1. The subject-matter of this suit is a jalkar as to which an order has been made under Section 146 of the Criminal Procedure Code with the result that the jalkar has been attached, and will so remain until a competent Court has determined the rights of the parties thereto or the person entitled to possession thereof. The purpose of this suit is to obtain such a determination.
2. As their case has been formulated before us, the plaintiffs, who are appellants, have based their claim to be entitled to possession first on their title as durputnidars of jalkar Gangapath in Dihi Mirzapur, appertaining to Touzi No. 1152 of the Birbhum Collectorate and of which, they allege, the particular jalkar now in suit, jalkar Jagannathpur, is a part; and secondly, on their long possession of jalkar Jagannathpur coupled with the establishment of their title by two separate decrees to jalkar Chowke and jalkar Kausat, which are now, and for many years have been, connected by jalkar Jagannathpur. The defendant No. 1 (who is the respondent, and to whom I will refer as the defendant), on the other hand, has denied that the plaintiffs ever had any right to, or possession of, the disputed jalkar, and has contended that the jalkar, did not appertain to Touzi No. 1152, but was known as jalkar Damuss of Amtala, that it was situate within the ambit of his zetnindari and was in his possession, and that it was not connected with the River Ganges during the whole year.
3. When the case came on for trial the following issues on the merits were framed:
4. Whether the plaintiffs .have right to the disputed jalkar appertaining to Toiwi No. 1152 of the Birbhum Collectorate and Touzi No. 1 of Murshidabad Collectcorate?
5. Whether the disputed jalkar remains open throughout the year in communication with the Pagla and the Ganges?
4. The Subordinate Judge at Rajsbahye found on the fourth issue adversely to the plaintiffs and on the 5th issue in their favour.
5. The result has been that he dismissed the plaintiffs' suit, making the parties bear their own respective costs. From this decree the present appeal has been preferred.
6. This suit is one of many in which the question has been raised with conflicting results as to whether the stretch of the Ganges from Udhuanala onwards is a part of Gangapath Islampur, which admittedly belongs to the Government, or is, as the plaintiffs contend, a jalkar distinct from Gangapath Islampur as known as jalkar Gangapath, 'Dihi Mirzapur. The last of these suits was No. 37 of 1902, which came to this Court on appeal as Appeal No. 344 of 1904 with the result that this part of the Ganges was held to be Gangapath Islampur. This decision, as far as it goes, though not pleadable in this suit as res judicata, is opposed to one aspect of the plaintiffs' claim, but special leave to appeal from that decision has been given by the Privy Council and the question will shortly come for determination before that tribunal. It will, therefore, be convenient that so far as possible our decision in this suit should proceed on grounds which are not in debate in Suit No. 37 of 1902, and according to my understanding of this case, there is no difficulty in this. I have already explained how this suit originated, and though the plaint as translated may be open in some measure to the criticism to which it has boon subjected by the defendant's pleader, it is, I think, reasonably patent of the construction that it rais93 the question whether the plaintiffs have not established that they are the persons entitled to possession of this particular jalkar apart from their contention that the stretch of the Gingas with which it is connected is, not Gangapath Islampur but Gangapath in Dihi Mirzapur.
7. And in the procedure, which was adopted in the Subordinate Judge's Court despite the plaintiffs' protest, there1 is good ground for liberality in this respect: for the documents, on which the defendant is able to oppose most effectively the plaintiffs' title, were put in after the close of the defendant's case. Moreover, it i.e. to be noted that defendant thereby seeks to establish, not a title in himself, but a title in the Government, and it may well be doubted whether in a suit such as this the title of a third person can be effectively pleaded by a party never in possession, against one, who, until the interference of the Magistrate, was in peaceful possession for a substantial period of time.
8. How then does the plaintiffs' case stand as to possession? First, they rely on decrees in previous suits which have established their right to jalkar Kausat and to jakar Chowke, and they point out that even in Suit No. 37 of 1902 their right thereto was saved. Then they allege that jalkar Jagannathpur is a continuation of jalkir Chowke and in fact. connects it with jalkar Kausat. And finally they rely on their actual possession of jalkar Jagannathpur.
