1. This is a suit for declaration of the plaintiff's title to and for recovery of possession of certain lands covering, it is said, 10,000 bighas in area described in the schedule to the plaint. The facts are fully set forth both in the judgment of the learned Subordinate Judge and of my learned brother. I need not, therefore, repeat them except so far as is necessary for explaining the conclusions at which I have arrived.
2. Since the date of the plaint, claim to certain lands has been abandoned. The tract on the east within stations m, n, x, v, 8, 7, 36, 85m in the Commissioner's map was given up in the trial Court, In this Court so much of the disputed land as lies north of the Settlement line of 1904 (which corresponds to the southern banks of the river at the time of Revenue Survey in 1856) was given up. Out of the Lands comprised within the Revenue Survey and the boundary lines of Kabirajpore the plaintiff's title has been found in respect of 15 chaks and the residuary portion of Mouza Kabirajpore. The chaks are numbered 5, 7, 15, 17, 61, 64, 69, 70, 73, 99, 100, 101, 102, 103 and 104. The residue does not bear any number. These 15 chaks and the residue lie scattered all over the Mouza.
3. The learned Subordinate Judge has given the plaintiff a decree for so much of the 15 chaks and the residue as lies, speaking roughly, south of the southern line of the map of 1903 (thick brown line in the Commissioner's map) which is near to the southernmost line of the Partition Map of 1899. The plaintiff's title to so much of the 15 chaks and the residue as lies north of the above-mentioned line has been held by the learned Subordinate Judge to have been extinguished by the adverse possession of the defendants. The present appeal related to so much of the disputed land as lies north of the above-mentioned line of 1903, and is covered by the 15 chaks and the residue of Mouza Kabirajpore. The appellant asks that khan possession be given to the plaintiff of so much of the whole of the disputed land as is covered by these 15 chaks and the residuary portion of Mouza Kabirajpore.
4. The decision of the suit depends upon the questions of limitation and adverse possession. It is conceded that the plaintiff's suit is governed by Article 142 of the Limitation Act as also that, under that Article, it is necessary for the plaintiff to show possession and dispossession within 12 years before the suit. As to the sort of possession and the mode of showing it I deal later. It is also conceded that, whilst the burden of proving his case, namely, possession and dispossession within 12 years lies upon the plaintiff, the burden of proving adverse possession lies upon the defendants. The defendants are not, however, called upon to prove anything unless and until the plaintiff has established his possession :and dispossession within 12 years. If the plaintiff does that, then the onus is upon the defendants to prove their adverse possession for 12 years. It is very important, in my opinion, to keep this distinction well in sight in order to avoid the confusion which is liable to result in cases of this kind in which a very large number of decisions have been cited. The point is, however, in my opinion clear, namely, that the plaintiff must, first of all, establish possession and dispossession within 12 years of the suit. It has been contended on the plaintiff's behalf that as his title to the land has been found as also that he had possession of the land before dilution, his constructive possession must be deemed to have continued until the defendants show that such possession has come to an end. The argument has been carried to the length of the statement that in a case of this kind it is only necessary for the plaintiff to establish his 'title and to allege that be is out of possession in order to obtain relief, it being upon the defendants to allege and prove when such dispossession took place. This, however, in my opinion, is a wrong view of the law. It will be, however, more convenient to deal with this matter after I have set forth the case which the plaintiff made in the plaint. This is the case upon which his claim must be judged.
5. According to the plaint, diluvion took place in the year 1890. In 1902 there was a re-formation. At the time of the temporary Settlement by the Collect orate of Nadia in the year 1904 of Char Balliadanga the then Collector of Nadia declared the lands to be reformation in situ of Mouza Kabirajpore to which the plaintiff had title and the Collector released them in favour of the plaintiff as talukdar of Mouza Kabirajpore. The plaintiff alleges that at that time the land was in the form of an extensive sand-bank and unfit for cultivation and possession. It was only after the rainy season of October 1906 that the land became, according to the plaintiff's case fit for cultivation. At that time, it is alleged that the defendants proposed to take settlement of the land from the plaintiff. But owing to their, that is, the formers' delay the plaintiff with a view of settling the land with others attempted in March 1913, to have it surveyed by an Amin but the defendants, alleging that the lands were comprised within the Settlement mahal belonging to them and denying the title of the plaintiff prevented the plaintiff from making the Survey. This allegation is denied. The plaint then alleges that the defendants, not having a legal title, the plaintiff has brought this suit. He dates his cause of action as having gradually arisen from the date when a portion of the land first became fit for cultivation, that is, from the 18th October 1906. Obviously this is incorrect, as ' becoming fit for cultivation ' is not a cause of action. But it appears from the evidence of the witnesses for the plaintiff and is admitted in argument that the plaintiff was dispossessed in the year 1906 when the land become cultur-able ; for the evidence of his witnesses is that the defendants have been in adverse possession since the year 1906. The defendants claim to have been in possession long before that.
6. Now the position is this, the evidence of the plaintiff's own witness establishes, as I have said, the adverse possession of the defendants for a period of ten years, a period of two years short of the period of limitation under Article 142. A question then arises as regards the two years prior to 1906, that is, a period of 12 years before this suit. On the face of the plaint, the plaintiff is not barred and if it were established as he alleges that the lands only became capable of possession and were possessed from the year 1906 then the plaintiff's suit would be in time because during the two years prior to 1906 the lands would have been, according to the plaintiff's case, incapable of possession, having reformed only in 1902 and in the case of land incapable of possession it would have to be held that the plaintiff who has title has constructive possession during such period. But it has shown to a certainty in this case, and it has not been contested before us, that the story which has been put forward by the plaintiff is not a true one and the Judge has described it as absurd. For it has been abundantly shown that it is not true that the land for the first time re-formed in the year 1902 as alleged in the plaint. As a matter of fact, (to go no earlier) the land re-formed in 1880. In that year a Settlement was mads; as also in 1890 another Settlement was made. There was a further re-formation and further Settlement more than 12 years before the suit. That being so, the question then arises whether or not the plaintiff's allegation having been disproved on this head he must not show that he had possession of the land during the period of 1904 to 1906. For the appellant it is contended that the plaintiff has not to show this, that we must assume, in the absence of any evidence and on the strength of his title, that during such period he had constructive possession unless and until the defendants prove their adverse possession during such time. In my opinion, however, this contention is not sound. The plaintiff sued for possession on the allegation of dispossession. He is bound to prove possession within 12 years before the suit. This possession may be either actual or constructive. His witnesses say that he was not in actual possession from the time the land became submerged as it became incapable of such possession and that he has not had actual possession since the land re-formed and become oulturable. The plaintiff must, therefore, prove that the land was incapable of actual possession within 12 years before the suit, that is, during, the two years preceding 1906 since which date, admittedly, there has been adverse possession. In other words, he must show that this constructive possession continued on account of diluvion and on account of the land being incapable of possession within 12 years of the suit. He must show that the land became incapable of user by submergence or otherwise and remained in such a state of incapacity for use until within the period of limitation.
7. Now the question is whether the plaintiff has shown this : It is, in the first place, to be observed that there has been admitted adverse possession for 10 years before the suit and having regard to the fact that some of the disputed land re-formed so far back as the year 1880, some 26 years before the institution of the suit, it is in my opinion prima facie probable that in the two years prior to 1906 the land was capable of possession as it admittedly was during the ten subsequent years. As stated in the judgment, the plaintiff does not claim to have exercised an act of ownership over any part of the re-formed land and his witnesses show that possession had been for ten years prior to the suit with the defendants. Of course, if the allegation in the plaint be established there would obviously be a distinction between the period of ten years before the suit and the period before that because the answer to the question why we should not hold that the defendants admitted possession of ten years did not extend two years further would, upon the plaint, have been that it could not be extended further because the land was incapable of possession having only been re-formed in 1902, But as that case is shown to be untrue that reason can no longer be given. The plaintiff now seeks to establish, (if the onus be upon him) that the land was unoccupied and incapable of user during the years preceding 1906 and, therefore, his constructive possession continued. He seeks to do this not by his own evidence, of which he has none, for that period but by the evidence given on behalf of the defendants. Some inconsistent arguments have been addressed to us upon this part of the case. Thus, the evidence of the defendants has been attacked as untrue and untrustworthy. If that be the fact then the plaintiff who seeks to use that evidence can gain nothing thereby. Again, it has been sought to show that the lands of which user has been spoken of by the defendants' witnesses have not been sufficiently identified with the lands in dispute. It may be, it has been suggested that the undisputed portions of the Char Balliadanga were the subject of some at least of the user of which the witnesses spoke. But if this be so then the evidence is irrelevant, because it is only on the assumption that the defendant's evidence relates to the disputed lands'in suit that it can be of any use to the plaintiff. All that the plaintiff can consistently do as regards this matter is in my opinion to admit the general trustworthiness of the defendant's evidence as also that such evidence refers to the disputed land, but he may at the same time contend that the acts of user which are spoken to are not of such a character as to constitute adverse possession by reason of inadequacy in continuity, extent and so forth. I will discuss, shortly, the defendant's evidence when dealing with the question of adverse possession. I am now dealing with the question only whether the plaintiff has established his case the' onus of which lies upon him, namely, possession and dispossession within 12 years of the suit. It is sufficient to say here that in my opinion it is not possible to say that the defendant's evidence establishes in the plaintiff's favour the fact that the lands in dispute were either not used or were incapable of user and that, therefore, the plaintiff had constructive possession within 12 years prior to the suit.
