RUDRA NARAIN SINGH Vs. KEDAR NATH SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiffs who brought a suit for declaration of their occupancy right and for recovery of possession in respect of 15 bighas 8 kathas 17 dhurs of diara land situated in village Jurawanpore Bararir and re-formed from the bed of the liver; Ganges. A portion of this land formed-part of the former occupancy holding of the plaintiffs or their predecessors-in-interest, as recorded in the cadastral survey of the year 1892, and the remainder; is said to have been acquired by the plains, tiffs by purchase or mortgage after, that, date. The lands are situated in a temporarily settled khasmahal estate which was surveyed by the khasmahal in the year 1921, prior to the granting of a temporary settlement of the estate to the defendants third party in the year 1922. At that time a total area of 19 bighas 13 kathas and 3 dhurs is claimed to have been in possession of the plaintiffs. According to the plaintiffs the suit lands, forming the major portion of this area, diluviated in the year 1926 and re formed in the year 1927; thereupon the defendant second party, who is a servant of the defendants third party, demanded a salami from the plaintiffs, and on their refusal to pay, the defendants third party set up the defendants first party as tenants of the lands. There were proceedings linger Section 145, Criminal Procedure Code which the plaintiffs lost, and then the defendants third party took possession of the lands on April 9, 1928. The defendants first and third party contested the suit. They denied that the suit lands were identical with the lands formerly in possession, of the plaintiffs, and claimed that they diluviated at different times after the year 1921, and that defendants third party settled them1 with the defendants first party on their re- appearance in the years 1926 and 1927. They also pleaded that the suit was barred by limitation, as well as by a local usage whereby tenants of the diara lose their rights in lands which diluviate. The trial Court held throughout in favour of the plainiffs, but the Subordinate Judge on appeal held that the plaintiffs had not established their title to all the lands claimed by them, nor had they proved the identity of those lands with the re-formed lands in possession of the contesting defendants. He also found that the suit was barred by limitation, as well as by the local usage set up by the defendants.

(2.) In the trial Court a Pleader Commissioner was appointed to inquire whether the plots claimed by the plaintiffs according to the survey of 1921 formed part of the lands found to be in possession of defendants first and third parties in the Section 145 case. He was also asked to report whether the plots had re-formed in situ. The Commissioner's report shows that he measured from permanent fixed points pointed out by the parties, and then prepared a map showing the lands which formed the subject-matter of the Section 145 case, as Well as the plots claimed by the plaintiffs both according to the cadastral survey of 1892 and the khasmahal survey of 1921. According to the map and report the lands claimed by the plaintiffs are substantially identical with a portion of the lands covered by the Section 145 proceedings. If the plaintiffs are otherwise entitled to a decree there should be no difficulty in passing a decree on the basis of the Commissioner's report. The learned Subordinate Judge rejected the Commissioner's report on the strength of an observation therein that the lands had not re-formed in situ. A passage quoted by the Subordinate Judge himself from the Commissioner's evidence shows that what the Commissioner meant by this observation was that landmarks such as trees and boundaries had not re-appeared after the re- formation, for which reason he had to re-measure the plots from the fixed points. The learned Subordinate Judge was therefore in error in rejecting the Commissioner's report on this ground and holding that the plaintiffs had failed to identify the suit lands. The Subordinate Judge was also in error in remarking that the Commissioner appointed in the Section 115 case had also failed to identify the plaintiffs land. The report (Ex. E) of that Commissioner shows that the lands claimed by the plaintiffs were found to be part of the recently alluviated land which was the subject-matter of the dispute. It is how4 ever unnecessary to remand the case on this issue as the trial Court's judgment shows that the contesting defendants did not challenge the Commissioner's report before it. This issue is dealt with by the learned Munsif as follows: Issue No. 7. As described in the plaint the lands of khata Nos. 150, 152, 143 and 145 of Ex. 2 form the subject-matter of the present dispute.- From the evidence and report of the Commissioner appointed in this suit it is clear that the said lands in suit have re-formed on their old site. The learned Advocate for the defendants have virtually conceded this point. So this issue is answered in the affirmative.

(3.) Later on, the Munsif again remarks that the identity of the re-formed lands in suit with the portion of the plaintiffs original holding had been established and conceded to by the defendants . In their memorandum of appeal to the Subordinate Judge the defendants denied having conceded the identity of the lands, but they did in effect concede it by not challenging the Commissioner's report. I consider that the Subordinate Judge was bound by the Munsifs finding on this issue and was not in a position to re-open the matter. I find therefore that the lands claimed by the plaintiffs have been identified. The learned Subordinate Judge held that the defendants had established a usage whereby tenants of the diara lose their rights in lands which diluviate and cease to pay rent for those lands. He held that in view of the existence of this usage the plaintiffs must beheld to have abandoned the suit lands on their diluvion. The Sub- ordinate Judge based his finding on this issue on certain petitions (Ex. D series) whereby in the year 1921 a large number of tenants of the diara offered to take fresh settlement of certain re-formed lands. None of those tenants claimed the right to reenter on those lands on the strength of their previous tenancy, whereas some of them applied for fresh settlement of the lands which they had previously held. It is said that the father of plaintiff No. 1 was a signatory to one of these petitions (Ex. D-8) which however for some reason was not forwarded to this Court with the record. The defendants also examined some tenants who deposed that they themselves had applied for fresh settlement of their lands as they had lost their tenancy rights on diluvion.