1. The subjcat matters of the litigations which have led up to these two appeals are two tracts of land in the District of Jalpaiguri. The rival claimants are the Roja of Kakina and the Maharaja of Cooch-Behar. The lands, which have been formed by the recession of the river Shaniajan, are claimed by the former as included in his village Sibram and by the latter as comprised in his village Jamgram. The first suit was instituted in the Court of the Munsif of Jalpaiuari and the second in the Court of the Subordinate Judge of the same District; but the former suit was transferred, for the sake of convenience, to the Court of the Subordinate Judge, and the two suits were tried together on the same evidence. The suits were ultimately decreed in part on the basis of a report made by a Civil Court Amin. The decrees made by the Subordinate Judge have been assailed in this appeal, substantially on four grounds, namely, first, that the suits were barred by the three years rule of limitation under Articles 46 and 47 of the Schedule to the Indian Limitation Act; secondly, that the trial of the suit instituted in the Court of the Subordinate Judge is barred by the provisions of Order II, Rule 2 (2) of the Civil Procedure Code; thirdly, that the boundary between the two villages has not been correctly ascertained; and fourthly, that the defendants have acquired a statutory title by adverse possession for more than twelve years.
2. In support of the first ground, reliance has been planed as well upon Article 46 as upon Article 47. Article 46 provides that a suit by a party bound by such award, that is, an award mentioned in Article 45, to recover any property comprised therein must be instituted within three years from the date of the final award or order. The awards mentioned in Article 45 are awards under the Bengal Land Revenue Settlement Regulation, 1822, the Bengal Land Revenue Settlement Regulation, 1825 and the Bengal Land Revenue Regulation, 1833. It is not disputed that in the cases before us there is no award under any of three Regulations mentioned. What is set up as a bar is an order under Section 41 of the Bengal Survey. Act, 1875, made on the 10th June 1912 by an Assistant Superintendent of Survey. That order is of no assistance to the appellants for two reasons. In the first place, the order is not an award under any of the three Regulations mentioned. The nature of a possessory order under Section 34 of Regulation VII of 1822 was explained by the Judicial Committee in Jowala Buksh v. Dharum Singh 10 M. I. A. 511 at p. 534 : 2 Sar. P. C. J. 189 : 19 E. R. 1067 and bejah Sahib Perhlad Sein v. Rajendra Kishore singh 12 M. I. A. 292 at p. 334 : 2 Suth. P. C. J. 225 at p. 23 : 2 Sar. P. C. J. 430 : 12 W. R. P. C. 6 at p. 18 : 20 E. R. 349 and need not be investigated here. Let it be conceded that a possessory order under Section 40 (1) of the Bengal Survey Act, 1875, bears an analogy to a decision under Section 34 of Regulation VII of 1822; it would still be contrary to sound (sic)aanons of construction to enlarge the scope of the provisions of a Statute of Limitations, by importing into them words which are not to be found there. An attempt of this description was made in the cases of Ibrahim Ali v. Hadi Ali A. W. N. (1881) 15, Sheo Das v. Bondhu A. W. N. (1881) 91 and Zamulabdin v. Durga Dai A. W. N. (1882) 131, when it was argued that an order or award under the N. W. P. Land Revenue Act, 1873, which was similar in scope to the Regulations, attracted the operation of Article 4(sic), even though that Statute was not one of the three Regulations expressly mentioned. This contention was rightly overruled, for extension by analogy is clearly not permissible