JUDGMENT Muhammad Rafiq and Piggott, JJ.
1. The plaintiffs in this case are the proprietors of village Bakhshpur in the Pilibhit district, and the defendants are the holders of certain muafi lands situated within the same village. It appears that the muafi lands held by the defendants are on the boundary of the village, at a point where it is subject to fluvial action by the Khakhra river. The real dispute between the parties is whether certain land, accreted to village Bakhshpur by alluvion through the action of the Khakhra river at this point, accrues to the muafi lands of the defendants and becomes a part of their muafi holding, or accrues to the village of Bakhshpur as a whole and becomes a portion of the village lands of which the plaintiffs are proprietors. This was the first point raised by the pleadings. The defendants further pleaded that the plaintiffs suit was barred by limitation, as they had never been in possession within 12 years of the institution of the suit of any portion of the land claimed. The court of first instance held that the plaintiffs were bound to prove their possession within limitation in respect of this land, and, finding that they had failed to do this, dismissed the suit on the issue of limitation only. On appeal the learned Additional Judge has neither held that the suit is barred by limitation nor that it is not so barred. He says that the court of first instance has mislaid the burden of proof and that it was for the defendants to show that they had been in possession for more than 12 years before the institution of the suit. On this he has decreed the plaintiffs appeal, and remanded the case under Order XLI, Rule 23, of the Code of Civil Procedure, for disposal on the merits, the effect of his order is to put the parties in a difficulty as it is open to question whether the learned Munsif accepting the directions of the lower appellate court regarding the burden of proof, could still find that the suit is barred by limitation. In any case, it is not a good ground for passing an order of remand under Order XLI, Rule 23, to say that the preliminary issue has. been decided by the court of first instance on a wrong view of the burden of proof, unless the appellate court also finds that that decision was wrong. Regarding this question of the burden of proof we have heard both parties, and we think it desirable to make one or two remarks. The suit as framed was undoubtedly one to which article 142 of the first schedule of the Indian Limitation (Act No. VIII of 1908) would apply, and the learned Munsif was right in saying that on the suit thus framed, it lies on the plaintiffs to prove both title and possession within limitation. We think, however, that the first court did not fully realize the sort of evidence which might, perhaps, have been sufficient to discharge the burden of proof Laid on the plaintiff in this matter. If the suit is to be disposed of on the limitation issue alone without any finding on the question of title (and we are not sure that this is, in fact, a suitable way of disposing of the present case), that issue will have to be disposed of on the assumption that the plaintiffs are right and the defendants are wrong on the issue of title. Looking at the case in this way, it could be open to the plaintiffs to prove that the land in suit had accrued by alluvion within limitation, or that although it had accreted more than 12 years before the institution of the suit it had remained within the limitation period, waste or jungle land, in respect of which the presumption would arise that possession went with title. The law on this point is Laid down in Jagadindra Nath Rai v. Hemanta Kumari Devi (1912) 8 A.L.J. 1170. We may remark on this point that the evidence of the settlement papers as to actual possession does not seem to have been considered at all by the lower appellate court, there is a presumption that the possession of the parties was correctly shown in those records until the contrary is proved.
2. We set aside the order of the Additional Judge and direct that court to readmit the appeal to its file of pending cases and dispose of it according to law, with due regard to the remarks made in this order. If the lower appellate court is of opinion that the case cannot be disposed of on the question of limitation without a finding on some other issue, it will, of course, be open to it to exercise its powers under Order XLI, Rule 25, of the Code of Civil Procedure. But the case should not be remanded under Rule XXIII of that order unless the finding on the question of limitation is definitely reversed. Costs here and hitherto will abide the event.