SARAT CHANDRA RAY Vs. BHUPENDRA NARAIN RAI

JUDGEMENT

(1.) The plaintiff instituted this suit for declaration of title to and recovery of possession of certain lands as appertaining to Mauza Gatiasham of which he is the proprietor. This mauza is situate immediately on the north-west of Mauza Khetab Khan of which the proprietors are defendants 1 and 2. At the time of the thak survey of 1856 which is the earliest point of time at which we know anything about the situation of the two mauzas, the river Teesta flowed by their west and south-west. In the plaint the case put forward was as follows: Since the thak the river Teesta gradually shifted its course, and on two or three occasions the lands of Mauza Gatiasham were diluviated and again re-formed in situ; that for the last time diluviation began in 1323 or 1324 and continued till 1327, after which re-formation commenced, the river receding towards the west and throwing up the chur which is the subject-matter of the suit; that in 1329, when the chur became fit for cultivation, the plaintiff attempted to possess it, but defendants 1 and 2 kept him out of possession. Defendants 3 to 37 (with the exception of No. 27 who is dead) were impleaded as persons with whose help this dispossession was continued. The area of the lands in suit was stated as 450 bighas and claim was made for declaration of title, recovery of possession and mesne profits, on the ground that the lands were re-formation in situ and accretion to Mauza Gatiasham.

(2.) Defendants 1 and 2 in their written statement alleged that the disputed lands had re- formed more than 25 or 30 years ago and that thereafter the river had gradually shifted towards the west and never towards the east, so that the disputed lands had never again diluviated since then; that the area of the disputed lands is not 450 bighas but approximately 247 bighas, and that they have all along been owned and possessed by them and their father, having been obtained under a decree between him and the plaintiff's predecessor in 1862. The Subordinate Judge made a decree on the footing that a part of the disputed lands fell within the area which the defendants were entitled to under the decree of 1862. The defendants have then preferred this appeal. There is a cross-objection on behalf of the plaintiff. Before proceeding to deal with the appeal and the cross-objection a few more facts required to be stated in order that the precise nature of the decree that has been passed may be rightly understood. It has already been stated that at the time of the thak survey in 1856 the river Teesta flowed by the west and south-west of Mauzas Gatiasham and Khetab Khan. The thak map of Mauza Dhusmara, which lay on the other side of the river and opposite to Mauza Gatiasham, prepared in 1857, shows that some lands of Mauza Gatiasham were depicted in that map as chak No. 4 being a residuary chak of chit or detached lands of Mauza Gatiasham,. The revenue survey maps of Mauzas Gatiasham and Khetab Khan prepared in 1857 show that by that time tremendous changes had been wrought by the river, it having broken its banks on the east and cut several channels through Gatiasham and Khetab Khan and that diluvion as well as alluvion had already taken place in several parts. In 1861 the father of defendants 1 and 2 made a petition to the survey authorities complaining inter alia that the western boundary of Khetab Khan was the flowing river Teesta and had been determined to be so long ago and he was in possession of the said mauza according to the said boundary, but in the thak survey some lands on the western side had been shown as appertaining to Gatiasham and that the boundary line commencing from the north-western corner of his mauza south- wards had been incorrectly drawn with the result that a large quantity of lands of Khetab Khan had been wrongly included within Gatiasham.

(3.) In the thak map of Gatiasham the flowing river Teesta was shown as on the west of the western boundary line of the mauza (Stations Nos. 1 to 10), and on the south of its southern boundary line (Stations Nos. 11 to 15), and Khetab Khan was shown as lying contiguous to its east (Stations No. 16 to 26). The complaint was that the line should go towards the south- west instead of towards the south-east from Station No. 22 and should run in that direction up to Station No. 10. The Superintendent of Survey found that there were some discrepancies in the thak map of Gatiasham, but he referred the applicant to the civil Court. On that the applicant commenced a suit against the plaintiff's predecessor, being Title Suit No. 155 of 1861, which resulted in a compromise decree. The exact import of the compromise then arrived at is a matter of controversy in this case which will be dealt with hereafter. It would be sufficient to say here only this: that under it the line between certain stations on the thak map of Gatiasham as drawn at certain bearings and distances would represent the boundary between the lands of the two parties. A decree was passed in 1862 on the basis of that compromise, the copy of the thak map of Gatiasham that was filed along with the petition of compromise forming an annexure thereto. This line will hereafter be referred to as the decretal line." In 1913 the then predecessor of the plaintiff, as proprietor of Gatiasham, instituted a suit being Title Suit No. 462 of 1913 against certain persons who are not parties to the present litigation, and were not parties to Suit No. 155 of 1861, which ended in a compromise in 1862, alleging that at the time of the thak survey in 1856 some lands of the said mauza were situate on the opposite bank of the river Teesta and they were depicted as chak No. 4 in the thak map of 1857 of Mauza Dhusmara and included within the ambit of that mauza and further alleging that the said lands had undergone successive diluviation and re- formation, claimed title to and recovery of possession of certain lands as forming the re- formation in situ of an alluvial accretion to Mauza Gatiasham and the land of the said chak No. 4. She obtained a decree in the trial Court in a modified form. An appeal being preferred to this Court by one set of defendants the decree was in 1917 varied upon a compromise. The effect of this compromise decree, as far as may be gathered from the papers before us and in the absence of an Amin's map which formed a part of the petition of compromise and of the said decree, was that the plaintiff's title to chak No. 4 was acknowledged, her title to some lands which lay on the east of chak No. 4 and west of Gatiasham as shown in the thak survey, and which lay on the bed of the river at the time of the thak but had since silted up was also admitted and in respect of other lands lying on the north and on the south of the said silted up lands and situate between Gatiasham on one side and Dhusmara on the other, each party acknowledged the title of the other to a half-share therein.