in such a case. A similar view was adopted in Oodoy Singh v. Paluck Singh 16 W. R. 271 where the three years rule was attempted to be made applicable to an order of a Collector in partition proceedings. The decision of the Judicial Committee in Rojah Sahib Perhlad Sein v. Rojender Kishore Sing (2) doss not militate against this view, as the order in that case was in essence made under Regulation IX of 1825. In the second place, as pointed out in Bubu kasturi Singh v. Rajkumar Babu Bissun Pragas Narain Singh 8 C. W. N. 876, a decision under the Bengal Survey Act, relating to a boundary dispute, was conclusive as to possession only, and would not bar a suit for recovery of possession based on title. To the same effect is the decision in Bisseswari Koer v. Ram Protap Singh 4 Ind. Cas. 517 : 14 C. W. N. 366. A Similar view had previously been adopted in Mozuffur Ali v. Grish Chunder Doss 10 W. R. 71 : 1 B. L. R. A. C. J. 25 : 1 Ind. Dec. (n. s.) 137 where the three years rule was considered inapplicable to a suit for recovery of possession upon establishment of title. We are of opinion that these suits cannot be treated as barred by limitation under Article 46, merely because when they were instituted more than three years had elapsed from the date of the order under Section 41 of the Bengal Survey Act. That order was, until reversed or modified by competent authority, the force of an order of a Civil Court declaring the parties to be in possession of the land in accordance with the boundary as determined by the Collector. Article 47 is equally of no avail to the appellants. That Article provides that a suit by any person bound by an order respecting the possession of immoveable property made under the Criminal Procedure Code, 1898, or by any one claiming under such person, to recover the property comprised in such order, must be instituted within three years from the date of the final order in the case. In respect of the land comprised in the first suit, an order under Section 145 of the Criminal Procedure Code was made on the 15th May 1912. The plaint in that suit was lodged in Court on the i4ih May 1915, as was found on an examination of the original document. There was some question as to the verification which had been made by the recognised agent; of the Raja of Kakina, the first plaintiff, on the 12th May 1915. On the 17th May, an order was recorded that the agent be permitted to sign and verify the plaint which was thereupon directed to be registered. It is obvious that the suit must be deemed to have been instituted on the date when the plaint was filed in Court and not on the date when it was ordered to be registered. There was no defeat in the verification; even if there had been a defeat, the Court could allow an amendment at any stage; such amendment would not have made the suit open to objection on the ground of limitation: Rojit Ram v. Katesar Nath 18 A. 396; A. W. N. (1896) 102 : 8 Ind. Dec. (n. s.) 971; Fateh Chand v. Mansab Rai 20 A. 442; A. W. N. (1898) 110 : 9 Ind. Dec. (n. s.) 643; Bisheshar Nath v. Emperor 44 Ind. Cas. 28 : 40 A. 147 : 16 A. L. J. 64 : 19 Cr. L. J. 865, Basdeo v. John Smidt 22 A. 55; A. W. N. (1899) 172 : 9 Ind. Dec. (n. s.) 1068 Mohni Mohun Das v. Bungsi Buddan Saha Das 17 C. 580 : 5 Sar. P. C. J. 498 : 8 Ind. Dec. (n. s.) 926. As regards the second suit which was instituted in the 24th February 1916, the order under Section 145, Criminal Procedure Code, in respect of the land comprised therein, wa3 made on the 2nd June 1913. Consequently both the suits fulfil the requirements of Article 47, if that Article be assumed to be applicable. The objection of limitation consequently proves untenable in both its branches.
