1. This and the connected F.A. No. 369 of 1931 arise out of two suits instituted by the appellants in the Court of the Additional Subordinate Judge, Ballia, for possession of two tracts of land which were the subject of fluvial action of the river Sarju. The plaintiffs and the defendants second party are the zamindars of village Bansthana, which lies on the south of the river Sarju (which should not be confused with the well-known river Sarju or Ghagra) in the district of Ballia. The defendants first party in the suit giving rise to this appeal are the zamindars and tenants of village Sagarpali, which lies to the north of that river. In the suit which gave rise to E.A. No. 369 of 1931 the plaintiffs and the defendants second party are the same; but defendants first party are the zamindars and tenants of village Bagheji also lying on the north of the river. The plaintiffs claim 68 bighas odd against the proprietors of village Sagarpali. These are specified in list (c) appended to the plaint. In the other suit they claimed 18 bighas odd against the proprietors of village Bagheji. In both suits the allegations are the same. It is alleged that the lands in dispute formed part of the plaintiffs' village Bansthana, and that in 1916 the river changed its course receding to the south with the result that the lands in dispute were transferred from the south to the north of the river. Lists (a) and (b) in the plaints of both the suits give the numbers of village Bansthana before they became the subject of fluvial action of the river, while list (c) gives the present numbers which were assigned when the plots were treated as parts of the villages Sagarpali and Bagheji. The only difference between the plots mentioned in lists (a) and (b) is that the latter are said to be under water, while the former are dry. In anticipation of the defence it was alleged in the plaint that the deep stream rule did not apply to the riparian villages in question.
2. Both the suits were contested by the defandants first party on identical grounds. Their principal pleas were that there was an immemorial custom under which the village Bansthana on the south and the villages Hagarpali and Bagheji on the north extended up to the midstream, wherever it might be, so that if by fluvial action land was transferred from one side to the other, it must belong to the village to which it accreted and which must extend up to the midstream. Briefly stated, the defence is that midstream is the constant boundary between the plaintiffs' village and those of the defendants, whatever changes, sudden or gradual, may take place in the flow of the river. It was also pleaded that the land in dispute formed part of the defendants' villages in 1197 Fasli (1790 A.D., and continued to be part thereof till 1289-F (1881-82 A.D.), and that if some time or other the lands were numbered in the village Bansthana but subsequently reappeared on the defendants' side, the latter's right was not affected. It was denied by the defendants that any land was transferred from north to south in 1916 as is alleged by the plaintiffs. Whatever land was transferred from the south to the north was due, according to the defendants, to gradual and imperceptible action of the river towards the south. Apparently this was intended to be an alternative defence, based on the view which prevailed till recently, that where land is added by the gradual and imperceptible action of a river, it belongs to the proprietors of that village to which it accretes, even though the land is identifiable by careful measurement. Limitation and adverse possession were also pleaded by the defendants. On the above pleas the lower Court framed the following issues:
(1) Whether the custom exists, as alleged in para. 4 of the plaint, that the change of the river effects no change in the ownership, or whether the custom of 'dhara dhura' exists, as alleged by the defendants?
(2) If the latter, had the land in dispute been suddenly cut away by a sudden change of the river or had the land appeared by slow and gradual accretion, and what is its effect on the rights of the parties?
(3) Was the land in suit, or any portion of it, part of the village Sagarpali, which by the change of the course of the river Sarju had gone towards Bansthana and again reappeared towards Sagarpali?
(4) Has the river Sarju been the constant boundary between the two villages Sagarpali and Bansthana and between Bagheji and Bansthana?
(5) Is the suit barred by limitation under Articles 142 and 144?
(6) Is me sun barred by estoppel?
(7) Is the suit bad for non-joinder or mis-joinder of parties?
(8) Are the plaintiffs entitled to possession as in relief A and declaration as in relief B, and mesne profits, and if so to how much and against which of the defendants?
3. The lower Court found against the plaintiffs on all the issues noted above and dismissed the suit. The most important issue to which the major part of its judgment is devoted is the one relating to the custom set up by the defendants. It will be seen that issue 4 is covered by issue 1. The lower Court has recorded no separate finding on issue 4 and should be taken to have dealt with both the issues together. We propose to do the same. The law on the subject has been restated by their Lordships of the Privy Council in Maharaja of Dumraon v. Secretary of State . A Bench of this Court has interpreted it in Sri Krishna Dutt v. Ahmadi Bibi : AIR1935All187 . The view accepted on these cases is that, if the land in dispute is identifiable with reference to its physical features, land marks or by measurement, it should be deemed to continue to belong to the former owner, whether its transfer from one side of the river to the other was by a sudden change in the course of the river or was the result of the river gradually receding on one side and throwing up land on the other, unless a custom to the contrary is established. In this view, the burden of proving custom lies on the party who claims the land by accretion. The learned Subordinate Judge, who found against the plaintiffs on the question of custom, also held on issue 2 as follows:
I hold that the land had slowly and gradually accreted and that the land in dispute had not been suddenly cut away by a sudden change in the course of the river. The result is that Clause 2 of Section A does not apply, and hence even if the land or any portion of it be identified as the land of Bansthana of 1882 as being in the same latitude and longitude, the people of Bansthana have lost their right over it, and the ownership thereof vests in the defendants, zamindars of Sagarpali and Bagheji.
