1. This appeal arises from a suit for a declaration of title in respect of the land described in Lists A and B of the plaint. The plaintiff-appellants are the Zemindars of Kotha muafi, and the defendant-respond ants are the zemindars of Rahua. The disputed land lies roughly between these two villages, and it is the case for the plaintiffs that in 1892 by the action of the river Rapti it was brought from the side of Rahua village to the side of Kotha, and that they (the plaintiffs) have been actually in possession of the land either themselves or through a predecessor from 1892 until; the date of the suit. The lower Court although finding that the plaintiffs had been in possession of the land for over twelve years before the suit, found that their possession had not been continuous owing to the fact that the land had been during part of that period submerged by the river and that in consequence the plaintiff's possession had been interrupted; and following the decisions of the Privy Council in the cases of Secretary of State for India v. Krishnamoni Gupta 29 C. 518 : 29 I.A. 104 : 6 C.W.N. 617 : 4 Bom.L.R. 537 : 8 Sar. P.C.J. 269 (P.C.) and Ram Narain Misir v. Deoki Misir 69 Ind. Cas. 912 : 20 A.L.J. 756 : 4 U.P.L.R.A) 129 : A.I.R. 1923 All. 75 dismissed the plaintiff's suit.
2. The coloured map, which has been filed with the plaint, is not very clear nor is it in the course which the case has taken, of very great importance, but it serves to show that the river Rapti, which, previously to 1892 separated the land in dispute from the village of Kotha muafi, moved further to the east with the result that it separated the land from the village of Rahua. We are not, however, concerned with any detailed questions of the windings of the river or the vagaries of the deep stream, the plaintiff's case is founded on the allegation of adverse possession arid nothing else. The history of the land for the purposes of the present suit starts in this year. We find that when these villages were settled in 1898, the Settlement Officer, Mr. Lupton included the disputed land in the village of Rahua and made a settlement with the zemindars, of that village, although he found that a parson named Jamna Prasad Rawat, who 'was the zemindar of Kotha muafi, was, actually in possession of the land.
3. There is no further documentary evidence after 1898 until we come to the year 1910. But before that a, new factor had arisen, because, Jamna Prasad, zemindar of Kotha muafi, had his rights sold, and they had, been purchased by the predecessor of the present plaintiffs Raghu Nath Prasad. It is important to notice that the rights of Jamna Prasad which were sold to Raghunath Prasad were only his rights in the villages of Surghanaand Kotha, and that under the sale no title in Rahua village passed to Raghunath Prasad. An argument was certainly addressed to us in this Court to the effect that Jamna Prasad having been in possession of the disputed land from. 1892, must have perfected his title by possession adverse to the zemindars of Rahua before the year 1909 when his rights were sold to Raghunath Prasad. But there is no evidence before us that when Raghunath Prasad purchased the villages of Kotha and Surghana, he also purchased any claim predatory or otherwise that Jamna Prasad may have had in this block of land that had been carved out by the river from the village of Rahua. In 1910 we find that Raghunath Prasad instituted proceedings under Section 145, Criminal Procedure Code, against Jamna Prasad, from which it may be inferred that Jamna Prasad had been trying to exercise possession in this disputed land; and the Magistrate gave a decision that Raghunath Prasad was in possession and that Jamna Prasad should be forbidden to disturb his possession.
4. We have already remarked that it has not been proved to us that any title in this disputed land passed to Raghunath Prasad when he bought Jamna Prasad's rights in Kotha and Surgha villages. The land in dispute nominally at any rate, was still the property of the zemindars of Rahua. But there is no evidence before us to show that they exercised any possession over it after the time when it passed to the other side of the stream in 1892, nor for the matter of that is there any evidence to show that Jamna Prasad was in possession of it after 1898 when Mr. Luptan found that he had 'almost succeeded in asserting his entire and absolute possession over the land in question'. When criminal proceedings were started in 1910, the position of the zemindars of Rahua appears to have been somewhat ambiguous, and the Magistrate's order shows that they put in an objection in the criminal proceedings claiming that they were in possession of the property. The finding of the Magistrate as we have remarked above was that Raghunath Prasad, the complainant in the proceedings, was in possession and that this order was binding as against Jamna Prasad. But we are not aware that it can have been binding on the zemindars of Rahua, whose rights, if they still remained intact, could not have been affected by the proceedings of the Criminal Court.
