1. This is a plaintiffs' appeal arising out of a suit for recovery of possession of land together with mesne profits. The plaintiffs' case was dismissed by the Court below on the ground of limitation. Their claim was as follows;--The village in question has been partitioned into several mahals, of which Mahal Baldeo Sahai has been allotted to the plaintiffs, and Mahal Sahadra Bai has been allotted to the defendants. These two mahals lie side by side on the same bank of the river Ken. According to the plaintiffs, the bed of the river was also partitioned and one portion 51/2 was allotted to their mahal and another portion 51/5 was allotted to the defendants' mahal. The land in suit is part of the river-bed. I note that the claim is limited to what is described as plots Nos. 1--10 in the Kanungo's report. The plaintiffs state that these are part and parcel of plot 51/2 and belong to them and the defendants have taken possession within two years prior to the suit and that they are entitled to possession. The defendants' case is first of all that these plots are not part and parcel of the plaintiffs' mahal and, secondly, that if they are, the defendants have been in adverse possession for a period of over twelve years. Neither of the Courts below came to a clear finding as to whether these ten plots form part and parcel of the plaintiffs' mahal. The lower Court assuming that the plaintiffs had title originally has dismissed the suit as I have said above on the question of limitation. It is an admitted fact that this land is submerged every year during the rains and at the end of the rains when the river falls, it is uncovered and melons are grown on it here and there. The lower Court has held that whenever this land is uncovered, the defendants have taken possession of it and have given the land to tenants for cultivation and have recovered rent from those tenants and it, therefore, held that as this has been going on practically since the time of partition, the defendants have acquired title by adverse possession. This finding is attacked in second appeal and reliance is placed on the decision of their Lordships of the Privy Council in Secretary of State for India v. Krishnamoni Gupta 29 C. 518; 29 I.A. 104. The portion of the judgment on which reliance is placed is to be found at page 534. It will be seen that the case of Kally Churn Sahoo v. Secretary of State 6 C. 725 at p. 735; 4 Bom. L.R. 537; 6 C.W.N. 617 was quoted before their Lordships and was very specifically overruled as being bad law. The only difference between the present case and the case that was before their Lordships is that in one the land is submerged every year for three or three and half months daring the rainy season, whereas is the other the land was submerged for several years. A reference to the case of Kally Churn Sahoo v. Secretary of State 6 C. 725 at p. 735; 4 Bom. L.R. 537; 6 C.W.N. 617 shows that Sir Richard Garth, C.J., held therein that when a trespasser has taken possession, such possession would continue until the true owner has taken possession and he cannot be held to be disturbed when the land become submerged. In the case of Kally Churn Sahoo v. Secretary of Stats 6 C. 725 at p. 735; 4 Bom. L.R. 537; 6 C.W.N. 617 the judgment runs as follows:
But their contention is, that if the Government were in fact wrong-doers whilst they remained in possession from 1865 till 1869, no presumption ought to be made in favour of their possession continuing after the land became diluviated, as if they had been the rightful owners. But it seems to me very difficult to act upon that principle. If the Government had merely committed a casual act of trespass, that would not have had the effect of permanently disturbing or discontinuing the plaintiffs' possession. But if what they did amounted to putting the plaintiffs, the true owners, out of possession, and they kept possession themselves under a claim of right for so long a period as four or five years, I see no reason why the fact of the land becoming diluviated should be considered as putting an end to their possession. If this were the law, it would have a most important effect upon many titles in Bengal, which are founded upon adverse possession, because we all know that large tracts of land are always, more or less, covered with water during the rainy season; and if the fact of their becoming thus covered with water had the effect of putting an end to the possession of any person other than the true owner, and of restoring the true owner to possession during the time that the submersion continued, it would cause a very material change in the law of limitation.
2. In Secretary of State for India v. Krishnamoni Gupta 29 C. 518; 29 I.A. 104 their Lordships distinctly state that they cannot agree with this view. They say: 'On the contrary, they think that on the dispossession of the Government by the vis major of the floods, the constructive possession of the land was (if any where) in the true owner.' Farther on, they remarked:
Dispossession by vis major has the same effect as voluntary abandonment, and they are of opinion that the case of Kally Churn Sahoo v. Secretary of State 6 C. 725 at p. 735; 4 Bom. L.R. 537; 6 C.W.N. 617 was wrongly decided and ought to be overruled.
3. Applying this principle to the present case, it is quite clear, assuming that title was originally in the plaintiffs, that the defendants have not held continuous possession for a period of over twelve years. Every year, their possession was disturbed by the flood and in the period of time during which the land has been submerged, the constructive possession was (if any where) in the true owner. Even so in the year prior to the suit during the rainy season when the land was covered with water, the plaintiffs must be considered to have been in possession on the assumption that the title was in them. It seems quite clear that in the circumstances like the present, it would be impossible for a trespasser to acquire title because it would be difficult for him to hold possession during such periods of submersion. It, therefore, seems to me that the decree of the Court below is erroneous. In order to decide the case properly, I must have a finding from the lower Appellate Court on the following issue:
4. Is the land in dispute, plots Nos. 1--10 in the Kanungo's report situate within the boundaries of the plaintiffs' mahal?
5. The parties may give further evidence on this issue and on receipt of the finding ten days will be allowed for objection.