RAMSUNDER RAI Vs. RAMASRAY RAI

JUDGEMENT

(1.) The case of the plaintiffs, who are the appellants, is that, the suit lands, 6 bighas 7 kathas in area, form part of Batwara plot No. 535 appertaining to Tauzi No. 13800. of village Sasan, which was comprised of several tauzis including Tauzi Nos. 1877, 1891 and 1878. Before the survey operations, the records of which were finally published in 1901, a Collectorate batwara took place of the aforesaid tauzis, as a result of which, Tauzi No. 13800 was carved out for the plaintiffs' ancestors from the parent tauzi 1877. The suit land belongs to that tauzi. The plaintiffs' ancestors took delivery of possession along with other plots, that were allotted to their share, in the batwara in the year 1898 and since then they have been in possession throughout. Proceedings under Section 145 of the Code of Criminal Procedure were started between the defendants 1st and the defendant 2nd party, in which the defendants 1st party claimed the batwara plot No. 535 as their survey plot No. 3648/4626 and as forming part of their Tauzi No. 13488. Those proceedings ended in favour of the defendants 1st party on 4-9-1950. The plaintiffs were not impleaded as parties to that proceeding, although it had been pointed out in the written statement filed by one side that the land appertained to Batwara plot No. 535 and it was a part of Tauzi No. 13800 and it belonged to the plaintiffs. On the strength of the orders passed in the proceedings under Section 145 of the Code of Criminal Procedure, the defendants 1st party were alleged to have threatened the plaintiffs with dispossession and interference. Accordingly, the present suit was instituted for declaration of title with a prayer that if the defendants 1st party were found to have dispossessed the plaintiffs during the pendency of the suit, or, if the Court finds that the plaintiffs were dispossessed from the land, then possession should be restored to the plaintiffs.

(2.) The suit was contested by defendants 1 and 2, who will be referred to as defendants 1st party in this judgment. Their defence was that the disputed plot did not form part of the Batwara plot No. 535. In fact, the survey plot in village Sasan, numbered as 3648/4626 relates to the suit land, but due to the mistake of the survey authorities, (the plot number was mentioned in the record of rights as 3648 only. The defendants claimed their possession all through and alleged that the plaintiffs were never in possession of the suit land. Defendant 2nd party was said to be the relative of the plaintiffs. It was alleged that since the orders under Section 145 of the Code of Criminal Procedure were passed against the defendant 2nd party, he has now set up the fight through the plaintiffs in the present litigation. 2a. The trial court found that the disputed land actually formed part of plot No. 3648/4626 and did not form part of Batwara plot No. 535. It further held that the plaintiffs had failed to prove either their title to or possession over the suit land. Accordingly, the suit was dismissed. The plaintiffs preferred an appeal against that, which has been disposed of by the learned Subordinate Judge in Title Appeal No. 14 of 1957/148 of 1955. The lower appellate court has now held that the suit did form part of Batwara plot No. 535, but it has held that the defendants having been in continuous possession for more than 12 years, their title has been perfected by adverse possession and the plaintiffs have been, therefore, non-suited.

(3.) The main point canvassed in this second appeal is whether, in view of the finding that "admittedly the disputed land is in the river bed and even the rightful owner cannot bring it under cultivation during the rainy season," the defendants can be said to have completed the title by adverse possession. In other words, the question is whether by the fact that there is seasonal submergence of the land under water for three months every year, there is interruption of the adverse possession by the defendants. In cases of this nature, what is really to be considered is whether the possession of the rightful owner is interrupted during the period when the land goes under water and is incapable of being actually possessed by the defendants for any purpose. Learned counsel for the appellants referred to a few cases in this connection, which are the cases of Secretary of State v. Ram Bachan Lal, AIR 1941 Pat 422, and the case of Kameshwar Singh v. Shree Ram Janki, F. A. No. 478 of 1946, decided by this Court on the 12th May, 1953 (Pat). These cases have followed the principle laid down by their Lordships of the Judicial Committee in the case of Secretary of State v. Krishnamoni Gupta, 29 Ind App 104 (PC), and the case of Basanta Kumar Roy v. Secretary of State, 44 Ind App 104 : (AIR 1917 PC 18). Lord Sumner has laid down in the last mentioned case that constructive possession of lands while diluviated being in the true owner, there cannot be continuous adverse possession, within Article 144, of land while it is diluviated during part of every year. In that case the lands were under submergence for five months during which period individual plots lost their identity. In the case reported in AIR 1941 Pat 422, the lands used to be under submergence for three months and no cultivation was possible. In the case of Abdul Latif Khan v. Somar Kunjra, AIR 1942 Pat 341, which was cited by the learned counsel for the respondents, their Lordships, after discussing the cases reported in AIR 1941 Pat 422, 29 Ind App 104 (PC) and 44 Ind App 104 : (AIR 1917 PC 18), observed as follows :