4. We shall deal, at a more appropriate place, with the question of fact whether the accretion in this case was gradual, as alleged by the defendants; but we desire to make it clear at the outset that the view taken by the learned Subordinate Judge as regards the legal position of the parties is not correct. The defendants must establish the comprehensive custom pleaded by them and applying not only to accretions duo to sudden changes in the course of the river hut also to gradual accretions, as explained in the rulings above referred to. If the defendants establish the custom pleaded by them, the plaintiffs' suit must fail, regardless of the nature of the accretion. If, on tide other hand, the custom is not established, the defendants cannot succeed merely because the land in dispute gradually and imperceptibly accreted to their villages if the lands are identifiable as those once forming part of the plaintiffs' village. We should not be understood to imply that proof of limited custom to the effect that land added by gradual accretion becomes the property of the owner to whose land it accretes is of no avail where the land is identifiable by measurement. The state of evidence in this case is such that either iii establishes the comprehensive custom pleaded or none at all.
5. The evidence in the case is mostly documentary and has been exhaustively dealt with by the learned Additional Subordinate Judge, who took great pains in discussing the bearing of each piece of evidence. Unfortunately his inferences are not acceptable to us and we cannot weigh the evidence in the manner he did. In one respect his treatment of the evidence is particularly objectionable. He considered the documents produced by the defendants in proof of the custom, and, before considering the documents relied on by the plaintiffs, recorded a definite finding that the cumulative effect of all the above evidence, admissions and presumptions is that the usage set up by the defendants must be held to be proved.
6. He then observed:
I shall now refer to the documentary evidence rolled upon by the plaintiffs to see how far they have succeeded in disproving the custom set up by the defendants or in proving the custom which the plaintiffs themselves have set up in the plaint.
7. The reference to the custom set up by the plaintiffs is to the allegation that the land in dispute being identifiable should be considered to be their property under custom. As a matter of fact, it is not custom which loads to the result claimed by the plaintiff but the law itself. It was not necessary for the plaintiffs to have established any custom to that effect. The learned Subordinate J ridge considered each piece of evidence relied on by the plaintiffs by itself and rejected it as of little weight and, at any relied not sufficient to rebut the finding previously recorded by him in favour of the defendants. In our opinion, the evidence should be considered as a whole and the findings should depend upon the cumulative effect of the entire evidence. We shall deal with the case in this manner in arriving at our findings, and consider the evidence, as far as possible, in the order in which the learned Subordinate Judge has discussed it. We may mention one salient feature of the evidence which the learned Subordinate Judge has made light of. The defendants have not been able to produce any document, (apart from allegations of interested parties, which were eventually not accepted by Courts) showing any instance in which the deep stream rule was expressly recognized. Nor have they been able to produce any record of any of the many settlements that have taken place, in which the alleged custom might have been noted. The plaintiffs have, on the other hand, been able to produce several instances in which the existence of custom was judicially negatived.
8. The learned Subordinate Judge appears to have given undue importance to certain admissions and inferences which, according to him, established the custom. As regards judgments in which it was held that the custom had not been established, the learn, ed Subordinate Judge assumed the role of a Court of Appeal and held that the finding was not justified. While it is open to a Court to give little weight to a judgment, on the ground that, on the face of it, the conclusion was not justified, it is obviously difficult for a Court, which has only the judgment before it, to review the finding arrived at therein and to arrive at a different conclusion in the absence of the record of that case. (His Lordship then discussed the evidence and proceeded.) The learned Subordinate Judge has strongly relied upon certain admissions made by the zamindars of Bansthana in a plaint and a written statement in two suits between them or their tenants and the zamindars of Sagarpali in respect of land which had appeared on the Bansthana side owing to the fluvial action of the river. In those cases the zamindars of Bansthana had relied upon the deep stream rule; but it was held that they failed to establish the custom.
