1. This is an appeal on behalf of the plaintiffs in a suit for declaration of title to immoveable property and for recovery of possession thereof with mesne profits. The property in dispute covers an area of 247 bighas, claimed by the plaintiffs as part of their Mouza Judia, and by the defendants as part of their village Koriaputti. The Subordinate Judge found upon the question of title that approximately one half of the disputed area fell within the estate of the plaintiffs. With reference to the question of limitation, he found that as the land was subject to inundation by the water of the river Kosi from time to time, the burden was upon the defendants to establish that the title of the plaintiffs had been extinguished by adverse possession on their part. Upon the evidence, he held that the defendants had failed to establish such adverse possession for the statutory period; and in this view, decreed the suit in part. Both the parties were dissatisfied with this decision and appealed to the District Judge, Upon the appeal of the defendants the District Judge held that the burden was upon the plaintiffs to establish that they were in possession and were subsequently dispossessed, as alleged by them, within 12 years before the commencement of the suit. He found that the plaintiffs had failed to discharge the burden that lay upon them, and in this view dismissed the suit. On the present appeal by the plaintiffs, it has been contended that the decision of the District Judge upon the question of limitation cannot be supported. In our opinion, there is no answer to this argument.
2. We shall for the purposes of this appeal assume that the plaintiffs are proprietors of the disputed land as alleged by them. It may be conceded that when they alleged their prior possession and subsequent dispossession by the defendants, the burden is primarily upon them to establish, as laid down by their Lordships of the Judicial Committee in Mchima Chunder Mozoomdar v. Mohesh Chunder Neoghi 16 C. 473 ; 16 I.A. 23 (P.C.) ; 5 Sar. P.C.J. 321 ; 8 Ind. Dec. (N.S.) 312 that they were in possession within the statutory period. But in the determination of this question of possession, the nature of the land must be first considered. If, as the Subordinate Judge found, the land was wholly or partially subject to inundation by the water of the river Kosi, the plaintiffs must be deemed to have been in possession of the submerged portion during the period that such tract was covered by water, no matter who was in possession at the date of the submergence: Secretary of State for India v. Krishnamoni Gupta 29 C. 518 ; 29 I.A. 104 ; 6 C.W.N. 617 ; 4 Bom. L.R. 537 ; 8 Sar. P.C.J. 269 (P.C.). In our opinion, the judgments of both the Courts below are open to criticism on the ground that neither of the learned Judges ascertained the precise tract of land to which the principle of submergence applies; nor did they find, at what period, the water receded and the land re appeared before the suit. It is conceivable that part of the land was reclaimed more than twelve years before the commencement of the suit; in respect of such portion, the plaintiffs may be rightly called upon to prove their possession within twelve years. But in respect of some portion, at any rate, of the disputed land, it is clear from the evidence of the defendants themselves that the area has been waste or submerged or unfit for cultivation in quite recent periods. In respect of such land, the principle laid down by their Lordships of the Judicial Committee in the cases of Rajkumar Roy v. Gobind Chunder Roy 19 C. 660 ; 19 I.A. 140 ; 6 Sar. P.C.J. 140 ; 9 Ind. Dec. (N.S.) 883 (P.C.) and Radha Gobind Roy v. Inglis 7 C.L.R. 364 ; 3 Suth. P.C.J. 809 (P.C.) clearly applies. As was pointed out by Mr. Justice Wilson in the cases of Mono Mohun Ghose v. Mothura Mokun Roy 7 C. 225 ; 8 C.L.R. 126 ; 3 Ind. Dec. (N.S.) 694 and Mahomed Ali Khan v. Khaia Abdul Gunny 9 C. 744 ; 12 C.L.R. 257 ; 4 Ind. Dec. (N.S.) 1145 although, as a general rule, where the plaintiff claims land from which he alleges he has been dispossessed, the burden is upon him to show possession and dispossession within twelve years, the nature of the proof of possession must depend upon the nature of the case. The District Judge in the Court below appears to have lost sight of this aspect of the case and has held, erroneously as we think, that the burden lies upon the plaintiffs to establish their possession unless they can prove that the whole of the land was entirely waste. He does not appear to have realised that the question of possession requires examination from different standpoints in view of the present or past condition of different portions of the disputed land.
3. The result is that this appeal is allowed, the decree of the District Judge set aside and the case remanded to him for reconsideration. We notice from the judgment of the District Judge that he was not satisfied with the manner in which the property had been surveyed in the Court of first instance. We further observe that the original survey maps were not produced. The District Judge will, therefore, consider whether it would not be desirable to have the lands accurately surveyed by a professional surveyor with reference to the original survey maps, and give direction accordingly. It is obviously desirable in a case of this description that the question of title should be satisfactorily decided in the first instance before the question of limitation is considered. The costs of this appeal will abide the result.