SURESH CHANDRA MUKHERJEE Vs. SHITI KANTA BANERJEE

JUDGEMENT

(1.) The plaintiff brought the suit out of which this appeal arises for declaration of his title and also recovery of possession of about 1,000 bighas of land. He succeeded in obtaining a decree for a part only of the laud claimed and appealed to this Court. His appeal was heard by a Divisional Bench of this Court consisting of Woodroffe and Cuming JJ. There was a difference of opinion, Woodroffe J. holding that the appeal should be dismissed while Cuming J. was in favour of allowing the appeal in part. They held that as there was a difference of opinion and there was no majority varying or reversing the decree appealed from, the appeal should be dismissed. Against this decision the plaintiff has preferred an appeal under Section 15 of the Letters Patent. A preliminary objection has been taken that no appeal lies. This objection we overruled at the commencement of the hearing of the appeal. Though we accept the contention of the learned Vakil for the respondents that the decision of the Judicial Committee in Bhaidas Shibdas V/s. Bai Gulab (1921) I.L.R. 45 Bom. 718 shows that the procedure laid down in Section 98 of the Civil Procedure Code was wrongly applied in the present case, that is immaterial. Had the provisions of Clause 36 of the Letters Patent been followed the result would have been the same since the opinion of Woodroffe J. who is the senior Judge would prevail. Under Clause 15 of the Letters Patent this appeal is clearly competent.

(2.) The present suit is due to events primarily caused by the movement of the river Ganges at a part where under the name of Bhagirathi it flowed between the Nadia district on its north and the Burdwan district on its south. At the time of the Revenue Survey by Government of 1855 there were churs on both sides of the river. On the north side was chur Baliadanga which was temporarily settled with the defendant's predecessors in two estates bearing touzi Nos. 824 and 2460 of the Nadia Collectorate. On the south side was a chur adjoining mouza Kavirajpur which is a part of the estate bearing touzi No. 10 of the Burdwan Collectorate and in this village the plaintiff has putni right to certain plots. The river moved gradually in a southerly direction causing accretions to chur Baliadanga and diluviating first the chur adjoining Kavirajpur and subsequently also part of the Kavirajpur mouza. This alluvion and diluvion continued until the accretions to chur Baliadanga became reformations in situ of Kavirajpur land. While this was going on Government made three surveys and settlements of the land which accreted to chur Baliadanga in the years 1880, 1890 and 1903. Even in 1880, some land of Kavirajpur was settled with the defendants as proprietors of estates Nos. 824 and 2460 and in 1890 still more land of that mouza was settled with the defendants. During the survey and settlement of 1903 the mistake was discovered and the land found to be reformation in situ of mouza Kavirajpur was excluded from the settlement. The temporarily- settled estates Nos. 824 and 2460 were originally undivided four annas and twelve annas shares of chur Baliadanga. In 1893 a partition suit was brought which after protracted litigation ended in a division of the land after survey by a Commissioner in 1899. The plaintiff instituted the suit, out of which the appeal arises, on the 25 February 1916. He originally claimed approximately 1,000 bighas of land. In the trial Court he gave up his claim to a large tract on the east and at the hearing of the first appeal to this Court he no longer claimed the land which had been settled with defendants after the 1903 survey. He originally based his title both on his putni right and adverse possession. The finding that he has no title other than his putni right has not been disputed. He is content to rely on the finding of the trial Court that he has established his putni title to 15 specific chaks and the abasista chak or unnumbered residue. The learned Subordinate Judge gave the plaintiff a decree for the land within these chaks that was south of the lines of the south boundary of the chur shown in the settlement map of 1903 and the partition map of 1899. He held that the plaintiff's title to land north of this line had been barred by limitation.

