1. This appeal arises out of a suit for recovery of possession of some lands, about 150 bighas in area, on a declaration of title thereto. The allegations on which the suit was instituted were briefly these. The lands in suit were re-formations in situ of some lands in the plaintiff's state Towji No. 178 of the Jessore Collectorate in villages Sripur and Britti Bardaha which were on the left bank of the river Kumar, the village Fulbari being on the right bank thereof. A diluvion on the left bank of the river began in the year 1893 and the river Kumar began to wash away the lands in Sripur and Britti Bardaha. The diluvion continued till the lands diluviated began to reform on the other side of the river Kumar in 1904 and the lands in suit which were re-formed lands of the plaintiff's estate became fit for cultivation in 1915-16, In 1918 the plaintiffs settled tenants on the lands and these lands were in the possession of the tenants until they were dispossessed by the defendant in 1919. The defence was a denial of the plaintiffs' story of diluvion and re-formation and according to the defendant the lands in suit were the asali lands of Mouza Fulbari. A Commissioner was appointed to relay the thak and the revenue, survey and settlement maps and to ascertain whether the lands in suit were originally the asali lands of Mouza Sripur and Britti Bardaha within the plaintiff's estate. The Commissioner prepared a map and submitted his report. According to this map and report the lands in suit were the asali lands of Mouzas Sripur and Britti Bardaha. But in the mouzas there were some chaks also which were outside the estate of the plaintiffs and which appertained to estates other than the plaintiffs' estate.
2. The Court of first instance on the basis of the Commissioner's map and report held that the plaintiffs had not succeeded in establishing their title to the land inasmuch as there was nothing to show that the lands in suit appertained to the plaintiffs' estate and not to the chaks lying within the Mouzas Sripur and Britti Bardaha and finding also that although the plaintiffs' suit was not barred by limitation the lands on re-formation were taken possession of by the defendants first and that after them the plaintiffs took kabuliyats from the tenants dismissed the plaintiffs' suit. This decision was affirmed on appeal, the learned District Judge holding that the plaintiffs' title had not been established and that the plaintiffs had failed to prove any possession at all. The plaintiffs are the appellants before us. The Commissioner's map and report which were accepted as correct by both the Courts below can leave no room for doubt that the lands in suit were within Mouzas Sripur and Britti Bardaha. But as within those two mouzas there were some chaks (appertaining to other estates) besides the estate of the plaintiffs, the lower Courts, in my opinion, were perfectly justified in holding that the plaintiffs had failed to prove that the lands in suit were parts of their estate and thus to establish their title to the lands. Mr. Sen for the appellants contended that as the defendants according to the Commissioner's map and report had no title whatsoever to the lands in suit they were clearly trespassers and the plaintiffs having had previous possession of the lands were entitled to a decree for possession against the defendants in the present case. This contention, in my opinion, is wholly untenable. The lower Appellate Court found the question of possession clearly against the plaintiffs. Mr. Sen contended that this finding was wrong based as it was on incorrect data. He drew our attention to the observation of the learned District Judge at p. 16 of the paper book where the Judge says,
from the evidence adduced by the defendants the view is more acceptable that river action was more or less continuous till the source of the river Kumar silted up. Any subsequent river action seems improbable. The plaintiffs' definite allegations that diluvion took place about 1300 B. S. and the reformation took place in 1321 and the suit lands became culturable in 1323 are improbable and not come out by evidence,
and contended that there was nothing on the record to show that the source of the river Kumar silted up in such a way as to make it impossible for any river action taking place even during the rainy season. That may be so. But it was not on this ground that the lower Appellate Court found the point of possession against the plaintiffs. The learned Judge observed that the kabuliyats from the plaintiffs' tenants were obviously unreliable as proving actual possession. It was said that there was nothing so obvious in the case. But if one would look a little carefully into the kabuliyats one would have no difficulty in holding that the learned District Judge was not unjustified in saying that the documents were obviously unreliable. The Kabuliyats were all executed only a few days before a criminal case was instituted in which the plaintiffs' men were convicted for rioting and trespassing and the documents were all executed within a period of four or five days. The lower appellate Court was therefore in my judgment not very wide of the mark when it found that the plaintiff's had had no possession of the lands in suit.
3. Conceding for the sake of argument that the finding of the lower Appellate Court on the question of possession was not satisfactory and cannot therefore be maintained there would remain on the question of possession the finding of the Court of first instance. That finding is that when the land reformed it was the defendants who first possessed it and after them the plaintiffs took kabuliyats from the tenants of the disputed land. Mr. Sen contended that this was sufficient for the plaintiffs obtaining a decree for possession and in support of this contention he relied on a number of decisions of the Allahabad, Bombay, Madras and Patna High Courts and also to a certain extent on some decisions of this High Court. It is well known that on the point whether a plaintiff can apart from Section 9, Specific Relief Act, obtain a decree for possession on previous possession alone there is a conflict of decisions between the High Courts of Bombay, Allahabad, Madras and Patna on the one hand and the High Court of Calcutta on the other. So far as this High Court is concerned it is well settled by decisions which are binding upon us that mere previous possession will not entitle a plaintiff to a decree for recovery of possession except in a suit Under Section 9, Specific Relief Act: See the cases in Parmeshur Chowdhury v. Brojolal Chowdhury (1890) 17 Cal 256, Nisa Chand v.Kauchiram (1899) 26 Cal 579, Shama Churn Roy v. Abdul Kabeer (1911) 3 CWN 158 and Manik Barai v. Bani Charan (1911) 10 IC 469. Mr. Sen wanted to place reliance on the decisions of this Court in Mohabeer Pershad v. Mahabeer Singh (1881) 7 Cal 591, Banka Behary v. Raj Chandra Pal (1910) 2 IC 202 and Satish Chandra De v. Madan Mohan : AIR1931Cal483 for the proposition that previous possession alone may entitle a plaintiff to obtain a decree for recovery of possession. But in all these cases the previous possession had been of a peaceful nature and had been for a long period of time. Peaceful possession for a long period of time may, under certain circumstances, give rise to an inference of title in the plaintiff as against a trespasser and entitle him to obtain a decree for recovery of possession against such a trespasser who has no right to possession whatsoever. But in the present case the plaintiffs' possession, if the plaintiffs had had any possession at all, was not only for a short period of time, but was far from peaceful. As observed before, the kabuliyats the plaintiffs obtained from the tenants were all executed only a few days before the institution of the criminal proceeding which resulted in the conviction of the plaintiffs' men. The cases of this High Court relied upon by the learned advocate for the appellants cannot therefore be of any avail to them.
4. As a last resort Mr. Sen on behalf of the appellants while admitting that his clients had been ill advised by their pleaders in not having made the owners of the chaks in Mouzas Sripur and Britti Bardaha parties to the suit suggested that the case might be sent back to the Court of first instance for a decision after making the owners of those chaks parties in the case offering at the same time to pay to the respondents all costs incurred by them in the present litigation. Mr. Sen's contention was that it would be in the interest of justice if the case be thus sent back to the first Court now. This prayer however does not commend itself to me in view of the fact that it is made at a very late stage of the proceeding. The suit, it appears, was instituted so long ago as 1923 and the prayer which is made now is made in this Court for the first time about 10 years after the institution of the suit. The result is that the appeal fails and it is, accordingly, dismissed with costs.