J. P. WISE Vs. AMEERUNNISSA KHATOON

JUDGEMENT

(1.) THIS is a suit brought by Mr. J. P. Wise, and other persons of the name of Bysack, against several Defendants; first, the Government represented by the Collector of Backergunge; secondly, Ameerunnissa Khatoon; and thirdly, Krishna Chunder Chatterjee, for himself and as guardian of the widows of Bykunt Chunder Chatterjee. Certain other persons as the representatives of Moulvi Wahed Ali and of Moulvi Abdool Ali were afterwards, on the application of the Plaintiffs, added as Defendants on the record.

(2.) THE suit relates to certain plots of land, B, C, D, E, and F, marked in an Ameen's plan made previously to a settlement in 1868. The Plaintiffs claim 10 annas of B and C, the whole of D, and the whole of E and F. They allege that the plots B, C, and D were re-formations of lands which belonged to them, and that E and F are accretions to D, or to B, C, and D. They also contend that, even if they failed to establish this title, they had, under the circumstances to be hereafter stated, obtained a title to what they claim in this suit by prescription. The case was tried before the Judge of Backergunge, and it was found by him, and that portion of his judgment was affirmed by the High Court, and it is not now disputed, that the Plaintiffs altogether failed in making out their title by re-formation.

(3.) IT had been held in a decision of the High Court that when lands are formed as an island in the middle of a river, and are surrounded by water which is not fordable, they do not belong to Government, if before the Government takes possession any portion of the water round the island becomes fordable from an adjacent estate; and the before-mentioned suits, in which the Defendants succeeded, were decided in accordance with that ruling. But that decision was overruled by the High Court in a Full Bench decision in vol. xiv. of the Full Bench Rulings of the Weekly Reporter, p. 28, and the High Court referring to it, say: " The Full Bench Ruling of the 17th of August, 1870 (reported in W. R. vol. xiv. p. 28, Full Bench Rulings), was referred to as shewing that under the terms of Clause 3, Section 4, of Regulation XI. of 1825, these lands being at the time of their first formation the property, or to use the words of the Regulation, at the disposal of the Government, they could not subsequently become vested in the Plaintiff or any one else. On the other hand, for the Plaintiffs, it was argued that the Lower Court's decision was right, that there had been constant litigation between the parties, that Ameerunnissa had always failed to prove her title, that Mr. Wise had been declared entitled to retain possession, and that his possession under an Act IV. award of the re-formed lands for more than three years revived his right to those lands. From the above statement it will be seen that the Plaintiffs do not seriously dispute the finding of the Lower Court, that they have failed to establish their title to any portion of the lands in dispute, on the ground of re-formation on the original sites belonging to them; but Plaintiffs argue that the Judge was right in holding that their title by prescription had been made out. Now the Judge in deciding this point appears to have overlooked the fact that the Government have been made the principal Defendants, that it was the Government who dispossessed the Plaintiff and who settled the land with the other Defendants, inasmuch as their title by prescription will not avail them against the Government, for it is clear that the taking possession by a party not entitled will not give them a title unless the possession has been of such duration as to extinguish the title of Government. In the present case it has been found that, the lands only began to re-form in 1859, and as the Plaintiffs were admittedly dispossessed in 1868 they had not been in possession twelve years when dispossessed." The High Court, therefore, overruled the decision of the Lower Court that the Plaintiffs had obtained title by prescription.