DWIJESH CHANDRA ROY Vs. NARESH CHANDRA GUPTA

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for recovery of certain lands against the decision of the learned District Judge of Sylhet dated 4 November 1940, which modified in part the decision of the learned Subordinate Judge dated 28 September 1939, and virtually dismissed the suit. One Draesh Chandra Roy Choudhury, the father of the plaintiff, was the owner of touzi No, 75 of the Mymensingh Collectorate, Mouzas Joysiddhi and Bilsanki appertained to that touzi No. 75. These two mouzas abutted on the right bank of the river Bheramona which at this point flowed more or less from the north west in a south easterly direction. On the left bank of this river was situate mouza Kamalpur appertaining to separate account No. 3 of taluk No. 4 of Pargana Beniachomg in the District of Sylhet.

(2.) The case laid in the plaint is that from, sometime before the survey and settlement of 1913/1914 of the District of Mymensingh the right bank of the river Bheramona gave way, with the result that the river swept over a part of mouzas Joysiddhi and Bilsanki in a south westerly direction and eventually took up its present course flowing more or less from north to south for some distance and then turning to the east. The lands from which the river receded became submerged, but in course of time reformed in situ, with the river to the west instead of the east. This change of course, recession and reformation took place before the settlement operations of 1913/1914. The lands after their reformation were in unculturable state as they were before their submergence and continued to be in that state until about 9 or 10 years prior to the institution of the present suit. In the meantime the plaintiff's father died in May 1920 when the plaintiff was a minor. on the death of the plaintiff's father the Court of Wards took charge of the plaintiff's estate and remained in possession, thereof. In April 1934 the plaintiff attained majority and the Court of Wards relinquished charge of his estate. After getting back his estate the plaintiff arranged to take possession, of the reformed lands but was resisted by some Kamalpur men who denied the plaintiff's title and claimed to be entitled to remain in possession of different parcels of those lands as tenants of one Mahesh Gupta, the owner of separate Account No. 3 and the predecessor in interest of defendants 1 and 2. Therefore, on 8 April 1935 the plaintiff filed the present suit against the heirs of Mohes and the numerous tenants in possession claiming recovery of possession of the reformed lands. In the schedule to the plaint the lands in suit were shown as three plots, Plots Nos. 1 and 2 being alleged to be the lands reformed in situ and appertaining to mouza Joysiddhi and plot No. 3 to mouza Bilsanki.

(3.) The heirs of Mohes and some of the tenants entered appearance and filed written statements. They admitted that the river Bheramona had changed its course and that the lands in suit were reformed lands, but contended that Mohes Gupta had acquired the lands as part of separate account No. 3 in 1301 B. S. Their main defence was that ever since his purchase in 1301 B. S., Mohes Gupta was in adverse possession of the disputed lands and settled tenants upon them and the plaintiff's suit was barred by limitation.