8. The next question is this: assuming that the plaintiff has established his case, then the onus is on the defendants to show that they had adverse possession during the period of 1904 to 1906. We must consider whether they have, as the learned Judge has held, discharged that onus.
9. Before entering into this question it is necessary to advert to an objection by the respondents, namely, the position of the chaks which the plaintiff claims has not been in some cases delineated and in others the chaks have not been numbered. In reply to this objection we were asked by the plaintiff to direct the Commissioner in this case to appear and to re-lay and number all the chaks of Kabirajpore upon the map of the disputed lands prepared and submitted by him, The learned Vakil for the respondents objected to this on the ground that the appellant should not be allowed to amend his case in appeal The view, however, which we took with regard to this matter was that the appellant's case should not fail on such ground if it were possible for the Commissioner to do what the plaintiff asked without calling any further evidence ; in, other words, if it was a question of numbering and (if necessary) plotting the chaks from the maps already in evidence in the case and without taking further evidence. We accordingly directed the Commissioner to appear and on his appearance and our making the order in terms of the plaintiff's petition the learned Vakil for the respondent (without prejudice to his contention above-mentioned) asked us also to direct the Commissioner to plot on his map the Government Settlement Chittas of 1880, 1890 and the dags of the Partition Commissioner. This prayer we also acceded to.
10. The Commissioner's report finds that the chaks and residue claimed in the appeal fall within the disputed area. His report, however, raises a question whether only six chaks and not fifteen form part of the appellant's patni. These statements in the report upon this point are objected to on the ground that they raise a new case, the title to these chaks having been found by the first Court to be with the plaintiff and the only question, therefore, which, it is said, was left open on our order was the identification of the chaks and their numbering. It is to be observed that the statements to which exceptions are taken are not statements by the Commissioner himself but are taken from the thak statement which was already on the record before the direction was given by the Court to the Commissioner. It is denied, on the other hand, that it is anew case. Dr. Jadunath Kanjilal for defendant No. 1 as also the learned Vakil who support the same interest state that they argued that the appellant could not claim all the 15 chaks because the plaintiff's estate only comprised six chaks. Accepting this statement of the learned Vakil it is not, in my view of the case as regards limitation, necessary to determine this question because I think that the appeal fails on other grounds than that of title. Re-laying of the Government chittas of 1880 and 1890 and the partition plots of 1899 show that whatever be the title the lands are covered in part by these chittas. The report identifies the plaintiff's lands and the lands covered by the chittas.
11. Upon the question whether the defendants have proved adverse possession it is to be remembered, in the first place, that adverse possession for ten years prior to the suit is admitted. No doubt if (as the plaintiff alleges in the plaint) the land only appeared and became cultural ten years before the suit there is an answer to the objection as regards limitation. But when we find that that story is untrue and that in fact the land commenced to re-appear at, to go to no earlier date, 1880 that is, 26 years before the suit, it seem prima facie likely that the adverse possession which is admitted for ten years existed (or the additional two years prior to 1906. On the one hand, there is nothing to prevent such an inference, seeing that the lands did not re-form and become first culturable about 1906, and, on the other hand, we have the fact of the reformation of the land in 1880, 1890 and subsequent years. It is not to be supposed that the land was allowed to remain for so many years without any possession halving been taken.
12. We must distinguish, doubtless, between the question of possession and the nature of possession. It my be that in any particular case acts of possession may be shown which are not adequate to establish adverse possession by reason of continuity, limited extent or other reason. That some possession was exercised over the land in dispute I have no doubt. We have it noted upon the Government map made in the proceedings of 1903 that the defendants were then in possession. If that statement is correct and the possession amounted to adverse possession then the suit is barred. We also have the fact that Settlements have been made with the defendants from the year 1880 in respect of which revenue has been paid by them. It is to be noted that the defendants, thus, are not in the position of mere trespassers but they are persons who entered into possession under colour of title. As regards this it has been said that where a man enters upon a land claiming title his entry into possession refers to such title. Where he enters without title the seisin is confined to possession by metes and bounds, it being a well known rule that mere trespassers and squatters must, in order to establish adverse possession, show actual and not merely a constructive possession. So where there is, as here, an entry into possession of a tract of land under a deed of settlement containing specific boundaries the possession may be referred to the boundaries given in such title-deed. I do not say that this is anything more than a rule of evidence. As such, it must be applied with reference to the facts of each particular case. Thus, as 1 have said during the course of argument, if under a deed giving title to a tract of 100 square miles, actual possession is taken only of a very small portion of it and nothing further is done it may be that such possession would be insufficient to constitute adverse possession of the whole tract to which there was a colour of title. I think, however, that as a rule of evidence in judging whether adverse possession has been established or not we may take into account the fact that the party is not a mere trespasser but is acting under a colour of title. But, however this be, my conclusion would be the same, namely, that the appellant has not shown that the decree should be reversed. In this case the defendants held under a Settlement from the Government. In addition to the fact that the defendant's possession was noted in a map of the Settlement Proceedings of 1903 we have the fact that the land was partitioned between the defendants in 1899 under a decree of the High Court and boundary pillars were set up denoting the parties' respective possession. It seems to me, under the circumstances of this case, unlikely that persons would for years pay Government revenue without making any user of the land.
13. As to the actual user, the learned Judge says that the defendants have examined certain witnesses whom he names to prove possession of the Char lands. He says: 'I think this part of the defendant's evidence is not at all satisfactory. Such evidence can be manufactured by a powerful man like the defendant without much difficulty. But there is no doubt that this evidence, coupled with the documentary evidence referred to above, unmistakeably show that the defendants adversely possessed by far the greater portions of the disputed Char since 1903,' It has been argued that the learned Judge has discredited the oral evidence. But I do not read his judgment in this way. Evidently what the learned Judge meant to say was, that without the documentary evidence the oral evidence to which he refers would not have been enough, as it might have been got up. For if it had been in his opinion unreliable in the sense of untrue he could not have said 'coupled with the documentary evidence.' By so coupling it the Judge in effect says that he does accept it when associated with the documentary evidence in the case. I may observe here that there is no presumption that evidence is manufactured even when given by 'a powerful landlord. ' It must be shown by cross-examination of witnesses or other evidence in the case that there are reasons for disbelieving the evidence on this or on any other ground. It is to be observed in this connection that the defendant's witnesses are corroborated by the plaintiff's own witnesses so far as the period of ten years is concerned extending up to the year 1906, I see no sufficient reason to doubt the evidence given that the defendants had possession for more than two years before that date. One of the defendants has given his own evidence which is more than the plaintiff has done, who, on the other hand, set up an untrue case and has not appeared to support it.
14. It is to be observed also in this connection that amongst the witnesses whom the learned Judge mentions the name of the Amin witness, Eajani Nath Dey, D, W. No. 7, is not included. Prima facie he is a disinterested witness, although the contrary has been suggested on the ground that when he went to test the measurement be put up in the defendant's house. He says that in 1890 Shiba Das Babu, the father of defendant Shiti Kantha Banner-jee, was in possession of the Char which he then saw for the first time. He saw it again in 1903, In 1903 he found the major portion of the Char under cultivation. About 2 to 2 1/2 rashis wide lands above the water was sandy. Above that all lands were culturable. There were some trees and Shiti Kantha grew Kalai on the culturable portion of the Char. It has been suggested that the cross-examination establishes that this gentleman refers to the undisputed area. But I am unable to read his evidence in this way. Because he refers in cross-examination to certain plots Nos. 11 of Touji No. 2460 and 26 and 29 of Touji No. 824 it does not follow that he meant thereby to limit the general statement which he made in his examination in chief. Otherwise, for what reason was he called?