(3.) The case made in the plaint was that diluvion took place in 1890 and reformation in 1902. It was further alleged that the land first began to be fit for cultivation in October 1906 and the defendant No. 1 then proposed to take a settlement from the plaintiff. As there was undue delay, the plaintiff in 1913 attempted to have the lands surveyed and was prevented by defendant No. 1. This case has admittedly failed The correctness of the various maps as showing the reformations is not questioned and the map of 1880 shows that reformation in situ had commenced before that year. The plaintiff's case now is that he was in possession of the chaks to which he has proved title until they were diluviated and his possession must be presumed to have continued and that he is entitled to succeed unless the defendants can prove that they have destroyed his title by adverse possession. This contention raises the issue as to the party on whom the burden of proof lies in the present case. On this issue I find myself in entire agreement with the finding of Woodroffe J. The reasoning in his judgment appears to me clear and logical and in accordance with the principle laid down in previous decisions of this Court and the Judicial Committee of the Privy Council. He points out that the plaintiff sued for possession on the allegation of dispossession. Art. 142 of the first Schedule of the Indian Limitation Act, 1908, is therefore applicable and he is bound to prove possession within twelve years before suit. Admittedly he has not had any actual possession since the lands became submerged and it is also admitted that the defendants have been in possession since 1906, ten years before the institution of the suit. In order to prove possession within twelve years the plaintiff may rely on the presumption that possession of the lawful owner continues as long as the land is incapable of actual possession. But in a case like the present where Art. 142 applies the plaintiff, if he relies on this presumption must prove that the land was incapable of actual possession within twelve years before suit. For the appellant, it was strongly contested before us that it lay on the defendants to prove their adverse possession for twelve years before the suit. It was urged that the presumption of possession in favour of the real owner would continue until it is shown that the presumption does not apply by reason of the defendant having been in adverse possession. It was also urged that the presumption would continue as long as the land continued incapable of ordinary possession, and it is for the defendants to show when this change took place. These contentions ignore the difficulty in the appellant's way arising from the fact that he has so framed his suit that the initial burden lies on him to prove dispossession within twelve years. Relying, as he does, on a presumption to discharge this burden he must prove the facts necessary to establish this presumption, that is to say, not only that he was the legal owner but also that the land was incapable of possession in the ordinary way. Of the cases cited, the Full Bench decision of this Court in Mohammad Ali Khan V/s. Khaja Abdul Gunny (1883) I.L.R. 9 Calc. 744 is the most favourable to the appellants. The rule laid down at page 752, if read apart from the context, seems to support his contentions. It is as follows: "The true rule appears to be this: that where land has been shown to have been in a condition unfitting it for actual enjoyment in the usual modes at such a time, and under such circumstances that that state naturally would, and probably did continue till within twelve years before suit it may properly be presumed that it did so continue, and that the plaintiff's possession continued also, until the contrary is shown." But the rule is qualified by the preceding remarks on p. 751 which require the plaintiff to show such acts of ownership as are natural under the existing condition of the land before he can claim the benefit of the presumption that his possession continued. It is not necessary to discuss all the decisions that have been cited on behalf of the appellant. Several of them, as for instance, Basanta Kumar Roy V/s. Secretary of State (1917) I.L.R. 44 Calc. 858; L.R. 44 I.A. 104 can be distinguished on the broad ground that they were cases where Art. 144 and not Art. 142 was applicable. The headnote of the Indian Report wrongly states that the High Court decided that case on limitation alone holding that the suit was barred by Art. 142. The English Report of the same case quotes the High Court judgment, which clearly states that the case "must be governed by Art. 144". Other cases that were cited follow the decision in Mohammad Ali Khan V/s. Khaja Abdul Gunny (1883) I.L.R. 9 Calc. 744 and give no greater support to the appellant's contention than that Full Bench decision. I would therefore hold that in the present case it lay on the plaintiff to prove that the lands were incapable of user within twelve years prior to the suit. For the appellant it was further urged as an alternative plea that if it is necessary for him to prove that the land was incapable of user, he has proved this at any rate as regards the land south of the survey line of 1890. In order to prove this he relies on the defendant's evidence, oral and documentary. The case made out by the plaintiff's witnesses was entirely abandoned at the hearing of the appeal and their evidence was not even read to us. The first piece of evidence on which reliance is placed is that of Gurudas Biswas, defence witness No. 2. He was the gomasta of the second defendant in respect of the chur lands from 1306-08 B.S. In cross-examination he stated, "I found the sandy tract of the chur in the same condition during the period of my service. There was no alteration in its area during that period." It is contended that this proves that no extra land became culturable after the survey of 1890. But if his examination-in-chief be also read, it is clear that what he meant was that daring this period, as the river receded there remained a fringe about 1 1/2 or 2 rashis wide of unculturable sandy land and that though the nature and area of this fringe remained unchanged, Its position altered as the chur extended towards the south. The only other oral evidence to which reference is made in this connection is that of defence witness No. 7, Rajani Kanta Dey. He was a Collectorate amin and took part in the settlement surveys of 1890 and 1903. His evidence-in-chief is strongly in favour of the defendants since he says that he saw the chur after 1903 and found the major portion of the chur under cultivation. It is contended that this evidence refers to the land which was settled with the defendants in 1901 and not to the land now in dispute. But this cannot be, since he was speaking of the land down to the water's edge and the map of the 1903 survey shows the water edge far south of the land settled with the defendants as part of their estates Nos. 824 and 2460. A similar argument to that based on the evidence of defence witness No. 2 is based on this witness's statement: "About 50 to 60 bighas lands must have accreted to the chur between 1890 and 1903. In 1903, I found the area of the sandy portion of the chur to be 60 to 80 bighas." But this does not mean that the only accretion during these years was sandy land. Our attention has also been drawn to a statement in the Settlement Report of the 8 March 1904, Ex. P. "The estate consists of a low tract of chur land liable to annual inundation." It is urged that as these remarks refer to the land settled with the defendants, the disputed land to the south would be still more liable to inundation. But the expression "liable to annual inundation" does not mean that the land was actually inundated every year. The same paragraph of the report shows that though aus paddy could not be grown in normal years, kalai and musuri were extensively grown, and this supports the defendant's case that the land was capable of possession. Another argument is based on the map and report of the Commissioner who executed the partition decree in 1899. It is contended that as the south line of the Commissioner's map and of the settlement map of 1903 are almost identical, there could have been little alteration in the chur during the interval between the two surveys. It appears from the Commissioner's report that in 1899 there was practically no culturable land south of the land settled in 1890. But the Commissioner's map does not show the true position of the river in 1899. At the wish of the parties to the partition suit, the defendants in this suit, he included land which was still part of the bed of the river in his map and divided it between them. It follows, therefore, that there was a considerable accretion of culturable land, to the south of the chur between 1890 and 1903. The defendant's evidence does not show-that any land north of the line, which has been given as the south boundary in the decree, was unfit for cultivation within 12 years of the institution of the suit.