CHANDRA KUMAR AICH Vs. JIBAN KRISHNA NATH MOHAJAN

JUDGEMENT

(1.) This appeal is preferred by some of the defendants, against a judgment of the District Judge of Chittagong, which affirmed with slight modifications the decree of the first Gourd.

(2.) The plaintiff bought Noabad Taluq Mahammad Daim Najir at a sale bold under the provisions of Act XI (B.C.) of 1859, on August 7, 1913, and he then brought two suits for recovery of khas possession and for mesne profits. One suit, No. 297, related to 52: 3 kanis of land in Cadastral Survey plot No. 17/13564, and the other to the whole of that plot with certain other plots. It is not necessary to mention the reasons which led the plaintiff to bring two suits, instead of one. The two suits were heard together. The first Court gave him a decree for khas possession and for mesne profits. Then the defendants, or some of them filed two appeals; these again were dealt with in one judgment. The learned Judge upheld the decision of the first Court with this modification viz., that he directed that the area of the lands covered by the decree was not to be stated, and that the decree should not make any reference to the Cadastral Survey map. The defendants have appealed, and there is a cross- objection by the plaintiff.

(3.) The case is an obscure one, and the arguments advanced on behalf of the appellants did not help to remove the obscurity. Their main contention, however, is that the defendants have a protected interest although the land is admittedly alluvial in character. It is said that the provisions of Section 180 of the Tenancy Act do not apply, and the reason alleged for this argument is that the principle laid down in the case of Felix Lopez V/s. Muddun Mohun Thakoor (1869-70) 13 M.I.A. 467 is applicable here, and that in consequence the land is not chur but the old land re-formed on its original site. This argument is unsound. The decision just mentioned laid down the principle to be applied in dealing with questions of title to land reformed in situ: it directed that when land re-formed on the site of a diluviated estate, the owner of that estate, if he had continued to pay revenue while the site was under water, was entitled to claim the land as belonging to his estate, and that such land was not to be dealt with under the provisions of Reg. XI of 1825. It is true that in the preamble to that Regulation the words " churs or small islands," appear, but that is not a definition of the word chur and it cannot be held that land which is reformation in situ may not also be chur land. The word chur as used in Section 180 of the Tenancy Act must be understood in its ordinary sense of land formed by fluvial action, that is to say, it is a word referring to the character of the soil, and not to the site of the deposit. I have no doubt, therefore, that the Courts below are right in saying that the provisions of Section 180 of the Tenancy Act are applicable to the land in suit. It follows that the tenant-defendants to escape eviction must prove continuous possession for 12 years of the identical plots in their possession at the date of the institution of the suit. On this question there is a definite finding of fact; that they have failed to do so.