1. These two appeals are in two suits brought by the plaintiffs (called hereafter the Kanchanpur Baboos) for khas possession of a compact block of char land about 6000 bighas in area. First Appeals Nos. 173 and 174 correspond respectively to Title Suits Nos. 74 and 75 of 1925 of the first Court of the subordinate Judge at Faridpur, which on transfer were re-numbered as 10 and 11 of 1933 of the second Court of the subordinate Judge at Faridpur. The plaintiffs are the same in both the suits but the defendants are different, except that the Secretary of State for India in Council is common to both the suits. He is the principal defendant in Suit No. 75 and defendant 7 in Suit No. 74. The other principal contesting defendants in Suit No. 74 are six in number, namely Sarat Chandra Chakravarty and the Guhas. In both the suits a large number of tenants claiming to hold parcels of land either under the Secretary of State for India in Council or under Sarat Chandra Chakravarty and the Guhas, have been impleaded as defendants. As shown in the locality, Suit No. 75 comprises an area of about 3790 bighas and Suit No. 74 an area of about 2342 bighas. The subject-matter of the former suit is the western portion and of the latter the eastern portion of the compact block depicted with yellow borders within Stations Nos. 1 to 25 of the Commissioner's map (Map No. l). The plain-tiffs' title in both the suits rests upon the same grounds and the defence in both the suits is practically the same.
2. A permanently settled estate, touzi No. 204 of the Jessore Collectorate in Parganah Nasib Shahi which was subsequently transferred to the District of Faridpur and numbered touzi No. 959, belonged to Krishna Kishore Ghose and later to his widow Barnamoyee Dasi. On the death of Barnamoyee Dasi, there was a partition in 1899 amongst the heirs of Krishna Kishore Ghose. Upendra Nath Ghose got in his allotment among other properties, Dihi Kristopur appertaining to the said touzi No. 959. On 23rd October 1901, he granted a patni taluk to Mohesh Chandra Shah Chaudhury, the predecessor of the plaintiffs, comprising the Mouzas in Dihi Kristopur and the lands of some other taluks or zemindaries (ex. 6 C. 207). Mouzas Ramkantapur, Khord Ramkantapur, Bhalabad and Brittirchar alias Bittirgram are some of the Mouzas in Perganna Nasibshahi appertaining to Dihi Kristopur. Of these Mouzas, Mouza Ramkantapur is of importance in the two suits. The plaintiffs claim the whole block in suit covered by Stations Nos. 1 to 25 as reformation in situ of the said Mouza Ramkantapur. In the plaint however they claimed the same as reformation in situ of Ramkantapur and of other Mouzas of Dihi Kristopur and alternatively as accretions to those Mouzas of Dihi Kristopur, but at the trial in the Court below and also before us they confined their claim as stated above. The defendants-respondents do not contest the fact that Ramkantapur is a village included in the said permanently settled estate No. 959 or the plaintiffs' patni right in the said village.
3. The written statement of the defendants, the Guhas, the Secretary of State for India in Council and of Sarat Chandra Chakravarty, raised the following defence now material : (i) that the lands in suit were at the time of the decennial and permanent settlement of 1790 and 1793 respectively in the bed of the large public navigable river Padma or Bhubaneswar as it is called at this place and so had not been included in the permanently settled estate No. 959 of the Faridpur Collectorate; (ii) that the lands in suit are reformations in situ of estate No. 881a (Bhattichur, part II), which belongs to the Guha defendants and Sarat Chandra Chakravarty, and of estate No. 940 (Teprakandi alias Tepurchar) which belongs to Government. This estate No. 940 according to them comprised Bhattichur part I and other lands formed from the river bed; (iii) that the suits are barred by limitation; and (iv) that in any event the Secretary of State for India in Council and the said defendants have acquired title by adverse possession. The learned subordinate Judge has dismissed the suit. His material findings are (i) that the plaintiffs have failed to prove that the lands in suit are reformations in situ of Ramkantapur of Dihi Kristapur and (ii) that suits are barred by time under the provisions of Article 142 of Schedule 1, Limitation Act. These findings have been assailed by the appellants' advocate, Mr. Gupta, while the advocate for the respondents, Dr. Basak, has in addition to the pleas successfully urged' by his clients in the Court below urged their case of acquisition of title by adverse possession.
