1. These four appeals arise out of two suits. One was a suit instituted by Sailabala Debi and others after a proceeding under Section 145, Criminal P.C., in respect of the lands. The Magistrate found that the possession of the char lands was with the first party, namely Swarnamoyi Debya and others. Thereafter in April 1932 the suit was instituted in the Court of the Munsif of Pabna. The Munsif by his judgment decreed the suit partly in favour of the plaintiffs and dismissed the suit in part. Against that decree both parties appealed to the District Judge and the learned District Judge has affirmed the decree of the trial Court. The second case arose out of a reference by the Collector under Section 5, Alluvion Lands Act of Bengal. The opposing parties to this Court were the opposing parties in that proceeding also. Besides, there were a large number of cultivating tenants who were made parties. It may be stated at once that the Courts below have found that the tenants are occupancy raiyats and they are not to be disturbed whichever of the present parties succeed as to the superior rights. The learned Subordinate Judge who tried the suit decided partly in favour of both the parties. Against that decree both parties appealed to the District Judge and he by his judgment affirmed the decree of the trial Court. Against the two decrees of the learned District Judge each party has made two appeals to this Court. As the issues agitated by the parties in both suits are practically the same we shall deal with the matters in one judgment.
2. As stated above the tenants have been found to be occupancy raiyats and neither party in this Court questions that finding. The controversy in this Court is between the two sets of landlords and the main question for decision is whether the Courts below rightly decided the respective rights of the parties now in this Court. The lands in suit were originally called mouza Goalanda, but afterwards during the Cadastral Survey and Settlement called Char Bara Goalanda. In understanding the controversy between the parties it is necessary to state certain facts on which there is no dispute. In 1885 Bisweswar Basu Majumdar acquired three annas of Touzi No. 287 to which the portion of Mouza Goalanda appertained. Between 1890-92 the said Mouza Goalanda was diluviated by the river. It is well known that Goalanda is situated at a place where the mighty rivers Ganges and Brahmaputra form a junction. In 1892 the mouza was reformed. In 1895 Touzi No. 287 was partitioned between 5 sets of cosharers landlords. Five separate touzis were made thereof, and the touzi which Bisweswar Basu Majumdar got was numbered 11329. On 23rd February 1897 Bisweswar executed two mortgages each for 8 annas share of Mouza Goalanda as well as other mouzas. In 1898 Mouza Goalanda was again diluviated by the river. In 1901 the mouza reformed and Bisweswar took possession of the whole of the reformed mouza holding adversely to his four cosharers. One set of mortgagees instituted their suit in 1903 and obtained a decree and in 1912 they purchased 8 annas share of the mortgaged property in execution of the decree and took formal possession in March 1913. The other set of mortgagees also duly obtained a decree and in 1917 purchased 8 annas share of the mortgaged property in execution of the decree and in January 1919 obtained delivery of possession. In 1920 the mouza was again diluviated. It was reformed in 1922. The dispute as to possession began in May 1929 after which in due course the present proceedings were instituted.
3. The first question between the parties is how much of Mouza Goalanda the mortgagees obtained by their mortgages and subsequent decrees and sale. On the side of the mortgagors and their successors it was urged that on a perusal of the mortgage deeds it will appear that it was only the share of Bisweswar Basu Majumdar in Touzi No. 11329 which was mortgaged and not the whole of the Mouza Goalanda. As to this both the Courts below have found that while the right of Bisweswar was restricted to only a portion of Mouza Goalanda, namely to the 3 annas portion as comprised by Touzi No. 11329, he, Bisweswar, took advantage of the frequent diluvion and alluvion of the lands to dispossess all his cosharers and adversely possessed the whole of the lands. The learned District Judge has found that prior to the execution of the mortgages Bisweswar was in adverse possession of the entire Mouza Goalanda. Although his title was not perfected by 12 years adverse possession at the date of the mortgage it became so perfected before the date of the possession obtained through Court by the mortgagees. As such the Court below found that the mortgagees obtained the entire Mouza Goalanda by their mortgage sale. In appeal by Swarnamoyee Debya and others it is urged that, this decision is wrong, that the mortgage deed stated that it was Estate No. 11329 bearing revenue Rs. 173 odd and consisting of 3 annas share of certain mouzas. On the other hand, the Courts have found that in the mortgage deed it was stated that the 8 annas share of Mouza Goalanda was mortgaged to each of the mortgagees. So that by the mortgage deeds Bisweswar alleged that the whole of the Mouza Goalanda was in his possession under his title to Touzi No. 11329. Both the Courts found and we agree with the view that although the two descriptions are inconsistent, the clear description that he mortgaged the whole of Mouza Goalanda should stand and though his title did not extend to the whole he was actually adversely possessing the whole and his adverse possession perfected his title before the sale in execution of the decrees. The result is that though portion of the reformed Mouza Goalanda belonged to the 4 cosharers of Bisweswar the whole of it passed to the mortgagees inasmuch as Bisweswar had dispossessed them and was himself in adverse possession of their shares.