9. The learned Subordinate Judge pins down the plaintiffs of the present suit to what they, or their predecessors, had said in the earlier litigations and ignores the actual decisions in those cases, which he thinks do not detract from the admissions. We are of opinion that the value of admissions must depend upon the circumstances in which they were made, and possible motives for incorrect statements by interested parties should not be ignored. The nature of the facts admitted is also a material point to be considered. If the fact admitted is one within the personal knowledge of the party admitting, and there is no evidence of convincing explanation forth, coming, its value is considerable. If, on the other hand, the fact admitted is an inference from evidence and circumstances, the weight of admission may be very little. A general allegation by an interested party as to the existence or non-existence of a custom is his conclusion of a mixed question of law and fact. This is particularly so in pleadings in which a party has to make allegations both of fact and law. In the present; case, the alleged admission is contained in the pleadings and does not necessarily include, for instance, the fact that the deceased ancestors of the persons making the admission had declared the existence of the custom. The nature of the admission will be clear from the consideration of the pleadings themselves. (His Lordship then discussed the evidence regarding the custom and continued.) These are all the judicial decisions in which the custom was in question but was held not to have been established. In one case, the custom could have been pleaded but was not pleaded. The proprietors of Bansthana set up the custom on more than one occasion; but their plea was invariably rejected. On the other hand, one of the proprietors of village Sagarpali repudiated the custom; and his case was accepted by the Court. It seems to us that the admissions of the zaraindars of Bansthana cannot be considered to be of such weight as to override the effect of repeated pronouncements of Courts. They were statements made by interested persons. Unless there is other co. gent evidence in proof of the custom in the present case, we cannot consider the so called admissions to be of great value and ignore the fact that parties to a litigation put forward pleas which are sustained. In those cases, their truth was not accepted by the Courts which had to deal with them. We have already expressed our disagreement with the lower Court, which has attempted to arrive at its own finding on the circumstances of each case contrary to the finding of the Court which had the whole evidence before it. It was held in Lachman v. Akbar (1875-77) 1 All. 440 that the best proof of a custom is the circumstances in which it has been acted on and documentary evidence that it has been in force. It was observed in Gurdayal Mal v. Jhandu Mal (1888) 10 All. 585 at page 586 that
they (decrees) were the best evidence of instances in which the right was recognized. They, are, to our mind, the moat satisfactory evidence, because they are the result of decisions in oases in which one party alleged the custom and the other denied it. The Courts, having heard evidence, decided in favour of the custom. As those decrees were not in suits between these parties, they were not conclusive; but they were excellent evidence to show that the right was asserted in the town by other persons and was recognized by the lawfully constituted legal tribunals.
10. Section 13, Evidence Act, makes admissible particular instances in which the custom was claimed, recognized, or exercised, or in which its exercise was disputed, asserted or departed from. Ordinarily, and in the absence of special circumstances, a judicial decision in recognition or denial of a custom is good evidence in proof thereof. There may be cases in which the judicial decision relating to a custom may not be of great value; but where it was arrived at in a well-contested case in which there is no reason to suppose that the parties could not, or did not, produce all evidence available to them, the value of the decree as a piece of evidence is great.
11. Applying this rule to the judgments under consideration, we are unable to find that the parties to those cases did not avail themselves of the opportunity of producing such evidence as existed in their favour. The investigation in the present case has not shown that any evidence produced in this case was not produced in those cases, though it was relevant. On the other hand, the instances which are now relied on against the custom were not then before the Courts, which in spite of the non-production of the judgments produced in this case, arrived at the same conclusion. (His Lord-ship then discussed the evidence and proceeded.) Having carefully considered the entire evidence, we are clearly of opinion that the cumulative effect of it is that the custom pleaded by the defendants-respondents has not been established. The strongest piece of evidence, relied on by the defendants and accepted by the lower Court, consists of maps of 1839, 1866 and 1882, which show that in those years the river Sarju was the boundary between the villages on opposite sides in this locality. In so far as these maps bear the signatures of the proprietors, they may be considered to have accepted the river as the boundary in those years. This is however no proof of the custom. It might have been of some assistance to the defendants, if they had relied upon an agreement that the river should be the boundary. The defence however is not based on any agreement, nor is there any evidence in support of it, except the possible inference referred to by us.
12. In the absence of a custom, no change in ownership occurred, whether the land was added to the defendants' village by gradual accretion or by a sudden change in the course of the river, provided the land in dispute can be identified, by measurement or otherwise, as that previously belonging to the plaintiffs as part of village Bansthana. The lower Court has not arrived at a definite finding as to whether the plots, claimed by the plaintiffs and entered in list (c) of the two plaints, were originally the property of the plaintiffs. In this connexion the construction put by the learned Subordinate Judge on the plaint requires consideration. He thinks that the plaintiff's claim is confined to the land which may be found to have appeared on the north of the river after 1916, when, in consequence of a flood, all the land in the neighbourhood of the village was under water. In our opinion, this is not the right construction of the plaints. The plaintiffs alleged that all the plots entered in list (c), which have been numbered as part of villages Sagarpali and Bagheji, once appertained to their village Bansthana and bore numbers given in lists (a) and (b). They allege that they ceased to be part of their village after 1916. If this latter allegation is found to be untrue, it cannot be said that the plaintiffs did not claim such of the land in dispute as had been washed away before 1916. They claimed certain specified land as theirs; and if the time when, according to them, they were deprived of the enjoyment thereof is found to be incorrect, their claim as regards such plots cannot be dismissed. The lower Court refers to the statement of Bhagwati Singh, one of the plaintiffs, in which he said that the plaintiffs' claim is only with regard to such land as had been washed away in 1916. This statement cannot affect the main allegation in the plaint. We think that if the plaintiffs are otherwise entitled to the whole or part of the land in dispute, their claim cannot be dismissed only because their allegation as regards the time when it was lost is found to be incorrect. Of course, the question of limitation will have to be considered if it is found that a particular plot belongs to the plaintiffs but appeared on the other side more than 12 years before the institution of the suit a question which will have to be considered under a separate issue. The first part of the first issue refers to the so called custom mentioned in para. 4 of the plaint, in which the plaintiffs allege that
it has always been the custom that a particular person who is the owner in possession of the land of a particular village remains the owner of it in spite of the change in the course of the river and the locality of the villages. The custom of shikast-paivast does not apply to the villages situate at the boundary of the said river.