4. The claim of the plaintiffs-appellants to the lands in suit as reformation in situ of Ramkantapur rests mainly upon (a) the chowhuddibandi papers (Ex. 10 C. 323-330),. (b) the map prepared by Major Rennel, (c) proceedings of Suits Nos. 16, 17,19 and 20 of 1902; (d) the proceedings of Suits Nos. 11,12 and 32 of 1888 and (e) the proceedings of Suits Nos. 60 and 63 of 1905 and 40 and 41 of 1906. We will hereafter call Ramkantapmr appertaining to touzi No. 959 as Ramkantapur or Nasibshahi Ramkantapur to distinguish it from another Ramkantapor in Perganna Patpashar which will hereafter be called Patpashar Ramkantapur. The case of the plaintiffs as presented in the lower Court and before us is that Nasibshahi Ramkantapur was at the time of the decennial and permanent settlement firm land, an island between two channels of the river Padma, the northern channel, the main, channel called Bhubaneswar, and the southern channel, a narrow one, being more or less of the nature of a creek flowing from the Bhubaneswar and again joining it. According to them the whole of the island on which Ramkantapur was marked with a flag in Rennel's map Ex. 23 (b), map 20 was Ramkantapur of Nasibshahi as included in permanently settled estate touzi No. 959. That a considerable portion of said mouza was later on swallowed up by the main channel of the river Bhubaneswar and what remained of it-the southern portion only- was measured at the thak survey in 1857-58 as Ramkantapur and was shown as such in the revenue survey map of 1858-59 with tola Ramespur, (thak map Ex. 13, map No. 6, revenue survey map Ex. BB, map No. 23). There were frequent changes in the course of the river at that place, and lands of Ramkantapur came up and went down at short and frequent intervals. In October 1915 the lands in suit formed, but were covered with sand. Only in January or February 1918 they became fit for cultivation. They define at the hearing the lands of Ramkantapur as it was at the time of the permanent settlement thus:
Northern boundary - The main or the northern channel of Bhubaneswar (Padma) as at the time of the permanent settlement;
Southern boundary - The southern boundary of the Ramkantapur as shown in the thak and revenue survey maps of 1857-58 and 1858-59 respectively;
Eastern boundary - The western boundary line of the lands for which decrees were passed in title suits Nos. 16, 17, 19 and 20 of 1902. These suits will hereafter be called the suits of 1902;
Western boundary - The eastern boundary line of the lands for which decrees were passed in title suits Nos. 11, 12 and 32 of 1888 and in title suits Nos. 60 and 63 of 1905 and 40 and 41 of 1906. These suits will hereafter be called the suits of 1888 and 1905 respectively.
5. We will now proceed to record our findings on the main question, namely whether the lands in suit are reformations in situ of Ramkantapur. It appears from the evidence that a part of pargana Nasibshahi has another pargana, pargana Parpashar, both to its east and west. The said pargana appertains to the permanently settled estates Nos. 115 and 160 of the Dacca Collectorate named Mahadeb Mokhopadhya and Kharija taluk Charhai Madhabdia. The latter, namely No. 160, was later on numbered as touzi No. 4002 of the Faridpore Collectorate. These two estates will hereafter be called the Patpashar zamindary. The appellants and their predecessors are and were part proprietors of this zamindary. The suits of 1888 and 1902 were by the Patpashar zamindars against the Secretary of State for India in Council for recovery of possession of chur lands on the ground that they were reformations in situ of their zamindary. The suits of 1905 were also similar suits against the Secretary of State for India in Council. The Patpashar zamindars or their tenure holders were plaintiffs but the predecessors of the appellants claimed relief both on the basis that they were part proprietors of the Patpashar zamindary and were also patnidars under the proprietors of touzi No. 959. The chowhuddibandi (boundary) papers of touzi No. 959 have not been produced as on the application of the appellants the Collector informed them that they do not exist. But the chowhuddibandi papers of the Patpashar zamindary, which had been filed in the collectorate in 1799, have been produced. They have been marked as Ex. 10. (C. 323). The boundaries of mouzas Ramkantapur in Patpashar with Chak Shibnathpur and Jhawkandi as given there are as follows:
North: River Bhubaneswar and on the other bank of the river (par) Mansurabad and Santoshpur.
South: River Bhubaneswar and on the other bank of the river (par) Baghurhat; Hajinagar, Hajiganja with Bhadrasan towards the south-eastern corner.
East: Chars known as Parehar and mouza Harirampore.
West: Ramkantapur of pargana Nasibshahi.
6. It may be noted here that of the above places Ramkantapur, Mansurabad and Hajiganj are shown in Rennel's map (ex. 23 (b) and EE, EE-l, maps 20, 26, 27) which was prepared about 1767. The northern, southern and western boundaries are important. They show that in 1799 Patpashar Ramkantapur with Chak Shibnathpur and Jhowkanda was a block of land between two channels of the river Bhubaneswar and the whole of its western boundary was Nasibshahi Ramkantapur. The eastern part of the last mentioned village accordingly extended to the north at least up to the northern channel and to the south at least up to the southern channel of the river Bhubaneswar as in 1799. How far these conclusions would help the appellants is however a different matter.