15. As regards the documentary evidence to which the learned Judge has referred, it consists of partition proceedings of 1899, a note of possession on the map of 1903, rent-receipts and chittas as regards four of which at least the Commissioner compared them with the locality. The first mentioned proceedings are of course not binding as a judgment not having been given in proceedings to which the appellant was a party. But they are evidence to show the origin of the defendants' possession and relevant in connection with the obtaining of possession and demarcation of lands by metes and bounds under those proceedings. In my opinion the note on the Settlement map of 1903 is of great importance.
16. The learned Judge comes to the conclusion that the tract of lands which are shown as un-culturable in the Partition Map of 1899 were in the actual occupation of the defendants in that year and also in 1903. That being so, he comes to the conclusion that the defendants have succeeded in establishing their adverse title to all the re-formed lands of Kabirajpore which fall within the Settlement Map of 1903 and the Partition map of 1899.
17. Doubtless, in a case of admitted title one is disposed to regard with strictness evidence of adverse possession and to call for satisfactory proof before deciding against the title. In the present case there was entry under colour of title from the Government and on, fair reading of the evidence, which in my opinion sufficiently establishes both the fact and nature of the possession necessary, I agree with the Subordinate Judge that it does dispose of the plaintiff's case. In my opinion there is no sufficient ground for disturbing the judgment under appeal and the appeal should be dismissed with costs.
18. A cross-objection has been made with respect to costs. The lower Court has directed that each of the parties should bear and pay their own costs on account of the Commissioner, and as regards other costs, half costs have been disallowed. It has been contended in the cross-objection that these orders are incorrect and that they should be reversed having regard to the small area of the land which has been granted to the plaintiff. No doubt the plaintiff has claimed a great deal more than what was given by the Court. But he did succeed in part and I am unable to hold that the question of costs in this case raises such a matter of principle as would justify this Court in interfering in appeal.
19. We have already given cur order as regards costs of the Commissioner in this Court. But to avoid any further question I may record our order that the cost of the Commissioner in this Court is to be borne by the parties in equal shares. This cost has already been paid to the Commissioner according to the shares stated.
20. As there is a difference of opinion and there is no majority varying or reversing the decree appealed from, the appeal is dismissed with costs.
21. The suit out of which this appeal arises is a suit for declaration of title and recovery of possession. The plaintiff's case was that he took a patni Settlement of a certain lot Madhusudhanpore and that within the lot was a certain Mousa called Kabirajpore, and that by virtue of this patni title and also by adverse possession he had acquired a good title and was in possession of the property in suit. In his plaint he does not state when he took the patni Settlement of which his adverse possession began. His Vakil stated that he took the patni Settlement in 1857 shortly after the Revenue Survey. The superior landlord is the Maharajah, of Burdwan. The northern boundary of the Mouza Kabirajpore was the river Bhagirathi. In the year 1880 the river Bhagirathi began to wash away the Char, north of Kabirajpore, and from the year 1890 it began to wash away the main lands of village Kabirajpore and a Char appeared on the uprth side of the river adjoining Char Baliadanga which is a Char on the Nadia or north side of the river.
22. From the year 1902 the land of Kabirajpore began to re-form on the Nadia side of the river Bbagirathi which is one of the many names for the river Ganges. It may be noted here that at the time of the Revenue Survey the river Bhagirathi formed the boundary at this place between the Districts of Burdwan and Nadia.
23. The Bhagirathi continued to move towards the south and the land of the Mouza Kabirajpore began to be re-formed in situ from 1902 and the said land began to be fit for cultivation at the end of the rainy season of 1313 (1906).
24. In 1904 the Collector of Nadia made a temporary settlement of the Char called Baliadanga in the District of Nadia with defendants 1 and 2 which Char is recorded as Settlement Mahal Nos. 824 and 2460. At the time of the temporary Settlement in 1904 a map was prepared and the Collector found that some 665 odd bighas of land which had been measured as forming part of Char Baliadanga were really a reformation in situ of village Kabirajpore and so he excluded them from the Settlement. These lands were then unfit for cultivations. The Bhagirathi then moved further south and a further tract of land of village Kabirajpore re-formed, in extent some 334 bighas odd.
25. The plaintiff in 1913 sent his Amin to measure the lands. The defendants 1 and 2 resisted him and would not allow the plaintiff to measure the land. Hence, the suit for declaration of title and recovery of possession on the ground that these lands are re-formation in in situ the land of village Kabirajpore which is included within his Patni Taluk lot 10 Madhusudanpur. The defendants denied the title of the plaintiff. They contended that the plaintiff did not hold a 16-annas share in lot Madhusudanpore, that he had only a fractional interest in Mahal Kabirajpore. They denied that the lands in suit were a re-formation in situ of the land of Mouza Kabirajpore. They contended that they were accretions to Char Baliadanga recorded as belonging to Touji Mahal 824 and 2460 of the Nadia Collectorate, which had been settled with them. Further, that the land in dispute had become fit for cultivation more than 12 years before the date of the suit and the defendants had themselves passessed the lands for more than 12 years before the date of the suit and so the plaintiff had lost his title, if any, by adverse possession.
26. They traversed all the allegations of fact in the plaint. Briefly, then, their case was that the plaintiff had no title and that the defendant bad acquired a title by adverse possession. The trial Court found that the land in suit was a re-formation in suit of the land of Mouza Kabirajpore. The trial Court then dealt with the plaintiff's two titles to the land in dispute, namely, his claim to so much of the land of Kabirajpore as falls within lot Madhusudanpore under Estate No. 10 and also his title by adverse possession to the other land of the Mouza. He found that the plaintiff was sole owner of lot Madhusudanpore. Further, that plaintiff had title to Mouza Kabirajpore to the extent of 15 chaks and the residuary portion before the lands were diluviated. He found that the plaintiff had not established his title by adverse possession to the rest of the village. He found, however, that defendant had acquired a title by adverse possession to all the re-formed lands which fall between the boundary line of the Char as shown in the Partition Map of 1899 and the Settlement Map of 1903 and that the plaintiff was only entitled to so much of the 15 chaks and the residuary parts of Mouza Kabirajpore which are bounded on the south by the River Ganges and on the north by the lines 24-24, 24-15 (western part of the southern boundary line of the Char in Ex. D) and the southern boundary line of the Settlement Map of 1903 up to the point where it runs towards the east and also of the disputed land which are bounded by the river, the lines Nos. 33, 35 to 36, 36 to 7 and the eastern boundary lines of the Settlement Map of 1903 up to the point Q and he was further entitled to mesne profits for these lands.
27. The plaintiff has appealed with regard to the land to which his title has been declared but of which it has been found that he has lost title by adverse possession. There was also an appeal regarding the land to which the title was found not to have been established but this part of the appeal has not been pressed. The case which he wishes to establish is as follows: It has been found that he had title to these lands and that these lands were washed away. So long as the lands remained under water and when they again appeared as a re-formation his title subsisted and as the lands were not fit for possession or use when they appeared again he must be considered to be in constructive possession. The defendants have not shown that they have continuous possession for more than 12 years before the date of suit. The lands are inundated from time to time and even if the defendant had any possession, as soon as the lands were inundated again the title and possession went back to the true owner for the defendants as tort-feasors can cot be held to be in constructive possession during the period that the, land in suit went under water, for the doctrine of constructive possession does not apply to a tort-feasor. Further, that to establish their title by adverse possession the defendants must prove their actual possession of every parcel of land to which they allege they have acquired a title by adverse possession. The doctrine of constructive possession is not available to a tort-feasor and it cannot be held that if he is proved to be in actual possession of a certain portion that he is in constructive possession of the rest of the land having regard to the nature of the land : Nawab Bahadur of Mursidabad v. Gopinath Mandal 6 Ind. Cas. 892 : 13 C.L.J. 625.
