1. The plaintiff instituted this suit for declaration of title to and recovery of possession of certain lands as appertaining to Mauza Gatiasham of which he is the proprietor. This mauza is situate immediately on the north-west of Mauza Khetab Khan of which the proprietors are defendants 1 and 2. At the time of the thak survey of 1856 which is the earliest point of time at which we know anything about the situation of the two mauzas, the river Teesta flowed by their west and south-west. In the plaint the case put forward was as follows: Since the thak the river Teesta gradually shifted its course, and on two or three occasions the lands of Mauza Gatiasham were diluviated and again re-formed in situ; that for the last time diluviation began in 1323 or 1324 and continued till 1327, after which re-formation commenced, the river receding towards the west and throwing up the chur which is the subject-matter of the suit; that in 1329, when the chur became fit for cultivation, the plaintiff attempted to possess it, but defendants 1 and 2 kept him out of possession. Defendants 3 to 37 (with the exception of No. 27 who is dead) were impleaded as persons with whose help this dispossession was continued. The area of the lands in suit was stated as 450 bighas and claim was made for declaration of title, recovery of possession and mesne profits, on the ground that the lands were re-formation in situ and accretion to Mauza Gatiasham.
2. Defendants 1 and 2 in their written statement alleged that the disputed lands had re-formed more than 25 or 30 years ago and that thereafter the river had gradually shifted towards the west and never towards the east, so that the disputed lands had never again diluviated since then; that the area of the disputed lands is not 450 bighas but approximately 247 bighas, and that they have all along been owned and possessed by them and their father, having been obtained under a decree between him and the plaintiff's predecessor in 1862. The Subordinate Judge made a decree on the footing that a part of the disputed lands fell within the area which the defendants were entitled to under the decree of 1862. The defendants have then preferred this appeal. There is a cross-objection on behalf of the plaintiff. Before proceeding to deal with the appeal and the cross-objection a few more facts required to be stated in order that the precise nature of the decree that has been passed may be rightly understood. It has already been stated that at the time of the thak survey in 1856 the river Teesta flowed by the west and south-west of Mauzas Gatiasham and Khetab Khan. The thak map of Mauza Dhusmara, which lay on the other side of the river and opposite to Mauza Gatiasham, prepared in 1857, shows that some lands of Mauza Gatiasham were depicted in that map as chak No. 4 being a residuary chak of chit or detached lands of Mauza Gatiasham,. The revenue survey maps of Mauzas Gatiasham and Khetab Khan prepared in 1857 show that by that time tremendous changes had been wrought by the river, it having broken its banks on the east and cut several channels through Gatiasham and Khetab Khan and that diluvion as well as alluvion had already taken place in several parts. In 1861 the father of defendants 1 and 2 made a petition to the survey authorities complaining inter alia that the western boundary of Khetab Khan was the flowing river Teesta and had been determined to be so long ago and he was in possession of the said mauza according to the said boundary, but in the thak survey some lands on the western side had been shown as appertaining to Gatiasham and that the boundary line commencing from the north-western corner of his mauza south-wards had been incorrectly drawn with the result that a large quantity of lands of Khetab Khan had been wrongly included within Gatiasham.
3. In the thak map of Gatiasham the flowing river Teesta was shown as on the west of the western boundary line of the mauza (Stations Nos. 1 to 10), and on the south of its southern boundary line (Stations Nos. 11 to 15), and Khetab Khan was shown as lying contiguous to its east (Stations No. 16 to 26). The complaint was that the line should go towards the south-west instead of towards the south-east from Station No. 22 and should run in that direction up to Station No. 10. The Superintendent of Survey found that there were some discrepancies in the thak map of Gatiasham, but he referred the applicant to the civil Court. On that the applicant commenced a suit against the plaintiff's predecessor, being Title Suit No. 155 of 1861, which resulted in a compromise decree. The exact import of the compromise then arrived at is a matter of controversy in this case which will be dealt with hereafter. It would be sufficient to say here only this: that under it the line between certain stations on the thak map of Gatiasham as drawn at certain bearings and distances would represent the boundary between the lands of the two parties. A decree was passed in 1862 on the basis of that compromise, the copy of the thak map of Gatiasham that was filed along with the petition of compromise forming an annexure thereto. This line will hereafter be referred to as the decretal line.' In 1913 the then predecessor of the plaintiff, as proprietor of Gatiasham, instituted a suit being Title Suit No. 462 of 1913 against certain persons who are not parties to the present litigation, and were not parties to Suit No. 155 of 1861, which ended in a compromise in 1862, alleging that at the time of the thak survey in 1856 some lands of the said mauza were situate on the opposite bank of the river Teesta and they were depicted as chak No. 4 in the thak map of 1857 of Mauza Dhusmara and included within the ambit of that mauza and further alleging that the said lands had undergone successive diluviation and re-formation, claimed title to and recovery of possession of certain lands as forming the re-formation in situ of an alluvial accretion to Mauza Gatiasham and the land of the said chak No. 4. She obtained a decree in the trial Court in a modified form. An appeal being preferred to this Court by one set of defendants the decree was in 1917 varied upon a compromise. The effect of this compromise decree, as far as may be gathered from the papers before us and in the absence of an Amin's map which formed a part of the petition of compromise and of the said decree, was that the plaintiff's title to chak No. 4 was acknowledged, her title to some lands which lay on the east of chak No. 4 and west of Gatiasham as shown in the thak survey, and which lay on the bed of the river at the time of the thak but had since silted up was also admitted and in respect of other lands lying on the north and on the south of the said silted up lands and situate between Gatiasham on one side and Dhusmara on the other, each party acknowledged the title of the other to a half-share therein.
