1. The facts of this appeal are as follows:
The plaintiff in the suit) sued for recovery of possession of certain chur lands. His case was that the land in dispute formed part of his zamindari mauza Arara. The land has been washed away some time after the revenue survey and from the year 1310 (October 1903) began to re-form and the plaintiff took possession and remained in possession through a tenant This tenant's holding was sold in execution of a decree for rent and purchased by the plaintiff. When he went to take possession in 1318 (1911) he was resisted by the defendants. Hence the suit which was instituted on the 6th October 1915. The defence was that the land in suit appertained to the defendants' mauza chur Lankar, that the plaintiff never possessed than lands. The land bad re-formed 30 years before the date of suit and the defendants had acquired a title by adverse possession.
2. The trial Court found that the suit was barred by limitation. The plaintiff had failed to prove that the land had re-formed in 1310: on the contrary they had re-formed 30 years ago and defendants had been in possession all the time. The plaintiff had failed to prove that he had been in possession within 12 years of the date of suit and hence he dismissed the suit.
3. On appeal to the District Court the learned District Judge held that the plaintiff had established his right and title to 18 bighas of the disputed land which were a re-formation in situ of. his estate, mauza Arara. He held that the lands were re-formed in 1903 and that it was not established by the evidence that the 18 bighas were re-formed over 12 years before the date of suit. It was for the defendants to produce what evidence they could to show that they had been in possession for 12 years.
4. Further that in a case like this, where the plaintiff proves his right and title by reference to ancient documents and the defendants are in possession, it is the duty of both parties to produce all the relevant evidence, which is in their power and it) is the duty of the Court to balance the evidence finally and to give the award to the parties on whose side there is a fair preponderance of evidence. He finally allowed the appeal to the extent of 18 bighas.
5. The defendants have appealed to this Court. On their behalf Mr. Guha has contended shortly, that the plaintiff sues in ejectment. The case is governed by Article 142 of Schedule I of the Limitation Act, and it is for the plaintiff first to prove that he was in possession within the statutory period. The learned Judge in the Court below had not approached the ease from the point of view, but had wrongly placed the* onus on the defendants. The plaintiff bad failed to prove his possession within the statutory period and his suit should have been dismissed as barred by limitation. The respondent argues that if the land came above water less than 12 years before the date of suit he had discharged the onus. 'All he had then got to show is that he had at some period before the date of the suit a title to the land.
6. Now the plaintiff sues in ejectment. His case in his plaint is one of possession and dispossession and Article 142 clearly applies, and to succeed he must first of all prove that he had possession within the statutory period: see Rakhal Chandra Ghose v. Durga Das Samanta A.I.R. 1922 Cal. 557. In this case all the decisions on this point have been discussed and dealt with and id is unnecessary for me to go over the same ground. The learned Judges remarked that cases of deviated land or jungle or waste lands are no exception to the general rule, that a plaintiff, who is dispossessed and brings a suit for recovery of possession must show, that he was in possession within twelve years of the date of suit. Their Lordships of the Privy Council affirm the same principle in the case of Rani Hamanta Kumari Debi v. Maharaja Jagadindra Nath Roy  10 C.W.N. 630. This was also a case of diluvion and alluvion. The point is now so well settled that any further discussion of it would be idle.
7. The respondent then contends that it has bean found that the land emerged within 12 years of the date of suit. He has title to the land and the title must be considered to be subsisting during the time that the land was under water and possession follows title So his possession must be considered to have continued while the land was under water up to the time it emerged, which was a point of time within the statutory period. Now, no doubt, if the plaintiff had possession at the time of submergence or had then a subsisting title he would be in constructive possession during the period of submergence That is the principle which underlies the decision in Secretary of State v. Krishnamani Gupta  29 Cal. 518 where it was pointed out [page 535 of 29 Cal.], that if a person enters upon the land of another and hold possession for a time and then without having acquired a title under the status abandon possession, the rightful owner on the abandonment is in the same position in all respects as he was before the intrusion took place and further that on dispossession of the trespasser by the flood the constructive possession was with the true owner Sea also Basanta Kumar Roy v. Secretary of State for India A.I.R. 1917 P.C. 18. But the true owner does not mean a person, who at some more or less remote period had a title to the land. It means the person who has a subsisting title even though he be cut of possession. The respondent argues that it is sufficient, that he can show that some time or other he had a title, to throw the burden of proof on the other party to prove that he lost that title and would rely on Basanta Kumar Roy v. Secretary of State for India A.I.R. 1917 P.C. 18. But in that case no question of the burden of proof arose or was decided. Respondent further argues that there is a presumption that possession went with the title: Runjeet Ram Pandey v. Goburdhun Ram Pandey  20 W.R. 25 (P.C.). But this principle has not been so broadly stated as the respondent would now put it. It would probably be more correct to say that where the evidence as to possession is conflicting the Courts may rely on the presumption that the possession follows title. See the case of Thakur Singh v. Bhogeraj Singh  27 Cal. 25, where it was pointed out that in cases where the evidence on both sides was equally balanced preference should be given to the side with whom title was found.
8. I have found nothing in the numerous cases that I have considered which could lead me to any other conclusion but that in this case of alluvion and diluvion there is no departure from the ordinary rule that a plaintiff suing in ejectment must prove possession within 12 years. To do this he may rely on a variety of evidence. For instance if he could show, that he was in possession up to the time of diluvion and that the land remained under water or incapable of being possessed up to a point of time within the statutory period or even though out of possession he might show that he had a subsisting title in which case possession would be considered to go back to him when the trespasser was evicted by his major, when the lands were washed away.
9. But this after all is only the manner in which he would prove his possession. The rule remains the same. He must prove possession within 12 years from the date of suit and it is from this stand point that the case must be approached and from which unfortunately the learned District Judge has not approached it. The case must, therefore, be sent back to him for a determination of the following point:
10. He will consider, if the plaintiff has proved his possession within 12 years of the date of suit. If he decides this point against the plaintiff, he must dismiss the plaintiff's suit. If he decides it in favour of the plaintiff, he will make the decree, which he made before and which is now on appeal before us. He will decide the appeal on the evidence now on the record. The appellant is entitled to his costs in this Court, With regard to costs in the trial Court and Court of first appeal, they will abide the final result.
11. I agree.