1. This is an appeal by some of the defendants in a suit brought by the plaintiffs, for recovery of khas possession on declaration of their title to a strip of land. There was also a prayer made by the plaintiffs in the plaint, for a declaration of the plaintiffs' right of easement to use water by making a ghat in the tank of the defendants, which lies to the north of the land in suit.
2. The defence of the contesting defendants to the suit was that the plaintiffs had no title to the land in suit. The right of easement asserted by the plaintiff's was denied by the defendants. It was asserted on behalf of the defendants that the land in suit appertained to their tank and was recorded as cadastral survey plot No. 514, the plaintiff's case being that the land in suit appertained to the plaintiffs' homestead which was recorded as cadastral survey plot No. 516. On the pleadings of the parties various issues were raised. The principal issues settled related to the question of the plaintiffs' title to the land. The question of limitation was also raised in defence by the defendants, the plaintiffs having been put to the strict proof of their title and to their subsisting title to the land in suit. The Courts below have held that the plaintiffs succeed in making out their title as alleged in the plaint, with reference to the strip of land which is not however the entire quantity of land claimed by the plaintiffs in the suit. So far as the question of possession was concerned the Courts below have concurrently held that the land in suit was 'waste land' not in the actual possession of anybody before 1331 B. S. and possession should therefore be taken to have been with the rightful owners, i.e., the plaintiffs. In this appeal the first point argued by the learned advocate appearing for the defendants appellants, was that the plaintiffs' title was not specifically and definitely found by either of the Courts below. With reference to the point thus raised in support of the appeal, it must be said that the judgment of the learned Subordinate Judge in the Court of appeal below, is not altogether satisfactory on the question of title regard being had to the manner in which the learned Subordinate Judge has dealt with that question.
3. But the judgment of the learned Judge is a judgment of affirmance ; and in affirming the judgment of the trial Court, the learned Judge has expressed himself in this way: that the dispute between the parties was a boundary dispute, and although the report of the commissioner submitted in the case after local investigation was not a satisfactory one, the boundary line dividing the plaintiffs' property and the property of the defendants, i.e., cadastral survey plots Nos. 544 and 516, could be determined with reference to the materials placed on the record; and with reference to those materials it has been found concurrently by the Courts below that the plaintiffs succeeded in making out their title to the strip of land to which reference has been made above, although that strip does not wholly correspond with the entire quantity of the land claimed by the plaintiff in the suit, so far as the area was concerned. So far as the strip of land which has been decreed in plaintiffs' favour, title has been found, and the boundary between the plaintiffs and the defendants' land determined by the Courts below, on the evidence before them ; and it cannot be controverted that the findings and the conclusion arrived at by the Courts below did not amount to a finding on the question of the plaintiffs' title as alleged by them in the plaint.
4. The second point raised in support of the appeal, by the learned advocate is that the entry in the Record of Rights is in favour of the defendants. The Record of Rights seems to have mentioned the two C. Section dags Nos. 544 and 546 ; but the exact boundary of these two plots (had to be determined in this litigation ; and it has been determined by the Courts below. In my judgment therefore it cannot be argued that the Record of Rights taken by itself lends support to the defendants' claim so as to support their title which could be set up pre-ferentially to the title set up by the plaintiffs in their suit. The decision could not be based on the entry in the Record of Rights only; and with reference to the evidence in the case before the Court, the boundary between the two C. S. dags had to be determined, and has been determined in point of fact by the Courts below.
5. The next point raised in support of the appeal relates to the question of limitation. It is argued by the learned advocate for the appellants that the suit having been brought on the allegation of possession and subsequent dispossession, and the plaintiffs having alleged definite acts of possession, the Court of appeal below has erred in not trying the question of limitation as raised, upon the erroneous misconception that the land is waste land, and that the principle that possession follows title applies to such land. It is no doubt true that the expression 'waste land' has been used in the judgments of the Courts below, but the use of that expression is rather loose. What actually transpired from the materials on the record that have been referred to in the judgments of the Courts below was that the land in dispute was such as was not capable of actual and continuous physical possession.
6. With reference to the settled principle that the acts of ownership need not be continuous, nor even be they frequent, and regard being had to the character of the land of which we have a complete idea from the judgments of the Courts below, and the purpose for which the owners used it, it has been sufficiently maintained that the plaintiffs were in possession by doing such acts as in the circumstances might be expected. Keeping this point of view before us, it can not be said that the use of the expression' 'waste land' does take away anything from the definite finding of fact arrived at by the Court below, viz., that acts of ownership attributable to the persons who had title in the land were present in the case before me ; and such acts must be deemed to be acts which supported the plaintiffs' case so far as to enable them to put their case in this manner, namely, that they had a subsisting title at the date when they came to Court to recover possession of the land. In the above view of the matter the question of plaintiff's possession and the question of limitation, must be decided in the plaintiffs' favour as has been done by the Courts below. It must be held that the plaintiffs' suit with reference to the strip of land decreed to them cannot be held to be barred by limitation.
7. Reference has been made in course of argument to the result of a previous litigation regarding the tank in Order Section dag No. 544. The judgments of the Courts below do not give sufficient indication as to what the previous suit related to ; and no contention seems to have been advanced in either of the Courts below, with reference to the result of the previous litigation between the parties with reference to the tank included in C. S. dag No. 544. In that view of the matter the question now raised before me, for the first time in second appeal, cannot be decided in the absence of proper materials and accordingly the question as to the effect of the decision of the previous litigation between the parties cannot be decided in favour of the defendants-appellants, as I have been invited to do. The appeal fails and is dismissed with costs.
8. There is a cross-objection filed on behalf of the plaintiffs in the suit relating to the right of using the water of the tank covered by the C. S. plot 544. Issue 8 raised in the suit related to this question and the issue was to this effect: Have the plaintiffs their alleged right to use the water of the tank in suit as claimed? The trial Court gave its decision in favour of the plaintiffs, but that decision was reversed on appeal by the learned Subordinate Judge in the Court of appeal below. According to the learned Subordinate Judge the evidence in the case pointed out clearly that the plaintiffs' use of the water of the tank covered by the C. S. dag 544, was merely permissive and therefore the question of acquisition of the right of easement by the plaintiff's to use the water as claimed by them in the suit and as raised in issue 8 could not be decided in favour of the plaintiffs.
9. In my judgment the question of the acquisition of the right of easement, asserted by the plaintiff's in the suit, has been rightly decided against them by the learned Subordinate Judge on the definite findings arrived at by him. The cross-objection is therefore dismissed. There is no order as to costs so far as the cross-objection is concerned. The appeal and the cross-objection are both dismissed and the decision and decree passed by the Court of appeal below are affirmed.