RAM KISHAN DAS Vs. MUL CHAND

JUDGEMENT

(1.) This appeal arises from a suit for a declaration of title in respect of the land described in Lists A and B of the plaint. The plaintiff-appellants are the Zemindars of Kotha muafi, and the defendant-respond ants are the zemindars of Rahua. The disputed land lies roughly between these two villages, and it is the case for the plaintiffs that in 1892 by the action of the river Rapti it was brought from the side of Rahua village to the side of Kotha, and that they (the plaintiffs) have been actually in possession of the land either themselves or through a predecessor from 1892 until; the date of the suit. The lower Court although finding that the plaintiffs had been in possession of the land for over twelve years before the suit, found that their possession had not been continuous owing to the fact that the land had been during part of that period submerged by the river and that in consequence the plaintiff's possession had been interrupted; and following the decisions of the Privy Council in the cases of Secretary of State for India V/s. Krishnamoni Gupta 29 C. 518 : 29 I.A. 104 : 6 C.W.N. 617 : 4 Bom.L.R. 537 : 8 Sar. P.C.J. 269 (P.C.) and Ram Narain Misir V/s. Deoki Misir 69 Ind. Cas. 912 : 20 A.L.J. 756 : 4 U.P.L.R.A) 129 : A.I.R. 1923 All. 75 dismissed the plaintiff's suit.

(2.) The coloured map, which has been filed with the plaint, is not very clear nor is it in the course which the case has taken, of very great importance, but it serves to show that the river Rapti, which, previously to 1892 separated the land in dispute from the village of Kotha muafi, moved further to the east with the result that it separated the land from the village of Rahua. We are not, however, concerned with any detailed questions of the windings of the river or the vagaries of the deep stream, the plaintiff's case is founded on the allegation of adverse possession arid nothing else. The history of the land for the purposes of the present suit starts in this year. We find that when these villages were settled in 1898, the Settlement Officer, Mr. Lupton included the disputed land in the village of Rahua and made a settlement with the zemindars, of that village, although he found that a parson named Jamna Prasad Rawat, who was the zemindar of Kotha muafi, was, actually in possession of the land.

(3.) There is no further documentary evidence after 1898 until we come to the year 1910. But before that a, new factor had arisen, because, Jamna Prasad, zemindar of Kotha muafi, had his rights sold, and they had, been purchased by the predecessor of the present plaintiffs Raghu Nath Prasad. It is important to notice that the rights of Jamna Prasad which were sold to Raghunath Prasad were only his rights in the villages of Surghanaand Kotha, and that under the sale no title in Rahua village passed to Raghunath Prasad. An argument was certainly addressed to us in this Court to the effect that Jamna Prasad having been in possession of the disputed land from. 1892, must have perfected his title by possession adverse to the zemindars of Rahua before the year 1909 when his rights were sold to Raghunath Prasad. But there is no evidence before us that when Raghunath Prasad purchased the villages of Kotha and Surghana, he also purchased any claim predatory or otherwise that Jamna Prasad may have had in this block of land that had been carved out by the river from the village of Rahua. In 1910 we find that Raghunath Prasad instituted proceedings under Section 145, Criminal Procedure Code, against Jamna Prasad, from which it may be inferred that Jamna Prasad had been trying to exercise possession in this disputed land; and the Magistrate gave a decision that Raghunath Prasad was in possession and that Jamna Prasad should be forbidden to disturb his possession.