Lord Blanesburgh. -

The question at issue in this suit is as to the ownership of some 44 bighas 8 kathas of agricultural land lying within the ambit of the mauza of Bele Pomo in the zemindari of the Maharajah of Darbangha. The lands constitute the bulk of a single well-defined block of three jotes having a total area described throughout the proceeding as of 59 bighas and 8 kathas. The remaining 15 bighas 4 kathas occupy a central position in the block, being surrounded by the 44 bighas. The whole area has been claimed by Bajit Lal Pathak, the first respondent. But it is his claim to the 44 bighas which is alone in question in this suit. His claim to the 15 bighas has been dealt with in a separate suit to which, with its result, reference will later on be made.

The history of the lands is voluminous but as it has been detailed with much care and precision in the judgments below, it need not be again elaborated here. The plaintiff's case - and by the term "plaintiff" their Lordships when they use it will refer to respondent 1, who in all proceedings has been the real contestant on one side, just as when they use the term defendant" they will refer to appellant 1, the Maharajah of Darbangha, who has in all proceedings been the real contestant on the other side; - the plaintiff's case has been that the lands formed three hereditary jotes held by his ancestors with occupancy rights and enjoyed by himself and his tenants until the time when, shortly before this action was brought, he was displaced from possession.

In this suit, in which the plaintiff seeks to recover the lands of which he was so dispossessed, many issues were raised by the defendant. Some of these must be referred to, not because they remain active, but because the fact that the defendant raised them and failed, may have a bearing on the question which still remains for decision. That is the single question whether the 44 bighas claimed by the plaintiff or any of them form part of his three jotes. It is a mere question of identity of parcels. The doubt upon it - one raised by the defendant very late in the day - is occasioned by some kind of change which 30 or more years ago took place in the course of the river Kosi, flowing through or near the village. What then actually happened has been differently described by the defendant at different stages of the dispute, and to this specific matter their Lordships must for a special reason return later. It suffices to say now that for a period of 12 or more years, between 1895 and 1907 and as a result of the visitation, whatever was its nature, much of the land of the village fell out of cultivation, and, when ultimately deliverance came and the lands were in process of restoration to husbandry, it was found that the plaintiff on the one hand and the defendant on the other were ranged as rival claimants for the whole block.

There was at this time, and for long after, no question as to the particular lands claimed by each side. Both parties had got kabuliats from their own respective tenants with whom the lands had already been settled and the terms of these kabuliats sufficiently show that the contestants, if they were agreed on nothing else, were at one as to the identity of the land they were each claiming : the defendant asserting his right thereto as Part of the Raj, which he might settle with whom he pleased, the plaintiff's claim being that already stated. Nor was this question of identity raised when the contest as to these lands first became acute. This was in 1916. The plaintiff had erected on the lands a kamatghar. A body of men acting, as it was alleged, at the instigation of the Raj, broke in and almost demolished it. Only the thatch was left hanging on two poles, and the other materials were scattered and destroyed. In the criminal proceedings under S. 145, Criminal P. C., which ensued, the question who was in de facto possession of the lands on which the kamatghar was placed had to be determined, and in view of