4. The commissioner who made the local investigation in this case and prepared the case map showed in it amongst other things the disputed lands, the present position of the river Teesta, as well as the position of its main channel at the time of the revenue survey, and the common boundary line between Gatiasham and Khetab Khan as in the thak and the revenue survey maps. He also drew on it the decretal line as described in the petition of compromise in the suit of 1861. He further depicted on it, at the request of defendants 1 and 2 and under orders of the Court, the thak lines of Mauza Dhusmara and of the disputed lands in the suit of 1913 and also a map of chur Khetab Khan which is alleged to have been prepared by their Amin Mohamed. Ismail in 1318. He drew the decretal line in three different ways, one of which he preferred, namely a vermilion dotted line drawn as per specifications given in the petition of compromise in the suit of 1861, drawn from Station No. 22 up to a point near Station No. 10 of the that map of Gatiashama as corrected with reference to its field book. He found that almost the whole of the disputed lands with the exception of a small strip on the north fell to the south of the said decretal line.
5. The Subordinate Judge was of opinion that the compromise in the suit of 1861 should be given effect to and so he held that defendants 1 and 2 are entitled to such lands as lay to the south of the decretal line and within the boundary of Gatiasham as shown in the thak map of that mauza. He however would not accept the vermilion dotted line of the commissioner as the decretal line because he was of opinion that when a copy of the thak map of Gatiasham was filed along with the petition of compromise in the suit of 1861, it was the thak map alone and not the bearings and distances as noted in the margin of the map that could not be taken into account. He therefore got the commissioner to draw the decretal line on the basis of the thak map of Gatiasham and without reference to the bearings and distances noted on it. As regards the rest of the area of the disputed land he drew a straight line from the south-eastern corner of Mauza Gotiasham (i.e. Station No. 16 of the thak map of Gatiasham) up to the southeastern corner of Mauza Dhusmara (i.e. Station No. 88of the Thak Map of Dhusmara) and held that an irregularly shaped triangular area, consisting of such of the disputed lands as lay outside the thak boundary of Gatiasham and north of that line, should be held to belong to the plaintiff. He therefore gave the plaintiff a decree in accordance with his prayers in the plaint for the strip of land lying on the north of the decretal line and the triangular area on the south of the thak boundary of Gatiasham. In the appeal which the defendants have filed, their contentions range round three matters: first the triangular area, second the order for costs that has been made against them, and third the decree for khas possession that has been passed as against defendants other than defendants 1 and 2. In the cross-objection preferred by the plaintiff arguments have been addressed to us which are directed to establishing that the suit should have been decreed in its entirety, a very minor point as well having been taken that the Subordinate Judge had no good reason for not accepting the vermilion dotted line of the commissioner as the decretal line.
6. The judgment of the Subordinate Judge, in so far as it deals with the triangular area, is obscure to a degree and the reasons on which he has proceeded are not easy to comprehend. Learned advocate for the plaintiff-respondent therefore, and in our opinion quite rightly, sought to support the decision of the learned Judge primarily upon grounds other than those that are to be found in his judgment. He next referred to the judgment and put upon the process of reasoning it reveals a meaning which, in our judgment, is the only meaning which would make it sensible. We shall presently deal with these matters but before we do'so we propose to dispose of a few points which have been raised before us and which need not detain us long. Considerable argument has been addressed to us on behalf of the appellants, based on the fact that though in the prayer in his plaint the plaintiff has asked for declaration of title to the lands in suit on the ground of their being reformation in situ of and accretion to his Mauza Gatiasham, there are no specific averments therein such as would be sufficient to found a title by accretion, it being generally recited in it that there was re-formation in situ and accretion. The respondent as well as the Court below have, on the other hand, laid a good deal of stress on the fact that in the written statement defendants I and 2 specifically rested their case upon the fact that
the disputed land is owned and possessed by the defendants and forms the land in respect of which the decree was obtained their father,
and did not lay any claim to them on the ground of re-formation in situ or accretion. In our judgment, the pleadings, so far as a matter of this kind is concerned, should not be construed too strictly unless one must do so for some very good reason. In the case of chur lands which are constantly going under water and re-forming it is very difficult, until a full investigation based on a proper survey and comparison of maps is made, to premise with any degree of certainty whether a claim would really lie on the ground of a new formation as being reformation in situ or a contiguous accretion. The defendants' case that Mauza Khetab Khan never diluviated and the lands in dispute always remained in their present state ever since 1861 cannot be true; it was obviously put forward to ensure the defendants' success on the ground of a title by adverse possession. Their denials of the plaintiffs' case, namely:
that the lands of Mauza Gatiasham were diluviated several times after the thak survey and that for the last time the diluviation commenced in 1323 or 1324 and went on till 1327, and then re-formation began in 1328, and their assertion that the disputed land was re-formed long before 25 or 30 years' and thereafter the river Teesta gradually shifted towards the west and the disputed land was never diluviated,
are also not true. On behalf of the appellants it has been contended that the suit should have been dismissed on the ground of limitation as also on the ground that they themselves had acquired a title by adverse possession. So far as limitation is concerned stress has been-laid on the Subordinate Judge's finding which is in these words;
An analysis of the evidence shows that the plaintiff failed to prove possession of any particular portion of the disputed area at any time.