13. In this paragraph the plaintiffs have merely stated the law on the subject. The fact that they call it a custom will not make any difference. Having found that the custom set up by the defendants has not been established, we hold on that issue that the custom of dhardhura does not exist, and therefore the change in the course of the river does not affect ownership in lands which are identifiable. If we decree any part of the suit, we shall call for a finding from the lower Court as to whether the land in dispute, or any part of it, can be identified as the property of the plaintiffs. On the second issue the lower Court held as follows:
I hold that the land has slowly and gradually accreted and that the land in dispute had not been suddenly cut away by a sudden change in the course of the river. The result is that Clause 2 of Section 4, does not apply and hence even if the land or any portion of it be identified as the land of Bansthana of 1882 as being in the same latitude and longitude the people of Bansthana have lost their right over it and the ownership thereof vests in the defendants zamindars of Sagarpali and Bagheji.
14. The finding of the lower Court that the accretion was gradual has not been contested before us; but as already stated, this makes no difference in respect of the plaintiffs' rights. In the absence of custom, gra dual accretion does not give any right to the proprietor to whose village land is added by fluvial action : see Sri Krishna Dutt v. Ahmadi Bibi : AIR1935All187 .
15. Issue 3 is somewhat peculiar. Without committing themselves to any definite statement the defendants seem to suggest that the whole or part of the land in dispute was originally part of their village but was, by the action of the river, thrown up on the south and became part of village Ban sthana and that subsequently it re-appeared on their side. They seem to argue that its temporary situation on the south of the river did not affect their ownership. The lower Court has not arrived at any finding on this issue. In our opinion, the defendants' contention cannot be the subject of a separate issue. If the plaintiffs establish by evidence that the land in dispute, or any part of it, was included in their village Bansthana and was therefore their property, it would be open to the defendants to show, in rebuttal, that before it became part of Bansthana it was part of their village and therefore their property. If the defendants succeed in establishing their point, the plaintiffs can be considered to be the owners of such land only if they were in adverse possession for more than 12 years. The question will be covered by the issue relating to the identity of the land to which reference has already been made.
16. Issue 4 is really part of the first, and has been disposed of. Issue 5 relates to limitation and adverse possession. The lower Court's treatment of this issue has been complicated by the discussion as to whether the plaintiffs have claimed any land which accreted before 1916. The suits were brought in February 1928, and the plaintiffs alleged that every year the land in dispute used to be under water for sometime. According to them, the land appeared in 1918 after the flood of 1916, so that they are within time. Obviously, the plaintiffs make their suit within limitation on two alternative grounds. If it be found, as they allege, that the land appeared in 1918 on the north after its submergence in 1916, the suits which were instituted within 12 years after 1918 are in time. If, on the other hand, it be found that the land became part of the defendants' villages more than 12 years before the institution of the suit, they rely on the fact that the land was under water every year for sometime during which possession followed title, and their suits cannot be considered to be barred by limitation.
17. The finding of the lower Court is so confused on this part of the case that we have no alternative but to call for a fresh finding. The plaintiffs have alleged in para. 6 of their plaint that the defendants are in unlawful possession of the land in dispute. In other words, they admit discontinuance of their own possession. Prima facie, Article 142, Limitation Act, is applicable. The plaintiffs must show that they were in possession of the land in dispute within 12 years before the institution of the suit. We may note that, in a case like this, the plaintiffs' possession is to be presumed during the time the land was unfit for actual possession, either because it was under water or because it was no more than a sandy tract unfit for any use. In recording a finding on the question of limitation this aspect of the case should not be lost sight of. In establishing their own possession within limitation, the plaintiffs can show that the defendants' actual possession was not continuous for 12 years; and if they succeed in establishing such a state of possession, their own possession, during the interval when the defendants were not in possession, should be presumed. On issue 6, which relates to estoppel, the lower Court has held that the plaintiffs are estopped from claiming the land in dispute as theirs, because their whole conduct was
consistent with the existence of the oustonx of 'dhardhura,' and the plaintiffs should not be allowed to resile from it; they cannot be allowed the plums of the bargain and have only advantages for themselves and to resile from it when there comes a stage of disadvantage.
18. To our mind, the many assumptions which are involved in this view are un-founded. Nothing has been established to justify the view that the plaintiffs are estopped from claiming the land now in dispute. Issue 7 raised a question of non-joinder and mis-joinder of parties. It is difficult to ascertain whether the lower Court intended to find it in the affirmative or in the negative. The following is its finding:
There is no force in this plea, as common question of law and fact was involved. But it was necessary for the plaintiffs to show which of the plots they were claiming against which of the defendants, and as all the defendants were not jointly in possession, they could not be made jointly liable for mesne profits.