28. The first question which requires decision is, what Article of the Limitation Act applies.
29. Now, the plaintiff sues for recovery of possession on establishment of his title. Clearly, therefore, Article 142 applies and the plaintiff must sue within 12 years of the date of dispossession. This point had been discussed at length in the case of Rakhal Chundra Ghose v. Durga Das Samata 67 Ind. Cas. 673 : 26 C.W.N. 724; (1922) A.I.R. (C) 557, in which all the authorities on the question have been collected and fully discussed, and I entirely agree with the decision arrived at. The plaintiff in his case dates the commencement of his dispossession from the year 1904, October, when he says the land became fit for cultivation and further states that when his men went in 1913 to measure the land they were Desisted and turned out.
30. It is contended that the plaintiff must show that he is in possession within 12 years of the date of suit. This contention no doubt is correct. The plaintiff-appellant answers that argument by contending that he has been all along in constructive possession. That the land was sand and incapable of actual possession and that, therefore, it is sufficient for him to show that he has title and that then the defendant must show that he has had adverse possession for more than the statutory period. He argued that as the property was not capable of actual possession the presumption is that legal possession continued with him the rightful owner and it is sufficient for him to prove that the property remained in this state to within 12 years of the suit: [Mirza Shamsher Bahadur v. Munshi Kunj Behari Lal 7 C.L.J. 414 : 12 C.W.N. 278 : 8 M.L.T. 219].
31. Further, that where land has been shown to have been in a condition unfitting it for actual enjoyment in the usual modes at such a time and under such circumstances, that that state naturally would and probably did continue till within 12 years of suit it may properly be presumed that it did so continue and that the plaintiff's possession continued also until the ooutray is shown: [Mahomed Ali Khan v. Khaja Abdul Gunny 9 C. 744 (F.B.) ; 12 C.L.R. 257 : 4 Ind. Dec. (N.S.) 1145].
32. Now, a careful consideration of these cases (2) (3) (4) referred to shows that there is no deviation from the rule that in an action in ejectment the onus is on the plaintifl to show that he was in possession and was dispossessed within the statutory period. This principle the learned Judges re-affirm. What they do, however, consider, and that is of importance in this case is, what is necessary, looking at the particular circumstances of the case, for the plaintiff to prove in order to establish his possession within 12 years of the suit.
33. In the present case it has been proved that before division the title and possession of the 15 Chaks and residuary land was with the plaintiff and the finding has not been challenged by the respondent in appeal. An attempt was made, after the argument had been concluded and the case has been sent to the Commissioner to relay certain plots, to argue that the plaintiff had not established his title to some 9 of these Chaks. The case was already concluded and it clearly was not open to the respondent to raise this point at that stage. The material on which he relied was really on the record before the case was sent by us to the Commissioner for he wished to base his argument on Ex. H.H. We have now to see what was the condition of the land and the manner of possession. If the plaintiff can show he has title, that the land was washed away and after re-formation was unfit for possession and continued so up to or near a time within 12 years of the date of suit the plaintiffs would be entitled to the benefit of the presumption that they had constructive possession as rightful owner at the time of dispossession in 1906. If the plaintiffs are entitled to this presumption then the onus will be on the defendants to show the plaintiffs lost their title by adverse possession. The period with which we are mainly concerned so far as adverse possession is concerned is the period two or three years immediately before 1906. Admittedly, the land is a Char a re-formation in situ of the village Kabirajpore. The plaintiff's case was that it was not washed away till 1880. The evidence in the case shows that it was in or before 1880 that the land began to re-form and continued the process up to the present time. To this extent obviously the plaintiff's case is not in accordance with the facts found. How far his case is affected by this will be discussed later on. When the process of diluvion began it is not possible to say but it was apparently some time after 1857 when the plaintiff purchased.
34. What has then been the condition of the land after re-formation?
35. To deal first with the defendants' evidence.
36. In considering all the evidence one fact must be borne in mind that these disputed lands form an accretion to another Char, Char Baliadanga which admittedly belongs to the defendants. The importance, of this is obvious when we see in what a vague way the witnesses have deposed because it is not easy as a rule to say whether any particular statement refers to the Char as a whole or to the land in dispute.
37. Taking, first of all, the evidence of defendant No. 1.
38. He says that from 1301 to 1305 (1894-98) they possessed the Char partly in Khas and partly through tenants. He also sold Babla trees growing on the Char and fishermen used to catch fish and spawn.
39. To what extent Kalai was grown he does not state. He does not produce any of his papers to show that he received any money from any tenant or from any one for the sale of his Kalai or in case when the Kalai was grown by himself his expense of growing it.
40. The fact that fishermen used to catch spawn and fish on the Char would show it was liable to inundation. He then goes on to refer to the partition proceedings in 1899 and says 200 bighas were unculturable and the rest eulturable. This apparently refers to the land in dispute as he says it was the southern portion of the Char. The mere statement by an interested party that the lands were eulturable is perhaps of little value. The only real test is whether they were cultivated. The witness, however, gives us no indication how much of the Char was cultivated. Further on he states that sand is now being deposited in eulturable lands and that some 400 or 600 bighas have recently been covered with sand and the lands are again being washed away. Carefully examined, this witness's evidence would show that the land or portions of it were liable to submergence and had actually been submerged from time to time, otherwise sand would not be' deposited on it or fish caught oh it. Accepted at its highest, it would prove that Kalai had been grown on the land but it gives no indication how much land was sown with Kalai and the failure to produce any papers in support of these statements makes the bare statement of little or no value. His next witness is Gobinda Biswas. This witness is the Dewan of defendant No. 2 who has been disputing with defendant No. 1 for a long time for the possession of Char Baliadanga. He visited the Char in 1899. He states that the Char was followed from 1899-1901 and that in these years there were no tenants there. He states that the southern portion of the Cher was sandy. His evidence proved little or nothing as to the state of the Char except to show that in 1899 some 275 bighas were sandy, His evidence is rather vaguely recorded. It is difficult to say whether he refers to the whole Char Baliadanga of which the disputed land fromed a part or the disputed land only. He, however, speaks to deposit of silt which would show the Char was inundated from time to time.
41. The next witness relied on is Bajani Kanta Das (page 169) and the statement on which reliance is placed is his statement 'I saw Baliadanga Char even after 1903. In 1903 I found the major portion of the Char under cultivation.' He, however, here refers to the whole Char Baliadanga of which admittedly the northern portion belongs to the defendants and so possibly the major portion under cultivation refers to the northern portion. He states there were here and there Babla trees. It is not possible to say from his statement that he was referring to the disputed land as being under cultivation and this same remark applies to all his evidence. His statements would apply to the undisputed as well as to the disputed portion of the Char.
42. The next witness to whose evidence our attention has been drawn is Kali Prasanna Chukerbutty (page 172). This witness took an ijara lease of the Char in 1902-1903 and he cannot say whether any part of the land was tenanted then. He simply grew Kalai but has no papers to support his statement. Further, that at the time of the partition of the Char Baliadanga (1899) it was partly culturable and partly full of sand. He again is speaking of the whole Char and not only of the disputed portion. So it is not possible to say from his evidence whether any portion of the culturable land was in the disputed land or not. He says north of the sand were Babla trees and north of the Babla trees cultivation but where the cultivation began is not clear and that is the important point in this , case. Whether any act he refers to took place on the disputed or undisputed portion of the Char it is impossible to say. Lastly, we have Alef Sheik (p. 182). His evidence helps very little for it is impossible to say whether he refers to the disputed or undisputed part of Char Baliadanga. His evidence whole show that a part of the Char was sandy and silt was deposited from time to time which would show that the lands were liable to inundation and were inundated from time to time. The evidence of these witnesses would seem to show that the land was sandy and liable to inundations and was inundated from time to time, a condition often found in re-formed Char lands.
43. The plaintiff's own evidence would go to show that the land did not become culturable till some 10 or 12 years before the date they were deposing, vis., 6 or 8 years before the date of suit. This evidence really only deals with the condition of the land after 1902 where it is alleged by him the land re-appeared and does not deal with the period between 1880 and 1902. It is his case before 1902 the land was under water although this is not a fact be may well have been greviously mistaken not realising, as apparently no one else did, that the land accreting to Char Baliadanga were really re-formation in situ of Kabirajpore. His evidence as to the time of re-formation in view of the documentary evidence on this point is obviously incorrect. The defendant has further relied on certain documentary evidence. First, of the two Settlements of 1880 and 1890. In these two Settlements one for ten years and one for fourteen the disputed land was settled with the defendant as part of Char Baliadanga which admittedly belongs to the defendants. The disputed land which increased at each Settlement was treated as an accretion to Char Baliadanga which is in the Nadia District and it was not known till the Settlement of 1904 that the disputed lands were really a re-formation of village Kabirajpore which belongs to the District of Burdwan. The mere fact that defendants took Settlement of these accretions does not prove that they were then fit for cultivation and capable of being effectively possessed. The Zemindar would naturally take Settlement of an accretion to his land at a low rate of rent in the hope that it would improve in value and to prevent any rival Zemindar taking it. Such Settlements are often in the nature of a speculation.
