Abdul Latif Khan vs Somar Kunjra and Others

Rowland, J.—This is an appeal by the plaintiff who had sued for a declaration of title and confirmation or in the alternative recovery of possession over 4 1/2 kathas of land in survey plot No. 2243 in its western portion in village Balbhadarpur in Laheriasarai. The khata containing this and other plots was sold in 1902 by its owner Purna Chandra Ghose to two brothers or cousins Mohan and Lal Muhammad. So much is admitted. Thereafter, these two persons partitioned the acquired land and it is here that the parties are in conflict on the question of whether the disputed plot fell within the share of Mohan and his heirs or within that of Lal Muhammad and his family. The contesting defendant claims to have bought the suit land 30 years ago from Lal Muhammad for a consideration of Rs. 40 and to have been in possession of it ever since. The plaintiff has obtained two sale deeds dated March 1936, from successors of Mohan. The Courts below have found that the disputed plot fell in the share of Mohan but that the plaintiff has failed to prove his possession or his vendor''s possession within 12 years and that the contesting defendants have a good title by adverse possession. Accordingly they have dismissed the suit.

In second appeal it is contended that the land is low-lying land described as Jhil, that it goes under water every year and, therefore, that there has been in the eye of law no continuous adverse possession for 12 years whereby the defendants could acquire possession by adverse title. On the contrary it is said that every time that water flows over the land the possession of the defendants being that of trespassers is to be deemed to be interrupted and the presumptive or constructive possession of the plaintiff as the real owner must be deemed to be (so long as the land is under water) restored. In this view it is argued that the plaintiff should have been held to have been in possession, at least constructively, within 12 years before the date of suit and the defendants, of course, to have failed to show continuous adverse possession for 12 years. In support of this argument reliance has been placed on Secretary of State Vs. Ram Bachan Lal and Another, , as well as on the Privy Council cases therein referred to namely Secretary of State v. Krishnamoni Gupta 29 Cal. 518 and Basanta Kumar Roy v. Secretary of State AIR 1917 P.C. 18 affirmed the principle that on the dispossession Of the trespasser Government by the vis major of the floods the constructive possession of the land was, if anywhere, in the true owners. This was a case in which the land had been diluviated in 1869 and remained under water until ten years before the suit which was instituted on 30th March 1894. Lord Davey who delivered the judgment of their Lordships observed that the possession of the Government was in fact determined by the submergence of the land which then "became derelict" and so long as it remained in that state, no title could be acquired against the true owner. In Basanta Kumar Roy v. Secretary of State AIR 1917 PC 18 the lands in suit had been diluviated into a river bed, had been reformed at first as an island char and then became annexed to one bank of the river; a portion only of the area was cultivated and "the residue was uncultivated jungle and the whole of it was every year completely under water from the beginning of June to the end of October." Lord Sumner applied the principles laid down in Secretary of State v. Krishnamoni Gupta (02) 29 Cal. 518 observing that:

No rational distinction can be drawn between that case and the present one, where the reflooding was seasonal and occurred for several months in each year.

In Secretary of State Vs. Ram Bachan Lal and Another, , a portion of the suit land had been reformed after diluvion less than 12 years before the institution of the suit and that portion raised no problem, but another portion was subject to seasonal submergence, flood water remaining on the land from July to September each year, during which period no portion of it could be cultivated, Harries C.J. and Manohar Lall, J. applied the principles of the above two Privy Council cases and held that the suit was not barred by limitation. The judgment does not follow some decisions of this Court in which temporary and seasonal submergence had been held not to affect the running of time against the true, owner or the accrual of a title by adverse possession. Those cases were distinguished on the facts, but we have been asked in argument to apply the judgment of the learned Chief Justice as if he had laid down that every submergence of land will prevent time running in favour of a trespasser. I do not find any such broad proposition to have been stated; and we should be cautious in applying observations made in a particular case to facts differing from those which were under consideration of the Judges who decided such a case. The facts in Secretary of State Vs. Ram Bachan Lal and Another, were distinguished from those in the other decisions of this Court on the ground that in the latter class of cases the interruption or submergence was in kind and in duration not sufficient to constitute a substantial breach in the continuity of the possession of the trespasser. I have no hesitation in adopting this as the true criterion which we ought to apply in dealing with such cases as the present. InSecretary of State v. Krishnamoni Gupta 2002 29 Cal. 518, as above pointed out the land remained completely derelict for a long time. In Basanta Kumar Roy v. Secretary of State AIR 1917 P.C. 18 the period of submergence each year was not less than five months during which period individual plots lost their identity; in Secretary of State Vs. Ram Bachan Lal and Another, it was for three months in each year and in the latter case, the District Judge, whose finding of fact was final, had held that there was an interruption sufficiently substantial and of sufficient duration to break the continuity of adverse possession. This view was affirmed in second appeal.