19. We take it to mean that, so far as the plaintiffs' claim for possession is concerned, there is no force in the defendants' plea; but so far as mesne profits are concerned, the decree in favour of the plaintiffs must specify the amount due from each defendant. So far as mesne profits are concerned, it is not necessary to arrive at any decision at present. If a decree is passed in favour of the plaintiffs, the decree for mesne profits should be deemed to be a preliminary decree, and the liability of each defendant shall have to be subsequently ascertained and a final decree passed. We hold that there is no misjoinder or non-joinder. The last issue need not be considered at this stage. It relates to the relief to which the plaintiffs are entitled a point which will arise on receipt of the findings on the issues which we propose to remit the result is that we remit the following issues to the lower Court for findings to be returned within four months. On receipt of findings ten days shall be allowed for objections.
(1) Wore the plots mentioned in list (c) of the plaint, or any of them, part of village Bansthana and, if so, do they belong to the plaintiffs?
(2) Is the plaintiffs' suit within limitation in respect of any of the plots in dispute?
20. On receipt of the findings on these issues the case came before Collister and Bajpai JJ., and the following judgment was delivered.
21. This first appeal arises out of Suit No. 24 of 1928 of the Court of the Additional Subordinate Judge of Ballia in which the plaintiff's, who are the zamindars of Bansthana, brought a suit impleading the zamindars and certain tenants of Sagarpali as defendants first party and claimed for a declaratory and possessery relief in respect of separate areas of land mentioned in various lists attached to the plaint. The plaintiffs further claimed Rupees 1500 as damages or mesne profits against the said defendants. The defendants second party wore certain zamindars who were cosharers both of Bansthana and Sagarpali and who did not join the suit but who, for all practical purposes may be considered to have the same interest as the plaintiffs. This appeal la connected with First Appeal No. 369 of 1931 which arises out of Original Suit No. 25 of 1928 of the Court of the Additional Subordinate Judge of Ballia. This was a suit by the zamindars of Bansthana impleading an defendants first party, the zamindars of mouza Bagheji, and claiming for a possessory relief in respect of 18 bighas, 16 biswas and 11 dhurs of land mentioned in various lists attached to the plaint. They also claimed Rs. 600 as damages or mesne profits. The defendants second party were certain zamindars of Bansthana who did not join in the suit but who may, for all practical purposes, be treated as having the unme interest as the plaintiffs. The village Bansthana lies to the south of the river Tons (also known as Sarju) in the Ballia district and villages Sagarpali and Bagheji are to the north of this river. Sagarpali is inwards the north and Bagheji is towards the north-west. The plaintiffs' ease in the two suits was that the boundaries of the three villages were well defined and in spite of changes in the position of the river owing to alluvial action the person who was the owner in possession of the land of a particular village remained the owner of it in spite of the change in the course of the river and the locality of the villages. It was said that because of a change in the course of the river in 1916 certain lands were lost to Bansthana, in the sense that they appeared on the other side of the river, and were unlawfully taken possession of by the zamindars of Sagarpali, who let out portions of them to certain tenants of Sagarpali, and also by the zamindars of village Bagheji. The lands were, according to the plaintiffs, clearly identifiable.
22 The defendants in the two suits, namely the zamindars of Sagarpali and the zamindars of Bagheji, pleaded the custom of dhardhura or deep stream and said that the boundaries of the villages of Sagarpali and Bagheji extended up to the deep stream of the river to the south and the boundary of village Bansthana extended to the same deep stream of the river on the north and the lands in question in the two suits belonged to Sagarpali and to Bagheji. The tenants of Sagarpali also supported the contesting defendants and said that the zamindars of the village of Sagarpali had made a settlement in respect of the lands with the tenants who paid rent to the zamindars of Sagarpali and the plaintiffs had no sort of connexion with the lands in question. These two appeals came before a Bench of this Court of which one of us was a member on 3rd May 1935 when the principal points of controversy between the parties were decided, but the following two issues were remitted to the Court below for findings:
(1) Were the plots mentioned in list (c) of the plaint, or any of them, part of village Bansthana, and if so, do they belong to the plaintiffs? (2) Is the plaintiff's suit within limitation in respect of any of the plots in dispute?
23. The findings were returned by the learned Additional Subordinate Judge of Ballia on 30th January 1936. When the appeals were listed again for hearing in this Court on 16th March 1937, an objection was taken on behalf of the legal representatives of Sheo Prasad Narain Singh (deceased), a defendant in Suit No. 25 of 1928, that although they had been brought on the record, they were not served with any notice by the Court below when the suit was remanded to that Court and they had in consequence no opportunity of cross-examining the witnesses examined by the plaintiffs or of producing their own evidence, and therefore a report was called for from the Court below on this point. The report confirmed the information which was given to this Court on 16th March 1937, and on 12th April 1937 when the appeal was again listed before this Court the lower Court was directed to allow the legal representatives of Sheo Prasad Narain Singh to cross examine the witnesses examined by the plaintiffs and to record the evidence of witnesses produced by the legal representatives of Sheo Prasad Narain Singh and the lower Court was further directed to issue a commission for the preparation of a plan of the locality, if a proper application was made. All this has now been done and the appeals are ripe for hearing.
