John Wallis, J.
1. The present suit relates to a triangular piece of land forming the southern portion of the mauza Bhairabpara, a small permanently settled estate consisting of a long narrow strip of land, liable to diluvion by the river Padma on the north and by the river Gorai on the south. At times the whole mauza, has been completely submerged, and when above water would appear to have been the subject of incessant litigation.
2. About the year 1882 it was totally submerged, and when it reformed and became fit for cultivation, the Tagores, who are the owners of an adjoining estate, entered upon it. Thereupon the present defendants, the Natores, who own another adjoining estate, instituted a suit, No. 127 of 1897, in the Court of the Subordinate Judge of Nadia against the Tagores, claiming that the lands on which the Tagores had entered belonged to their own mauza of Keshapore or Bhairabpara. For the purposes of that suit a map was prepared by a Commissioner, Mr. J.N. Roy, which showed that in 1898, at the date of the report, the river Gorai had moved northward and then ran through the mauza of Bhairabpara, thus separating the southern portion, which is the subject of the present suit, from the rest of the mauza.
3. In that suit the Subordinate Judge held that the plaintiffs had proved their title, but that the suit was barred except as to 350 bighas.
4. On appeal the District Judge, whose decree was affirmed by the High Court on second appeal, held that the defendant Tagores had no title, that the plaintiffs had shown that Bhairabpara was identified with their mauza of Keshapore, and, even if it were not, they had acquired a title by adverse possession through their jotedars or tenants. He accordingly gave the plaintiffs a decree for possession and mesne profits.
5. In the execution of this decree the Natores, the present defendants, were put in possession on June 26, 1905. They were also awarded mesne profits on the estimated cultivable lands in the mauza in accordance with the report of a Commissioner, which was duly confirmed by the Court.
6. On April 15, 1908, the present plaintiffs' father, claiming as patnidar under the Mozumdars, another family who, he alleged, were the owners of the mauza of Bhairabpara, instituted suit No. 308 of 1908 in the same Court against the Natores, the present defendants, for possession and mesne profits, alleging that, when the land of the mauza had reformed and had become fit for cultivation and he attempted to take possession, he was obstructed by the defendants, who had taken possession in execution of their decree against the Tagores in the suit already mentioned.
7. The Subordinate Judge held that the plaintiff had proved his title, but that he was barred as to 600 bighas, forming the northern portion of the mauza, the defendants having acquired a title by adverse possession for twelve years before the last submergence of the mauza.
8. The defendants appealed, and the plaintiff filed cross-objections, and, while the appeal was pending, the plaintiff died, and his sons and legal representatives, who are the plaintiffs in the present case, were substituted for him.
9. On appeal the learned Judges of the High Court were of opinion that it was impossible to locate the 600 bighas, which the Subordinate Judge had held to have been in possession of a factory holding under the defendants. They came to the conclusion, however-it is said, for the respondents, quite wrongly- that the defendants in their 1897 suit against the Tagores had not claimed the southern triangle of Bhairabpara, which the learned Judges said was then in the bed of the river Gorai, and hence they concluded that the factory holding under the defendants had been in possession of the whole of Bhairabpara minus the small southern triangle, and they accordingly held the suit to be barred except as to the southern triangle.
10. On the footing that the defendants in their 1897 suit had neither asked for nor obtained possession of the southern triangle, they found that the defendants had not been shown to have been in possession of it, and that consequently a decree for possession and mesne profits should not be passed against them, but that the plaintiffs should have a declaration of their title to the southern triangle.
11. It will, however, be better to state their conclusions in their own language, as so much has turned on it in the present suit.