44. In the Settlement Map of 1903 when it was discovered that the disputed lands were a re-formation in situ of Kabirajpore a note is made that they are in possession of the defendants. But there is nothing to show what the nature of that possession was. Possibly this entry was made because the former Settlement had been with the defendant. It had been contended by the defendants-respondents that the appellant must have known of these Settlements with the defendants. There is no reason why he should. The Settlement was made by the Collector of Naida. The appellant's land is in the District of Burdwan and they are now on the opposite side of the river. The operation of measuring them need attract no attention. Neither would Settlement be offered to the appellant as the Collector of Nadia did not know till 1903 that these lands belonged to Kabirajpore in the District of Burdwan. He treated them as' being accretion to Char Baliadanga in the District of Nadia.
45. The documentary evidence proved nothing about the state of the lands. No doubt the land has been in existence some 40 years but Char land may in some cases never become fit for cultivation or possession. It certainly cannot be presumed that it must have. The conclusion to which I have come is that the land in suit after re-formation remained incapable of possession in the ordinary way by cultivation until 1908 when defendants began to cultivate it and that in this case we may fairly presume that constructive possession remained with the true owner up till 1906. Char lands are cases to which the doctrine laid down in Mirza Shamsher Bahadur v. Munshi Kunj Behari Lal, 7 C.L.J. 414 : 12 C.W.N. 278 : 8 M.L.T. 219 Mahomed Ali Khan v. Khaja Abdul Gunny 9 C. 744 (F.B.) ; 12 C.L.R. 257 : 4 Ind. Dec. (N.S.) 1145 Raj Kumar Roy v. Gobind Chunder Roy 19 C. 660 (P.C.) ; 19 I.A. 140 : 6 Sar. P.C.J. 140 : 9 Ind. Dec. (N.S.) 883 (P.C.) is applicable. These lands appear often after many years when the whole configuration of the country due to the shifting of a big river is changed the lands appearing sometimes, as in the present case, in a different district and only a careful Survey showed to what district they belonged. In such circumstance, every presumption should be made in favour of the true owner. The case may be viewed as from another standpoint. The plaintiff having shown by the evidence on the record that neither party had exercised any act of possession a presumption can be raised in his favour as to the question of possession of the land prior to his dispossession by the defendant-Batted Chundra Ghose v. Durga Das Samanta, 67 Ind. Cas. 673 : 26 C.W.N. 724; (1922) A.I.R. (C) 557.
46. The respondents have contended that the case now set up by the appellant in appeal differs from the case he made out in his plaint and the case found on the facts. He argues that in the plaint the plaintiff-appellant's case was that the lands began to be diluviated in 1880 and the process continued in 1890 that they began to re-form from 1902 and began to be fit for cultivation in 1906. Further, the appellant's case in his plaint was that he was dispossessed in 1913 when an Amin went to measure the land, whilst his own evidence would show that be was dispossessed in 1906 and onwards.
47. Now undoubtedly, the documentary evidence has shown clearly that the lands had begun to re-form in 1880 and obviously, therefore, the plaintiff's case is here incorrect. But it cannot be said that plaintiff has changed in any way the relief he asked for. The relief asked for is the same and it is still his case that the cause of action arose in 1906. He does not seem to date his cause of action from 1913 when the Amin was prevented from going on the land, but his plaint states (para. 10) that the cause of action has gradually arisen from the date when a portion of the land became fit for cultivation in 1906.
48. Then we must bear in mind the peculiar circumstances of the case. It is a case of land re-forming after diluviation in a big river which has largely shifted its course. A mere inspection of the land would tell no one whether they were a re-formation in situ of any particular land. The District Authorities untill 1904 treated them as belonging to' Ghar Baliadanga in Nadia District and it was after the Collector of Nadia had released the lands in 1904 that the appellant realised they were a re-formation in situ of his village Kabirajpore. In the particular circumstances of the case I do not think the plaintiff should be non-suited because he was inaccurate in giving the date when the land re-formed. The whole evidence is before the Court, and so it cannot be said that either party has been taken by surprise.
49. Further, the respondent has contended the case now argued by the appellant that there was an interruption of the adverse possession of the respondent by inundation, is a new case which was never raised in the lower Court. I do hot think there is any substance in this objection.
50. The respondent raised the defence of adverse possession and the appellant is obviously entitled to show that one of the elements necessary for adverse possession, viz., continuity is absent and this he can show by arguing that the evidence shows the land was under water from time to time.
51. It is then necessary to deal with the question of adverse possession and to consider whether the respondent has made out a title by adverse possession. It will be seen that the evidence dealing with this point is practically the same as the evidence which has been dealt with in considering what was the state of the land up to 1906 and the finding I have already come to really disposes of this point. I, however, propose to deal with it separately. The plaintiff's evidence admits that the defendants began taking possession of their land in 1906. The suit was instituted in 1916 and there would thus remain at least two years during which the respondent-defendant must prove that he held the lands in adverse possession.
52. Now the respondent to succeed must prove actual continuous possession of the lands to which he alleges he has acquired a right by adverse possession for the statutory period. No doubt, acts of possession over a part of immoveable property may in certain cases be evidence of de facto possession of the whole. This rule, however, operates with full force in favour only of the true owner and should be applied with caution, if at all, in favour of the wrongdoer : Mohini Mohan Roy v. Promoda Nath Roy 24 C. 256 : 1 C.W.N. 304.; 12 Ind. Dec. (N.S.) 837. The possession of the wrong-doer should be held to be confined to what he is in actual possession of : See also Mirsa Shamser Bahadur v. Munshi Kunj Behari Lal, 7 C.L.J. 414 : 12 C.W.N. 278 : 8 M.L.T. 219 and Secretary of State for India v. Krishnamoni Gupta 29 C. 518 ; (P.C.) ; 29 I.A. 104 : 6 C.W.N. 617 : 4 Bom. L.R. 537 : 8 Sar. P.C.J. 260.
53. The same question has been discussed in the case of Baroda Prosad Roy v. Annoda Mohan Bay, 6 Ind. Cas. 859 : 10 C.L.J. 80. Mookerjee, J., in delivering the judgment of the Court, points out that to establish adverse possession it is not sufficient to show that some adverse acts of possession have been done but the possession must be adequate in continuity, in publicity and in extent of area to establish that it is possession adverse to the true owner and, further, that the doctrine of constructive possession applies only in favour of the rightful owner and cannot as a rule be extended in favour of a wrong-doer whose possession must be confined to the land of which he is in actual occupation. The learned Judge gives, as an instance, that where the party relies on possession through their tenants evidence must be given to show the tenants were in actual possession and such possession covered the whole of the disputed land. Further, it must be proved that with regard to any particular portion that it has been continuously in the possession of the party claiming adverse possession visible, exclusive and hostile for the statutory period.
54. It is pointed out that, as soon as the land became unfit or incapable of use or occupation, the title of the true owner revived. The respondent has argued that he was not a wrong-doer but entered under a bona fide claim of title and so his position is different from a mere trespasser and that he is in the position of a true owner. I am not aware that what is obviously a dangerous doctrine has ever been accepted by this Court.
55. Examined in the light of these principles, the defendants have clearly failed to make out any title by adverse possession.
56. In considering the probability or improbability of the defendant's case we must remember that up to 1899' the two defendants were fighting each other for the possession of the Char Baliadanga and this fact might render it highly problematical whether either of them ever had effective possession of the land in dispute. The evidence they rely on is documentary and oral. With regard to the oral evidence the learned Subordinate Judge says it is unsatisfactory and can easily be manufactured but coupling it with the documentary evidence he held that the defendants adversely possessed the greater portion of the disputed Char since 1903. The documentary evidence is mainly the evidence of Settlement by the Collector and it is not easy to see how this substantiates the oral evidence which is directed to prove actual possession. To deal with the documentary evidence first.