24. The suit was dismissed in the original instance by the trial Court, and as a result of the findings on remand (if those findings are to be accepted) the suit will have to be partially decreed. An objection has been taken on behalf of the defendants-respondents that one Jaddu Bhaiya, a plaintiff in the two suits, died during the pendency of the appeals in this Court and his legal representatives were not brought on the record and therefore the appeal abates so far as Jaddu Bhaiya is concerned. There is no force in this contention. The surviving plaintiffs are entitled to a decree provided they succeed in their appeal. Under somewhat similar circumstances it was so held in the Pull Bench case in Mahadeo Singh v. Talib Ali : AIR1928All345 This very Bench also had to consider this point in Abdul Rehman v. Girjesh Bahadur pal : AIR1938All235 and it was held that where the suit has proceeded on a common ground as contemplated by Order 41, Section 4, Civil P.C., and the decree appealed from also proceeds on the same common ground, anyone of the plaintiffs may appeal from the whole decree and the Appellate Court may reverse or vary the decree in favour of all the plaintiffs. The death therefore of any of the plaintiffs has no effect unless it can be shown that his interest is separable from the interest of the surviving plaintiffs-appellants, and this has not been shown in the present case.
25. Another objection on behalf of the defendants-respondents is that some defendants died during the pendency of the suit in the Court below and their representatives were not brought on the record and the suit abated under the provisions of Order 22, Civil P.C., against those defendants and if the appeal is allowed wholly or partially the result would be the bringing into existence of two contradictory decrees which is not desirable as has been held in a number of cases (which have been discussed in Abdul Rehman v. Girjesh Bahadur pal : AIR1938All235 mentioned above) and the suit must therefore be deemed to abate against all the defendants. It is also said that one of the defendants was not impleaded in the appeal at all and his nonjoinder also brings about the same result. We find that Ram Kishen Ojha, defendant 20, Jobodh Rai, defendant 27, Dewan Dusad, defendant 41, Deoki Rai, defendant 43 and Bishnath Pande, defendant 23, died during the pendency of Suit No. 24 of 1928 and the legal representatives of the first four were not at all brought on the record while the proper legal representative of Bishnath Pande was not brought on the record. We further find that Ram Kishan Eai, defendant 13 of Suit No. 24 of 1928 was not impleaded in the appeal at all. The plaint shows that none of these defendants are zamindars of Sagarpali, but are only tenants inasmuch as their occupation is shown to be agriculture. It is also clear from their written statements that they are tenants of Sagarpali. The Court below noticed the death of five defendants and the fact that the legal representatives of four of them were not brought on the record and also considered the objection that an improper legal representative of Bishnath Pande was brought on the record. The Court below held that the suit abated against these defendants only and not against all the defendants as a whole. No cross objections were filed against this portion of the judgment nor was this point taken before us in May 1937 when certain issues were remitted. As regards Bishnath Pande, defendant 23, it is said on behalf of the plaintiffs that his father was brought on the record and there was thus sufficient representation, but the Court below by an order dated 28th November 1928 has discussed this point fully and has said that the father was not the karta of the joint Hindu family and that Bishnath Pande left two brothers, a widow and a daughter. If the tenancy of Bishnath Pande be considered to be the tenancy of a joint Hindu family the karta was not impleaded and if the tenancy be deemed to be of Bishnath Pande alone, the widow was not impleaded and therefore the representation was defective and we agree with the Court below that the suit did abate against the legal representatives of Bishnath Pande at least. It is then said on behalf of the plaintiffs that the suit abatcwi only against the five deceased persons and Ram Kishun Rai, defendant 13, who was not impleaded in the appeal and not asi a whole because all these six persona wore only tenants in village Sagarpali and they were not interested in any proprietary right in the lands in question. The submission is that the plaintiffs cannot, if any decree is passed in their favour, eject the lagal representatives of the five deceased persons and Ram Kishun Rai from the lands in their possession, but they are undoubtedly entitled to obtain a decree declaring their proprietary right in the land in question and if any land is in possession of any other defendant the plaintiffs are entitled to possession of such land. The only consequence, according to the plaintiffs, of their laches is that the rights of the legal representatives of the five defendants and the rights of Ram Kishun Rai will be unaffected by any decree that might be passed in favour of the plaintiffs. This seems to be the correct view of the law, and we are [committed to this view as we held in Abdul Rehman v. Girjesh Bahadur pal : AIR1938All235 referred to above.
