KRISHNA NANDI Vs. LOKENATH MOOKERJEE

JUDGEMENT

(1.) These are two appeals and arise out of the same suit which was commenced by the plaintiff who is appellant in Appeal No. 1841 of 1929 for declaration of his title to a portion of the river known as Kana Nadi. The plaintiff's case is that the river formed part, of a village which he claims both in patni and darpatni right. In para. 3 of the plaint it is stated that the river was being possessed from time immemorial as jalkar, and the plaintiff alleges that these lands form part of the mauza called Naya Chak and that he was in possession of the same through his tenant who is a pro forma defendant in the suit. The plaintiff further alleges that defendant 1 has with the object of creating evidence of title created several collusive documents in concert with other defendants to the suit. A proceeding under Section 145, Criminal P. C, was started between the parties, and the proceeding related both to the river bed and the watery portion of the river. In that proceeding possession was awarded by the Magistrate to defendant 1. The plaintiff consequently seeks in this suit for an injunction restraining that defendant from dispossessing him. It is also prayed in the alternative that if the plaintiff is found to have been dispossessed as a result of Section 145 proceeding or otherwise possession might be given to him. The case set up in defence by defendant 1 is that the river in dispute formed part of two villages of Harishpur and Jala Biswanathpur and his contention is that he has been in possession of this river by letting out the jalkar of this river to tenants. He further alleged that ho exercised possession in respect of the river by collecting tolls from boats when the boatmen plied over the river. He challenged also the plaintiff's title to the disputed river as forming part of the disputed village Naya Chak. The other defendants raised the same defence as defendant 1. Several issues were framed in the suit. The Court of first instance came to the conclusion that the plaintiff has established his title to the river-bed or to the river in the suit by holding adversely to the plaintiff on the question that defendant 1 has acquired a right in the fishery or a jalkar right. The Munsif has granted a decree to the plaintiff subject to the jalkar right of defendant 1. In other words it is said in that decree that the defendant may possess the right to fish in the river either by himself or through his tenants to the exclusion of the plaintiff or his tenants if any for the same.

(2.) Against this an appeal was taken to the Court of the Subordinate Judge of Howrah by the plaintiff and. there was also a cross-objection by defendant 1 in so far as the plaintiff's title to the river in the suit was declared. His contention was that the plaintiff's suit should have been dismissed in its entirety. The Subordinate Judge found on the question of title in favour of the plaintiff. He however differed from the Munsif on the question as to whether the plaintiff's suit Is barred by limitation under Art. 142, Schedule 1, Lim. Act, and he came to the conclusion that defendant 1 has acquired a right by prescription in the jalkar before an obstruction was caused in August 1924 by the plaintiff by the erection of a dam. In this view he affirmed the decision of the Munsif although his reasons with reference to the question of limitation, adverse possession, and prescription are not the same as those of the Munsif.

(3.) Against this decision two appeals have been preferred one by the plaintiff which is numbered 1841 and the other by defendant 1 which is numbered 2128. Both sides contended respectively that on the findings arrived at by the Subordinate Judge there should have been a decree in favour of the plaintiff in its entirety or that the suit of the plaintiff should have been dismissed in its entirety. This is the extreme contention respectively of the plaintiff and defendant 1 in these two appeals. It will be necessary to deal with the two appeals separately. I take Appeal No. 1811 of 1929 first. In this case a very careful argument has been addressed to me by Mr. Hiralal Chakravarty who appears for the plaintiff-appellant and he has said nothing which does not merit consideration. Nonetheless after hearing his argument and hearing the respondent I have come to the conclusion that this appeal must be dismissed. The main ground upon which there has bean controversy before me in this appeal is that on the findings arrived at by the lower appellate Court there has been such an interruption of adverse possession of defendant 1 that the plaintiff's title could not be said to be extinguished by such possession. At one stage of the argument it was conceded by Mr. Hiralal Chakravarty that having regard to the frame of the plaint the proper article applicable to the case is Art. 142 and that therefore it was incumbent upon him to prove that be was in possession within 12 years of the institution of the suit. He seeks to discharge the burden of proof which lies on him by showing that on the findings it appears that during the period of 12 years from the date of the institution of the suit he has erected a dam over the channel in question. It appears however that according to the findings of the lower appellate Court defendant 1 had been in uninterrupted, open and peaceful enjoyment of the right of fishery from 1310 (1903) to 1331 (1924). This continuous possession for more than the statutory period would entitle the defendant to succeed with regard to the right of jalkar in the river if such possession has been a possession of one single person or of the defendant and his predecessor-in-interest.