4. The next question urged on behalf of Swarnamoyee Debya and others is that the Courts below should have held that by the auction purchase the mortgagees obtained nothing inasmuch as in their execution petitions they did not make parties certain ladies who in 1901 and 1902 had purchased this touzi for arrears of cess. On this the Courts found that the said ladies were made parties in the mortgage suits. They did not appear to defend the suits. The suits were decreed and in the execution proceedings thereafter they were not made parties. In our opinion the decisions of the Courts below on this point were correct. The two appeals of Swarnamoyee Debya and others are therefore dismissed but without costs.
5. Now comes the question of the appeals of Sailbala Debi and others. Their main point is that the Courts below committed an error in giving them only the land according to the area of old Mouza Goalanda as stated in the revenue survey maps and not the area as stated in the recent Cadastral Survey map which was finally published in 1913. This mouza as stated above diluviated three times and reformed again three times within recent years. The Settlement operations were held from 1903 onwards and the record was finally published in 1913. They found that the reformed char was much larger than the ancient Mouza Goalanda. They therefore called it Barachar Goalanda. The Courts below have come to the conclusion that Barachar Goalanda and Mouza Goalanda are not identical inasmuch as the areas are not identical. The learned District Judge stated:
The real test is the area. It is patent on the face of it that Barachar Goalanda is much vaster area than Mouza Goalanda and the nomenclature Bara Goalanda was introduced for the first time by the settlement authorities.
6. This was also the view taken by the trial Court. Further, the trial Court noted that the area of Mouza Goalundo was so much as stated in the revenue survey maps whereas the area of Bara Char Goalundo as stated by the Cadastral Survey maps of 1913 was nearly three times as much and therefore the two could not be identical. We are of opinion that the Courts misunderstood the position. The real test is not the area. When A mortgages to B a certain field bordering on the river and the field is increased by alluvion B is entitled to the increase for the purposes of the security : Section 70, Illus. (a), T.P. Act. The area therefore is not a proper test. The question is whether this Bara Char Goalundo was a reformation of Mouza Goalundo with additions. It is not disputed that Mouza Goalundo is a portion of the Bara Char Goalundo. Because it was a very much larger area, the Settlement Authorities called it Bara Char Goalundo. It included whole mouza Goalundo plus a good deal of new lands.
7. It has been urged by Mr. Sen Gupta that these additional lands cannot be considered accretions of Mouza Goalundo inasmuch as the area of Mouza Goalundo is known from the revenue survey map. The addition must be reformations of other mouzas. As to this the settlement map does not show that Bara Char Goalundo comprised any other mouza except old Mouza Goalundo. The new lands are apparently accretions. If these happened to be reformations of other old mouzas it is for the persons who have title to those mouzas to come and make their case. Until they do so the Courts should treat mouza Goalundo as an enlarged addition of old mouza Goalundo and inasmuch as the mortgagor Biseswar Basu Mazumdar obtained possession by means of his tenants of the whole of the Bara Char Goalundo and was recorded as such in the settlement record this enlarged area must all go as security to his mortgagees. The opposite party Swarnamoyee and others derived their title in part from the heirs of the deceased Biseswar Basu Mazumdar. By their title as successors of Biseswar Basu Mazumdar they cannot resist the mortgagees' claim to the whole of Bara Char Goalundo. They also purchased the titles of two of the co-sharers of Biseswar Basu Mazumdar. The Courts below have found those cosharera lost their rights by the adverse possession of Biseswar Basu Mazumdar, and there was thus no title which they could convey to the respondents. The Courts below thought
it would be a dangerous proposition to hold merely because the holder of a mouza took into his head to take adverse possession of an adjoining mouza the latter would be considered to be an accession to the former within the meaning of Section 70, T.P. Act.
8. In our opinion this does not represent the facts of the present case. If a mortgagor mortgages a house and thereafter makes an addition to the house, say, by putting up new rooms on the roof or by enlarging the bath-rooms and putting in sanitary appliances at great cost, all these additions would go as security to the mort gagee. If he however acquires by purchase or by adverse possession the adjacent house, that would not add to the security. But in the present case what happened was the whole of old mouza Goalundo was washed away by the river and after some years a new char was formed the area of which was much larger than the old mouza Goalundo. This large char was immediately taken possession of by Biseswar Basu Mazumdar and his sturdy tenants and as such by his possession he added it to the security of the mortgagees. There was here no clear demarcation between mouza Goalundo and any other specified mouza. In the result in our opinion the appeals of Sailabala and others should succeed and they will get a decree to the lands of Bara Char Goalundo as found in the finally published settlement record of 1913. With this modification the decree of the Court of Appeal below will stand. The appellants will get one set of costs from the respondents in the two appeals. Costs of the Courts below will follow the event.