JUDGMENT 1. The action which has given rise to this appeal was for declaration of the right of the Plaintiffs to the land in controversy as reformation on the original site of and contiguous accretion to their permanently settled Chur Barni Tepri for ejectment of the Defendants therefrom and for mesne profits. The Plaintiffs are admittedly the proprietors of Pergunnah Isapshahi and also of the estate No. 59 of the Collectorate of the district of Pubna which latter was permanently settled with their predecessors in the year 1853. The lands of estate No. 59 were formed by the recession of the river Karotoya, and as the predecessors of the Plaintiffs were the proprietors of Pergunnah Isapshahi within the ambit of which the lands were formed, the Government made settlement with them. The chur so settled was called Chur Barni Tepri after the name of the village adjoining it. The original village Barni Tepri, however, with some other villages in Pergunnah Isapshahi was held by a family called the Sanyals as a permanent mokurari tenure under the proprietors of Pergunnah Isapshahi. This tenure was called Tarup Chapri. Tarup Chapri was sold in execution of a decree for arrears of rent obtained by the predecessors of the Plaintiffs against the Sanyals in the year 1885 and was purchased by some of the Defendants and the predecessors of the others, and they obtained possession shortly after, though the exact date of such possession cannot be ascertained from the judgments of the lower Courts. The Defendants averred that the land covered by the suit was a part of their permanent tenure, Tarup Chapri, and Mouzah Barni Tepri and that they were in possession adversely to the Plaintiffs for more than twelve years. The main issues in the case related to questions of title and possession of the Plaintiffs within twelve years. The Subordinate Judge who tried the suit came to the conclusion that a portion of the land in controversy was included within the Plaintiffs' permanently settled estate No. 59, i.e., Chur Barni Tepri and was not a part of the Defendants' permanent tenure Tarup Chapri. He also held that the lands had reformed within twelve years of the commencement of the suit and the claim was not, therefore, barred by limitation. 2. He also held that the lands had reformed within twelve years of the commencement of the suit and the claim was not, therefore, barred by limitation. 2. On appeal by the Defendants the learned District Judge affirmed the decree of the Subordinate Judge though for reasons somewhat different from those contained in the judgment of the Subordinate Judge. The findings of the learned Judge are as follows:-- 3. The lands of the estate No. 59 were formed by the recession of the river Karotoya and came into the possession of the Government in or about the year 1852. 293 bighas were permanently settled with the predecessors of the Plaintiffs in the year 1853. In 1855 the lands of this estate were measured and a mahalwari map was prepared by the Collectorate, and this map showed that the land in controversy was a part of the estate. The Plaintiffs had, therefore, title to such land. As regards the plea of limitation, the learned Judge held that after the settlement of 1853 the lands were again submerged and remained under water for a good long period. They re-appeared between the years 1866 and 1885. After re-appearance and before 1885, portions of it were cultivated by squatters who paid no rent to any zemindar and who were not assessed for it. The Defendants took possession adversely to the Plaintiffs after the year 1886, i.e., within twelve years of the commencement of the suit. The allegation of the Plaintiffs of possession and dispossession in the year 1887-88 as made in the plaint was not true. 4. The first question that has been argued by the learned vakil for the Defendants-Appellants, is that the mahalwari map cannot be used as evidence for the reason that as it is not a map made for a public purpose no presumption of its accuracy can arise under sec. 83 of the Evidence Act and no evidence of its accuracy was furnished. We find, however, that the objection in the precise form now given to it was taken in neither of the lower Courts nor was it formulated in the grounds of appeal presented to this Court. The contention in the lower Courts was that the document was irrelevant and inadmissible under any circumstances, a contention which is no longer urged in this Court, the map being clearly relevant under sec. 36 of the Evidence Act. The contention in the lower Courts was that the document was irrelevant and inadmissible under any circumstances, a contention which is no longer urged in this Court, the map being clearly relevant under sec. 36 of the Evidence Act. If the document had been inadmissible as evidence against the Defendants even if it had been duly proved, objection could have been taken to its admissibility in any stage of the case. But an objection as to the mode of proof of a document is one which, in our opinion, should be taken at the time that the document is attempted to be put in and the Appellants having omitted to do so, cannot now for the first time, in second appeal, be permitted to raise it. In Kanto Prosad Hazari v. Jagat Chandra Dutta ILR 23 Cal. 335 (1895), referred to by the learned vakil for the Appellants, a question was raised as to whether the lower Appellate Court acted properly in remitting the case to the Court of first instance for proof of the accuracy of a document which was relevant under sec. 36 of the Evidence Act, but of which the accuracy could not be presumed under sec. 83, No proof was given in the Court of first instance of the accuracy of it. This Court in appeal approved of the action of the lower Appellate Court in remanding the case. The question before us in this appeal is a different one. No objection was taken, as we have seen, in this case in the lower Appellate Court and no occasion arose for that Court to consider whether it should remand it for the purpose of proof of the accuracy of the mahalwari map. We are of opinion that the Appellants are not now entitled to ask us either to reject the mahalwari map or to remit the case for proof of its accuracy. The map is an attested copy of a document lying in the records of the Collectorate of Pubna and the document is more than thirty years old, and it may be fairly inferred that objection was not purposely taken to its being admitted without proof of its accuracy. 