Lord Russell of Killowen.—

The dispute in this appeal relates to certain lands situated in village Hasanpur Sangama, also known as Chaita, in the district of Darbhanga, amounting to about 192 bighas and bearing Towzi No. 8176. The suit was instituted by the plaintiffs, who are the appellants before this Board, against four groups of defendants, who are the respondents on this appeal, for a declaration that the lands were ziraat of the proprietors of the village. The plaintiffs own a share of 11 annas in the village, and the second and fourth groups of defendants, the remaining 5 annas. The lands are in the possession of the first and third groups of defendants, and it is they who are contesting the plaintiffs' claim. The main question for determination in this appeal is whether the lands are ziraat or proprietor's private lands within the meaning of the Bengal Tenancy Act.

The plaintiffs acquired their interest in the village under three deeds of sale: one of 5 annas 6 gundas, from Mt. Jighri Begam, dated 1st April 1914, another also of 5 annas 6 gundas from Syed Nawab Ali, dated 11th June 1919; and the third of about 6 gundas from Ram Bahadur, dated 31st October 1919. The share sold by Syed Nawab Ali to the plaintiffs was purchased by him from Umatul Mehdi on 4th July 1913.

All the 16 annas share were held at one time by an indigo factory, known as the Rewari Indigo Factory under various leases from the proprietors of the village. It appears that one E. S. Llewelyn was the owner of the factory, and H. M. Mackenzie represented his estate. The last of these leases expired on 26th September 1912 but the factory continued in possession of most of the lands, and paid rent to the proprietors. None of the leases has been produced, and it does not appear when the other leases expired.

In 1914 Mackenzie as representing the estate of Llewelyn, sold, 103 out of the 192 bighas to the first group of defendants. In 1915 he sold another 69 bighas to the third group of defendants.

On 24th September 1919, the plaintiffs alleging that the lands were ziraat filed a petition under the Estates Partition Act 1897, for a partition of their share. The first group of defendants appeared in the proceedings, and claimed that Mackenzie had acquired a right of occupancy in the lands and that they as purchasers from him, were entitled to that right. The Board of Revenue upheld the defendants' claim and directed partition on that footing.

Thereupon the plaintiffs filed the present suit on 28th April 1922, in the Court of the Subordinate Judge of Darbhanga, for a declaration that the first and third groups of defendants (who will be referred to as the defendants) had no right of occupancy in the lands, that the lands were ziraat and should be partitioned as such and for an injunction restraining the defendants from taking further action in the partition proceedings until the disposal of the suit. The main defence was that the lands were raiyati lands and that the defendants had a right of occupancy in them.

The Subordinate Judge held that the lands were ziraat and decreed the plaintiffs' claim. From that decree the defendants appealed to the High Court at Patna. The High Court found that the defendants had a right of occupancy in the lands, and they reversed the decree of the Subordinate Judge, and dismissed the suit. From this decree the plaintiffs have appealed to His Majesty in Council.

It is indeed remarkable that though the plaintiffs rely in support of their case on the presumption laid down in S. 103-B, Cl. (3). Ben. Ten. Act, no entries from the Record of rights have been produced. That clause provides that an entry in a Record of Rights :

"shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect."

It is however common ground that the lands were recorded under three categories one comprising 18 bighas, 5 kathas, another 65 bighas, 5 kathas, and the third 108 bighas 17 kathas.