Secretary of State vs Ram Bachan Lal and Another

Harries, C.J.—This is a defendant''s second appeal from a decree of the learned Additional District Judge of Patna reversing a decision of the learned Subordinate Judge of Patna and decreeing the plaintiffs claim in part. The appeal arises out of a suit for a declaration that the plaintiffs were entitled to certain properties set out in the plaint and for recovery of possession thereof with mesne profits.

The suit was brought against the present appellant, the Secretary of State for India in Council, as defendant first party and against certain persons who claimed to be mukararridars of the plaintiffs as defendants second party and against certain other people who claimed to be tenants of the land in dispute under the khas mahal as defendants third party. The learned Subordinate Judge, who heard the case at the first instance, dismissed the plaintiffs'' claim in its entirety; but, on appeal, the learned Additional District Judge reversed that decision and decreed the plaintiffs'' claim for a declaration and recovery of possession of part of the land in dispute.

The plaintiffs are the proprietors of Keshwarpore Digha bearing tauzi No. 5123. The plaintiff patti had been formed by a Collec-torate partition of Mahal Digha and was commonly known as Panch Mahal Digha. The northern boundary of the plaintiffs'' property at the time of the revenue survey of 1843-44 was the river Ganges and it was alleged that the river had receded northwards and that a large tract of land had been formed by the alluvial action of the river during the years 1921 to 1928. The plaintiffs claimed this land as having once formed part of their estate as thak survey plots Nos. 3801 to 3814 and a portion of plot No. 3815. Such land, it was said, had long remained submerged under the waters of the Ganges, but it began to reappear and reform on its old site and gradually accreted to the plaintiffs'' land and, therefore, they were entitled to it as an accretion to their estate. The plaintiffs further alleged that the defendants second party were not mukarrari tenure-holders of the land immediately south of this alluviated area and consequently they had no claim to it. The defendants, appellants claimed this land as belonging to the Crown. It was alleged that the plaintiffs were not the owners of the land immediately adjoining the alluviated area in dispute and that the re-formation of the lands was not slow and gradual but that the disputed land had suddenly emerged out of the bed of the river Ganges in the year 1921, and as the river Ganges was a navigable river the land became the property of the Crown. The defendant further alleged that the Crown had taken possession of all the lands in dispute since the year 1921 and that the defendants third party had been settled thereon as tenants for more than 12 years. Consequently, it was contended that even if the land did in fact belong to the plaintiffs, their claim to it was barred by limitation.

It is to be observed that at the time of the trial of the suit the plaintiffs abandoned their claim regarding re-formation of the alluviated area on the old site of the thak survey plots mentioned previously and confined their case of title and possession on the ground of gradual accretion of the reformed lands to their estate. The learned Subordinate Judge came to the conclusion that the plaintiffs were not the owners of the land south of and immediately adjoining and abutting on to the alluviated area.

Further, he held that the alluviated area was divided by a natural stream known as the Sotasone, and accordingly the plaintiffs could never be the owners of the land north of the Sotasone on the basis of accretion. He further found that the land was formed not as the result of gradual accretion to the riparian land but was formed as the result (c)f the river suddenly changing its course and, therefore, the alluviated land belonged to the Crown. Lastly, he held that if the plaintiffs had any claim to any part of the land in question, such was barred by limitation.

On appeal the learned Additional District Judge reversed the findings of fact of the learned Subordinate Judge. He came to the conclusion that the plaintiffs were riparian owners and the lands in dispute had been formed by gradual accretion to this riparian land. He further held that the Sotasone was not a natural stream and that the land north of it also formed part of the accretion to the plaintiffs'' riparian land. He further held that, though the defendant appellant (had been in possession of part of the reformed land for a considerable time, the plaintiffs'' claim was not barred by limitation by reason of the fact that the land in question was subject to seasonal submergence and that during such periods the true owners, namely the plaintiffs, were in constructive possession thereof.