57. The respondents rely for this on the three Settlements of 1880, 1890, 1904 and the partition proceedings of 1899.
58. To take first the two Settlements of 1880 and 1890.
59. They prove that so much of the land as was re-formed at the time of the Settlement was together with a tract of land which admittedly belongs to the defendants settled with the defendants. But this does not prove that the defendants actually occupied or used the land or that it was capable of user. It may well have suited the defendants to take Settlement of these Ghar lands in the hope they would some day become capable of use. But this does not by itself show that the land was actually used and occupied. Then we have the partition proceedings of 1899. These proceedings show that these lands were partitioned together with other lands which admittedly belong to the defendants. It has been argued that the defendants would not fight over lands of which they had not possession and were not in occupation. Here, again, it is to be remembered that the partition suit also included the rest of Char Baliadanga which admittedly belongs to them. That, again, does not prove that the lands were used or occupied. The Settlement Map of 1903 has on it the remark that these lands are in the possession of the defendants but that again, does not show what the nature of the possession was. Lastly, there are certain chittas which cover a small portion of the disputed land. They are for the year 1306 and there are also the counterfoils which it is alleged show receipt of rent from tenants. Their genuineness is very doubtful. They contain the names of some 18 tenants only one of whom is examined, Pachouri, and he says his receipts have been burnt. Of the others it is a remarkable fact that during the space of some 16 years there has been no change in any of the tenants. Exactly the same tenants were holding the holdings in 1322 as in 1306. Some of these tenants must be available. The Commissioner re-laid chittas of four of the plots and then using them as a starting point re-laid the others on the plan not on the ground. This evidence obviously would not show actual occupation of these plots nor that tenants were ever actually settled there in the absence of the tenants themselves. It would show that when the Commissioner visited the spot in 1916 that certain plots were pointed out on the chitta plots and four were identified by him.
60. Next, we have the oral evidence which has already been dealt with in considering the question of the condition of the land and which it is unnecessary to recapitulate in detail. In shows, even if believed, though I may say I share the learned Subordinate Judge's doubt as to its genuineness, that at some time or other some Kali was grown and some Babla trees out. It is obviously evidence which is not sufficient to prove adverse possession and could be manufactured without difficulty. It does not appear how much was Kali grown, whether on one bigha or on the whole of the disputed land, whether the was Kalai grown always in the same place or on different plots or whether it was grown for the statutory period.
61. The defendants are Zemindars who presumably keep accounts. Their account-books would have shown the money expended in cultivating Kalai and the money realised from the sale of it and also the money realised from the sale of Babla trees. There is no documentary evidence to support the story that Kalai was grown or Babla trees cut from the disputed land.
62. The area in dispute is some 1000 bighas Obviously, if there had been any real attempt to cultivate any appreciable portion of the land there must have been a considerable expenditure and receipt.
63. Defendant No. 1, Sib Kanta Banerjee, in his examination gives no suggestion how much land was cultivated or for what period.whether it was the same portion or different portions.
64. Kali Prasanna Chuckerbutty took a lease of Char Baliadanga from defendant No. 2, the 12-annas proprietor, from April 10th, 1902 to April 14th, 1904. He states that during this period, which ends at a date within the statutory period, he cannot say if there were any tenants on the land. Obviously, if there had been he must have known it as he was the ijaradar and so clearly the statement is equivalent to an admission that during the period there were no tenant on the land. Therefore, from 1902 to a period within 1904 there were nontenants in the 12-annas share. His possession consisted of growing Kalai, where he grew Kalai is not proved whether on the disputed or undisputed portion of Char Baliadanga. He produced no papers to support the bare statement that he grew Kalai. It has been argued that he paid Rs. 500 as a yearly rent for the 12-annas share of the Char. But though he paid rent it does not necessarily follow that he occupied or used any portion of the Char still less that he actually occupied tthe disputed portion of the Char. After him Sib Kanta Bannerjee, defendant 1 ; the 4-annas share-holder took a lease of the 12-annas share. This, however, was from April 14th, 1904 which is within the statutory period the suit being instituted on 25th February 1906, Further, the witness does not produce the rent receipt which he alleges he got for the payment of the rent. Then the evidence of Rajani Kanta Dey, witness No. 7 for the defendant, shows that he measured the land in 1903 on which there were tenants. He states which were the tenanted plots and admitted none of the plots he has described as tenanted fall within the disputed area. Then his evidence goes to show that in 1903 there were no tenants in the disputed area. Further, he states that in 1903 there was nothing on the lands in Sib Kanta Babu, the 4-annas Zemindar's khas possession. His evidence would show that in 1903 there were no tenants on the disputed portion of the Baliadanga Char.
65. Boloram Ghose, witness No. 3 for defendant, proves that in 1900 he went to the Char and that there were then some 25 or 30 big-has of land sown with Kalai. 'Whether these 25 or 30 biglias were in the disputed land or not does not appear. Even if they were, the growing of Kalai on some 25 or 30 bighas out of an area of about 1000 bighas could not obviously amount to adverse possession of the 1000 bighas. His evidence, at the highest, would show the cultivation of some 25 or 30 bighas.
66. Then there is the evidence of Dole Gobinda Biswas, the Dewan of defendant No. 2. He apparently last went to the Ghar in 1899 and has not been there since. Then he knows nothing about the period front 1899 up to 1906.
67. He, however, states that the disputed Char remained uncultivated from 1899 to 1901 and that between these years it was not let out to tenants.
68. Defendants 1 and 2 were fighting and it is perhaps improbable that either could really effectively possess the land.
69. Taking all the facts and circumstances of the case into consideration, and even accepting for the sake of argument the oral evidence of the defendants' witnesses, the evidence is not sufficient to establish a title by adverse possession. The defendants cannot avail themselves of the doctrine of possession of a part being constructive possession of the whole. They are tort-feasors and must prove actual continuous possession of the land for which they seek to establish a title by adverse possession: [Nawab Bhadur of Marshidabad v. Gopinath Mandal 6 Ind. Cas. 892 : 13 C.L.J. 625].
70. In the present case we have an area of some 1000 bighas of Ghar land which adjoins the defendants' lands and the only evidence of possession is that some Kalai has been grown from time to time and some Babla trees out. Even if this were proved, which I do not think it has, it would amount at the most to isolated acts of trespass. Neither need the true owner necessarily know that such acts were being done when we take into consideration the extent, nature and situation of the property. The taking of Settlement from Government cannot be considered as an act of possession. The deputing of an Amin to demarcate the land in the partition suit and the planting of one or two pillars would be an isolated act of trespass.
71. There is in the present case no possession adequate in continuity, publicity and extent of area to destroy the title of the true owner.
72. Rejecting, however, as I do the defendants' evidence of actual possession, their case entirely fails for if the oral evidence is disbelieved there is no evidence at all to support a story of adverse possession.
73. The defendants have failed to make out any title by adverse possession.
74. The respondents have argued that the appellants have failed to identify the land they claim because the numbers of the chak have been omitted from the Commissioner's map. What, however, has happened then? The plaintiff appellant has established his title to some 15 chaks of which the numbers are given, vis., 5, 7,15,17, 61, 64, 69, 70, 73, 99, 100, 101, 102, 103, 104 and the residuary lands. There are other chaks to which he had not established his title. The numbers of these chaks are also known.
75. Under the orders of this Court the same Commissioner who had made the local investigation re-plotted on his map all the chaks putting the correct chak number in each chak. It now appears that these 15 chaks of which the numbers have been given above actually fall within the disputed land.
76. No difficulty would be experienced in granting to the appellant-plaintiff a decree capable of execution. He is clearly entitled, on the findings I have come to, to so much of the disputed land as falls within the 15 chaks and the residue portion of village Kabirajpore which falls within Estate No. 10.
77. Based his title both on his putni right and adverse possession. The finding that he has no title other than his putni right has not been disputed. He is content to rely on the finding of the trial Court; that he has established his putni title to 15 specific Chaks and the abasista Chak or unnumbered residue. The learned Subordinate Judge gave the plaintiff a decree for the land within these Chains that was south of the lines of the south boundary of the Char shown in the Settlement Map of 1903 and the Partition Map of 1899. He held that the plaintiff's title to land north of this line had been barred by limitation.