The defendants in their Title Suit against the Tagores in 1897 claimed the lands north of the then current Gorai river as their Kishorepur lands. They did not claim the triangular portion of Bhairabpara, which was then in the bed of the Gorai. The defendants got a decree accordingly, and we do not think that there is any satisfactory evidence definitely pointing to the possession of this triangular portion when it reformed after northward progress of the Gorai; in fact, it was not claimed in the Title Suit of 1897. We think, therefore, that the decree in favour of the plaintiff must be confined to the triangular porbion of Miami Bhairabpara to the south of the northern bank of the Gorai river, as shown in the map of J.N. Roy. The defendants retain the entire fruits of their decree against the Tagores. The present suit was brought expressly for the lands which the defendants obtained in execution of their decree against the Tagores. There was no allegation of dispossession in respect of any other lands, but the triangular portion was shown as disputed to the Commissioner. The defendants in their written statement generally stated that Mauza Bhairabpara was the name fraudulently given to their Mauza Kishorepur and they also relied upon their decree against the Tagores as the basis of their possession. The decree, therefore, will be for a declaration of the rights of the plaintiff as Patnidar to that portion of Bhairabpara which is south of the northern bank of the Gorai, as shown in the map of J.N. Roy, The suit for recovery of possession of the lands decreed to the defendants in their Title Suit No. 125 of 1897 is dismissed. As the defendants, however, denied the title of the plaintiff to the portion in respect of which he gets a declaration, the plaintiff will be entitled to his costs in proportion to the area.
12. The plaint in that suit had claimed a declaration of title and a decree for possession and mesne profits of the mauza of Bhairabpara, and the judgment is to be read as finding, not that the southern triangle was not the subject of the suit in which case no declaration about it could have been given, but that the plaintiffs had only been dispossessed of the lands north of the Gorai as shown in the map made by J, N. Roy in 1898.
13. It would have been well if both parties had been content to accept this adjudication of their rights. Unfortunately, this judgment was the starting-point of fresh and protracted litigation. The plaintiffs were resisted by the defendants when they attempted to take possession, and having made futile attempts to get possession in execution, a relief not given by the decree, and to amend the decree, which was in strict accordance with the judgment, on June 23, 1917, they filed the present suit for possession of the southern triangle, which, after having been twice before the Subordinate Judge, the District Judge, and the High Court, has now come before this Board from the decree of the High Court dismissing the suit.
14. In the plaint in the present suit the plaintiffs ignored the fact that the High Court in the previous suit had refused to give them a decree for possession and mesne profits in respect of the southern triangle, and alleged in paragraph 5 that the High Court had held that the defendants had wrongfully taken possession of the southern triangle on 12th Assar, 1312 (June 26, 1905), in execution of their decree in the 1897 suit against the Tagores. They did, however, allege in paragraph 7 that, in consequence of the establishment of their right to the southern triangle in the previous suits, they were entitled to maintain a suit for possession and mesne profits, and in paragraph 8 they stated their causes of action as having arisen on the 12th Assar, 1312 (June 26, 1905), when the defendants took wrongful possession, and on May 8, 1917, when their execution petition in the previous suit for possession of the southern triangle was dismissed.
15. The case first came before the Subordinate Judge, who dismissed the Suit, holding, with reference to the fifth issue, that it was barred under Section 11, Explanation v. of the Code of Civil Procedure, on the ground that possession had been asked for and refused in the previous suit.
16. On appeal the District Judge set aside the decree of the Subordinate Judge and remanded the suit for trial on the remaining issues, and his decree was upheld by the High Court on second appeal. Richardson J., who delivered the judgment of the High Court, observed that the plaintiffs had not framed their plaint artistically, as they had not contented themselves with a new cause of action based on the decree of the High Court in the suit of 1908, but had alleged dispossession in the year 1905, and had included this alleged dispossession anterior to that suit as part of the cause of action in the present suit. He then proceeded to deal with the judgment of the High Court as follows:-
If then, the judgment of the learned Judges is referred to, it is obvious that the learned Judges did not decide that if the plaintiff was cob in possession, he was not entitled to possession. The learned Judges put their own construction on the pleadings and they formed their own conclusions as to the facts. It appears to me that the parties to the present suit are as much bound by the learned Judge's construction of the pleadings and conclusions of fact as they are by the decree itself. Whether they were right or wrong is now immaterial, The decree follows from the reasons given for it, whether they were right or wrong, and must be understood and interpreted in the light of those reasons. The judgment, standing as it does, the parties are governed by it and are estopped from making averments which would be contrary to the record.