Therefore, it could not be said that the defendant appellant had been in adverse and continuous possession of the land in question for over 12 years. The learned Additional District Judge found, however, that the plaintiffs were not entitled to the whole of the land claimed but only to a portion of it which he directed should be demarcated by a commissioner. He found also that the defendants second parties were mukarraridars of the plaintiffs of the riparian land and, therefore, mukarraridars of the lands which had accreted thereto, and he fixed the rent payable by the mukarraridars to the plaintiffs in respect of this land. He further decreed mesne profits as claimed and future mesne profits to be determined hereafter in execution proceedings.

In second appeal it was contended, in the first place, that the plaintiffs had entirely changed their case in the trial Court. As pointed out by the learned Additional District Judge, the plaintiffs did abandon their claim that the lands in question had reformed on the site of land previously held by the plaintiffs or their predecessors in title and confined their case to one of accretion.

In my judgment the case, as set up by the plaintiffs in the trial Court, was not a new case, and the defendant-appellant cannot possibly be said to have been taken by surprise. Evidence was called dealing with the question as to whether the formation of the lands in dispute was due to gradual accretion or not, and there is nothing to suggest that the defendant appellant was in any way prejudiced by the course which the plaintiffs took when the matter came for trial.

In the second place, it was contended in this appeal that the learned Judge was wrong in holding that the land in dispute was the result of gradual accretion. It must be conceded that a very substantial area of land had reformed between the years 1921 and 1928; but even so, the lower appellate Court was satisfied that the accretion was gradual and that the land had not appeared suddenly as alleged by the appellant. The learned Additional District Judge points out that, though the extent of the land reformed is substantial, the formation took place between the years 1921 and 1928, and therefore, was a gradual accretion. In my judgment the learned Judge was right in the conclusion at which he arrived, and there is no force in the defendant''s contention that formation was not gradual but sudden. If the formation was gradual, then the riparian owners would, in the ordinary course, be entitled to the lands.

The main question which was agitated in the Courts below and before us was whether the plaintiffs were in possession of any part of the lands in question. The position of the disputed alluviated area is shown clearly by red lines in the map (Ex. 3) prepared by the Commissioner at the instance of the plaintiffs after the institution of the suit. Two red lines proceed northward from the western boundary line of survey plot No. 4397 and from the eastern boundary line of plot No. 4447. The learned Subordinate Judge, however, found that plot No. 4397 did not belong to the plaintiffs'' patti and so they could not claim accretion to the lands north of that plot.

The respondents have conceded that they could not claim accretion northwards of this plot, but as it is common ground that they are the owners of the remainder of the land eastwards to the eastern red line, they claimed that they are entitled to all the accreted lands lying north of the lands between the eastern boundary of plot No. 4397 and the eastern boundary of plot No. 4447. It was this land to which the learned Additional Judge eventually held the plaintiffs entitled. This land has to be divided into three portions, firstly, a strip of land lying immediately north of the admitted land of the plaintiffs, the second is the land lying north of this strip and south of what is called the Sotasone, and thirdly the land lying north of the Sotasone.

I shall deal, in the first place, with the strip of land lying immediately north of the plaintiffs'' land. In the plaint, as originally drafted, the plaintiffs claimed possession of this land but later asked for an amendment omitting this strip from their claim on the ground that they were already in possession of it. The learned Subordinate Judge came to the conclusion that the plaintiffs had not established that they were in possession of this narrow strip. That being so, he held that any land north of this strip could not possibly be an accretion to the plaintiffs'' land. The learned Additional District Judge describes this strip as the strip of land south and east of plot No. 276 and agreed with the learned Subordinate Judge that the evidence of possession adduced on behalf of the plaintiffs and the defendants second party could not be looked upon with confidence. He, however, points out that on closer analysis of the position the evidence adduced by the witnesses of the plaintiffs and defendants second parties was not altogether false. The strip of land adjoined the northern boundary of what was admittedly the plaintiffs'' land, and the learned Additional District Judge was satisfied that no other person or persons was or were in possession of this land, and that being so he held that it must be deemed'' to be in the possession of the plaintiffs through their mukarraridars.