7. Dr. Basak has attacked these chowhuddibandi papers (Ex. 10) on the following grounds: (a) they are not admissible in evidence, and (b) they are not accurate. The subordinate Judge has overruled the first contention on the ground that they were held to be admissible in the suits of 1902 in which the Secretary of State was a party. He further held that the Guhas and Sarat Chandra Chakravarty cannot also question their admissibility as their defence is based on a title derived from the Secretary of State for India in Council. Dr. Basak's contention is that the reasons given by the learned subordinate Judge are unsound. We think that there is considerable force in this argument, but this does not necessarily dispose of the matter. Dr. Basak says that these papers were rightly admitted in evidence in the suits of 1902 under Section 13, Evidence Act, as the plaintiffs in those suits claimed the lands as part of Patpashar zamindary of which those papers were the boundary papers, but that section is not available to the appellants before us because the papers are not the boundary papers of touzi No. 959. We do not think that Ex. 10 is to be ruled out simply because Section 13, Evidence Act, cannot be invoked by the appellants, nor can they be admitted simply because they were admitted in the suits of 1902. In Haradas Acharjya v. Secretary of State ('17) 4 AIR 1917 PC 86 judgment was given in favour of the Patpashar zamindars on the basis of those papers. Lord Buckmaster did not mention Section 13, Evidence Act. He put great value on them on the ground that they were furnished by the zamindar not voluntarily but on Government forms at Government's request, and for enabling the latter to have information on important points. They were accordingly filed by the zamindars in 1799 in pursuance of a duty. Such returns had to be made by every zemindar of Bengal. They are therefore in our judgment admissible under Sections 32, Clause (2), Evidence Act, the persons making the statements contained in them being dead. We accordingly overrule the first contention of the respondents and hold Ex. 10 to be admissible in evidence.
8. The second contention of Dr. Basak has not, in our opinion, been established. To establish that the chowhuddibandi papers cannot be relied upon as accurate he has drawn our attention to the boundaries as given therein of mouzas Durgapur, Binayabati with Biswanathpur, of mouza Madhabdiya of mouza Betikata together with Char Betikata and Debipur and to a finding in the judgment of the subordinate Judge in the suits of 1888 (Ex. 24 (e) C. 168 at p. 172). From the boundaries of the said three mouzas it appears that Brittichar alias Brittgram in Pargana Nasibashahi was to the east of Durgapur, etc. Brittigram was the southern boundary (in part) of Betikata, etc., the eastern boundary of which was Dholai in Pargana Nasibshahi. The suits of 1888 related to Durgapur. The case map of that suit is Ex. v (1) (Map No. 40). Dr. Basak says that if mouza Dholai Char Thak No. 481 be taken as Dholai of Pargana Nasibshahi as mentioned in Ex. 10, Dholai would be the western and not the eastern boundary of Betikata as mentioned in the chowhuddibandi papers. There is, however, another mouza shown in the said map as Dholaipur Char No. 3460. If that be Dholai, the boundaries of all the aforesaid mouzas as given in the chowhuddibandi papers would fit in correctly. Seeing that map No. 40 was prepared about 90 years after the chowhuddibandi papers and that there were vast and almost constant changes in the river course thereafter it would not be safe to assume that Dholaichar Thak No. 481 had reformed in the same place as mouza Dholai of 1799, especially when the boundaries fit in with reference to Dholaichar No. 3460. We cannot accordingly accept this argument of Dr. Basak.
9. Dr. Basak next draws our attention to the finding in Ex. 24 (e) (C.168) to the effect that Bittirchar was to the north east of Nasibshahi Ramkantapur which would not make Bittirchar as the eastern boundary of Durgapur, if the whole of Durgapur be taken to be in suit in 1888. We do not think that Dr. Basak can rely upon the said finding. The judgment Ex. 24 (e) being not an inter partes judgment, the appellants before us or their predecessors-in-interest not being parties, the said finding is not admissible in evidence. Moreover, Mr. Gupta's rejoinder is that if findings in judgments not inter partes can be used in evidence, the Judicial Committee in the suits of 1902 held that the boundaries of Patpashar Ramkantapur were correct and relied upon them to support one part of their judgment and decree : Haradas Acharjya v. Secretary of State ('17) 4 AIR 1917 PC 86 As we hold that findings in judgments not inter partes are inadmissible in evidence, and in this respect we are supported by the decisions of the Judicial Committee, Gobinda Narayan Singh v. Sham Lal Singh , we overrule this point of Dr. Basak also. The chowhuddibandi papers (Ex. 10) accordingly establish that to the immediate west of Patpashar Ramkantapur with Chak Shibnathpur and Jhawkanda is Nasibshahi Ramkantapur and the eastern portion of the last mentioned village was between two channels of the river Bhubaneswar as in 1799. As the decennial settlement was only a few years before 1799 we can infer that the state of things was the same at that time as in 1799. If therefore the position of the northern channel of Bhubaneswar as at the time of the decennial settlement can be located and also the western limits of Patpashar Ramkantapur, then the whole of the eastern limit and the eastern portion of the northern limit of Nasibshahi Ramkantapur can be fixed with certainty.