5. The next document of importance is an order of the Revenue Court of 1913, in which year Raghunath Prasad applied for the correction of the revenue papers of the villages of Rahua, Surghana and Kotha by showing the land in dispute as belonging to the last two villages, i. e., those in which he was zemindar, and not to Rahua. This application was dismissed on the ground that the Rahua zemindars had not lost their title, although it was almost impossible lor them to cultivate the land which had been 'grabbed by the cultivators of Kotha and Surghana'. Later in the same year Raghunath Prasad's karinda made an application under Section 107, Criminal Procedure Code, against Jamna Rawat, from which it appears that Jamna Rawat had by no means given up his attempts to obtain possession of the land in dispute in spite of the order under Section 145, Criminal Procedure Code, passed three years previously. Raghunath Prasad made another application for correction of the khewat of Rahua in the same year, but this was dismissed on the ground that he had no legal claim to the land though he was in adverse possession of it.
6. In 1917 the zemindars of Rahua at last seem to have stirred themselves and sued one Jaikaran Ahir one of the tenants in the disputed land for arrears of rent. The defendant in the suit claimed that he had paid rent in good faith to Raghunath Prasad, and the District Judge on second appeal found that the tenant had been paying rent to Raghunath Prasad in good faith and that Mool Chand (the zemindar) had collected no rent for seventeen years. In another judicial pronouncement of the same year the Additional District Judge (printed at page 75 of the paper book) in another suit brought by Mool Chand against a tenant for rent considered that Raghunath Prasad, who had been made a party to the suit, had been in adverse possession of the land in dispute (i. e., the land in dispute in that particular suit) for upwards of twelve years.
7. The last of these documents is an order of the Assistant Collector of Gorakhpur, dated 1921, in which Raghunath Prasad is shown to have sued one of the tenants in the disputed land for arrears of rent, but the suit was dismissed on the technical ground that the plaintiff Raghunath Prasad could not obtain a decree in the Revenue Court, because he was in the position of a trespasser There is also a finding in this judgment on which some stress has been laid to the effect that the tenant in this particular suit had paid rent to the zemindar of Rahua, and it is also argued from this that here at any rate is an instance in which Raghunath Prasad's possession had been disturbed by the zemindar.
8. In addition to this documentary evidence, the plaintiffs produced in Court a number of tenants who said that they had been in possession as tenants of the plaintiffs and had paid rent to them, and they also produced a number of receipts, some of which have been printed, showing that some tenants paid rent to the plaintiffs in respect of some of the plots in the disputed land from 1912 until 1021.
9. The defendants claimed to have been in actual possession of the land in dispute, but of this they had no proof worthy of the name, except the instance to which we have just referred that a tenant was found by the Assistant Collector in 1921 to have paid rent to the zemindar of Raima. The Subordinate Judge in fact, has found that the possession of the plaintiffs over the land in dispute was proved, but he held that as the land was proved by the evidence to have bean subject to submersion, the plaintiffs' possession had not been continuous, and he, therefore dismissed the suit. We have no doubt that his view of the law is correct. The decisions of their Lordships of the Privy Council in the two cases of. Secretary State for India v. Krishnamoni Gupta 29 C. 518 : 29 I.A. 104 : 6 C.W.N. 617 : 4 Bom.L.R. 537 : 8 Sar. P.C.J. 269 (P.C.) and Basanta Kumar Roy v. Secretary of State for India 40 Ind. Cas. 337 : 44 C. 858 : 1 P.L.W. 593 : 32 M. L.J. 505 : 21 C.W.N. 642 : 15 A.L.J. 398 : 25 C.L.J. 487 : 19 Bom.L.R. 480 : (1917) M.W.N. 482 : 6 L.W. 117 : 22 M.L.T. 310 : 44 I.A. 104 (P.C.), are clear authority for holding that where the possession of the trespasser has been interrupted by submersion, either continuously for a number of years, or annually for a few months every year, this interruption will prevent the trespasser from perfecting his title, An attempt has been made in argument to differentiate the circumstances in those cases from those of the present suit, and it is necessary to say something about the evidence adduced in the lower Court to show the extent to which the land in dispute was submerged.
10. The plaintiffs produced in the first place two patwaris of the neighbouring villages of Surghana and Gaha Sand, in both of which the plaintiffs are zemindars, Donda Lal stated: 'The Dhunki land and the other land in dispute do not remain submerged under water during the rains. In Hoods 2 or 3 spans in height of the land is submerged. No crops are damaged by floods. 'Aditya, the second patwari, however, remarks: 'Realisation, is made in this land 3 times in 3 years,' (From which it may be inferred that two crops are not sown annually in land in dispute). ' The crops are not submerged and not damaged The flood comes and passes away in 15 or 20 days.