It would seem to be a question in the circumstances of each case whether the submergence was so prolonged and of such a kind as to make the land what Lord Sumner calls derelict and thus to interrupt adverse possession. In Nand Lal v. Rashdhari Lal P.L.T. 659 it was the case of both parties that the land used to be under water every year, but it was not stated for what length of time and it also appeared that when the water subsided the tenants resumed possession and went on with the agricultural operations and Dhavle, J. spoke of the land going under water "apparently for a few days every year but without interfering with the agricultural operations usual in the neighbourhood." Similarly, in Jugal Kishore Prasad Singh and Others Vs. Manaka Singh and Others, , what was proved was only this that during the rainy season the river had over flooded its bank and flooded the land in such a manner as to make agricultural operations temporarily impossible. The duration of the submergence is not mentioned, and it is not said that individual plots by the submergence had lost their identifiable character, though it is said that one of the crops of the year had been spoilt on account of submersion, but that for the rest the land had been cultivated in the ordinary course. In Ramasray Prasad Chaudhury and Others Vs. Ramsurat Singh and Others, questions arose as to the accrual of occupancy rights in favour of a raiyat who had been inducted by a trespasser and this imports considerations foreign to the matter before us: but the finding of the Courts of fact was that the flooding had never been such as to interfere with ordinary agricultural operations and that there had been actually no interruption of possession. The case turned on the question whether there had been an interruption to occupation substantial and long enough to make a real breach in its continuity.

It is from this point of view that we should deal with the present appeal. Certainly no general proposition has ever been laid down that there can be no possession of land while it is under water. Tanks, ditches, etc., have been treated as the subject of possession in innumerable oases. The question to what extent submergence affected possession over the land in suit in this case does not seem to have been very seriously pressed in the Courts below. We are dealing with a small plot which did not lose its identity by submergence and the contention of the plaintiff rested mainly on an admission in the written statement that the land is Jhil. It has not been found by either of the Courts below that by the temporary submergence the defendants ceased to be in possession of the land and that being so, I am of opinion that a case of constructive possession cannot be set up successfully by the plaintiffs in second appeal without findings of fact to support it. The decision of the Courts below must be affirmed and the appeal dismissed with costs.

Chatterji, J.

I agree.

The principle of constructive possession of the true owner over submerged land during the period of submergence, as laid down by the Privy Council in Basanta Kumar Roy v. Secretary of State AIR 1917 PC 18 or by this Court in Secretary of State Vs. Ram Bachan Lal and Another, can have no application to cases where the submergence is of such a nature that it does not interfere with the ordinary use and occupation of the land. Whether the submergence does or does not cause such interference is a question of fact which must be determined in each particular case with reference to the nature of the land and the extent and duration of the submergence. In the present case the question does not appear to have been seriously argued in either of the Courts below, and it cannot be gone into in this second appeal.

Mr. Azizullah for the appellant relies on the admission of the defendants in the written statement as well as in the evidence that the disputed land is a Jhil; but in para. 9 of the written statement of the defendants fourth party on which reliance is placed it is distinctly asserted that "since then these defendants have all along been in possession of the said land and have been appropriating the produce thereof." The plaintiff''s own case is that he and his vendors were in possession of the disputed land through bataidar and that the land was actually under cultivation. Both the Courts below proceeded on the footing that the land was actually under cultivation. Our attention is drawn to the following passage in the judgment of the learned Additional District Judge:

This is, however, explained by the evidence of Gudar Jha (D. W. 2) that sometimes he gives batai of some land to the west of the plot, when there is no water"; but the learned District Judge has considered the evidence of the other witnesses and come to the clear finding that the defendants fourth party were in possession of the disputed land for more than 12 years before the suit and that neither the plaintiff nor his vendors were in possession thereof during this period.

The disputed land is the western portion of plot No. 2243, and it has been found by the learned Judge that there is a bridge in between the two portions which was constructed with the permission of defendant 7. This suggests that the water flows below the bridge and does not at all affect the remaining portion of the disputed land. In fact evidence was adduced on both sides to the effect that crops were grown on the disputed land and the respective parties were in possession of the land through bataidars.