26. This disposes of certain preliminary points taken by the defendants, and we now propose to consider the merits of the case. A map was prepared by the commissioner, Mr. Shiam Sheo Prasad, pleader, during the pendency'of the suits in the Court below. It is paper No. 329-C and is printed at p. 58 of our record in First Appeal No. 491 of 1930 and certain letters have been put by the Court below on that paper. We have a bio initialled the paper. After remand the Court below has held that land to the north of the southern bank of the river Sarju, i.e. line marked as GM on the map 329/C, was a part and parcel of village Sagarpali and the plaintiffs cannot be its owner by SM I verse possession as, according to the plaintiff's themselves, it decidedly got submerged under water every year during rains, but as for the remaining land in list C below the said line GM, it was marked by the settlement authorities in 1881-82 as part said parcel of village Bansthana, as the plaintiffs or their predecessors had been in adverse possession of the same for more than 12 years prior to that period. It has also found that the plaintiffs are the owners of the land below the line JEUV. This is the finding of the Court below on the two issues so far as village Sagarpali is concerned. As regards village Bagheji, the finding is that with the exception of the triangular piece of land BGZY, which has been held to be the property of the zamindars of village Bagheji, the rest of the plaint property below the line KYZ belongs to the plaintiffs for it was shown, so in the settlement papers of 1840 and 1881-1882 and the zamindars of Bagheji have not been in adverse possession of the same because the land gets submerged in water during the rains. Parties have filed objections to these findings. So far as the objections by the plaintiffs are concerned, they have not been pressed before us and ifc ia said that, because the accuracy of the map so far as it refers to the position of the river Sarju in the settlements of 1840 and 1881 was accepted by the plaintiffs in the Court below, the plaintiffs cannot reason, ably challenge the findings after remand. The plaintiffs therefore cannot lay claim to anything more than what has been held to belong to them by the Court below after remand and even that is subject to the objections of the defendants. The defendants have also filed objections in the two appeals and they have been strenuously argued by learned Counsel for the zamindars of Sagarpali and Bagheji. By our order dated 3rd May 1935 we remitted two issues and the first one was:
Were the plots mentioned in list (c) of the plaint, or any of them, part of village Bansthana and, if so, do they belong to the plaintiffs?
27. The Court below has not recorded a finding in terms of the above issue inasmuch as it has not taken the plots in list (c) and said as to which of them belong to Bansthana, but has recorded its finding with respect to a certain line drawn by it on the map, and it is contended on behalf of the defendants that that is not a satisfactory finding. If it were not possible for us to decide the appeals on the findings remitted by the Court below, we would have been compelled to remand the case once again and to obtain a clear finding with reference to the plots in list (c), but after having heard counsel for the parties we think it is possible to dispose of the appeals on the materials before us. We have indicated in an earlier portion of our judgment the findings of the Court below on remand. The Court below says:
Plaintiffs admit that they have got to do nothing with the land to the north of the line BOHL. Parties agree that the land BGNMLHO formed a part of village Sagarpali in the settlement of 1840 while it was included in village Bansthana (belonging to plaintiffs) in the settlement of 1881-82.
28. The controversy between Bansfchana and Sagarpali centres round this tract of land. On their own admission the plaintiffs have nothing to do with the land to the north of BOHL and the Court below has rejected the claim of the plaintiffs with respect to this land, but with respect to land BGNMLHC the Court below has held that although this land was shown as part of village Sagarpali in the settlement of 1840 it became part of Bansthana by reason of adverse possession when the settlement of 1881-82 came into operation, and this finding is based principally, if not solely, on the entries in the settlement papers. The reasoning on which this finding has been arrived at is that by the year 1866 the river Sarju had gone northwards and the land which belonged to Sagarpali reformed on the Bansthana side and by 1881-82 the settlement authorities settled it with the zamindars of Bansthana. Oral evidence as to possession over this plot of land is very meagre. It consists of the statement on oath of Bhagwati Singh, one of the plaintiffs, and this cannot be accepted without caution inasmuch as Bhagwati Singh is an interested witness. Prom a certain admission made by Gorakh Prasad, a witness on behalf of the defendants, the Court below has drawn certain inferences adverse to the claims of the Sagarpali people, but we are not so sure about these inferences. The 'classical requirement' in the case of adverse possession as observed by their Lordships of the Privy Council in Srischandra Nandy v. Baijnath Jugul Kishore is that
the possession should be nee vi nee clam nee pre-cario. the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.
29. It is said by Sir Wazir Hasan on behalf of the zamindars of Sagarpali that the test laid down by their Lordships of the Privy Council has not been satisfied in the present case. The land which according to the finding of the Court below has been held to belong to Bansthana by reason of the settlement entries of 1881-82 was undoubtedly the land of Sagarpali according to the map in the settlement of 1840 and, as observed by the trial Court before remand, the land of Sagarpali of 1840 has reformed in situ, so there is conflict between two titles, for if the plaintiffs can rely on their anterior title prior to diluviation in 1916, there seems to be no reason why the defendants should not get the benefit of a still anterior title on the same principle. Attention has also been drawn to the plaint allegations where adverse possession after 1840 was not pleaded by the plaintiffs at all; all that was said was that the land was that of Bansthana, and on account of the change in the course of the river in 1916 the land had re-formed and was identifiable on the Sagarpali side and therefore the plaintiffs were entitled to it, but the defendants on the same reasoning said that the land, when it emerged on the Bansthana side after 1840, was also identifiable and the plaintiffs had not satisfied the test laid down by their Lordships of the Privy Council as to adverse possession. The oral evidence, as we said before, is very meagre, and we have only the settlement entries on which the Court below has placed implicit reliance. As against those settlement entries we have copies of khasras printed at pages 222, 230, 246 and 252 of our record in First Appeal No. 491 of 1930 which show that the plots in list (c) were in the possession of the Sagarpali tenants in the years 1295 F., 1307 F., 1317 F., 1321 F. It is therefore not possible to say that the plaintiffs have established their adverse possession over the land BGNMLHC and the plaintiffs claim in respect thereto as against the zamindars of Sagarpali is not tenable. The other compact area which is in dispute between the zamindars of Bansthana (the plaintiffs) on the one side and the zamindars of Sagarpali on the other and which is also in controversy in the present first appeal is to the south of the line JEQF as marked by the Court below on paper No. 329-C. The Court below after remand says:
No portion of it except a very small green triangular plot of land on the north-east side marked UVF was included in village Sagarpali during the settlement of 1840.