10. To fix the said northern channel the appellants rely upon Major Rennel's map Ex. 23 (b) (Map No. 20). This locality as depicted in the said map was probably surveyed by Major Rennel in October 1764, as his journal indicates (Rennel's Journal pp. 27-28). The appellants filed this map, Ex. 23 (b), in Court. It is a certified copy. This was sent to the commissioner for local investigation. As Ex. 23 (b) was on tracing cloth, which made the commissioner's work of relay difficult, he asked the appellants to obtain its printed version from the Government map office at Calcutta. Two sheets in print were accordingly obtained from the map office and supplied to the commissioner. They have been marked Ex. 23 and 23 (a) (maps Nos. 18 and 19). Ex. 23 (a) contains the portion which is relevant. These copies do not bear any certificate of accuracy. The endorsement on Ex. 23 shows that they were printed by Government at Shillong in 1914. The respondents did not know that Ex. 23 and Ex. 23 (a) had been supplied to the commissioner at his request. The commissioner found discrepancies between Exs. 23 (a) and 23 (b) still he proceeded to relay Ex. 23 (a) and not Ex. 23(b) ignoring those discrepancies as negligible. When the consideration of the commissioner's report came up before the Court, the respondents took objection to the admissibility and accuracy of Ex. 23 (a) (A. 827, paras 17 and 33). They further made the case that Ex. 23 (a) was not genuine and had not been published under the authority of the Government (a. 836). To refute these objections the appellants made persistent efforts to lead evidence of witnesses for proving that the said copy had been purchased from the Government map office at Calcutta. They also applied to the Court to call for a report from the said office. But all their applications were opposed and rejected. They also prayed for a relay of Ex. 23 (b), if Ex. 23 (a) was either inadmissible or inaccurate, but that prayer was also rejected, and the learned Judge dismissed the suit on the ground that Ex. 23 (b) had not been relayed and Ex. 23 (a) was inadmissible in evidence. As the appellants were all along under the impression that Ex. 23 (a), which was undoubtedly printed by the Government at Shillong was the printed version of Ex. 23 (b) we thought that ends of justice required the matter to be cleared up. We accordingly asked Dr. Basak about his attitude. He had no objection to our taking as additional evidence the documents we have marked as Exhibit X-5 to X-12.
11. On the said additional evidence being thus taken, Dr. Basak urged before us on the strength of Major Hirst's Memoir on Rennel that the maps of Rennel published by him before 1917, which would include Exs. 23 and 23 (a) had been withdrawn by him on the ground of inaccuracy. As the preamble to Major Hirst's Memoir only showed that he had withdrawn his memoir of 1914 to which Rennel's maps were appended but had not stated the reasons for his withdrawal, we at the instance of both the appellants' and respondents' advocates called for a report from a gazetted officer of the map office. That report states that the maps of Rennel published in 1914 were withdrawn and the sale of the copies printed in 1914 had been stopped under orders of Government, but further states that the reasons for such withdrawal do not appear. They may be for inaccuracy or for some other reason. It now appears that Ex. 23 (b), the map filed originally by the defendants for relay, is a tracing cloth copy or extract of plate 46, i. e. of a map issued in the Atlas published with Major Hirst's Memoir of 1917, a printed copy of which was produced before us. The differences between Ex.23 (b) and Ex. 23 (a) are far greater than could be explained by an assumption of minor errors in tracing, and the Commissioner was wholly wrong in proceeding to relay the supposed printed version Ex. 23 (a) as a substitute for Ex. 23 (b) without any orders from the Court and unknown to the other side. Furthermore, in any event, although most of the grounds urged by the respondents in the lower Court fail, on the materials we have before us, Ex. 23 (a) itself cannot, in our judgment, be held to be admissible. Section 36, Evidence Act, is inapplicable as the sale of copies of Ex. 23 (a) had been stopped by Government at the time when by mistake it was sold to the appellants. The relay of Ex. 23 (a) by the Commissioner must accordingly be set aside. This makes it unnecessary for us at this stage to decide whether the Commissioner had taken the sub-station of the Trigonometrical Survey at the Collectorate building at Faridpur or the site of Faridhsah's durga in that town as the correct fitting points for relaying Rennel's map or not. If the plaintiffs had identified all the other three boundaries of Ramkantapur in relation to the lands in dispute, namely the southern, eastern and western boundaries and had satisfied us that the position of the river was the same in 1799 as at 1764-72, we would have remanded the case for the purpose of relaying the three versions of Rennel's map, Exhibit 23 (b), Ex. EE and Ex. EE 1 on the suit lands both from Faridhsahi's durga, the G. T. sub-station and from such other place from which the Commissioner would have thought fit to relay them. As we are of opinion that the position of the river at the time of the decennial and permanent settlement cannot be safely inferred from Rennel's map and on the evidence the identification of the western boundary has been left in a nebulous state, we do not follow that course.
