Judgement

Appeal from a decree of the High Court (June 22, 1894) reversing a decree of the Subordinate Judge of Khulna (May 17, 1892) and dismissing the appellants suit.

The suit was brought on May 24, 1887, against the Mitter defendants and related to the possession and ownership of certain chucks or plots of land which the appellant claimed as constituting her mouzah Uttar Kulati (alias Doorgapore), and which were formerly recorded as Estate No. 44 of the rent-roll of the Collector of Jessore, and afterwards placed in the rent-roll of the Collectorate of Khulna as Estate No. 134.

The respondents claimed that the lands formed part and parcel of their village called Bil Pabla.

The appellant relied on a survey map made by Government officials in 1856, according to which the disputed chucks formed a separate mouzah of Uttar Kulati, and alleged an uninterrupted possession thereof by her husband and herself, which she contended constituted an indefeasible title in her by adverse possession. She further alleged that the Mitter defendants unjustly obtained possession under a magistrates order dated August 31, 1885, and she prayed that that order might be set aside and possession of the disputed chucks be given to her.

The Mitter defendants denied the appellants title, and claimed that the plots did not appertain to the appellants talook No. 134 or to Kulati, but to Bil Pabla. They pleaded that the suit was defective inasmuch as the Collector, who represented the Wakf estate which owned Bil Pabla, was not a party to it; and eventually he was added as a party. He thereupon pleaded limitation, alleging that the appellant had not been in possession within twelve years of suit, and in other respects adopted the defence of the Mitter defendants.

The Subordinate Judge decreed in favour of the appellant; but in appeal the High Court found that none of the land in suit lay within the boundaries of Kulati, and that the appellant had failed to prove possession of the land for twelve years before the proceeding in 1885, under which she alleged that she had been dispossessed.

C. W. Arathoon, for the appellant, contended that on the evidence the two reports of the Amin in favour of the appellant and the judgment of the Subordinate Judge in accordance with those reports were correct. The appellant had sub stantially proved her title by adverse possession from 1856 to 1885.

Cohen, Q.C., and Branson, for the respondents, contended that the suit was barred by s. 22, together with art. 47 of Act XV. of 1877. The evidence failed to prove a continuous and complete possession of the disputed lands for twelve years before the order of August 31, 1885, in such a way as would confer upon her a title by adverse possession. It was shewn that the defendants at least were in occasional and partial possession.

Arathoon replied.

The judgment of their Lordships was delivered by

Lord Robertson. The respondents are in possession of the land in dispute by virtue of a magistrates order granted in August, 1885. The onus is therefore on the appellant, who claims the land, to make out that she has the better right.

In considering the question thus raised it is well to have in mind the nature of the disputed land. Its area is about 1400 bighas; but it is a significant fact that the most various estimates on this subject have been made during the period in dispute, the reason being that very few people had occasion to be there or were interested in its size. The degree to which this is the case may be gathered from two facts. It is clearly ascertained that in 1865 there were no human beings living on any part of the ground, and only one-twentieth of the whole area was susceptible of cultivation. At the time of this action there was only one small group of dwellings. The ground, generally speaking, is jungle; but there has been in some parts more or less of intermittent cultivation.

The two competitors for this territory are, on the one hand, the Collector of Khulna (who wi