11. During the floods Dhunki land is not submerged.' Janki Prasad, the plaintiffs' karinda states '' During the highest floods the land is submerged by a span. It passes away in 5 or 10 days. The crops are not damaged....There is no flood in the land. The water overruns itwhen there is much rain. ' The eight ten-ants, who gave evidence to the effect that they cultivated land under the plaintiffs and paid rent to them, did not mention anything about any floods, and they were not cross-examined on the point. All of these witnesses are clearly to some extent open to the influence of the plaintiffs and it is evident that they have attempted as far as possible to minimise the amount of flooding that takes part in this country. On the other hand, the evidence for the defendants goes to the other extreme. Achaibar Lal, who has been patwari of Rahua for six years, says: 'during floods the land of Dhunki is submerged deeply. The water on it is higher than the man's height.... Every year the land of Dhunki is flooded. It stands for 2 or 3, months.' Mool Chand, one of the defendants; who gave evidence in person, said: 'During the rains the land in dispute is completely submerged. More than a man's height is under water...Generally floods overrun the lands in dispute.' There is not much to choose between the two sets : of statements, since it is obvious that both sides are intentionally exaggerating. There is, however, on the file an important deposition by Sheik Mohammad, one of the plaintiffs' witnesses, who used to be the supervisor kanungo in the Circle in which the villages concerned are included from 1897 to 1902. This gentleman is still a resident of Gorakhpur, and in his cross-examination, about the condition of the disputed land he speaks in the present tense as if he is referring to the condition prevailing at the present time. The important fact is that he was the plaintiffs' witness and that he clearly stated that the villages of Surghana, Kotha and Rahua 'are on the bank of river and are yearly flooded and remain under water, Rabi crops are grown but not kharif.' The Subordinate Judge has, we think, rightly laid considerable stress on the statement of this witness and remarks that if there is anything in it which tells against the plaintiffs and which is ambiguous, they should have, cleared the matter in re-examination.
12. We have nothing except the evidence on the file to guide us as to the usual local conditions. But there is a remark in Chap. I of the District Gazztteer (Supplement to page 13 published in 1922); 'There were floods in the Rapti and its tributaries in Au-gust and October of 1915. In riparian tracts late rice suffered seriously.' If the normal condition was that the land was submerged for fifteen or twenty days as plaintiffs' witness Aditya remarks, or more, as Sheikh Mohammad implies and as Mool Chand claims, there can be no reasonable doubt that the whole land must have been submerged for a considerable period in this year of flood and even a single submersion would be sufficient to break the continuity of the trespasser's possession. It is, no doubt, a matter of some difficulty to define exactly how far submersion is necessary to interrupt the possession of a trespasser. It has been argued with some force by Mr. O'Conor for the appellants that even if it be held to have been proved that no kharif crops are sown in these fields, yet this may be merely because the cultivators are under some apprehension of flooding and do not wish to run the risk of losing their crops; and that unless it is clearly proved that there has been total submersion of the land in dispute, the plaintiffs' possess . ion cannot be held to have been interrupted. Their Lordships of the Privy Council have remarked [Basanta Kumar Roy v. Secretary of State for India 40 Ind. Cas. 337 : 44 C. 858 : 1 P.L.W. 593 : 32 M. L.J. 505 : 21 C.W.N. 642 : 15 A.L.J. 398 : 25 C.L.J. 487 : 19 Bom.L.R. 480 : (1917) M.W.N. 482 : 6 L.W. 117 : 22 M.L.T. 310 : 44 I.A. 104 (P.C.)] 'there can be no continuance of adverse possession, when the land is not cap able of use and enjoyment, so long as such adverse possession must rest on de facto use and occupation '. After considering the evidence in this case to the beat of our ability, we are of opinion that it is proved that the flooding of the land was sufficient to render it incapable of use and enjoyment, probably every year and certainly when there was an unusual amount of rain. We consider, therefore, that we must uphold the finding of the lower Court on this question. An argument was address ed to us that the possession of a trespasser's tenant could not be regarded in the same way as the possession of the trespasser himself, but we consider that the decision of the Privy Council in Secretary of State for India v. Krishnamoni Gupta 29 C. 518 : 29 I.A. 104 : 6 C.W.N. 617 : 4 Bom.L.R. 537 : 8 Sar. P.C.J. 269 (P.C.) disposes of this point.
13. We may add that even if our decision in regard to the interruption of the plaintiff's possession had been different, we should have some difficulty in allowing the decree to be given in the form in which the present suit was framed. The plaintiffs sued for a declaration over a comparatively large tract of land--about 105 acres in extent; which was divided up into a number of plots, each one of which may have had a different history. We know for instance that the Revenue Courts refused arrears of rent to rival claimants in a different suit in one plot and allowed it another. It is true that the Criminal Courts dealt with the whole block of land, which is referred to in the evidence as 'Dhunki,' as if it were one holding, but in determining the title to it in a civil suit it would have been necessary to go into much greater detail and possibly to take up the question of each separate holding in a separate proceeding. We need not consider this further in the view that we have taken, and the result is that we dismiss the appeal with costs.