He further pointed out that at least part of this strip of land was formed less than twelve years before the institution of the suit, and that being so, even if the plaintiffs were not in. possession throughout, the defendant appellant could not within the period obtain a title by limitation. He therefore held that this narrow strip of land was in the possession of the plaintiffs through their mukarraridars. In my view, this is to a very large extent a finding of fact and cannot be challenged by the appellant in second appeal.

With regard to the land lying north of this strip of land and south of what is called the Sotasone, the position is somewhat different. This land forms part of plot No. 276 on the commissioner''s map and there was evidence that this plot was actually settled by the khas mahal authorities with tenants in 1921. The area of this land appears to have varied; but it is clear that the defendant appellant had been dealing with this land or with such of it as could be dealt with for over a period of twelve years and further that the plaintiffs had never been in physical possession of the same.

In those circumstances, it has been argued that, even if this land south of the Sotasone could be regarded as an accretion to the plaintiffs'' land, the plaintiffs'' suit would be barred by limitation. The evidence, which has been accepted by the learned District Judge, showed that this land was subject to seasonal submergence, and one of the defendant''s own witnesses said that flood water remained on the land in question from July to September each year and during that period no portion of it could be cultivated. In those circumstances, the learned District Judge held'' that it could not be said that the defendant, appellant had been in continuous adverse possession of this property for more than twelve years. Prima facie, this land was an accretion to the plaintiffs'' land. Once it was established that the strip of land immediately south of it was in the plaintiffs'' possession, the only defence open to the Secretary of State with regard to this land is therefore one of limitation.

In Secretary of State v. Krishnamoni Gupta (02) 29 Cal. 518 the Secretary of State claimed title to certain alluvial land by limitation. It appears that a portion of the land whilst in possession of Government by the plaintiffs as their ijaradars, became submerged and remained so until within ten years of the institution of the suit, and the Government contended that their possession of the land continued during submersion. Their Lordships of the Privy Council held that for the purpose of trying the question of limitation, the Government had to be regarded as trespassers and dispossessors of rightful owners, and that it would be contrary to principle and authority to imply constructive possession of Government through the plaintiffs as their tenants, whilst the lands were submerged, so as to enable the Government as wrongdoers to obtain a title by adverse possession.

In order to sustain such a title under the Limitation Act, there must be actual possession of a person claiming as of right by himself or by persons deriving the title from him. This case was considered by their Lordships of the Privy Council in the latter case in Basanta Kumar Roy v. Secretary of State AIR 1917 P.C. 18 and 872, Lord Sumner, who delivered the judgment of the Board, observed:

In Secretary of State v. Krishnamoni Gupta (02) 29 Cal. 518, their Lordships'' Board applied this view to a case, where a river shifting its course first in one direction and then in the opposite direction, first exposed certain submerged lands, of which the Government took possession, and then after a few years flooded them again. No rational distinction can be drawn between that case and the present one, where the re-flooding was seasonal and occurred for several months in each year. It was held that when the land was re-submerged the possession of the Government determined, and that, while it remained submerged, no possession could be deemed to continue so as to be available towards the ultimate acquisition of title against the true owner.

The statement of Lord Sumner is clear that there is no difference in principle between seasonal submersion and one which continues for a length of time. That view has been taken in a number of cases decided by different Courts, some of which were in fact decided before the observation of Lord Sumner was made.

In Loknath v. Manorath Ram 18 Ind.Cas. 613 the plaintiff claimed possession of certain land as being its owner. The land used to remain submerged under water for a portion of the year, and during the remaining period of the year it was in possession of the defendant. The latter set up adverse possession for over 12 years as a defence. Tudball J. held that during the time the land was submerged under water, it was in the constructive possession every year of the rightful owner and a title by adverse possession could not be acquired by a trespasser. As the defendant had not been in undisturbed possession for 12 years, he had acquired no title to the land by prescription.

A similar view was taken by a Bench of the Allahabad High Court in Baldeo Thakurai and Others Vs. Ugra Nath Misra and Others, , and it is to be observed that these two cases were decided before the case in Basanta Kumar Roy v. Secretary of State AIR 1917 P.C. 18 was decided.

