JUDGMENT

N.R. Chatterjea, J. - These two appeals arise out of a suit for possession of 289 bighas and 7 cottas of land situated in mouza Phulia appertaining to Taraf Santipur. It appears that Mouza Phulia and 37 other mouzas constituting Taraf Santipur originally belonged to the Moharaja of Nadia. Before the permanent settlement the Raja's successor declined to take settlement of the Taraf and it was, accordingly, let out in temporary ijara by the Government to different persons from time to time. Moharaja Tej Chandra Bahadur of Burdwan purchased the right of the last ijaradar. Ultimately it was permanently settled with the Moharaja about the year 1800, and the latter granted a putni of the Taraf to one Eamesh Chandra Mukherjee in 1807. The zemindary interest passed to certain persons who may be conveniently referred to as the Tagores. The zemindar in execution of three decrees for arrears of rent against the putnidar put up the putni to sale and it was purchased by the Plaintiff on the 2nd of October 1899 and the sale was confirmed on the 28th November 1900. On the 10th September 1901 the Plaintiff applied for settlement and record-of-rights under Chap X of the Bengal Tenancy Act. In these proceedings the lands were entered as "rent-free." Objections were raised by the Plaintiff to the entry : but they were decided against him by the Settlement Officer on the 25th May 1909. On the 27th June 1909 the Plaintiff took steps for service of notice under sec. 167 of the Bengal Tenancy Act for annulment of the incumbrance of the Defendants. On the 21st July 1909 the present suit was brought on the allegation that the land formed part of the mal lands of the putni which was granted in 1807.

2. The defence was that the lands were revenue free lakhiraj, that the Defendant's predecessor had purchased them from the representatives of one Mr. Broderick, that they and their predecessors had been in possession of the lands without payment of any rent from before the creation of the putni and even from before the permanent settlement and that the suit was barred by limitation. Several other pleas were taken which will be referred to later.

3. The Defendant No. 1 claimed the lands as lahhirajdar and Defendants Nos. 2 to 5 claimed as mourasidars under the Defendant No. 1. The Court below held that no notice under sec. 167 of the Bengal Tenancy Act had been served upon Defendants Nos. 2 to 5 and, accordingly, dismissed the suit as against them. As against the Defendant No. 1, it held that notice had been served, that the suit was not barred by limitation, that the Defendant had failed to prove that the lands were held by them from before 1790 and accordingly decreed the suit against her. The Defendant No. 1 has preferred Appeal No. 409 of 1911 and the Plaintiff has preferred Appeal No. 114 of 1912.

4. The grounds taken on behalf of the Defendant-Appellant are, first, that the sale of the putni having taken place in execution of three rent decrees was not a sale under which the Plaintiff could annul incumbrances.

5. Secondly, that the notice which was served upon the Defendants not having been signed by the Collector, was not a legal notice as contemplated by sec. 167 of the Bengal Tenancy Act.

6. Thirdly, that the finding of the Subordinate Judge that the Plaintiff became aware of the incumbrance of the Defendant with in one year of the institution of the suit is erroneous.

7. Fourthly, that the Court below has wrongly placed the onus upon the Defendant of proving (a) that the lands in suit were held as valid lakhiraj from before 1790 and (b) that the possession of the Defendants commenced from before the creation of the putni in 1870, and, lastly, that the question of limitation has been wrongly decided.

8. In order to show that the lands in dispute formed part of the mal lands of the estate, the Plaintiff produced various documents for showing that there were no lakhiraj lands (except a few bighas) in the mouza. The quinquennial register mentions the