1. Second Appeal No. 799 of 1921 and Second Appeal No, 1098 of 1921 are plaintiffs' appeals arising out of a suit for recovery of possession of certain plots on the basis of a mortgage-deed, dated the 1st of August 1879, against the defendants who were alleged to have been in wrongful possession of them and, in the alternative, for recovery of the amount due together with interest.
2. The main plea on behalf of the defendants was that the plaintiffs had not been in possession of these plots within twelve years of the suit and that the defendants had been in possession of them, and, accordingly, the claim was barred by time, The Court of first instance, holding that the plaintiffs had been in possession within twelve years of the suit and that the defendants had not established their adverse possession for more than twelve years, decreed the claim for possession. On appeal, the learned District Judge has reversed that decree. On behalf of the plaintiffs, in second appeal, it is contended that the finding of the learned District Judge that the claim was barred by time, was erroneous.
3. It appears that the plots in dispute were mortgaged in the year 1879 by one Shiva Tahal Misra in favour of the father of defendant No. 2 and the father of defendant No. 3, who were the predecessors-in-title of the present plaintiffs. Up to the year 1887 the mortgagees were admittedly in possession of these plots, but in that year the plots were completely submerged under water. Since then, it is now found distinctly by the learned District Judge, that the plaintiffs or their predecessors-in-title have never had actual possession of the lands in dispute. The lands actually reappeared in the year 1903 at the latest and since then they had been submerged during the rainy season for a few months, and further in the years 1903 and 1916 they had been completely submerged under water by floods. The learned District Judge has also found that the defendants have actually been occupying the lands at times when they were not under water ever since the year 1900, On these findings he was of opinion that the plaintiffs had really been dispossessed of these lands for more than twelve years before the suit, that in any case they must be deemed to have abandoned the holding, and that, therefore, their claim was barred by time.
4. The only points which were urged before the learned District Judge were,--.
(1) Whether the mortgage-debt had been satisfied or not? and
(2) Whether the claim was barred by time inasmuch as the mortgagees had not been in possession within a period of twelve years?
5. These were the only points which the learned District Judge proceeded to consider, as is apparent from the opening portion of his judgment. The question of abandonment by the mortgagees was neither expressly raised in the written statements, nor was any issue framed on the point, nor do we find that any such plea was raised in the grounds of appeal taken before the learned District Judge, His remark that the lands must be deemed to have been abandoned, is a mere inference and not a finding of fact which is binding on us. At one plate he remarked that 'after the year 1294 Fasli, when the land re-appeared more than twelve years before the institution of the suit, they (the mortgagees) were either dispossessed or abandoned possession.' At another place he merely said that 'they made no attempt to take possession of the land when it re-appeared and they mast be held to have abandoned the holding.' As the question of abandonment was not raised by the parties and was not a matter for determination before the learned District Judge, we are of opinion that a reference to it in his judgment is a mere inference from the facts found by him and is really not relevant. The main fast, however, remains that he has distinctly found that the plaintiffs have failed to prove that they had been in actual possession of these plots within twelve years of the suit.
6. The learned District Judge, however, has, in our opinion, erred in ignoring the significance of the facts that the lands had been submerged practically every year since the year 1307 Fasli and that in two years, namely, 1908 and 1916, they had been completely overflooded During the times when the lands in dispute were under water, there can, in our opinion, be no doubt that they must be deemed to have been in possession of the plaintiffs who were the party rightfully in possession of the same; so long as the mortgage-deed had not been redeemed and the plaintiff's remedy had not become time barred, they were entitled to retain possession of the lands and the defendants' possession over those lands was certainly wrongful. All that can be said is that during the months when the lands were not under water, the defendants were actually in occupation of them, but as soon as they were submerged, the plaintiff's possession must be deemed to have revived. On this view there can be no doubt that the plaintiffs themselves have been in constructive possession of these lands within twelve years of the suit and their claim cannot be barred by Article 142 of the Limitation Act.
7. On behalf of the respondents it has been very strongly contended that, inasmuch as the plaintiffs admitted in their plaint that they and their predecessors were dispossessed as late as 1909, their claim really is a claim for recovery of possession, and is, therefore, governed by Article 142 of the Limitation Act and the general Article 144 is, therefore, inapplicable. In our opinion, however, in view of the recent pronouncements of their Lordships of the Privy Council, the matter must be taken to have been get at rest. In the case 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.) it was held that even where Government had been in possession of certain lands through tenants at a time when the lands became submerged, their possession must be deemed to have been discontinued and, under such circumstances, the possession of the Government was determined by the submergence at the land which then became derelict and so long as it remained in that state title could be acquired against the true owner. In a later case 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, their Lordships remarked that a man may cease, to use his land because he cannot use it, since it is under water. He does not thereby discontinue his possession and upon the Gestation of the dispossession before the lapse of the statutory period, constructively it revives; there can be no discontinuance by absence of use and enjoyment, and, further,' their Lordships remarked that, 'no rational distinction can be drawn between the case 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.) and the present case where the re flooding was seasonal and occurred for several months in each year,' On top of page 874 their Lordships remarked that ' if, as their Lord ships think, no dispossession occurred, except possibly within twelve years before the commencement of this suit, Article 144 is the Article applicable Page of 44 C.--[Ed.] and not Article 142.' It is clear from these observations that as soon as the land in dispute be came submerged under water, the plaintiffs' possession, which had not remained discontinued for more than the statutory period, revived and that, therefore, the plaintiffs regained constructive possession of these lands. In this view the claim for recovery of possession was not barred by time. The defendants admittedly have not had a continuous possession which would amount to adverse possession within the meaning of Article 144 of the Limitation Act so as to entitle them to resist the plaintiffs' claim. There had been every year a break in the continuity of their possession which enured for the benefit of the plaintiffs and which prevented the defendants acquiring title by adverse possession. The result is that we allow this appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs.