Rasdhari Lal and Others vs Nand Lal Mahton

Dhavle, J.—This is an appeal against a decision of the District Judge of Shahabad, reversing a decree of dismissal passed by the Munsif of the third Court at Arrah and decreeing the suit of the plaintiffs for recovery of possession of about 8 cottahs of land in plot No. 127 of village Raipur Bingawan. The plaintiffs case was that plot No. 127 had an area of 4 bighas 7 cottans and 7 dhoors including the disputed 8 cottahs. To the west of this plot No. 127 was plot No. 126 with an area of 3 bighas 13 cottahs and 4 or 14 dhoors belonging to the defendants. In 1927 the plaintiffs applied to the Collector for demarcation of the land and this was done by a Deputy Collector who found that 8 cottahs out of plot No. 127 was in possession of defendant No. 6. This was on March 25, 1927 and plaintiffs said that in consequence of this rinding, the defendants dispossessed them of the disputed area of 8 cottahs on April 10, 1927. The defendants denied the title of the plaintiffs to the disputed area and also pleaded limitation. The Munsif found against the plaintiffs both on the question of title and on the question of limitation. On appeal, the District Judge differed from the lower Court on both points and decreed the suit.

It has been urged on behalf of the defendants, who have now appealed to this Court, that the finding of the lower Appellate. Court regarding the title of the plaintiffs to the disputed area is vitiated by the reception of two inadmissible pieces of evidence. One is the survey khasra. The objection to the admissibility of this document is that the survey papers were not finally published, as the proceedings were given up after the Khanapuri stage on account of diluvion caused by three large rivers in the neighbourhood of the village. The learned Advocate for the appellants has referred to Gulab Koer v. Ramratan Pande 27 Ind. Cas. 229 : 27 Aind. Cas. 229 : 18 C.W.N. 896 and Sarup Rat v. Srikant Prasad 55 Ind. Cas. 922 : AIR. 1920 Pat. 726 : 2 U.P.L.R (pat) 49 : 1 P.L.T. 224 as authorities for the proposition that the papers of a survey which did not reach the stage of. final publication are inadmissible in evidence. It docs not appear from these cases why such papers were held altogether inadmissible. It was doubtless observed in the case of Gulab Koer v. Ramratan Pande 27 Ind. Cas. 229 :27 Ind. Cas. 229 : 18 CWN. 896 that the presumption of correctness cannot apply to such papers until final publication, but it seems to me that the special presumption of correctness created by s 103-B, Bengal Tenancy Act, is one thing, while presumption arising from the circumstance that official duties are taken to have been regularly performed is another. My attention has further been drawn to Chand Ray Vs. Bhagwati Charan Goswami, , in which is was pointed out that it cannot be held that a draft record of rights prepared "under the Bengal Tenancy Act is totally inadmissible in evidence for any purpose. The weight to be attached to the khasra in the circumstances of this case is a different matter altogether; and the learned Advocate for the appellants has not contended that that is a question that can be raised in second appeal. The contention that the paper was altogether inadmissible must therefore be overlooked.

The next piece of evidence to whose admission objection is taken are the khasras of the landlords. The learned Munsif observed that the khasras put in are not the original papers that had been prepared by the landlords at the time of making the survey of the village and that no attempt had been made to produce the primary evidence, nor any reason assigned when secondary evidence in the shape of copies or extracts from the original khasras should be accepted. Mr. Patel, who appears for the plaintiffs-respondents, has explained the circumstances in which these particular papers came to be filed without calling for the originals; but he has not been able to contend that those circumstances are at all a sufficient justification under the Evidence Act for reception of secondary in lieu of primary evidence. Mr. Patel has however laid stress on the plaints of the rent suits brought by the common landlord against the plaintiffs and the defendants in respect of the adjoining plots owned by them. The difficulty here in the respondents way is that even the plaintiffs themselves challenged the accuracy of these papers in the rent suits brought by the landlords.

