BISHUNDEO NARAIN SINGH Vs. HEMNARAIN SINGH

JUDGEMENT

(1.) The plaintiffs are the appellants. They commenced the action giving rise to this appeal for declaration of title and confirmation of possession, or, in the alternative, for recovery of possession of the disputed char lands of three bighas that formed by gradual accretion from recess of the river Gandak adjoining survey Plots Nos. 2419 to 2421 and 2428 lying adjacent and west to the bed of the river which is private property of the plaintiffs bearing Survey Plot No. 2168 recorded in the record of rights as gairmazrua khas. The above survey plots lying adjacent west of the river constitute raiyati holdings of the defendants first party (defendants 1 to 8). The defendants second party are cosharer-landlords of the plaintiffs who own 11 annas 6 pies proprietary share in Tauzi No. 5108 of village Patailia through which the river Gandak flows.

(2.) With regard to the formation of the chars, the plaintiffs case was that, at the time of the earthquake in January 1984, the river bed suddenly got elevated on its west side, and the course of the river suddenly shifted leaving bare an area of 20 bighas adjacent to the lands of the defendants first party, and of other tenants, and that the disputed land of three bighas is a part of this area and was particularly attached to the aforesaid tenancy plots of the defendants first party. The lands thus formed were at first sandy and swamy but became culturable in 1936 since when the plaintiffs, and other landlords of the village have been in possession thereof, that the defendant first party during the last Kisan movement laid claim to the disputed land with the result that a dispute having arisen between the parties, a proceeding under Section 144, Criminal P.C., was started. The said proceeding terminated in favour of the defendants first party. Hence, the plaintiffs had to file the present suit for the reliefs aforesaid.

(3.) The plaintiffs claim was resisted by defendants 1 and 2 on the ground that two bighas out of the disputed lands emerged as a result of gradual recession of the river towards the east in course of a period of 15 years, gradually accreting to the adjacent east of the defendants tenancy lands comprised in the survey plots mentioned above. By the year 1835, an area over two bighas was brought into cultivation by then. In course of another three or four years about a bigha more char land accreted to the aforesaid two bighas. They further asserted that neither the plaintiffs, nor any other landlord were ever in possession of the disputed lands, and that the story of sudden upheaval of the bed of the Gandak, and the shifting of its course during the earthquake was flatly denied.