3. In support of the second ground, reliance has been placed upon Order II, Rule 2, Civil Procedure Code. That rule provides as follows:
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action-but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
4. It is plain that if the cause of action in the subsequent suit is different from that in the first suit, the subsequent suit in not barred. What the rule requires is that every suit shall include the whole of the claim arising from one and the same cause of Action and not that every suit shall include every claim or every cause of action which the plaintiff may have against the defendant. Pittapur ra(sic)a v. Suriya Rao 8 M. 520 : 12 I. A. 116 : 9 Ind. Jur. 274 : 4 Bar. P. C. J. 638 : 3 Ind. Dec. (n. s.) 356; Amanat Bibi v. Imdad Husain 15 I. A. 106 : 15 C. 800 : 12 Ind. Jur. 255 : 5 Sar. P. C. J. 214; Rafique and Jackson's P. C. No. 403 : 7 Ind. Dec. (n. s.) 1117 (P. C.); Hanuman Komat v. Hanuman Munaur 18 I. A. 158 : 19 C. 123 : 6 Sar. P. C. J. 91 : 9 Ind. Dec. (n. s.) 527 (P. C.); Saminathan Chetty v. Palaniappa Chetty 26 Ind. Cas. 228 : 41 I. A. 142 : 18 C. W. N. 617 : 17 New Law Rep, 56 : 83 L. J. P. C. 131; (1914) A. C. 418 : 110 L. T. 913 (P. C.). In the cases before us, the two tracts of land were distinct; it is conceivable that the claim of the plaintiff to one of the tracts might be well-founded while the ether might be groundless; and evidence appropriate for the one might not be relevant for the other; Sonu Khushal Khadake v. Bahinibai Krishna 33 Ind. Cas. 950 : 40 B. 351 : 18 Bom. L. R. 46. The parties also were not entirely identical; the Maharaja of Cooch-Behar, for instance; was a party to the second suit but not to the first. The dispute as to possession had taken place at different times and the orders under Section 145 had been made on different dates separated by an interval of more than one year. In such circumstances, the causes of Action might reasonably be considered distinct; they were clearly not unified by the fast that the Assistant Superintendent of Surveys included both the tracts in one order. We must look to the substance and not to the form of the proceedings; if ho had recorded his decision in separate orders, the contention of the defendants would have lost all semblance of the reasonableness, It is consequently needless to attempt a definition of the expression 'cause of Action' or a reconciliation of the decisions in. Murti v. Bhola Ram 16 A. 165; A. W. N. (1894) 65 : 8 Ind. Dec. (n. s.) 106 (F. B.) and Bindo Bibi v. Ram Chandra 50 Ind. Cas. 905 : 41 A. 583 : 17 A. L. J. 658 : 1 U. P. L. R. (A.) 78, where a destination was drawn between properties held by different persons under different titles and. properties held, by the same person though under different titles. We are of opinion that in the case before us, the second suit is not barred under Order II, Rule 2, and the plaintiff cannot be said, in the events which have happened, to have split up one entire cause of Action into different, fragments.
5. In support of the third ground, the appellants have advanced a two-fold argument, namely, first, that preference should not have been given to the Thak map over the Survey map, and, secondly, that the boundary line, between the villages of Sibram and Jamgram, as depicted on the Thak maps produced, is incorrect. No objection, we may add; has been taken to the accuracy of the work of the Civil Court Amin who prepared the case map in these litigations. As regards the first branch of the contention, it is sufficient to observe that there is no inflexible rule that a Survey map must have preference over a Thak Map. As observed in Abid Hossein v. Dowcurry Pal 6 C. W. N. 629 the Thak and the Survey maps should, as a rule, agree, where they differ, the one that more nearly agrees with the local landmarks is the one, which should be followed. There is no general or definite rule making it incumbent upon the Court to follow either the one or the other, the Court may, if it considers the Thak map more reliable, follow that in preference to the Survey