JUDGMENT Mitra, J. - This is an appeal in an action for recovery of possession of a plot of land situated in a mouzah called Baradhusia. It is a part of an estate known as Gunga Mandal which is under the management of the Receiver of this Court. The Receiver granted an ijara and the ijaradar in turn granted a dur-ijara. The Plaintiff claims on a lease for 3 years, dated the 25th Magh 1306, B.S., granted by the dur-ijaradar. The Munsif gave the Plaintiff a decree, but on appeal the Subordinate Judge has reversed the same holding that it is not proved that the land in suit was a part of the mal lands of Gunga Mandal and that the Receiver of the High Court has not been shown to have granted power to the ijaradar to settle lands of the description given in the plaint. 2. It has been found that the land is within the ambit of the mouzah Baradhusia; that it was not cultivated until very recently and was used by the villagers for grazing cattle and that the occupation of the Defendants is of a recent date. It has also been found that the dur-ijaradar had in him the right to grant a sub-lease, but that the authority of the ijaradar was not proved, though it was conceded that the ijaradar had a lease of the entire estate Gunga Mandal from the Receiver of the High Court. 3. Upon these facts two questions have been argued before me:-- First--That the ijaradar having a lease of the entire estate of Gunga Mandal, there is a presumption in favour of the lessee that the land in suit was included in it and that the lessee had the power to let out the land. Non-production of the document creating the lease was not material as the fact of the settlement was admitted. 4. I think the contention is right. The lease carried with it the right to let out the lands of the mehal and if it be found that the land in suit is a part of the mehal, the authority of the ijaradar and of the dur-ijaradar must be presumed. The decision of the lower Court on the point is obviously erroneous. 5. The lease carried with it the right to let out the lands of the mehal and if it be found that the land in suit is a part of the mehal, the authority of the ijaradar and of the dur-ijaradar must be presumed. The decision of the lower Court on the point is obviously erroneous. 5. The second point argued before me is, that upon the facts found a prima facie case was made out that the land was a part of the mal land of the estate. 6. The Munsif discussed the evidence on both sides and came to the conclusion that the Defendants had no title, and the plea of lakhiraj set up by them was not true, and upon the facts proved by the Plaintiff coupled with the want of title in the Defendants be held that the land was mat. 7. The Subordinate Judge has confined his attention to the evidence of the Plaintiff and he has held that the Plaintiff has failed to make out a prima facie case. 8. I think the Subordinate Judge is wrong in the view he has taken. The Defendants are no doubt in possession under an alleged lakhiraj title, but his possession is of a recent date. In fact no one was in possession until a very recent time. 9. According to the ancient law and custom of the country a portion of the land of every village is kept apart for the use of the villagers as pasture ground. It is common pasturage of their cattle. But as soon as any portion of the land is made culturable it becomes a part of the raiyat (sic) of the village. There is seldom village in Bengal which has not a large piece of land attached to it for the grazing of the cattle of the village. Manu speaks of such pasture land in Chap. But as soon as any portion of the land is made culturable it becomes a part of the raiyat (sic) of the village. There is seldom village in Bengal which has not a large piece of land attached to it for the grazing of the cattle of the village. Manu speaks of such pasture land in Chap. 8, Verse 231, "On all sides of a village or small town let a space be left for pastrue, in breadth either 400 cubits or three casts of a large stick; and thrice that space round a city or considerable town." Yajnavalka also says:-- "There shall be set aside in every village a piece of pasture land, the quantity of the land to be set aside being determined by the villagers themselves (where the land to be set aside is small area) or by the king (where a large tract of land is intended to be set aside). A Brahmin has the right to collect grass (for his cows) twigs (for homa) and flowers (for worship) wherever and whenever he finds them." 10. The use of the land for the purpose of grazing cattle cannot, therefore, in itself be evidence of a right in the Defendants or in the villagers. 11. In Ooma Churn Chowdhury v. Umbika Churn Dey 20 W.R. 285 (1873) it was held that when a piece of land is situated within a taluk as a grazing common for the pasturage of cattle, no presumption can be drawn against the talukdar on account of its use by other persons. This view is consistent with Hindu law and the well-known rights of village communities in India. 12. In the Decennial Settlement of 1790 which was followed by the Permanent Settlement of 1793, no reservation was made in the assessment of land as regards pasture lands used by the villagers. They were included within the assessment as parts of the villages settle with the zemindars. The use of the land in suit as pasture ground would favour the contention of the Plaintiff that the land was included in the Decennial Settlement within the village Baradhusia in the eastate Gunga Mandal. 13. It is not always easy to have access to the settlement papers of 1790, and the mere fact of the non-production of these papers or of private zamindari Chittas cannot go against the case of the land being mal. 14. 13. It is not always easy to have access to the settlement papers of 1790, and the mere fact of the non-production of these papers or of private zamindari Chittas cannot go against the case of the land being mal. 14. when the ordinary presumption is in favour of the land being mal, when a landlord sues for possession of land lying within the ambit of his estate on the ground that it is mal and not lakhiraj of the Defendants the burden of proof is, no doubt, upon the Plaintiff landlord as held by the Judicial Committee in Hari Har Mukhopadhya v. Madhab Chandra Babu 8 B.L.R. 566 (1871). "He (the landlord) may do it by proving payment of rent at some time since 1790 or by documentary or other proof that the land in question formed part of the mal assets of the Decennial Settlement of the estate. His prima facie case once proved the burthen of proof is shifted on the Defendant who must make out that his tenure existed before December 1790." It was pointed out to their Lordships that if the burden of proof were thrown entirely upon the Plaintiff it would sometimes fail notwithstanding that the truth was in the landlord's favour. "But" their Lordships further observed "this can only happen by reason of the inability of the Plaintiff to give prima facie proof of the fact which is the foundation of his title; a circumstance not likely to occur unless the Defendants or those from whom they claim have been long in possession of the tenure impeached; nor is it, in their Lordships' opinion to be regretted if in such cases effect is given to those presumptions arising from long uninterrupted possession which were heretofore excluded only by the exceptional procedure applied to resumption suits under the Regulations." 14. The reason of the rule, therefore, as regards the burden of proof is mainly that where possession for a long time by a Defendant is admitted to be undisturbed, the Plaintiff must give affirmative proof of the land being part of his decennially settled estate. In the present case, however, the Munsif found and that finding has been practically affirmed by the Subordinate Judge that the Defendants have recently come into possession and the land was waste all along until a recent time. In the present case, however, the Munsif found and that finding has been practically affirmed by the Subordinate Judge that the Defendants have recently come into possession and the land was waste all along until a recent time. I have already stated that the fact of its being pasture land of the village raises a presumption in favour of the Plaintiff and if the case were tried with a view to this presumption and any presumption that may arise from the land being within the ambit of the village Baradhusia forming a part of the estate Gunga Mandal and also the Defendants' want of title and possession for any length of time the Court may come to a just conclusion as regards the rights of the parties. It is not fair that the suit should be dismissed merely on the ground that the settlement papers have not been produced. I think, therefore, the case should go back to the Subordinate Judge for a decision on the merits with reference to the observations made above. Costs of this appeal will abide the result.