A similar view was taken in Secretary of State v. Wazed Ali Khan AIR 1921 Cal. 687 in which a Bench of the Calcutta High Court held that no rational distinction could be drawn between oases where reformed land was after a few years again submerged by the flood for a time, and cases where the re-flooding was seasonal and occurred for several months in each year. On the dispossession of a trespasser by the vis major of floods, the constructive possession of land is in the true owner, in other words, the land after submersion became derelict, and so long as it remained submerged, no title could be made against the true owner. This view was again followed by a Bench of the Calcutta High Court in Maharaja of Cooch-Behar v. Mahendra Ranjan AIR 1921 Cal. 277.

It has been argued however in this case that this Court has taken a different view and that we are bound by certain decisions of this Court. On behalf of the respondents however it was contended that, if there are any decisions of this Court contrary to the clear dictum of Lord Sumner, they must be disregarded. If I was in any doubt as to what the cases of this Court have held, I should have referred this point for decision by a larger Bench, as the cases to which I will refer shortly are Bench decisions and bind the present Bench. In my view however, the cases relied upon by the appellant do not, when closely examined, dissent from the line of cases to which I have already made reference. They appear to be cases decided on their particular facts.

The first case relied on by the appellant on the question of limitation was Nand Lal v. Rasdhari Lal (32) 16 P.L.T. 659. Dhavle J. observed:

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 limitation as is referred to in two cases of high authority, Secretary of State v. Krishnamoni Gupta (02) 29 Cal. 518 and Basanta Kumar Roy v. Secretary of State AIR 1917 P.C. 18, 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....

* * * * 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 Rajnath 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 ordinary 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.

It has been argued that Dhavle J. in this case has held that submergence of the land will not affect the question of adverse possession by a trespasser unless the submergence is such that it interferes with the ordinary agricultural operations usual in the neighbourhood. It is to be observed that seasonal submergence of land only occurs in areas lying alongside rivers which overflow their banks every year. The very fact that these rivers cause flooding yearly must affect the mode of cultivation in such areas where owing to the danger of flooding no cultivation takes place during the rainy season. Any seasonal submergence could not in one sense be said to interfere with the agricultural operations usual in such neighbourhood for the simple reason that owing to the danger of flooding no operations are carried out during that period.

In my view for submergence to interfere with continuous adverse possession it is not necessary to show"that the submergence is such as interferes with the usual agricultural operations in the neighbourhood. It is enough if the submergence prevents such use and occupation as the possessor would normally have but for flooding and submergence.

The case decided by Dhavle J. however is very different from the present case. It appears that the lands were only flooded for a few days at most and that the floods did not in any way interfere with the ordinary use and occupation of the land. The trespasser might be said to be in possession even during the flooding, and that being so the constructive possession of the true owner could not arise. It is to be observed that there was a Letters Patent appeal from the decision of Dhavle J., and the Bench which heard that appeal dealt with the case on entirely different grounds and held that having regard to the course which the case has taken the plaintiff was not entitled to rely upon constructive possession to defeat the defence of limitation. The Bench also appear to have thought that the extent of the submergence of the land which was disclosed in the evidence was not such as to attract the doctrine of revival of the possession of the true owner. That being so, this case cannot ba regarded as authority for the proposition that seasonal submersion or submergence will not prevent time running in favour of a trespasser.

The next case relied upon by counsel for the appellant was Jugal Kishore v. Manaka Singh AIR 1939 Pat. 260. In this case James and Chatterji JJ. do appear to lay down that seasonal submergence does not, in certain circumstances, affect the question of adverse possession. The facts of the case are somewhat peculiar. The plaintiffs obtained a decree for possession of land which was submerged under water during the rainy season due to the inundations of a river but the land could be cultivated during the rest of the year. The plaintiffs failed to take possession of the land until execution of the decree was barred by limitation and filed a fresh suit for recovery of possession. It was held that such a suit would not lie. Certain observations are made in this case which appear contrary to the dictum of Lord Sumner to which I have already referred and to the decisions of the Allahabad and Calcutta High Courts to which reference has already been made. It is not clear from the facts of the case whether the lands were really submerged for any length of time and the submergence is described by James J. in these terms:

The principles laid down in these decisions which have been quoted which apply to land affected by changes in the course of rivers, cannot in our judgment be properly applied to land lying on the banks of a river which merely spills over its bank during the annual rainy season in times of flood.