78. The case made in the plaint was that diluvion took place in 1890 and re-formation in 1902. It was further alleged that the land first began to be fit for cultivation in October 1906 and the defendant No. 1 then proposed to take a Settlement from the plaintiff. As there was undue delay, the plaintiff in 1913 attempted to have the lands surveyed and was prevented by defendant No. 1. This case has admittedly failed. The 'correctness of the various maps as showing the re-formations is not questioned and the map of 1880 shows that re-formation in situ had' commenced before that year. The plaintiff's case now is that he was in possession of the Chaks to which he has proved title until they were diluviated to and his possession must be presumed have continued and that he is entitled to succeed unless the defendants can prove that they have destroyed his title by adverse possession. This contention raises the issue as to the party on whom the burden of proof lies in the present case. On this issue I find myself in entire agreement with the finding of Woodroffe, J. The reasoning in his judgment appears to me clear and logical and in accordance with the principle laid down in previous decisions of this Court and the Judicial Committee of the Privy Council. He points out that the plaintiff sued for possession on the allegation of dispossession. Article 142 of the first Schedule of the Indian Limitation Act, 1908, is, therefore, applicable and he is bound to prove possession within twelve years before suit. Admittedly, he has not had any actual possession since the lands became submerged and it is also admitted that the defendants have been in possession since 1906, ten years before the institution of the suit. In order to prove possession within twelve years the plaintiff may rely on the presumption that possession of the lawful owner continues as long as the land is incapable of actual possession. But in a case like the present where Article 142 applies the plaintiff, if he relies on this presumption, must prove that the land was incapable of actual possession within twelve years before suit. For the appellant, it was strongly contested before us that it lay on the defendants to prove their adverse possession for twelve years before the suit. It was urged that the presumption of possession in favour of the real owner would continue until it is shown that the presumption does not apply by reason of the defendant having been in adverse possession. It was also urged that the presumption would continue as long as the land continued incapable of ordinary possession, and it is for the defendants to show when this change took place. These contentions ignore the difficulty in the appellant's way arising from the fact that he has so framed his suit that the initial burden lies on him to prove dispossession within twelve years. Relying, as be does, on a presumption to discharge this burden he must prove the facts necessary to establish this presumption, that is to say, not only that he was the legal owner but also that the land was incapable of possession in the ordinary way. Of the cases cited, the Full Bench decision of this Court in Mahomed Ali Khan v. Khaja Abdul Gunny 9 C. 744 (F.B.) ; 12 C.L.R. 257 : 4 Ind. Dec. (N.S.) 1145, is the most favourable to the appellants. The rule laid down at page 752, if read apart from the context, seems to support his contentions. It is as follows: --' The true rule appears to be this: That where land has been shown to have been in a condition unfitting it for actual enjoyment in the usual modes at such a time and under such circumstances that that state naturally would, and probably did, continue till within twelve years before suit it may properly be presumed that it did so continue and that the plaintiff's possession continued also, until the contrary is shown.' But the rule is qualified by the preceding remarks on p. 751 which require the plaintiff to show such acts of ownership as are natural under the existing condition of the land before he can claim the benefit of the presumption that based his title both on his putni right and adverse possession. The finding that he has no title other than his putni right has not been disputed. He is content to rely on the finding of the trial Court that he has established his putni title to 15 specific Chaks and the abasista Chak or unnumbered residue. The learned Subordinate Judge gave the plaintiff a decree for the land within these Chaks that was south of the lines of the south boundary of the Char shown in the Settlement Map of 1903 and the Partition Map of 1899. He held that the plaintiff's title to land north of this line had been barred by limitation.
78. The case made in the plaint was that diluvion took place in 1890 and re-formation in 1902. It was further alleged that the land first began to be fit for cultivation in October 1906 and the defendant No. 1 then proposed to take a Settlement from the plaintiff. As there was undue delay, the plaintiff in 1913 attempted to have the lands surveyed and was prevented by defendant No. 1. This case has admittedly failed. The Correctness of the various maps as showing the re-formations is not questioned and the map of 1880 shows that re-formation in situ had commenced before that year. The plaintiff's case now is that he was in possession of the Chaks to which he has proved title until they were diluviated to and his possession must be presumed have continued and that he is entitled to succeed unless the defendants can prove that they have destroyed his title by adverse possession. This contention raises the issue as to the party on whom the burden of proof lies in the present case. On this issue I find myself in entire agreement with the finding of Woodroffe, J. The reasoning in his judgment appears to me clear and logical and in accordance with the principle laid down in previous decisions of this Court and the Judicial Committee of the Privy Council. He points out that the plaintiff sued for possession on the allegation of dispossession. Article 142 of the first Schedule of the Indian Limitation Act, 1908, is, therefore, applicable and he is bound to prove possession within twelve years before suit. Admittedly, he has not had any actual possession since the lands became submerged and it is also admitted that the defendants have been in possession since 1906, ten years before the institution of the suit. In order to prove possession within twelve years the plaintiff may rely on the presumption that possession of the lawful owner continues as long as the land is incapable of actual possession. But in a case like the present where Article 142 applies the plaintiff, if he relies on this presumption, must prove that the land was incapable of actual possession within twelve years before suit. For the appellant, it was strongly contested before us that it lay on the defendants to prove their adverse possession for twelve years before the suit. It was urged that the presumption of possession in favour of the real owner would continue until it is shown that the presumption does not apply by reason of the defendant having been in adverse possession. It was also urged that the presumption would continue as long as the land continued incapable of ordinary possession, and it is for the defendants to show when this change took place. These contentions ignore the difficulty in the appellant's way arising from the fact-that he has so framed his suit that the intitial burden lies on him to prove dispossession within twelve years. Relying, as be does, on a presumption to discharge this burden he must prove the facts necessary to establish this presumption, that is to say, not only that he was the legal owner but also that the land was incapable of possession in the ordinary way. Of the cases cited, the Full Bench decision of this Court in Mahomed Ali Khan v. Khaja Abdul Gunny 9 C. 744 (F.B.) ; 12 C.L.R. 257 : 4 Ind. Dec. (N.S.) 1145, is the most favourable to the appellants. The rule laid down at page 752, if read apart from the context, seems to support his contentions. It is as follows: 'The true rule appears to be this: That where land has been shown to have been in a condition unfitting it for actual enjoyment in the usual modes at such a time and under such circumstances that that state naturally would, and probably did, continue till within twelve years before suit it may properly be presumed that it did so continue and that the plaintiff's possession continued also, until the contrary is shown,' But the rule is qualified by the preceding remarks on p. 751 which require the plaintiff to show such acts of ownership as are natural under the existing condition of the land before he can claim the benefit of the presumption that his possession continued. It is not necessary to discuss all the deisms that have been cited on behalf of the appellant. Several of them, as, for instance, Basanta Kumar Roy v. Secretary of State for India 40 Ind. Cas. 337 : 44 C. 858 : 44 I.A. 104 : 1 P.L.W. 598 : 82 M.L.J. 505 : 21 C.W.N. 642 : 15 A.L.J. 398 : 25 C.L.J. 487 : 19 Bom. L.R. 480 ; (1917) M.W.N. 482 : 6 L.W. 117 : 22 M.L.T. 310 (P.C.), can be distinguished on the broad ground that they were cases where Article 144 and not Article 142 was applicable. The head-note of the Indian Report wrongly states that the High Court decided that case on limitation alone holding that the suit was barred by Article 142. The English report of the same case quotes the High Court judgment, which clearly states that the case ' must be governed by Article 144.' Other cases that were cited follow the decision in Mahomed Ali Khan v. Khaja Abdul Gunny, 9 C. 744 (F.B.) ; 12 C.L.R. 257 : 4 Ind. Dec. (N.S.) 1145 and give no greater support to the appellant's contention than that Full Bench decision. I would, therefore, hold that in the present case it lay on the plaintiff to prove that the lands were incapable of user within twelve years prior to the suit.