7. On the question of adverse possession it has not been disputed that for the appellants to succeed they must trace such possession back to a period prior to 1305 because the last male owner died in that year and thereafter his widow held the estate which the plaintiff has obtained under an adoption made by her in 1324 and he having attained majority within three years before the institution of the suit. But to show such possession reliance has been placed, in particular, upon six documents, Exs. E-l, F, E-ll, E-8, E-9 and F-10 which we have been asked to read in conjunction with the entries in the chitta dags of the survey alleged to have been made by the defendants' Amin in 1318 and in the light of the oral evidence adduced in the case. We have done so, but we cannot bring ourselves to differ from the view which the Subordinate Judge has expressed. We agree with him in his conclusion that though there was some sort of a survey of the outer boundary about the year 1318 by the defendants' Amin, as is alleged on their behalf, the chittas must have been prepared much later, and the entries to be found in them cannot be implicitly relied on. As regards oral evidence it is not at all difficult to adduce a piece of evidence here, or a piece of evidence there, to establish a connexion between names appearing in the documents and thus make the documents fit in with apart of the disputed land. The Subordinate Judge was, in our opinion, right in holding that it is difficult to be satisfied on the materials such as they are on the record, that the documents mentioned above related to the plots with which the defendants desire to connect them. In any event these documents can only prove that some parts of the disputed lands were in possession of persons whose names appear in them. They are not documents with which defendants 1 and 2 had any concern and so are of little assistance to these defendants as a means of establishing their title by adverse possession. It is quite possible that these defendants had tenants in parts of this disputed area for the periods that such parts were not under water, but there is no proof of any continuous or systematic possession through tenants by which the title of the rightful owner may be displaced. We think in this case we should apply those principles which are applicable to newly formed chur lands in which both parties were merely scrambling for possession, namely that possession lay with him who had title. We accordingly hold that the suit was not barred, nor was the plaintiff's title, if he had any, extinguished by adverse possession.
8. To support the decision of the Subordinate Judge as regards the triangular area and also to challenge his decision in so far as it purported to exclude the area lying to the south of the decretal line and within the thak boundary of Gatiasham or any area at all, it has been urged on behalf of the plaintiff-respondent that the compromise decree in the suit of 1861 should be read as giving the father of defendants 1 and 2 only three chaks of land lying to the south of the decretal line, and that if the defendants have not produced the map which formed an annexure to the petition of compromise and of the decree, and have not shown where those chaks lay, they ought not to be allowed to succeed at all. (The judgment then considered the facts and concluded.) We are unable to hold that the plaintiff has succeeded in establishing his title to the lands or his claim for recovery of possession thereof as against the defendants.
9. With regard to the point in connexion with the decretal line which has been taken in the respondents' cross-objection it is conceded on behalf of the appellants that the decision of the Court below cannot be supported. The commissioner gave very good reason why his vermilion dotted line should be accepted; that line agreed very closely with the revenue survey boundary line. The Subordinate Judge has, in our opinion, needlessly rejected the said line, and has put an unnecessarily narrow construction upon the petition of compromise in holding that the thak map should be taken divorced from the field book which appears on it. (The Court after upholding the commissioner's findings varied the order for costs and concluded.) In the result the appeal is allowed and the cross-objection is also allowed in part. The plaintiff's title to the portion of the land in suit lying on the north of the vermilion dotted line from Station R to Station 10 should be declared, and he should get a decree for khas possession with mesns-profits to be determined hereafter in respect of that area, and the suit in respect of the rest of the lands should be dismissed. So far as the costs of the Court below are concerned each party should pay his or their own costs; but as regards the costs of this appeal the appellants will get their costs from the respondent, hearing fee being assessed at 10 gold mohurs. There will be no further order for costs in the cross-objection.