The submergence, if any, in the case appears to have been slight and in any event it appears to me doubtful whether a decision upon this aspect of the case was necessary to determine the point in controversy namely whether a suit for possession would lie when execution of a previous decree for possession was barred by limitation. The observations of James and Chatterji JJ., appear to be obiter, and if they were intended to mean that seasonal submergence could not interrupt a trespasser''s adverse possession they appear to be in conflict not only with a number of decisions of Indian High Courts but also with the dictum of Lord Sumner in Basanta Kumar Roy v. Secretary of State AIR 1917 P.C. 18.

The last case relied upon is Ramasray Prasad v. Ramsurat Singh AIR 1940 Pat. 131 which is another decision of James and Chatterji JJ., in which they held that mere occasional flooding of land which does not interfere with ordinary agricultural operations so as to interrupt the possession cannot be treated as stopping the running of limitation. At page 183 James J. observed:

On the question of limitation, the respondents stand on stronger ground. Mr. Jha suggests that annual inundations have interrupted the tenants'' possession, but the Courts have found that these occasional floods have never been such as to interfere with the ordinary agricultural operations so that there has boon actually no interruption of possession. Mere occasional flooding of this kind cannot be treated as stopping of limitation.

In this case it would appear that such flooding as took place did not in fact interfere with the trespasser''s possession, and that being so it would not amount to an interruption of the trespasser''s adverse possession. In my judgment these three cases of this Court must be confined to their particular facts and they cannot be held to lay down a principle contrary to the principles enunciated by their Lordships of the Privy Council and in the decisions of other Courts to which I have referred. In the present case the flooding occurred yearly in the months of July, August and September of each year and made cultivation impossible during those months. In the neighbourhood of Digha paddy is cultivated and these are busy months for the agriculturist. If no flooding took place, this land ''would, in all probability, have been cultivated, and there can be no doubt that the flooding did deprive the trespasser of the use and occupation of that land as agricultural land during those three months. He could not be said to be in effective possession of that land during that time, and. that being so it must be held that the possession of the true owner revived and therefore the defendant appellant had not been in pos, session of the land continuously for twelve years before the present suit was brought. Bach year his possession was effectively interrupted for a period of three months during which the plaintiffs must be regarded as having been in possession. In my view the learned Judge decided the point of limitation rightly in favour of the plaintiffs.

As to the land lying north of the Sotasone, the plaintiffs'' right to it depended entirely upon whether the Sotasone was a natural stream or not. The Court of first instance held that it was a natural stream and therefore, land which appeared north of it could not possibly be said to have accrued to the plaintiffs'' land. The learned Additional District Judge however found as a fact upon the evidence that the Sotasone was not a natural stream but was merely a depression which occasionally was filled with water. That being so the land north of it could properly be regarded as an accretion to the land south of it. If the land south of this depression was land which had accrued to the plaintiffs, then the land north of it also could properly be regarded as an accretion to the plaintiffs'' land.

In my view the question whether the Sotasone was or was not a natural stream was a pure question of fact, and as there is evidence to support the learned Judge''s finding his conclusions cannot be challenged in second appeal. The learned Judge regarded the whole of the land north of the strip immediately adjoining the plaintiffs'' land as one accretion and in my view his decision cannot be successfully assailed.

It was also contended that there was no evidence on which past mesne profits could be granted. This is expressly stated by the Subordinate Judge and in my view no past mesne profits should have been decreed by the learned District Judge. The plaintiffs are entitled to future mesne profits which will be determined as directed by the lower appellate Court.

For the reasons which I have given I am satisfied that the decision of the learned District Judge was substantially correct and the decree should be affirmed with the variation as to mesne profits as indicated above.

I would therefore subject to this variation dismiss the appeal. The plaintiffs will be entitled to the costs of this appeal.

Manohar Lall J.

I agree.