30. This area JEQF is what is
mentioned in Schedule B of the plaint and the plaintiffs have only claimed a declaration of their title with respect to them (i.e. the plots) against the defendants, i.e., zamindars of village Sagarpali) as they admittedly get under water. The defendants (i.e. zamindars of village Sagarpali) do not contest these points seriously before me.
31. It would thus appear that there is no serious controversy regarding the plots in list (b) and the trial Court originally said:.as regards; the prayer in relief B of the plaint the declaration cannot be given in the form prayed for, but it is declared in a general form that the plaintiffs are the owners of half the bed of the rivet Sarju wherever it may happen to be up to the mid-stream on their side of village Bansthana....
32. It would thus appear that even the trial Court gave a declaration, though limited in extent, so far as the plots in list (b) were concerned. In view of what we said by our order dated 3rd May 1935 the declaration given by the trial Court ought to be modified and the declaration should be given in terms of relief B. As a result of what we have said above we allow First Appeal No. 491 of 1930 only to this extent : that we modify the declaratory relief given by the Court below and in lieu thereof substitute a declaratory relief in terms of relief H of the plaint, but for the rest we dismiss the appeal. As the plaintiffs have succeeded only in name, they must pay the costs of the defendants in this appeal.
33. Coming to First Appeal No. 369 of 1931 we find that the finding of the Court below on remand is that the whole of the land in lint (c) with the exception of a small triangulur strip marked BSG was not a part and parcel of village Bagheji during the year 1840 and therefore this triangular land must still be deemed to be the property of film zamindars of Bagheji as it is admitted that it gets submerged every year, but the iiwid to the south of KYZ is a part of village Bansthana according to the settlements of 1840 and 1881-82. The Court below then observes that this land has been jotting under water as admitted even by Badri Narain Lal who has been examined by the zamindars of village Bagheji. There in no such admission. This man is only 50 years of age and his evidence only shows that the land in dispute gets under water from the last six years. He does admit 'every year we get ordinary floods,' but there is no justification for saying that Badri Narain has admitted that the land gets under water every year ever since 1840, and. indeed he could not say so because by reason of his age he could not speak to anything that took place more than 40 yours ago. On behalf of the zamindars of Bagheji it is contended that so far as plots in list (c) of the plaint are concerned although it may not be the land of Bagheji according to the settlements of 1840 and 1881-82, yet the Bagheji zamindars have been in adverse possession of the plots from 1885. Certain numbers are mentioned in list (c) of the plaint as originally filed and by plaintiffs' application for amendment of plaint dated 4th November 1935 certain other numbers were included in list (c). By the original list claim was laid regarding 283/1, 283/2, 283/3, 283/4 and 283/5 and by the application for amendment 280/1, 280/2, 280/3, 280/4, 280/5, 280/6, 280/7, 280/8, 280/9, 280/10 were also added and over and above them Nos. 283/6, 283/7, 284, 285 and 286 were also included. From the statement of estates summarily settled, Ex. CC, printed at pp. 32 and 33 and from the proceedings of the Collector of Ballia printed at page 34 of our record in First Appeal No. 369/1931 it appears that by the year 1885 there was a small accretion on the Sarju to mouza Bagheji caused by a recess of the river and about 33 acres of land was formed on the Bagheji side and it was settled at a jama of Rs. 47 with the Bagheji zamindars. Since then we have revenue papers for 1889, 1890, 1902,1907 and 1912 printed at pp. 48 to 150 of our record in First Appeal No. 369 of 1931 and these papers show that the numbers included in list (c) by the plaint and by the application for amendment have been consistently shown in the cultivation of the Bagheji people. On the strength of this evidence, it is contended on behalf of the Bagheji zamindars that they have been in adverse possession of the plots claimed by the plaintiffs. The evidence on behalf of the plaintiffs on the question of possession in respect of this land is almost nil and the revenue papers show that soon after the settlement of 1881-82 the plots reappeared on the Bagheji side and have been continuously in possession of the Bagheji people. The test laid down by their Lordships of the Privy Council as regards adverse possession has been satisfied so far as these plots are concerned. The result of what we have said above is that Appeal No. 369 of 1931 is dismissed with costs.