12. We have also to consider the argument of Dr. Basak in relation to the northern boundary to the effect that even conceding that from relay of Rennel's maps we can obtain an accurate delineation of the river banks in 1764 or 1773, this would be useless for the purpose of finding the position of the banks at the time of the decennial settlement in 1790. Exhibit 23 (b), as already noted, is a copy of an extract of plate 46 of the Atlas of 1917. Exhibit EE is a copy of plate 49 of the same Atlas and bears a note to the effect that the position of the river had changed between the points A and B after the construction of map No. 8 (depicted in plate 46). In his memoir referring to plates 46 and 49 (paras. 62 and 65) Major Hirst gives the date of survey for plate 46 as 1764 to 1773, and for plate 49 as 1764 to 1772, and the date of plate 46 as 1772, and that of plate 49 as 1773. In his special remarks on plate 49, he notes that the course of the Ganges changed along the line A B to the course shown after plate 46 of the new Atlas was constructed. A comparison of the maps also shows that there was considerable change in the southern channel, with the result that the island on which Rennel has placed Ramkantapur in Ex. 23 (b) and the island to the west of it had in the interval of four years or so undergone considerable changes in shape and size and Ramkantapur bazar itself had apparently disappeared, since it is not shown in plate 49. From these facts and from the fact that the river Padma is an erratic river which rests uneasily in its banks Dr. Basak argues that the state of things prevailing in 1764 or 1773 cannot, in the circumstances, be presumed to be what was existing either in 1790 or in 1793, when the decennial and permanent settlements were made, or in 1799 when the chowhuddibandi papers were filed. In this connexion he relies upon a remark in the judgment in Haradas Acharjya v. Secretary of State ('17) 4 AIR 1917 PC 86 at p. 597, where the map of Major Rennel (from the relay in map 3 it would appear that the same map as we have in Ex. 23 (a) was used) and the same chowhuddibandi papers were produced. This remark is to the effect that the plaintiffs would have been placed in difficulty if the river had been one of the boundaries of their estate as disclosed in the boundary papers. The Judicial Committee only said that the difficulties of the plaintiffs would have been increased in that case and not that the map of Major Rennel would have been useless. To us it seems that on such a point each case must depend upon its own facts.
13. If on the facts an inference can be safely made that the position of the river must have remained practically unchanged between Major Rennel's survey and the decennial and permanent settlement, Rennel's map would be helpful when the river is shown as the boundary of the estate or of the village in question, but not otherwise. In the case before us, a comparison of plate 46 (ex. 23 (b)) with plate 49 (Ex. EE) shows considerable changes in the southern channel and some change in the northern channel. The change in the southern channel of the river as shown in Ex. EE, Ex. E and Ex. EE 1, does not affect the appellants for they rely for the southern boundary not upon the map of Major Rennel, but upon thak and revenue survey maps of Ramkantapur. It is conceded that if the relay of these maps of Major Rennel shows that some of the disputed land was in the bed of the southern channel, then such portions must be excluded from the plaintiff's claim. The change in the northern channel is however important. The maps show that even in 1772 or so the change in the northern channel had commenced. The decennial settlement was concluded about 18 years later and the chowhuddibandi papers were filed about 27 years later. There were considerable changes later on. We think that in these circumstances it would not be safe to infer that the state of things existing in 1772, or so, continued up to 1799, especially where the river was erratic by nature.
14. Moreover, as we have pointed out in discussing the chowhuddibandi papers above, even if the position' of the southern bank of the northern channel of the permanent settlement river can be determined, this will fix only the position of the northeastern corner of Nasibshahi Ramkantapur. Thus, the presumption of continuity taken with the relay of Rennel's map would not alone afford sufficient evidence to fix the whole of the northern boundary of Nasibshahi Ramkantapur, unless the appellants can establish that the whole of the island on which Rennel marked Ramkantapur was the site of that village. There is no difficulty in fixing the southern boundary of Ramkantapur. It is shown in the thak map of Ramkantapur (ex. 13 map 16). This, which we will call, thak mouza Ramkantapur, has 'been plotted on the case map by the Commissioner. The southern boundary of the 'lands in suit is practically the northern 'boundary line of thak mouza Ramkantapur. A narrow space intervenes and is not included in those suits owing to the result of suit No. 70 of 1893 in which Barnamoyee Dassi was the plaintiff and the Secretary of State for India was the defendant. We will have to deal with the proceedings of that suit and of some other suits in some detail later on. We will now consider whether the eastern boundary of Ramkantapur as it existed at the time of the decennial and permanent settlement can be fixed with reasonable accuracy. The chowhuddibandi papers of the Patpashar zemindary (Ex. 10) filed in 1799 may, as we have already found, be taken to be a correct representation of the locality at the time of the decennial and permanent settlements. The western boundary of Patpashar Ramkantapur is stated therein to be Nasibshahi Ramkantapur. If therefore the western limits of Patpashar Ramkantapur can be defined in the locality by the appellants, they would succeed in fixing the eastern boundary of Ramkantapur. For this purpose they rely upon the proceedings in and the final result of the suits of 1902.