map. This view is not opposed to the decision in Burn v. Achumbit Roy 20 W. R. 14 and was approved in the cases of Nawab badadur of Murohidabad v. Gopinath Mandal 6 Ind. Cas. 392 : 13 C. L. J. 625 at p. 632 and Amrita Sundari v. Sherajuddin Ahamed 29 Ind. Cas. 156 : 19 C. W. N. 565 at p. 576. In the case before us, there are solid grounds for the preference given to the Thak map. The Thak map of, Sibram was prepared on the 25th June 1856; the survey operations were conducted during the season 1857-58. In the interval, there was a dispute between the proprietors of the neighbouring estates as to the correctness of the boundary as delineated on the Thak map. The dispute was decided by a Deputy Collector on the 14th December 1857, when it was ordered 'to confirm the Thak, under which half of the flowing river (Shaniajan) appertains to this Mouza (Sibram) and the other half to Jamgram.' An entry to this effect war, after the decision of the dispute by the Thakbast Deputy Collector, made on the Thak map, The Thak proceedings and the decision of the dispute took place in the presence of the predecessors of the parties to these suits, and, consequently, that map must be treated as valuable evidence in a suit between the successors of the persons who were present. Dunne v. Dharani Kanta Lahiri which is not only in conformity with the decisions in Collector of Baihahye v, Doorga Soondursee Debia 2 W. R. 210., Qunga Narain v. Badhika Mohun Boy 21 W. R.115. Omirta lall v. Ealte Ptnhad 25 W. B 179. (SO) 9 C. L. R. 1905. Nobo Ooomar v, Qobind Chunier Boy (30), Joytara Daisee v. Mahomed Mobaruck 8 C. 975 : 11 0. L. R. 399 : 5 Shorno L. U. 13 : 4 Ind Deo. (N. S.) 629. (31) and Abdul Hamid v. Kiran Chandra Bey 7 C.W.N. 849. but is also in harmony with the pronouncement of the Judicial Committee in Surja Kanta v. Sarat Chandra Roy 25 Ind. Cas 309 : 20 C. L. J. 563 : 18 C. W. N. 1281 : 16 M. L. T. 290 : 27 M. L. J. 365 : 1 L. W. SOT; (1914) M. W. N. 757 : 18 Bom. L. R. 925 (P. C.). The decision of the Kevenue Authorities was neither ex pirie nor without any enquiry, as appears to have happened in the case of Jagadindra Nath Roy v. Hetnanta Kumari Dtbi 11 Ind. Cas 512 : 14 C. L. J. 319 : 15 0. W. N. 837, (1911) 2 M. W. N. 101: 10 M. L. T. 157 : 13 Bom, L. R. 803 : 8 A. L. J. 1176 (P. C.). and, in such circumstances, the application of an abnormally exacting test of acsuraoy was deprecated by the Judicial Committee in Monmohini Bebi v. B. Watson Sf Co. 4 C. W. N. 113 : 27 C. 336 : 27 I. A. 14, 7 Sar. P. C. J. (662) 14 Ind. Deo, (N. S.) 222. We cannot, consequently, give effect to the contention of the appellants that the Survey map should have been preferred to the Thak map, As regards the second branch of the contention of the appellants, in connection with this point, it has been urged that the boundary shown on the Thak map is inaccurate and does rot in fact give effect to the decision of the Revenue Authories that the true boundary is neither the one nor the other bank of the river be is an imaginary line midway between the two banks. This argument seemed at one stage to have an appearance of plausibility, but, upon closer examination, turned out to be unfounded. It is negatived, in fact, by the entry on the Thak map which was made in the presence of the agents of the rival proprietors who had estates on the river banks,. The entry is unambiguous and states distinctly that the Thak boundary line was kept intact as drawn, and half of the disputed river was drown as within the ambit of Monza Sibram while the other half was within the ambit of Mouza Jamgram. If the boundary as delineated on the Thak map was in fact incorrect, the entry would have been made in different terms. We are of opinion that there is no reasonable doubt as to the meaning of the entry and that the defendants have failed to give adequate reasons why that ertry should be disturbed after it had been acquieeoed in by all the parties interested for such a length of time, We hold accordingly that the Subordinate. Judge has rightly held that the common boundary line is that shown on the map.
