ANANGAMANJARI CHOWDHRANI Vs. TRIPURA SUNDARI CHOWDHBANI

JUDGEMENT

(1.) IN this case the parties are the respective owners of two divided shares of mouzahs Nalchongi and Silpatta. The plaintiffs are interested in the larger of those shares, extending to 13 annas 10 gundahs. The defendants are proprietors of the smaller share, extending to 2 annas 10 gundahs. The area of land which is in dispute in this action is situated on the bank and close to the alveus of the Ichamutti river. It is subject to the action of the stream; and it appears that from time to time the soil on the surface of the area has been washed away, and new soil has been subsequently deposited capable of cultivation. The exact date when the surface was last denuded does not appear; but it seems to be admitted on all hands that for many years past a new deposit has been growing up, and that in point of fact such deposit, since some time after the year 1850, has become culturable. In the end of 1872, or the beginning of 1873, disputes arose between the appellants and respondents as to the right to the disputed ground. The Magistrate intervened in February 1873. and, after inquiry, he adjudged that the plaintiffs were in possession, and had a right to retain possession of it. The defendants then instituted a possessory suit, and on the 13th of April 1873, they obtained a decree affirming their right to possess. That led to the institution of the present action, in which the plaintiffs, who were ousted under the decree of April 1873, claimed the property of the disputed area as having been all along in their possession as part of their 13 annas 10 gundahs share of the two mouzahs in question. The defendants resist the action on the ground that they had been in possession, and that the land in dispute was an integral part of their smaller share of these mouzahs--the 2 annas 10 gundahs share. Throughout these proceedings, at least since proof was closed, it is admitted on both sides that the area in dispute belongs to one or other of these two demarcated shares.

(2.) ISSUES were adjusted by the Subordinate Judge. It is only necessary to deal with the third of them: because it is conceded now that, if the plaintiff's shall be held to have a right to the land, as part of their 13 annas 10 gundahs share, they are not barred by limitation from prosecuting the present suit. The third issue adjusted was in these terms: "Is the land in claim a re-formation on the site of the original diluviated land of the 13 annas 10 gundahs share of Kismat Nalchongi and Silpatti, held by the plaintiff's and pro forma defendants, or of the 2 annas 10 gundahs share held by the substantive defendants?" The Subordinate Judge after an elaborate review of the evidence before him, came to the conclusion, which is embodied in this finding: "The allagation made by the plaintiffs that the land in claim is a re-formation on the site of the original land of Nalchongi and Silpatti covered by their 13 annas 10 gundahs share, and that they have from before been in possesstion of it is found true." In other words his finding amounts to an express affirmation of the first alternative branch of the third issue, which exhausts the issue.

(3.) ON remand the case was heard and disposed of before the successor of the District Judge, who had first disposed of the case. Ha, in the main, agrees with the Subordinate Judge in his estimate of the evidence, and he affirms the judgment of the Subordinate Judge. The conclusion which he came to on the evidence is very concisely expressed in these words: "On the whole then I come to the conclusion that the Subordinate Judge's decision is correct, and that the plaintiffs have proved that the lands claimed by them belong to their 134 annas share of mouzahs Bil Nalchongi and Bil Silpatta."