15. Before 1902 eight annas of the Patpashar zemindary belonged to the appellants before us, the Kanchanpur Babus; four annas to the Acharjyas of Muktagacha and the remaining four annas to the Mukherjees of Birnagore. In 1902 four suits were filed against the Secretary of State for India in Council by these different sets of co-proprietors of the Patpashar zemindary for recovery of possession of their shares in the same block of land on the ground that it was reformation in situ of the land of their Patpashar zemindary. Two were filed by the Mukherjees of Birnagore, one by the Kanchanpur Babus and the fourth by the Acharjyas of Muktagacha. They were numbered as title suits Nos. 16, 17, 19 and 20 of 1902. The block of land claimed in those suits and decreed ultimately by the Judicial Committee of the Privy Council has been depicted, in the case map. The western boundary of that block of land (stations 34 to 31 in green) practically tallies with the eastern boundary of the block of land claimed in the suits which we have before us (stations Nos. 1 to 6 of the case map). The relay of the commissioner of the case map of the said suits of 1902 on the present case map has not been challenged before us by any party. The plaints of those four suits are of the same type. For our judgment we will consider the plaint of suit No. 16 which was filed by the Kanchanpur Babus (Ex. U 5, C 215). The written statement filed by the Secretary of State for India in Council is not on record, but a summary of it is given in the judgment of this Court (Ex. 24-C 268) also reported in Secretary of State v. Kalika Prosad ('12) 15 CLJ 281. The case map is Ex. 5 (Map No. 3). The rough sketch showing the position of missing mouzas is Ex. 5 (a) (Map No. 4) the judgment of the Judicial Committee is 24 (d) (reported in Haradas Acharjya v. Secretary of State ('17) 4 AIR 1917 PC 86 the order of His Majesty in Council is Ex. 25 (0 276), the map prepared at the execution stage is Ex. 27 (Map No. 21), and the judgment of the subordinate Judge passed in the execution proceedings is Ex. 24 (a) (0 282). We need not refer to the judgment of the High Court and of the Judicial Committee of the Privy Council passed in the proceedings for execution, for, so far as the Kanchanpur Babus were concerned, the matter was compromised between them and the Secretary of State for India in Council when the appeal was pending in this Court. The petition of compromise is Ex. B (C 291) and the order of this Court recording the compromise is Ex. V (5) (C 302). We will have to consider all these documents in deciding the question as to whether the eastern limits of Nasibshahi Ramkantapore can be fixed in the locality. Some of them with other documents will also have material bearing on the question of the Western boundary limits of that village.
16. The plaintiffs of those suits as we 'have already said claimed the lands as reformation in situ of the lands of the villages of the Patpashar zamindary. The lands claimed formed a block of land south of Mansurabad and Rustanpur alias Santoshpore, etc., and north of Char Husami, etc. The western boundary, which is important in this case was described as the river Padma as it then flowed and Bhatichur of Taranath Chakravarty, father of the defendant Sarat Chandra, that is Bhatichur Part II,. touzi No. 381. The defence of the Secretary of State for India in Council was that the lands in dispute were not portions of the Patpashar zamindary but were portions of Bhatichur, Teprakandi, Jafrabad and other Government estates Secretary of State v. Kalika Prosad ('12) 15 C L J 281 at page 284). Bhatichur alias Doosra Tarafer Chur and portions of Teprakandi have been shown on the map, Ex. 5 (Map No. 3), as to the immediate west of the lands then in suit. This Bhatichar is Bhatichur Part II (Touzi No. 381) which was sold in auction in 1865 to Kali Nath Chakravarty and Ishan Chandra Ghosh. The robakary of the Collector (Ex. 1 (1) -C 137) the sale certificate (ex. 1-C 138) and the D Register (ex. DD (1)-C 389-392) show that the lands of touzi No. 381 are not Pargana Patpashar but in Pargana Nasibshahi. The D Register of Teprakandi also shows that it appertains to Pargana Nasibshahi (ex. DD (2)-C 397-400). It is also proved from the D Register of the Patpashar zamindary (ex. 20 (b)-C 380-381), and that fact is not challenged that the said zamindary has no land in Pargana Nasibshahi. From these facts, we draw the inference that the Patpashar zamindary had no land to the west of the lands claimed in the suits of 1902. The order of His Majesty in Council (Ex. 25-C 276), shows that whatever was claimed in those suits with the exception of the bed of the river as shown in Rennel's map was decreed in favour of the Patpashar zemindars.