6. In support of the fourth ground, the defendants have urged that they have, acquired a good title by adverse possession for the statntary period. Here toe case of the defendants is beset with grave difficulties as the major portion of the disputed lands is uncalturable sandy waste. The defendants have, consequently, concentrated their efforts upon two parcels kha and ga. The latter parcel is said to have been cultivated by one Masu; there is no reliable evidence, however, that his possession extended beyond ten years before the institution of the suit; such occupation is clearly inadequate for the purpose of acquisition of title by adverse possession. The former plot is said to have: been held by one Khudu who admitted in. cross examination that the lands were submerged every year during the rainy season. In such circumstances, acquisition of title by adverse possession is impossible, lo the a & AB of Fetsretaiy of state v. Krishnnmoni Qupia 291. A. 504 : 29 C. 518 : 6 C. W. N. 617 : 4 Jbottt. L. E. 637, P. Sar P. C. J. 269 (P. C). (36) Lord Duvey referred to the decision in Trmtees and Agency Co, v. Short (1889) 13 A. C. 79 : 58 L. J. P. C. 4 : 59 L. T. 677 : 37 W.R 433 : 53 J. P. 132. in support of the view that land after submersion becomes dereliet, and so long as it remains submerged, no title can be made against the true owner. This view was affirmed in Basanta Kumar Boy v. Secretary of tite 40 Ind Cas. 337 : 44 I. A. 104 : 44 C. 858 : 25 O. L. J. 487: 1 P. L. W. 593 : 32 M. L. J. 505 : 21 C. W. N. 642 : 15 A L. J. 398 : 19 Bom. L. R. 480; (1917) M. W. N. 482: 6 L. W. 117 : 22 M. L. T. 310 (P. C.). wheia Lord Sumner observed that no rational distination could be drawn between suboaergenae for a few years and submerganee for a few months, and that the principle enunciated in the earlier decision was applicable where the ra flooding was seasonal and occurred for several months in each year. When the laud is re-submerged, the possession of the adverse holder ceases and the possession of the true owner constructively revives, be that while the land remains submerged, whether for a year or a month, no possession can be deemed to continue in fie wrong-doer so as to be available towards the ultimate acquisition of title against (he true owner. This view destroys the foundation of the title by adverse possession set up by the defendants. We may add that the defendants claimed title by adverse possession not always by occupation and cultivation, bat sometimes also by recovery of jalkar dues and khutagiri does; the former took the shape of levy of money or share of fish from fishermen who caught fish in submerged areas; the latter assumed the form of levy from boatmen who during rainy season tied their boats to pegs driven into the bank. These atts cannot bo treated as adverse possession, which, as explained by Lord Robertson in Radhamoni Debi v. Collector of Khulna 27 I. A. 136 : 27 C. 943; C. W. N. 597 : 2 Bom Jr. R. 592 : 7 Sar. P. C. J. 711; H Ind. Dec. (N. S.) 617 (P. C.). must be possession adequate in aontinuity, in publicity, and in extent of area, in order that it may be effestive to destroy the title of the true owner. Possession to be adverse must be actual, visible, exclusive and hostile, and a distinction must be made between continuous adverncoaauaation and isolated Act of trespass. To use the Language of Bramwell, L. J. in Leigh v. Jact (40) whijh is quoted wish approval by Lord Sumner in BasUnta Kumar Boy v. Recetarp of Stxts (3) to defeat a title by did Discussion of the true owner, acts must be cone whiabare inconsistent with his enjoyment of the soil for the purposes for which he intended he use it, and, therefore, it is necessary to look at the position in which the true owner stands towards the land as well as to the acts done by the alleged dispossessor. There in this additional difficulty in the ES3 before of that even if, foliates mentioned could be treated as Acts of adverse possession, there is co evidence to show that the spots where the Acts were exercised (for instance, where the fish was caught or the boafci were moorej) were identical from year to year. Indeed, as the land was periodically submerged, attempt at identification would be fruitless. In this connection, it is inprrtant to bear in mind that the dcotcrina of constructive possession cannot be applied in favour if a wrong doer, whose possession must be confined to actual possession, that is to say, if he relies on adverse possession, he can succeed only as regards the portion of the land in suit of which he proves actual possession for the statutory period Mohini Mohan Boy v. frotnoda Nath Roy 24 256 : 1 C. W. N, 301 : 13 Ind. Dec. (s. a.) 837. approved by the Judicial Committee in Basanta Kumar Boy v. Secretary of State (38). From whatever point of view the claim of the defendants as to acquisition of title by adverse possession is approached, it is thus found to be beset with insuperable difficulties and cannot consequently prevail.
7. The result is that the decree made by the Subordinate Judge are affirmed and the appeals dismissed with costs. We assess the hearing fee in First Appeal No. 90 of 1920 at one gold mohur.