5. The question of limitation is more important and of greater difficulty. The map is an attested copy of a document lying in the records of the Collectorate of Pubna and the document is more than thirty years old, and it may be fairly inferred that objection was not purposely taken to its being admitted without proof of its accuracy. 5. The question of limitation is more important and of greater difficulty. The learned District Judge has thrown the burden of proving adverse possession for more than twelve years upon the Defendants to enable them to sustain the plea of limitation, and it has been argued that the burden of proof has been misplaced. We have been referred to Mahomed Ali Khan v. Khaja Abdul Ganny ILR 9 Cal. 744 (1883) and Mohima Chunder Mazoomdar v. Mohesh Chandra Neogy ILR 16 Cal. 473 (1888) as authorities for the proposition that the burden of proof in all cases, where the Plaintiff asserts his own possession and subsequent dispossession by the Defendant, is on the Plaintiff. There can be no doubt that that is ordinarily so. In Mahomed Ali Khan v. Abdul Ganny ILR 9 Cal. 744 (1883), Wilson, J., in delivering judgment of the Full Bench said:--"We think further that as a general rule the Plaintiff cannot merely by proving possession at any period prior to twelve years before suit, shift the onus to the Defendant" and referring to Nitrasur Singh v. Nunda Lal Sing 8 Moores I.A. 199 (1860), the learned Judge said "the Plaintiff had adduced evidence to show possession earlier than twelve years before suit, but the Privy Council treated it as immaterial saying that the land in question may have been part of Mouzah Gopalpore and as such may have been enjoyed by Plaintiff's ancestor, and yet he may have lost by lapse of time the right to recover them." In Mohima Chunder Mozoomdar v. Mohesh Chandra Neogy ILR 16 Cal. 473 (1888), the Judicial Committee thus lays down the rule:-- "In all actions for ejectment where the Defendants are admittedly in possession and a fortiori where, as in this case, they had been in possession for a great number of years and under a claim of title it lies upon the Plaintiff to prove his own title. 473 (1888), the Judicial Committee thus lays down the rule:-- "In all actions for ejectment where the Defendants are admittedly in possession and a fortiori where, as in this case, they had been in possession for a great number of years and under a claim of title it lies upon the Plaintiff to prove his own title. The Plaintiff must recover by the strength of his own title, and it is the opinion of their Lordships that, in this case the onus is thrown upon the Plaintiffs to prove their possession prior to the time when they were admittedly dispossessed, and at sometime within 12 years before the commencement of the suit, namely, for the two or three years prior to 1875 or 1874 and that it does not lie upon the Defendants to show that the fact the Plaintiffs were dispossessed." 6. The lands, however, in the present case were incapable of the ordinary acts of possession or actual user for a long series of years, and when they re-appeared they were not at once taken possession of by the Defendants adversely to the Plaintiffs. During the period of submergence the true owners, i.e., the Plaintiffs, must be held to be in constructive possession. [The Secretary of State for India in Council v. Krishnamoni Gupta 6 C.W.N. 617 : s.c. ILR 29 Cal. 518 (1902)]. When the lands reappeared, they could not be immediately fit for enjoyment in the ordinary way and the change of condition must have been gradual and difficult of observation while in progress. The rule of limitation as to lands of the class in controversy in this case, is thus laid down in Mahomed Alt Khan v. Khaja Abdul Ganny ILR 9 Cal. 744 (1883). "That when land has been shown to have been in a condition unfitting it for actual enjoyment in the usual modes at such a time and under such circumstances that that state naturally would and probably did continue till within twelve years before suit, it may properly be presumed that it did so continue and that the previous possession continued also until the contrary is proved. This presumption seems to us to be reasonable in itself and is in accordance with the legal principle now embodied in sec. 114 of the Evidence Act." The presumption, however, is not conclusive after the land re-appeared and reformed. This presumption seems to us to be reasonable in itself and is in accordance with the legal principle now embodied in sec. 114 of the Evidence Act." The presumption, however, is not conclusive after the land re-appeared and reformed. The learned District Judge says that the chur might have been forming gradually and it is possible that trespassers cultivated it prior to 1885. If squatters were in possession their possession was neither continuous nor adverse to the Plaintiffs. These squatters never asserted right in themselves and their possession was casual. The learned District Judge says no one claimed rent from them and they did not pay rent to any one and that is the usual way in which chur lands are occupied in the beginning. A mere trespass without claim of right does not amount to an ouster of the true owner and the character of the possession of a mere squatter is nothing else. In Watson v. Government 3 W.R. 75 (81) (1865), Norman, J., speaking of the claim of a squatter observed:--"If he is a mere raiyat, his possession is not adverse. Again, as a mere squatter he cannot plead limitation." The Plaintiff as well as the Defendants are not actual cultivators. They are proprietors, either as zemindars