BIJAI SHANKER SELHER Vs. RAM CHRITRA SINGH

JUDGEMENT

(1.) THIS appeal arises out of a suit for a declaration of the plaintiff's right to some alluvial land, 1005 bighas in area. THIS land has emerged out of the river Ganges which lies to the north of Dhanapur, the village of which the defendants are the owners. To the west of that parent village is a village which has apparently been formed since 1836 and is called Arazi Dayara Dhanapur. The plaintiffs alleged in their plaint that they were the owners of the village Arazi Dayara Dhanapur; that the land in suit had accreted to that village, and, therefore, formed an accession to the village; that they had themselves become proprietors of the disputed land, and that the defendants, the owners of the village Dhanapur khas, had no right to the afore said land. They based their claim in the plaint upon the custom known as the custom of dhardhura. That custom means that the deep stream is the boundary between two villages lying on opposite banks of the stream. Dr. Sen has in his argument conceded that the present claim cannot be regarded as a claim based upon the custom of dhardhura. As we have already stated, the plaintiffs alleged that they were the owners of the village now known as Arazi Dayara Dhanapur. It has been found by the Court below that the plaintiffs ate not the owners of that village, but that they are mortgagees from the owners of the village, namely, the predecessors-in-title of the defendants, and that they are in possession of the village as such mortgagees. THIS position has been accepted by Dr. Sen on behalf of the appellants, and he urges that the land in dispute is an accession to the village mortgaged to them, and that their security has thus increased by the addition to it of the alluvial land now in dispute.

