ABDUL LATIF KHAN Vs. SOMAR KUNJRA

JUDGEMENT

(1.) This is an appeal by the plaintiff who had sued for a declaration of title and confirmation or in the alternative recovery of possession over 4 1/2 kathas of land in survey plot No. 2243 in its western portion in village Balbhadarpur in Laheriasarai. The khata containing this and other plots was sold in 1902 by its owner Purna Chandra Ghose to two brothers or cousins Mohan and Lal Muhammad. So much is admitted. Thereafter, these two persons partitioned the acquired land and it is here that the parties are in conflict on the question of whether the disputed plot fell within the share of Mohan and his heirs or within that of Lal Muhammad and his family. The contesting defendant claims to have bought the suit land 30 years ago from Lal Muhammad for a consideration of Rs. 40 and to have been in possession of it ever since. The plaintiff has obtained two sale deeds dated March 1936, from successors of Mohan. The Courts below have found that the disputed plot fell in the share of Mohan but that the plaintiff has failed to prove his possession or his vendor's possession within 12 years and that the contesting defendants have a good title by adverse possession. Accordingly they have dismissed the suit.

(2.) In second appeal it is contended that the land is low-lying land described as Jhil, that it goes under water every year and, therefore, that there has been in the eye of law no continuous adverse possession for 12 years whereby the defendants could acquire possession by adverse title. On the contrary it is said that every time that water flows over the land the possession of the defendants being that of trespassers is to be deemed to be interrupted and the presumptive or constructive possession of the plaintiff as the real owner must be deemed to be (so long as the land is under water) restored. In this view it is argued that the plaintiff should have been held to have been in possession, at least constructively, within 12 years before the date of suit and the defendants, of course, to have failed to show continuous adverse possession for 12 years. In support of this argument reliance has been placed on Secretary of State V/s. Ram Bachan Lal A.I.R. 1941 Pat. 422, as well as on the Privy Council cases therein referred to namely Secretary of State v. Krishnamoni Gupta 29 Cal. 518 and Basanta Kumar Roy V/s. Secretary of State A.I.R. 1917 P.C. 18 affirmed the principle that on the dispossession Of the trespasser Government by the vis major of the floods the constructive possession of the land was, if anywhere, in the true owners. This was a case in which the land had been diluviated in 1869 and remained under water until ten years before the suit which was instituted on 30 March 1894. Lord Davey who delivered the judgment of their Lordships observed that the possession of the Government was in fact determined by the submergence of the land which then "became derelict" and so long as it remained in that state, no title could be acquired against the true owner. In Basanta Kumar Roy V/s. Secretary of State A.I.R. 1917 P.C. 18, the lands in suit had been diluviated into a river bed, had been reformed at first as an island char and then became annexed to one bank of the river; a portion only of the area was cultivated and "the residue was uncultivated jungle and the whole of it was every year completely under water from the beginning of June to the end of October." Lord Sumner applied the principles laid down in Secretary of State v. Krishnamoni Gupta ( 02) 29 Cal. 518, observing that: No rational distinction can be drawn between that case and the present one, where the reflooding was seasonal and occurred for several months in each year.

(3.) In Secretary of State V/s. Ram Bachan Lal A.I.R. 1941 Pat. 422, a portion of the suit land had been reformed after diluvion less than 12 years before the institution of the suit and that portion raised no problem, but another portion was subject to seasonal submergence, flood water remaining on the land from July to September each year, during which period no portion of it could be cultivated, Harries C.J. and Manohar Lall, J. applied the principles of the above two Privy Council cases and held that the suit was not barred by limitation. The judgment does not follow some decisions of this Court in which temporary and seasonal submergence had been held not to affect the running of time against the true, owner or the accrual of a title by adverse possession. Those cases were distinguished on the facts, but we have been asked in argument to apply the judgment of the learned Chief Justice as if he had laid down that every submergence of land will prevent time running in favour of a trespasser. I do not find any such broad proposition to have been stated; and we should be cautious in applying observations made in a particular case to facts differing from those which were under consideration of the Judges who decided such a case. The facts in Secretary of State V/s. Ram Bachan LalA.I.R. 1941 Pat. 422 were distinguished from those in the other decisions of this Court on the ground that in the latter class of cases the interruption or submergence was in kind and in duration not sufficient to constitute a substantial breach in the continuity of the possession of the trespasser. I have no hesitation in adopting this as the true criterion which we ought to apply in dealing with such cases as the present. InSecretary of State V/s. Krishnamoni Gupta 2002 29 Cal. 518, as above pointed out the land remained completely derelict for a long time. In Basanta Kumar Roy V/s. Secretary of State A.I.R. 1917 P.C. 18 the period of submergence each year was not less than five months during which period individual plots lost their identity; in Secretary of State V/s. Ram Bachan Lal A.I.R. 1941 Pat. 422 it was for three months in each year and in the latter case, the District Judge, whose finding of fact was final, had held that there was an interruption sufficiently substantial and of sufficient duration to break the continuity of adverse possession. This view was affirmed in second appeal.