or tenure-holders and their possession must necessarily be by receipt of rent from raiyats in occupation. The occupation by squatters though they are trespassers in one sense, could not, when they did not assert any right in themselves and most probably would have been prepared to pay rent to the true owners, be considered in law to be adverse to the Plaintiffs, the true owners. The nature of the chur and jungle lands is peculiar and the mere cessation of possession cannot amount to discontinuance of possession, unless it is followed by the possession of another person in whose favor time would run. The nature of the chur and jungle lands is peculiar and the mere cessation of possession cannot amount to discontinuance of possession, unless it is followed by the possession of another person in whose favor time would run. The Plaintiffs, who had the rights might not have been in actual possession, but there was no actual possession by another ousting the Plaintiffs The actual taking of possession of chur land by a person asserting a proprietary right, his causing a measurement and settling raiyats or assessing rent on the raiyats actually cultivating portions of the land generally indicate that the land or a large portion of it is fit for use in the ordinary way, and until then cultivation is precarious and uncertain and the same piece of land is seldom cultivated in successive years. Possession of the last kind can hardly be said to be effective in calculating the period of limitation. There was thus no dispossession or discontinuation of the possession of the Plaintiffs within the meaning of Art. 142 of the second schedule of the Limitation Act before 1885. 7. But then the question arises who was in possession by receipt of rent or adversely to the Plaintiffs after 1885 and before the Defendants took possession adversely. If the land was after 1885 in the possession of trespassers claiming a right against the Plaintiffs and if there was an interval of time between the abandonment of possession by the first trespasser and the taking of possession by the Defendants, the lawful owners, i.e., the Plaintiffs might be deemed to have been restored to possession, and they were not continuously out of possession for more than twelve years. During the interval, limitation did not continue to run. In Trustees Executors and Agency Company v. Short L.R. 13 A.C. 793 (1888) the land in dispute was until recently waste. The Plaintiffs proved a complete documentary title, but they failed to prove possession by actual occupation during twenty years preceding the commencement of the suit. The Defendant also failed to prove continuous possession during the statutory period. In Trustees Executors and Agency Company v. Short L.R. 13 A.C. 793 (1888) the land in dispute was until recently waste. The Plaintiffs proved a complete documentary title, but they failed to prove possession by actual occupation during twenty years preceding the commencement of the suit. The Defendant also failed to prove continuous possession during the statutory period. It was held by the Judicial Committee--"If a person enters upon the land of another and preserves possession for a time, and then without having acquired a title under the statutes abandons possession, the original owner on the abandonment is in the same position in all respects as he was before the intrusion took place. There is no one against whom he can bring an action. He cannot make an entry upon himself. There is no positive enactment, nor is there any principle of law, which requires him to do any act to rehabilitate himself. The possession of the intruder, ineffectual for the purpose of transferring title, ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner or any secret process at work for the possible benefit in time to come of any casual interloper or lucky vagrant." The facts of the case are very similar to those of the present case, and the principle enunciated by the Judicial Committee has been accepted as applicable in this country in Secretary of state for India v. Krishna Moni Gupta 6 C.W.N. 617 : s.c. ILR 29 Cal. 518 (1902), in case of lands submerged by water and incapable of the exercise of the ordinary acts of possession, and it has been held that there was no bar of limitation against the true owner when the land was under water within twelve years of the commencement of the Suit by the owner against the trespasser, on the re-appearance and re-formation of the land. 8. In the present case though the land reformed more than 13 years before the commencement of the suit, there is no finding in the judgment of the learned Judge as to who, if any, was in possession immediately before the commencement of the adverse possession of the Defendants. 8. In the present case though the land reformed more than 13 years before the commencement of the suit, there is no finding in the judgment of the learned Judge as to who, if any, was in possession immediately before the commencement of the adverse possession of the Defendants. If it is proved that there was no one in possession claiming a title against the Plaintiffs during the interval the possession of the Plaintiffs must be considered to continue. If the state of things, as it existed before 1885, continued until the Defendants took possession, no bar of limitation can, as we have seen, be set up against the Plaintiffs. If on the other hand the Plaintiff had no possession, but some other person or persons were in possession as trespassers against them and there was no interval of time between the abandonment of possession by such person or persona and the commencement of the possession of the Defendants, the Plaintiffs' suit would be barred by limitation. 9. There being no finding in the judgment of the learned Judge on the matters indicated above, we are of opinion that the case should be remitted for a fresh decision on the question of limitation. We accordingly remand this case to the District Judge and direct that the costs of this appeal will abide the result.