(2.) IT has been established by the evidence adduced in this case that in the year 1836 some land emerged from the river Ganges and this land was settled with the owners of the parent village Dhanapur, and was declared to be the village of Arazi Dayara. In front of this village lies the land now in controversy. In 1853 some 55 bighas of land emerged from the Ganges and it was settled with the defendants predecessors, namely, the owners of Dhanapur on a revenue of Rs. 80. After that year the land was submerged and the revenue was reduced to Re. 1, which was paid by the proprietors of Dhanapur. In 1884 the land reappeared and the quantity of culturable land in that year was about 47 bighas. This was again settled with the defendants on a. revenue of Rs. 68. The predecessors of the plaintiffs claimed that the settlement of this land should be made by Government with them, but their claim was disallowed by the Revenue Authorities and the land was settled, as we have said above, with the defendants predecessors. Since the year 1884 settlements have been: made with the predecessors-in-title of the defendants and the defendants, down to the year 1920. In 1894 the plaintiffs predecessors again asked the Revenue Authorities to settle the land with them, but their prayer was rejected, and they were referred to the Civil Court to establish their title. Both in that year and in 1884 their right to the land now in dispute was challenged by the proprietors of Dhanapur. In 1899 the predecessors of the plaintiffs made an application to the Revenue Court asking that the boundaries should be fixed between the village of Arazi Dayara and the parent village of Dhanapur on the one side, and between Arazi Dayara and the land which had newly emerged and which they described as Dayara jadid. We may mention that at the time when the Revenue Authorities settled the land which had re-merged with the defendants predecessor they described the land as Gangbarar Dhanapur, and it is between this Gangbarar Dhanapur and the village of Arazi Dayara, that the predecessors of the plaintiffs asked the Revenue Court to fix boundary pillars. In 1901 there was some litigation in the Revenue Court relating to the payment of rent of land appertaining to the land now in dispute. The predecessors of the plaintiffs chimed to have realized the rent. The Revenue Authorities held against them and also held that they had no right to this land which had been settled with the ancestor of the defendants. Again, in 1903, disputes arose in the Criminal Court under Section 145, Criminal Procedure Code, as to the possession of this land, and the Criminal Court held in favour of the defendants, maintaining their possession. In 1904 the plaintiffs instituted a suit similar to the present suit asking for a declaration of their title to the land in dispute. That suit was resisted by the defendants but the plaintiffs withdrew the suit. IT was not until the year 1919 that they instituted the present suit in which they claim only a declaratory decree. Ever since the year 1884, when their title to the land, in question was disputed, they never came to the Civil Court (except in 1904) to establish their right, and it is very reasonably contended on behalf of the respondents that, in these circumstances, the Court ought to be very reluctant to grant a decree for a declaration of right only. There is no evidence on the record to prove at what period the mortgage in favour of the plaintiffs predecessors was made, but we find from the evidence that, up to the year 1853, they had no connection with the village of Arazi Dayara. IT is only for the first time in the wajib-ul-arz for the year 1882 that mention was made of the name of Jagmohan Singh as mortgagee of the village. We have to see whether the mortgage in favour of the plaintiffs predecessors could be attached to the land now in dispute. Originally, the land described as Gangbarar Dhanapur was settled with the defendants. At that time the defendants were owners both of the parent village Dhanapur and of the village Arazi Dayara Dhanapur. Manifestly, the land which had appeared in 1853 had become submerged in that year and re-appeared in 1884. The area of the cultivable portion of the land on both occasions was practically the same. Therefore, it may reasonably be presumed that the settlement which was made with the defendants predecessors in 1884 was a settlement of the same land which had in 1853 been settled with them. At no time during this period had it been recorded as an accretion to the village of Arazi Dayara. In the absence of the mortgagedeed which it was the duty of the plaintiffs to produce and prove, it cannot be said whether the land which had appeared in 1853 in front of the village of Arazi Dayara was mortgaged to the plaintiffs predecessors or could be deemed to be land appertaining to that village. Between 1853 and 1884 the land was under water. In 1884, for the first time, it re- appeared and subsequently it re-appeared in larger quantities year after year. The learned Subordinate Judge has held that the land accreted to the village of Arazi Dayara and, therefore, under the law and the prevailing custom and upon principles of equity, the mortgagees must be deemed to have acquired a right to the additional land thrown up by the river. We are not aware of any law under which the land could he regarded as an accession to the village of Arazi Dayara Dhanapur, unless it was a gradual accretion to the land within the meaning of Regulation XI of 1825. IT was nowhere alleged in the plaint that the land was a gradual accretion, and it has not been shown that the accretion was in reality gradual. As to usage, the only usage alleged was the custom of dhardhura which, admittedly and obviously, has no application to the present case. We fail to see upon what principle of equity the plaintiffs can be deemed to have acquired the right to this land. As already stated, they asserted their right upon two or three occasions and on each occasion their right was denied and they took no further steps to have that right established. We are not satisfied that the plaintiffs have been able to prove that they ever acquired a right to the disputed land as an accession to the village of which they i are the mortgagees. On the contrary, by their application in 1899 they seem to have accepted the position that their village was distinct from Gangbarar Dhanapur, that is, the disputed land which they call in their application, Dayara jadia or the new alluvial land. From these circumstances Mr. Peary Lal Banerji, on behalf of the defendants, has contended tint the plaintiffs suit should fail on two grounds. First, that they have not established their right to the land in question, and, secondly; that even if they had acquired such right, they abondoned the right so far back as 1899. His contention in both respects seems to us to be valid. We have not been satisfied that the plaintiff's acquired this land at any time, and it has not been shown that they ever got possession. The evidence is to the contrary and actual possession has always remained with the defendants except during the short periods that the land was under water in the rainy season. As the plaintiffs never acquired the ownership of the land and were never in possession, the rulings of their Lordships of the Privy Council in the cast of Secretary of State for India V/s. Krishnamoni Gupta 39 C. 318 : 4 Bom. L.R. 537 : 6 C.W.N. 617 : 29 I.A. 104 : 8 Sar P.C.J. 360 (P.C.) and the case of Basanta Kumar Roy V/s. Secretary of State 40 Ind. Cas. 337 : 44 C. 858 : 1 P.L.W. 593 : 32 M.L.J. 505 : 21 C.W.N. 642 : 15 A.L.J. 399 : 35 C.L.J. 487 : 19 Bom. L.R. 480 : (1917) M.W.N. 482 : 6 L.W. 117 : 22 M.L.T. 310 : 44 I.A. 104 (P.C.) do not seem to have any application to the present case and cannot help the plaintiffs. The conduct of the plaintiffs clearly shows that they acquiesced in the deprivation of any rights which they might have acquired as accessions to their security. This case to some extent resembles the case of Partab Bahadur Singh V/s. Gajadhar Bakhsh Singh 24 A. 521 : 29 I.A. 148 : 7 C.W.N. 97 : 4 Bom. L.R. 845 : 8 Sar P.C.J. 310 (P.C.) and the case of Khuda Bakhsh V/s. Alim-un-nissa 27 A. 313 : 1 A.L.J. 715 : A.W.N. (1904) 273. We do not agree with the learned Subordinate Judge in his conclusion that the land was an accession to the village of which the plaintiffs are mortgagees. But we do agree with him that the plaintiffs have lost any right which they may have had by reason of their not having brought any suit for a declaration of their right within 6 years prior to the institution of the present suit. In these circumstances, the appeal must fail. We dismiss it with cists including fees on the higher scale.