17. The judgment of the Judicial Committee, Haradas Acharjya v. Secretary of State ('17) 4 AIR 1917 PC 86 shows that the lands decreed included Patpashar Ramkantapur and if we follow that judgment with the rough sketch map (ex. 5 (a)-map No. 4) it would appear that the site of Patpashar Ramkantapur itself or together with mauza Harirampur with Char Parchar to its east covered or more than covered to the west and east the disputed lands then in suit, which lay just to the north of the left bank of Rennel's southern channel, and to the immediate east of the line joining stations 28, 29, 30, 31, 32, 33 and up to a point half way between stations 33 and 34 of the case map Ex. 5 (we will call this point station 33/2). In the map prepared at the execution stage (map 2) the stations would be 28, 29, 30, 31, 32, 33 and 2/l5. This line has been relaid in the present case map, and practically coincides with the eastern boundary of the block of land claimed in the two suits. The judgment of the Judicial Committee was subjected to critical, examination and Dr. Basak's contention before us was that the manner in which Lord Buckmaster dealt with the case showed that Patpashar Ramkantapur had land beyond the western limits of the lands claimed there, that is to say, had lands to the west of station 31 to 33/2. No doubt the basis of the reasoning in that judgment is to the effect that the mauzas of the Patpashar estates more than covered the area then in dispute, and formed a solid block, and that it was therefore not essential to locate each mauza precisely; nevertheless, it was the common case of both sides that to the west of the line referred to above lay lands of Nasibshahi parganah, and none of the parties in those suits claimed any land to the west of this line to be lands of parganah Patpashar.
18. On these facts, the conclusion is, in our opinion reasonable, having regard to the western boundary of Patpashar Ramkantapur as given in the chowhuddibandi papers (ex. 10-C 327) that the eastern part of the block of lands now in suit (at least a portion thereof) represents the reformation in situ of Nasibshahi Ramkantapur. We do not feel impressed with the observations of the learned subordinate Judge that the chowhuddibandi papers do not help the plaintiffs on this part of their case as the boundaries inter se or the relative position of Patpashar Ramkantapur, Jawkanda and Chak Shibnathpur have not been and cannot on the evidence be established. Chak Shibnathpur and Jawkanda may be either hamlets of Patpashar Ramkantapur or if not so, cannot occupy any portions of the lands now in suit as the Patpashar zemindars in the suits of 1902 never claimed any land to the west of the lands then in suit as within their zemindari. The lands now in dispute as the case-map of those suits (Ex. 5) shows were then above water.
19. We do not also feel much impressed with Dr. Basak's argument that the appellants before us, who before those suits were filed had acquired the patni in Dihi Kristopur and were plaintiffs in Suit No. 16 of 1902 in their character as part proprietors of the Patpashar zemindary, had no title to this part as they did not then claim the lands now in suit as within their patni under touzi No. 959, but, on the other hand, had admitted them in the plaint, and in the other proceedings of those suits to be parts of Bhatichur or Doosra Tarafer Chur, an estate which belongs to the Guha defendants and defendant, Sarat Chandra Chakravarty (touzi No. 381). One of such admissions is recorded in map No. 21 (ex. 27) prepared in 1919 by the commissioner appointed to deliver possession in execution. If the matter had been left on the other evidence in a doubtful condition, those admissions would have been decisive against the appellants' claim, but inasmuch as the other evidence establishes with reasonable certainty that at least a portion of the eastern part of the block of land now in suit is a part of Nasibshahi Ramkantapore, those admissions, which do not amount to estoppel, lose their importance. This is the view we take, a view, which, we may say in passing, accords with observations made by Lord Buckmaster in Haradas Acharjya v. Secretary of State ('17) 4 AIR 1917 PC 86 That judgment is binding on us as a ruling of the Judicial Committee.
20. We are not using the findings therein to bind the defendants, for the reason that the first six defendants in Suit No. 74 of 1925 were not parties thereto. Though the recitals and findings in a judgment not inter partes are not admissible in evidence, such a judgment and decree are, in our opinion, admissible to prove the fact that a decree was made in a suit between certain parties and for finding out for what lands the suit had been decreed. We accordingly, hold that the appellants have defined the eastern boundary limits, at least in part, of Nasibshahi Ramkantapur and that it tallies practically with the eastern boundary of the block of land claimed in these two suits. (Their Lordships went into the materials placed by the appellants for fixing the western limits of Ramkantapore and proceeded.) The materials placed by the appellants do not in our judgment enable them to fix the western limits of Ramkantapore. To say the least the matter is left in doubt. In these circumstances the conduct of the appellants and their predecessors is relevant, and in our judgment settles the matter. We accordingly now proceed to review the evidence furnished by conduct. (After reviewing the evidence furnished by conduct their Lordships proceeded.) In this state of the evidence we would have held, if the point had been material that no case of adverse possession has been made out by the Secretary of State. On the side of defendants 1 to 6 of Suit No. 74 of 1925, the evidence is practically nil.