9. Before examining in detail the evidence as to possession, it will be convenient to see what the Subordinate Judge's view was. His judgment, though lacking in definite statement, indicates that in his opinion the plaintiffs through their ijarainrs were in undisputed possession of the jalkar up to the date of the Magistrate's order in 1902, and that he was convinced by the qubuliats for the years subsequent to 1298 B.S. and the oral evidence of the plaintiffs' witnesses that this possession extended as far back as 1891 A.D. As to the possession prior to that the learned Judge was apparently dubious; he thus expresses himself. 'In the face of all these adverse circumstances even if I give the utmost credence to the evidence of the plaintiffs' side, the most that I can say is that the plaintiffs have possession of the jalkar in whatever form it then was, from 1284 B.S. and the their possession of it was not more than 23 or 24 years' standing when the attachment of it under the orders of the Criminal Court took place in September 1902.'
10. In view of these findings and of the evidence on which they are basal, it is admitted on behalf of the defendant that the plaintiffs were in possession from 1391 up to the date of the Magistrate's order, but, it was urged, this possession was rot exclusive, for the respondent too was in possession.
11. The respondent's version is briefly this: the channel in respect of which jalkar is now claimed is of recent formation and does not date back more than 15 or 16 years; the fishing in it has only lately become of value; and the plaintiffs' possession, therefore, not only was not exclusive but in the circumstances escaped notice. But the Subordinate Judge did not consider that the defendant was in possession prior to the Magistrate's order, and after hearing the evidence adduced by the defendant on this subject I agree with the Subordinate Judge and hold that the plaintiffs' possession of jalkar Jagannathpur was exclusive. Farther the defendant has failed to convince, me as to the modern origin of the channel; on the contrary the evidence on the record leads us to the opposite conclusion. Though, in my opinion, the Subordinate Judge's somewhat dubious finding as to the plaintiffs' possession anterior to 1881 might have been more confident in the plaintiffs' favour, when regard is had to the documentary evidence by which it is supported, still in the view I take the fact of the plaintiffs' exclusive possession from 1891 to the date of the Magistrate's order entitles them to a decree which will terminate the attachment in their favour. Though an order under Section 146 interferes with physical possession, it does not affect the legal rights of the parties concerned and the property under attachment is held for the person ultimately shown to be entitled to possession.
12. Now undisturbed possession for 11 years, such as we have here, is, in the circumstances of this case, evidence of a right to possess and unless the respondent can displace this right to possess, the plaintiffs are entitled to such adjudication from the Court as will vindicate and secure to them this right. Has then the defendant displaced this right? First, the defendant has set up a title in himself alleging that jalkar Jagannathpur is not at all times connected with jalkar Kausat; but in this he has failed, and I hold that he has not established the title in himself that he has alleged. And as he has failed to prove any antecedent possession in him or his predecessors, he has nothing to oppose to the plaintiffs' claim to be entitled to possession of the jalkar.
13. That a jalkar can be possessed is not disputed, but it is urged on behalf of the defendant that the state of the authorities in this Court, in conflict with those of other High Courts, does not sanction a suit, based on possession except under the provisions of Section 9 of the Specific Relief Act. Unquestionably it has been decided in certain cases that in a suit to recover possession brought more than six months after, the date of dispossession the plaintiff must prove title and mere previous possession for any period short of the statutory period of 12 years cannot be sufficient for the purpose. Nisa Chand Gaita v. Kanchiram Bagani 26 C. 579 : 3 C.W.N. 568 is the leading authority on this point See also Purmeshur Chowdhury v. Brijo Lall Chowdhury 17 C. 256 Ed. and there the matter is treated as concluded by a current of authority which precedes on the assumption that the Privy Council, in Wise v. Ameerunnissa Khatun 7 I.A. 73, expressed an opinion to that effect. It is not necessary for me now to consider how far this is a correct interpretation of the Privy Council judgment or how far it can be reconciled with the judgment in Sundar v. Parbati 16 I.A. 186 : 12 A. 51, and the fundamental principles relating to the protection of possession, for, even assuming for the sake of argument, without affirming, the correctness of the rule, it manifestly has no application here. The rule rests on the supposition that there are facts to which the provisions of Section 9 of the Specific Relief Act apply, but that is not so here. The fact that 11 years' possession does not create a title by adverse possession is immaterial; the plaintiffs have proved undisturbed and peaceable possession for that period and they are entitled to maintain that possession against all but the true owner: the defendant has not shown himself to be the true owner: therefore, the plaintiffs are entitled to a decree that they are entitled to the possession of jalkar Jagannathpur.
14. The decree, therefore/1of the Subordinate Judge must be reversed and a decree passed in the plaintiffs' favour declaring that they are entitled to the possession of jalke Jagannathpur.
15. The plaintiffs are declared entitled to the sum of money in deposit with the Magistrate as mesne profits.
16. The defendant must pay the costs of the appeal and of the suit to the plaintiffs.