appealed and his main ground of appeal to this Court is that the learned Subordinate Judge was wrong in the view he has taken of the law. He contends that it is sufficient for him to shew that the land is within the ambit of the zamindari and then the burden of proof is on the other side to shew that the land is lakheraj. The first case on the point to which we have been referred is Hurryhur Mukhopadhya v. Madhub Chandra Babu  14 M.I.A. 152. This case certainly does not help the appellant. The Privy Council held that the burden was on the zamindar to prove that the land was mal (p. 172). It is certainly no authority for the proposition that it is sufficient for the zamindar to shew that it is within the ambit of the zamindari. The next case to which we have been referred in the case of Jagdeo Narain Singh v. Baldeo Singh A.I.R. 1922 P.C. 272, also a decision of the Privy Council. The portion of the judgment on which reliance has been placed by this appeal will be found on pp. 930 and 931 (of 27 C.W.N.) of the report. Their Lordships remark:
Once, however the landlord has proved that the land which is sought to be held rent free lies within his regularly assessed estate or mahal the onus is shifted. In the present case the lands in dispute lie within the ambit of the estate which admittedly belongs to the plaintiff...and for which they pay the revenue assessed on the mouzah. In these circumstances it lies upon those who claim to hold the lands free of the obligation to pay rent to show by satisfactory evidence that they have been relieved of this obligation either by contract or by some old grant recognized by Government.
6. This decision has been discussed and interpreted by Walmsley, J., in the case of Sashi Bhusan Hazra v. Kazi Abdullah : AIR1924Cal328 . Walmsley, J., is clearly of opinion that what their Lordships intended to lay down was that the zemindar must prove the land lies within his regularly assessed estate or mahal and that it was not sufficient to show merely that it lay within the ambit of his zamindary. It must be shown that it formed part of the mal assets at the time of the decennial settlement. Beading the judgment of the Privy Council in Jagdeo Narain Singh's case A.I.R. 1922 P.C. 272 as a whole I think this is the correct interpretation. No doubt the sentence : 'in the present case the land lies within the ambit of the estate etc., etc.,...' read by itself might lend some support to the appellant's contention but read with the sentence which comes before it, it is quite clear that the Privy Council do not lay down any other rule than the rule to be found in Hurryhur's case  14 M.I.A. 152.
7. It is not, therefore, sufficient to shift the onus of proof to show that the lands lie within the ambit of the zamindari. To shift the onus of proof it must be shown that the land formed part of the mal assets at the time of the decennial settlement. The learned Judge was right.
8. This point is decided against the appellant; lastly it has been argued that defendant 1 being the gumashta of the landlord at the time of the settlement with the plaintiff is estopped from saying that the land is not mal.
9. Whether he is or is not is a question of mixed law and fact. It would appear that the plaintiffs gave up this point in the trial Court. They cannot be heard to urge it now, therefore. The result is this appeal fails and is dismissed with costs.
10. I agree.