In a suit for declaration of title and possession, the plaintiff has the burden of proving his title and cannot rely on the defendant's weakness. If the disputed land is an intermediary interest that vested in the State, the plaintiff must prove that his vendor retained the land according to the provisions of the relevant statute.

( 1 ) THE plaintiffs have alleged that the land of the Schedule B to the plaint forms part of the land of the Schedule A. On the 8th Dec. , 1933, one Modal Singh purchased the property of Schedule A from one Mohabir Prosad Mistri by a registered kobala and thereafter he was in peaceful possession of the same. By a registered Sale Deed dated 10-1-1962 the plaintiff purchased that property from Modal Singh. Defendants Nos. 2 to 4 have been carrying on business under the name and style of Messrs. Roy and Co. (Defendant No. 1 ). In 1958-59 the defendants illegally trespassed into the small "tin Chhapra" of Modal Singh. They possessed that shed as a godown for sometime. Thereafter they constructed a new C. I. T. sheet structure. The suit was filed for recovery of khas possession of the disputed land on declaration of plaintiffs' title thereto.

( 2 ) DEFENDANTS Nos. 2 and 3 filed a written statement alleging inter alia that the suit was not maintainable and the plaintiff had no title and possession. The property did not belong to Modal Singh, who never possessed the same. In 1948 they erected structures on the disputed land with verbal permission of the landlord. Subsequently it was renovated. They are in exclusive possession and have acquired indefeasible title thereto. The suit is barred by adverse possession.

( 3 ) THE learned Munsif issued a writ for local investigation. The Pleader Commissioner reported in plaintiff's favour. The learned Munsif believed the plaintiff's version and decreed the suit. The defendants preferred an appeal and lost the same. Hence this appeal.

( 4 ) IT has been contended at present that the Pleader Commissioner was directed by the learned Munsif to make relayment with reference to the C. S. map, but no such relayment was made. The Pleader Commissioner made a mistake in stating that the disputed land was included within the two kobalas produced by the plaintiff. But he did not apply the area test. The railway line has been shown as the western boundary But the Pleader Commissioner's case map shows that the railway line is to the further west and to the contiguous west of the disputed land there is an existence of Hill cart Road. So the western boundary did not tally. The Pleader Commissioner's report is therefore liable to be rejected. The suit is for declaration of title and hence plaintiff can succeed only on the strength of his own case. The case of Mahima Chunder v. Mahesh Chunder reported in (1888) 16 Ind App 23 at p. 26 (PC) has been cited in this connection. The documents of title (Exts. 1 (a) and 1 (b)) show that the disputed property was a part of "chukani Jote". So, it is a tenure. After the provisions of West Bengal Act I of 1954 came into force, the rights of the intermediaries vested in the State. The plaintiff has not proved that his vendor retained the disputed land according to the provisions of Section 6 of the Act. Hence on that ground alone the suit will fail. Since it was intermediary interest, the intermediary cannot, in the eye of law, retain the disputed land since the same was not retained by the plaintiff's vendor by filing a proper return. The cases have been cited to show that mere right to possess is not sufficient. If the disputed land is in possession of a trespasser, the suit by the proprietor or tenure-holder for declaration of title and possession is not maintainable. Here there was a conflict between the area and the boundary described in the two documents, Exts. 1 (a) and 1 (b ). Half cottah of land was sold to the plaintiff's vendor and that half cottah land was purported to be transferred to the plaintiff in 1962, vide the kobalas, Exts. 1 (a) and 1 (b) respectively. In the case of Durga Prosad v. Rajendra Naraian in (1909) 10 Cal LJ 570 it has been held that in case of conflict between the area and boundary, the description of the boundaries will prevail. But that decision was reversed by the Privy Council in the case reported in (1913) 40 Ind