The finding of the learned District Judge on the question of title is therefore clearly vitiated by the improper reception of mere copies of the landlords khasras. The second point urged before me is that the learned District Judge completely misdirected himself as regards the principle of submergence that he applied on the question of limitation arising in the case. The learned Munsif gave definite reasons for rejecting the plaintiffs story of their possession up to and dispossession on April 10, 1927 and held that the plaintiffs had failed to prove that they were ever in possession of the disputed area within 12 years of the suit. Oil this the learned District Judge observed:

On the point of limitation it has clearly not been brought to the notice of the learned Munsif that there is clear evidence that the lands in the village in wait regularly go underwater. In such circumstances the constructive possession of the real owner revives whenever the lands go under water, and although no clear dates are given in the evidence, I think it is clear that the lands have been under water within 12 years of the suit. The plaintiffs have been in possession within 12 years of the suit and the claim is not barred by limitation.

It appears that in this connection it was the case of both parties that the land used to go under water every year, it is not stated for what length of time, but that when the water subsided, each tenant took possession according to the plaintiffs of his respective area, and according to the defence, of the area shown in the landlord''s jamaband after measurement, and went on with the usual agricultural operations. Rajnath Mahto, plaintiff No. 2, who was examined as the second witness of the plaintiffs, said in cross-examination: The entire plot of mine, of which the disputed land forms part, is cultivated each year. The question is whether in these circumstances submergence of the land which did not interfere with agricultural operations in any year could have had any such effect on limitations as is referred to in two cases of high authority: Secretary of State v. Krishna-mani Gupta 29 C 518 : 29 I.A. 104 : 8 Sar. 269 : 4 BomLR 537 : : 6 CWN 617 and Basant Kumar Roy v. Secretary of State 40 Ind. Cas. 337 : AIR 1917 PC 18 : 44 I.A. 104 : 44 C 858 : 18 L.W. 593 : 32 M.L.J. 505 : : 21 C.W.N. 642 : 15 A.L.J. 398 : 25 C.L.J. 487 : 19 BomLR 480 : (1917) M.W.N. 482 : 6 L.W. 117 : 22 M.L.J. 310 (P.C.), where it was held that there can be no continuance of adverse possession when the land is not capable of use and enjoyment, so long as such adverse possession must rest on de facto use and occupation and that the possession of the rightful owner revives the moment a trespasser''s possession ceases before the expiry of the period of limitation, by reason of the land going under water. As was said by Walson, J., in the Full Bench case of Muhammad Ali Khan v. Abdul Gunny 9 C 744 : 12 C.L.R. 257:

Lands may by natural causes be placed wholly out of reach of their owner as in the case of diluvion by a river. In such a case, if the plaintiff shows his possession down to the time of the diluvion, his possession is presumed to continue as long as the lands continue to be submerged where land has been shown to have been in a condition unfit for actual enjoyment in the usual modes at such time and under such circumstances that that state naturally would, and probably did, continue till within twelve years before suit, it may properly be presumed that it did so continue and that the plaintiff''s possession continued also, until the contrary is shown.

If that be the principle, it is clearly not applicable to the facts of the present case where the plaintiffs claimed that they cultivated the land every year, notwithstanding its periodical submergence; and Kajnath Mahto, curiously enough, said at the end of his examination-in-chief that it was not true that ever between the year 1918 and the present day the disputed land was ever diluviated. Diluvion in the proper, sense apparently occurred as long ago as 1898 or 1899. What seems to have happened since then is the land going under water apparently for a few days every year but without interfering with the agricultural operations usual in the neighbourhood. The land being thus capable of use and having continued to be capable of use in the orciaary way for 12 years or more immediately preceding the suit, it seems to me that the plaintiffs were not entitled to invoke the principle of constructive possession which applies where land is submerged in quite a different sense. The learned Advocate for the respondents has not in fact been able to urge that the principle can be invoked in the present case. The trying Munsif''s rejection of the plaintiffs specific story of dispossession on April 10, 1927, was endorsed by the learned District Judge who only held in plaintiffs favour upon the question of limitation because he consider that the doctrine of constructive possession of the real owner was applicable. In this the learned District Judge was in error it follows that the suit should have been dismissed en the ground of limitation. The appeal is accordingly allowed, the decree of the lower Court reversed and the suit dismissed with costs in all Courts.