Failure to contest the status of the property as nazul and inability to establish title or possession led to the dismissal of the appeal.

Findlay, J C—I have heard counsel in this case, but am wholly unable to see any ground for interference. Some stress has been laid on the point that the lower appellate Court did not record a specific finding on whether the plot in suit fell within nazul plot 79 or nazul plot 81. For my own part, I can see not the slightest reason to disturb the finding of fact of the first Court on issues 1, 2 and 3 in this connexion. If the plaintiffs had had any ground to suppose that any portion of the site they claim stood on plot 79, it is utterly impossible to suppose that they would not have moved the Settlement Commissioner for the release of that plot also in 1916 when they were successful in securing the release of plot 81. In the circumstances of the case, it must be presumed that they had full knowledge of the fact that plot 79 was also declared nazul, and there can be no question, in those circumstances, of their not having had ample notice that their title to the vacant plot was not only disputed by Government, but that it had been formally taken over as nazul. The whole case in the plaint was that the site in suit was included in the nazul plot which had been released by the Settlement Commissioner and it was explicitly denied that the site in suit was included in plot 79 : vide para. 5 of plaintiff 1's rejoinder.

2. Some attempt has been made to suggest in this Court that, even so, the question should now be considered of whether the site in suit or portion thereof was included in plot 79, although this was explicitly denied by the plaintiffs in para. 5 of their plaint. It is needless to say that a volte-face of this description cannot be allowed on second appeal. On plaintiff 1's own admission, as P.W. 5, the house which originally stood on the site disappeared some 60 or 65 years ago and on the evidence on record, the conclusion was inevitable that the appellants have not been in possession within 12 years of the date of institution of the suit. The reason for plaintiffs' father leaving the site, viz., that the locality had come to be occupied by sweepers, makes it all the more probable that there was definite abandonment. If plaintiffs' present position were a correct one, it is inexplicable why they did not apply to the revenue authorities for the release of No. 79 at the time when No. 81 was released in his favour.

3. The principle laid down in Radhikadas v. Harmohanlal,1917 13 NLR 25 seems to me to have no application here, where the land was definitely recorded nazul and where the circumstances show that the appellants must have been aware of the fact and did not contest the question of plot 79 being nazul, but only claimed plot 81. The evidence of the nazul officer leaves no doubt whatever that the site the plaintiffs now claim is included in nazul plot 79, and the plaintiffs have failed utterly to establish either title or possession thereto. The appeal fails and is dismissed. The appellants must bear the respondents costs. Costs in the lower Courts as already ordered.

Final Result : Dismissed