21. The question of limitation will now have to be discussed. The plaintiffs having come to Court on a case of dispossession, Article 142 of Schedule 1, Limitation Act, is applicable. This is not disputed by Mr. Gupta. The onus is therefore on the plaintiffs to prove that they were in possession within twelve years of the suit. This is also well established. The question in the case is how that onus-is to be discharged in case of alluvial or forest lands. Before we proceed to consider the question we record the following findings : (a) that the lands now in suit had reappeared above water in 1915 and had become fit for user a year or so later; (b) that the plaintiffs were not in physical possession of any portion at the time when it last submerged before reappearance in 1915. On the basis of the last mentioned finding the learned subordinate Judge has held the suits to be barred under Article 142, Limitation Act. We think that he is not right in his decision.
22. In the case of lands incapable of possession, as for instance, forest lands or lands under the bed of a river, the rightful owner has possession in the eye of the law. If a trespasser was in possession before submergence and had not perfected his title by adverse possession for twelve years or more, on submergence his possession ceases and the possession of the owner revives and continues till the lands are again formed and become fit for user and occupied by another. To this extent at least the case in Kally Churn Sahoo v. Secretary of State ('81) 6 Cal 725 has been overruled by the Judicial Committee of the Privy Council in Secretary of State v. Krishnamoni Gupta ('02) 29 IA 104. The principle is stated in clear terms by Lord Sumner in Basanta Kumar v. Secretary of State ('17) 4 AIR 1917 PC 18 at p. 113. Referring to Article 142 he said:
The Limitation Act does not define the term dispossession but its meaning is well settled. 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, constructively it continues until he is dispossessed, and upon the cessation of dispossession before the lapse of the statutory period, constructively it revives. There can be no discontinuance by absence of use and enjoyment, where the land is not capable of use and enjoyment.
23. This passage makes it clear that the fact that the appellants had no physical possession at the time of the last submergence is not material for the purpose of enabling them to call to their aid the principle of constructive possession provided that their title had not been extinguished by adverse possession before the last submergence. The obiter dictum of N.R. Chatterjea and Panton JJ., in Rakhal Chandra v. Durgadass ('22) 9 AIR 1922 Cal 557 at p. 733 to the effect that the plaintiff must show his possession down to the time of the last submergence in order to continue his possession during submergence cannot be considered to be good law. In Suresh Chandra v. Shitikanta : AIR1924Cal855 , Gopal Chandra v. Monmohini Dasi : AIR1928Cal118 and Alabaksh v. Bir Bikram ('29) 33 CWN 1160 it was laid down that in the case of forest lands or alluvial lands the plaintiff can discharge the burden which lies on him under Article 142 by proving that he was in constructive possession within 12 years of the suit. He would be in constructive possession, if he was the rightful owner and would be in time if he could prove either that the lands had appeared above water within 12 years of the suit; or if they had appeared earlier than 'that they had become first fit for user within that period.
24. This leads us to the question as to who should prove that the plaintiffs had subsisting title at the date of the last submergence. Dr. Basak says that the onus is on the plaintiffs, for, till they prove that, the law would not impute possession to them during the period of submergence. Mr. Gupta's contention is that the onus is on the defendants. We think that when the plaintiffs have established their title to the suit lands it is for the person who contends that that title has been extinguished at any particular time by adverse possession to establish that fact. If he succeeds he will then have shown that he had subsisting title at the material time, if he fails the plaintiffs' title will subsist. No doubt whichever side can show subsisting title at the time of submergence will have the benefit of the principle of constructive possession during submergence, but this fact can in no way affect the question that the onus of proving title by adverse possession is on him who asserts it. We have already found that the defendants have failed to establish at any period a title by adverse possession to the disputed lands. We therefore hold that, had the plaintiffs succeeded in proving their title to the suit lands as appertaining to their patni in estate No. 959, the lands having come above water within 12 years of suit, Article 142 would not have barred their claim. The learned subordinate Judge's ground for deciding the question of limitation against the appellants is wrong, for physical possession on their part before the last submergence is not necessary for enabling them to fall back upon their constructive possession during the last submergence. As we hold that the plaintiffs-appellants have failed to prove their title, these appeals must be dismissed with costs.