The plaintiffs' true cause of action in the present case is the High Court decree of 1(108, coupled with the fact that they are out of possession Allegations in the plaint which go beyond this cause of action may be regarded as surplusage.
17. In spite of this clear pronouncement the Subordinate Judge, when the case went back to him on remand, held that the suit was barred under Article 142, as the defendants and the Tagores before them had been in continuous possession for more than twelve years before the institution of the present suit in June, 1917, thus ignoring the finding of the High Court in the previous suit that neither the Tagores nor the defendants had been in possession before June, 1908, when that suit was filed.
18. On appeal the District Judge applied Article 141 instead of Article 142. Treating the question as one of adverse possession under Article 144, he held that the defendants were not entitled to tack on the Tagore's possession to their own for the purposes of the article. In the result he allowed the appeal and decreed the suit.
19. The case then went to the High Court on second appeal, when Cuming J. agreed with the Subordinate Judge that the suit was barred under Article 142 and should be dismissed. Page J. concurred in allowing the appeal and dismissing the suit, but on different grounds. After referring to the judgment of the High Court in the previous suit and to the judgment of Richardson J. in this suit, he observed :-
Now the matter stands thus : the plaintiffs have been declared entitled to the triangular portion in dispute; but up to 1908, the date of the Title Suit brought by the plaintiffs against the Natorea, it must be taken that there is no evidence, upon which the Court can rely, to justify a finding that the defendant respondent, the Natores, or anybody else, were in actual possession of this 155 bighas.
20. It was unnecessary for the plaintiffs to prove 'actual possession' in the sense of occupation after the submergence, as their possession in law continued until they were dispossessed. In the opinion of their Lordships, as already stated, the finding on which the judgment of the High Court in the previous suit was based was that there was no such dispossession prior to April 15, 1908, when that suit was filed. Whether that finding was right or wrong, it is res judioata and the defendants are estopped from questioning it, and it necessarily follows that the present suit which was filed within twelve years was in time.
21. Page J. was apparently of opinion that the suit was not barred, but he held it must be dismissed as there was no evidence that the defendants had taken possession between 1908, the date of the earlier suit, and 1917, the date of the present suit. No such evidence was needed, as it was common ground and expressly admitted in the written statement that the defendants were in possession in June, 1917, when the present suit was filed. This being so, the plaintiffs, having established their title in the previous suit, and not being barred by limitation, are entitled to a decree.
22. Further, even if the defendants could be heard to say that; the plaintiffs were dispossessed by them for eleven years eleven months and twenty-seven days from June 26, 1905, down to the institution of the present suit, their Lordships are of the opinion that there is no evidence to support the finding of the Subordinate Judge, which the District Judge apparently accepted, that prior to June 26, 1905, the Tagores were in possession of the southern triangle. It is no doubt the case that the defendants recovered mesne profits in their suit of 1897 against the Tagores in respect of a tract of land which included the southern triangle, but the report of the Commissioner was based on the finding that the lands in question had again become culturable after the diluvion, and not on the ground that they bad been actually cultivated. The Commissioner's report on which the learned Judge relied is not evidence of dispossession by the Tagores, and their Lord-ships have not been referred to any other evidence in support of such a finding. It must, therefore, be held that it is not shown that the plaintiffs were dispossessed by the Tagores prior to June 28, 1905, and, indeed, it was held in the suit of 1908 that the Tagores had never been in possession of the southern triangle. On this ground also the suit must be held not to be barred.
23. For these reasons their Lordships are of opinion that the appeal should be allowed, the decree of the High Court reversed, and the decree of the District Judge restored, with costs throughout, and they will humbly advise His Majesty accordingly.