1. Having read my learned brother's judgment I concur in the conclusion at which he has arrived. The question is merely on which side of the line of demarcation drawn by the authorities the present case falls. That depends on the facts and the facts as found bear out the view which the District Judge has taken on the point of law.
2. The appeals are dismissed with costs. We assess the hearing fee in all the appeals at five gold mohurs to be paid in equal shares by the appellants in each case.
3. These appeals relate to a large area of riverside land in the Hudrakali Khas Mahal in the Noakhali District. The plaintiffs who are the appellants got settlement of some land, bounded on the north by the river, in 1893. Since then there has been a considerable accretion of land on the north side of the plaintiffs' holding and this land has been dealt with in three separate strips. The strip immediately to the north of the plaintiffs' holding was kept as gopat, the strip to the north of that was settled with the plaintiffs in 1905, and the northernmost strip, which is now the riverside land, was settled, also in 1905, with some persons other than the plaintiffs.
4. In the present suit the first Court gave the plaintiffs a decree in respect of all the accreted land, but on appeal the District Judge reversed the Munsif's decision in respect of the northernmost strip of land and the present appeals concern only that strip.
5. The learned Judge found that though the plaintiffs had title to the land in dispute as being an accretion to their holding, their suits were barred by limitation as they were not for recovery of possession bat for declaration of title and confirmation of possession. The period of limitation for such a suit is six years and the learned Judge found that the persons with whom the strip in dispute was settled in 1905 had been in possession for over 7 years when the suit was brought in 1912.
6. In appeal it is argued with reference to the question of limitation that though the suit was framed as one for confirmation of possession the Court may treat it as one for recovery of possession and give plaintiffs the appropriate relief, as admittedly the land had only been formed within 12 years of the date of filing the suit.
7. We have been referred to a number of authorities ranging from the case of Moulvie Abdoollah v. Shaha Mujeesooddeen 16 W.R. 27 decided in 1871 to the case of Bisseswari Koer v. Ram Protap Singh 4 Ind. Cas 547 : 14 C.W.N. 366 decided in 1909. These authorities establish this, that where a plaintiff alleges facts which show that he was out of possession, his suit, even though framed as one for confirmation of possession, may be treated as one for recovery of possession, but where he makes a case that he is in possession and fails to prove his possession, the Court will not give him recovery of possession even though he proves his title.
8. There is no hardship in this rule, Apart from the fact that a plaintiff cannot complain of the Court's refusal to give him relief if he comes with a false story, it is clear that if he came after 6 years with an allegation that he was in possession and succeeded in proving that possession, his suit would be barred: Shyamanand Das v. Raj Narain Das 4 C.L.J. 563 : 11 C.W.N. 186.... It is obvious that he ought not to be placed in a better position because part of his case turns out to be false. In the present case plaintiffs alleged that they were in possession and had brought the land under cultivation at great expense, and they brought their suits because the land had been settled with others. Their allegations have been found to be false.
9. That being so, I am of opinion that the suits were rightly dismissed by the learned District Judge and that these appeals ought to be dismissed with costs.