JUDGMENT

1. The suit out of which this appeal arises was brought by the plaintiffs to recover possession of certain lands, which had been leased to the defendants, by ejecting the defendants from the same.

2. The plaintiffs' case was that the lands were their zerait lands, that they had been leased to defendants under a series of leases, and that the term of the last lease having expired, the defendants had no right to remain in possession and that the plaintiffs were entitled to recover possession.

3. The defendants on the other hand denied the plaintiffs right to eject them from the lands alleging that they had acquired occupancy-rights in the lands by having been in possession for more than 12 years.

4. It appears that the lands were originally jungle lands and that the same share which the plaintiffs had in the village in which these lands are, was originally mortgaged to the defendants. During the period of the mortgage the defendants reclaimed the lands in suit and cultivated them for about 2 or 3 years before the end of the last mortgage lease. On the expiry of that lease the defendants appear to have remained in possession of the lands and afterwards the lands were leased out to them by the plaintiffs on a series of leases for terms of years. In these leases the lands are described as khudkasht lands.

5. The Court of first instance held that the lands were the khudkasht lands of the plaintiffs and that, therefore, the plaintiffs were entitled to recover possession from the defendants.

6. On appeal the District Judge reversed the judgment and decree of the Court of first instance holding that the defendants had acquired rights of occupancy in the lands.

7. The plaintiffs have appealed and the main point which has been argued in support of the appeal is that the District Judge is wrong in his conclusions that the defendants have acquired occupancy-rights in the lands.

8. It has been argued on behalf of the appellants that admittedly during the ticcadari period, that is to say, the period during which the defendants held possession of the lands as mortgagees, the defendants could not have acquired any occupancy-rights and that as under the leases subsequently granted and accepted by the defendants the lands were held by them as khudkasht lands of the landlords, they could not have acquired occupancy-rights during that period.

9. It has further been contended that the lower appellate Court has erred in placing the onus on the plaintiffs to prove that the lands are khudkasht lands.

10. It has been argued that even though under the law the onus may primarily have been on the plaintiffs, they had sufficiently discharged it when they had proved that under the leases the lands were described as khudkasht lands and were held by the defendants under the leases as such That thereafter the onus was shifted on to the defendants and it rested with then to prove that they had acquired occupancy-rights during the period of the leases.

11. In support of the case for the appellants reliance has been placed on the case of Batai Ahir y. Bhuggobutty Koer. 11 C.L.R. 476, and the case of Narsing Narain v. Dharam Thakur 9 C.W.N. 144. It is, to be observed that the case first relied upon is one which was decided before the passing of the Bengal Tenancy Act and that case as well as the other are distinguishable, from the present as in both of them it was alleged that the defendants had come on to the lands as trespassers whereas in the present case it is admitted that the defendants were in possession of the lands as tenants.

12. On behalf of the respondents it has been contended that the decision arrived at by the District Judge is correct. That under the provisions of the Bengal Tenancy Act before the plaintiffs could be regarded as entitled to recover possession of the lands, it was necessary for them to prove that the lands were their zerait lands as described in Section 120 of the Bengal Tenancy Act; that the District Judge was right in holding that th