LAWS(PVC)-1937-12-134

ABDUL RAHMAN Vs. GIRJESH BAHADUR PAL

Decided On December 23, 1937
ABDUL RAHMAN Appellant
V/S
GIRJESH BAHADUR PAL Respondents

JUDGEMENT

(1.) This is an appeal by plaintiffs, which arises out of a suit concerning certain plots of land on the north side of the river Ganges. The Ghagra runs between the districts of Basti and Fyzabad, the former being on the north and the latter on the south. There is a village of She Basti district known as Kharakpur and adjoining it on the west is the village of Harbanspur. Harbanspur consists of three mahala. Mahal No. 2 is contiguous with Kharakpur, then comes mahal No. 1 in the middle and then mahal No. 3 on the west. Defendant 1, Girjesh Bahadur Pal, is the owner of Kharakpur. Mahal No. 1 and mahal No. 2 of Harbanspur are owned by the plaintiffs and their oosharers all residents of Harbanspur. Defendant 1 has a patti in mahal No. 3, the rest of which is owned by the plaintiffs and their cosharers. The dispute in this litigation is concerned with a parcel of land which according to the plaintiffs, appertains to mahal Nos. 1 and 2 of Harbanspur.

(2.) It appears that the course of the Ghagra is in the habit of fluctuating. The judgment of the Court below narrates that in 1883 a portion of Harbanspur and Kharakpur south of the Soti tributary was sub-merged and it re-appeared on the south of the river Ghagra at Sharfuddinpur in the district of Fyzabad. It was settled with the proprietors of Sharfuddinpur on 9 May 1884. Subsequently it re- appeared on the north of the river, but was again settled with Sharfuddinpur. The ancestors of the plaintiffs objected on each occasion, but without success. In 1886 the land was made part of the Fyzabad district, i.e. ill was attached to Sharfuddinpur. Defendant 1 - or rather his father - thereafter instituted a suit against the cosharers of Sharfuddinpur for possession of the whole area which had re-appeared, and on 28 June 1890 that suit was decreed. The plaintiffs say that the defandant obtained possession not only of land which belonged to him by right, but also of land which had originally belonged to the cosharers of Harbanspur, who were not parties to that litigation.

(3.) In 1896 the cosharers of Harbanspur sued for possession of a portion of this alluvial land which they claimed as theirs and that suit was partly decreed and partly dismissed; but on 29 June 1897 the suit was wholly dismissed by the Appellate Court on the ground of limitation. Since then, according to the plain, tiffs, the river has several times changed its course, thereby bringing about the sub. mergence and emergence of land on its north and south sides. From 1898 to 1907 the land to the south of the Soti tributary was again under water. In 1907 it emerged apparently on the north side. Learned Counsel for the defendant- respondent does not admit that it was again submerged after that, but according to evidence given for the plaintiffs it was submerged from 1916 to 1924, when it emerged for the last time. The plaintiffs say that they then took possession of it and it was recorded in the revenue papers as appertaining to Harbanspur. Subsequently, there were proceedings under Section 145, Criminal P.C. which terminated on 3 November 1927 in favour of the defendants, who had dispossessed the plaintiffs; and hence this suit, which was instituted on 17th September 1928.