79. For the appellant it was further urged as an alternative plea that if it was necessary for him to prove that the land was incapable of user, he has proved this at any rate as regards the land south of the Survey line of 1890. In order to prove this be relies on the defendant's evidence, oral and documentary. The case made out by the plaintiff's witnesses was entirely abandoned at the hearing of the appeal and their evidence was not even read to us. The first piece of evidence on which reliance is placed is that of Gurudas Biswas, defence witness No. 2. He was the Gomasta of the second defendant in respect of the Char lands from 1306-1308 B.S. In cross-examination he stated,-' I found the sandy tract of the Char in the same condition during the period of my service. There was no alteration in its area during that period.' It is contended that this proves that no extra land became culturable after the Survey of 1890. But if his examination-in-chief be also read, it is clear that what he meant was that during this period, as the river receded there remained a fringe about 1 1/2 or 2 rashis wide of unculturable sandy land and that though the nature and area of this fringe remained unchanged, its position altered as the Char extended towards the south. The only other oral evidence to which reference is made in this connection is that of defence witness No. 7, Eajani Kanta Dey. He was a Colleotorate Amin and took part in the Settlement Surveys of 1890 and 1903. His evidence-in-chief is strongly in favour of the defendants since he says that he saw the Char after 1903 and found the major portion of the Char under cultivation. It is contended that this evidence refers to the land which was settled with the defendants in 1904 and not to the land now in dispute. But this Cannot be, since he was speaking of the land down to the water's edge and the map of the 1903 Survey shows the water edge far south of the land settled with the defendants as part of their estates Nos. 824 and 2460. A similar argument to that based on the evidence of defence witness No. 2 is based on this witness's statement: 'About 50 to 60 bigha lands must have accreted to the Char between 1890 and 1903. In 1903, I found the area of the sandy portion of the Char to be 60 to 80 bighas.' But this does not mean that the only accretion during these years was sandy land. Our attention has also been drawn to a statement in the Settlement Report of the 8th March 1904 Ext. P.: ' The estate consists of a low tract of Char land liable to annual inundation.' It is urged that as these remarks refer to the land settled with the defendants, the disputed land to the south would be still more liable to inundation. But the expression ' liable to annuil inundation ' does not mean that the land was actually inundated every year. The same paragraph of the report shows that though sus paddy could not be grown in normal years, Kalai and Musuri were extensively, grown and this supports the defendant's case that the land was capable of possession. Another argument is based on the map and report of the Commissioner who executed the partition decree in 1899. It is contended that as the south line of the Commissioner's Map and of the Settlement map of 1903 are almost identical, there could have been little alteration in the Char during the interval between the two Surveys. It appears from the Commissioner's report that in 1899 there was practically no culturable land south of the land settled in 1890. But the Commissioner's Map does not show the true position of the river in 1899. At the wish of the parties to the partition suit, the defendants in this suit, he included land which was still part of the bed of the river in his map and divided it between them. It follows, therefore, that there was considerable accretion of culturable land, to the south of the Char between 1890 and 1903. The defendants' evidence does not show that that any land north of the line, which has been given as the south boundary in the decree, was unfit for cultivation within twelve years of the institution of the suit.
80. These findings are sufficient for the disposal of the appeal, but even if I had held that the burden of proof lay on the defendants to prove twelve years' adverse possession, I should decide in their favour. That; the defendants did exercise acts of possession on the land as it re-formed and became capable of possession, there can be no doubt. Further, these acts of possession were all done in the assertion of the claim of the defendants to the land by virtue of theSettlements made by Government. This case is distinguishable from Basanta Kumar Roy's case 40 Ind. Cas. 337 : 44 C. 858 : 44 I.A. 104 : 1 P.L.W. 598 : 82 M.L.J. 505 : 21 C.W.N. 642 : 15 A.L.J. 398 : 25 C.L.J. 487 : 19 Bom. L.R. 480 ; (1917) M.W.N. 482 : 6 L.W. 117 : 22 M.L. T. 310 (P.C.) cited above, since there are 'circumstances to link together various portions of ground so as to make the possession of a part as it emerged amount constructively to possession of the whole'.
81. We all agree that the appeal fails and it is accordingly dismissed with costs.
B.B. Ghose, J.
82. It is unnecessary for me to recapitulate the facts of this case as they have been sufficiently stated in the judgment of my learned brother Newbould which I had the advantage of reading. I agree that there is no substance in the preliminary objection taken on behalf of the respondents that the appeal is not maintainable.
83. The only question argued on behalf of the appellant is one of limitation. The allegation in the plaint is that the plaintiff was in possession of the land in suit before diluvion, which commenced to re-form in 1902 and that he has been dispossessed by the defendants in 1906. That appears to be the proper meaning of the plaint and this was sought to be established by the evidence led by the plaintiff. The story, however, that the land began 8 to re-form in 1902 is untrue, as it is beyond dispute that it re-formed long prior to that date ; and this has not been contested by the appellant. The suit then being for possession on the allegation of dispossession falls within Article 142 of the Limitation Act as has been held by both the learned Judges of this Court who heard the appeal in the first instance. This is also not seriously disputed by the appellant The burden of proof in such a case is without doubt on the plaintiff to show that he had been dispossesssd within 12 years of the date of suit. The plaintiff-appellant admits that he has been dispossessed for about ten years, the suit having been brought in 1916. The difference between the admitted possession of the respondents and the period of limitation is within the narrow limit of about two years, during which the appellant must establish his possession in order to succeed in the suit. In the case of Maharajah Koowar Baboo Nitrasur Singh v. Baboo Nund Lall Singh 8 M.I.A. 199 at p. 920 ; 'Suth B.C.J. 420 : 1 Saw P.C.J. 744 : 1 W.B.P.C. 51 : 19 E.R. 506 Turner, L.J., in delivering the judgment of the Privy Council, said.--'The appellant is seeking to disturb the possession admitted to have existed for about eleven years, of defendants, who insist on a possession of much longer duration as a statutory bar to the suit. It clearly lies on him to remove that bar by satisfactory proof that the cause of action accrued to him.... on a dispossession within twelve years next before the commencement of the suit....No proof of anterior title such as would be involved in the decision of the boundary question in his favour can relieve him from this burden, or shift it upon his adversaries by compelling them to prove the time and manner of dispossession.' The law is the same under the present Limitation Act where the dispossession from which limitation is declared to run should have taken place within twelve years of the suit. The nature and quality of the possession of the respondents in this case during the period after the admitted dispossession of the appellant need not require any discussion. The appellant may establish his possession within the disputed period of two years, by showing that his possession was either actual or constructive. There is no evidence of actual possession or the exercise of any act of possession, however trivial by the appellanfi during that period, for the title being in him such acts might have preserved his title. Constructive possession may also be shown by the fact that the land being under water was incapable of possession, or although it was capable of being possessed no one had actually taken possession during the period in question. The appellant cannot, by proving possession at any period anterior to twelve years before suit, shift the onus on the respondents to prove their possession.
84. Much stress was laid by the appellant on the observations of Wilson, J., who delivered the judgment of the majority of the Full Bench, in Mahomed Ali Khan v. Khaja Abdul Gunny 9 C. 744 (F.B.) ; 12 C.L.R. 257 : 4 Ind. Dec. (N.S.) 1145, and it was contended that as the land in this case did probably continue to have been in such a condition as not to be fit for the usual modes of enioyment within twelve years before suit, it should be presumed that his possession continued until the contrary is shown. It is urged that it is incumbent on the respondents to show that they had dispossessed the appellant during the two intervening years. The meaning of the observations relied on will be clear when read 'with the preceding remarks in the judgment of that case. What the learned Judge laid down was that so long as the state of the land remained unchanged, the possession of the rightful owner should be presumed to continue unless he is shown to have been dispossessed. Dealing with the case of diluvion by a river-Wilson, J., says (at page 751): 'In such a case, if the plaintiff shows his possession down to the time of diluvion, his possession is presumed to continue as long as the lands continue to be submerged.' It has been established in this case that the condition of the land had changed a considerable number of years prior to the period in dispute, and there is no reason why the ordinary rule that the plaintiff should prove his possession within the period of limitation should be departed from. The appellant has not succeeded in proving that the land was incapable of possession on account of its remaining submerged, or that no one else was in possession during the disputed period although the land bad emerged from the water.
85. It is next submitted that the Settlement Report of 1904 shows that the land was liable to annual inundation and plaintiff's possession should be held to have constructively revived during such inundation and the suit is, therefore, not barred. The appellant strongly relies on the case of Basanta Kumar Roy v. Secretary of State for India 40 Ind. Cas. 337 : 44 C. 858 : 44 I.A. 104 : 1 P.L.W. 598 : 82 M.L.J. 505 : 21 C.W.N. 642 : 15 A.L.J. 398 : 25 C.L.J. 487 : 19 Bom. L.R. 480 ; (1917) M.W.N. 482 : 6 L.W. 117 : 22 M.L.T. 310 (P.C.) as bearing a close resemblance to this case. There are, however, distinctions between that case and the present one in important particulars. Their Lordships of the Judicial Committee observe, in following the case of Secretary of State for India v. Krisknamoni Gupta, 29 C. 518 ; (P.C.) ; 29 I.A. 104 : 6 C.W.N. 617 : 4 Bom. L.R. 537 : 8 Sar. P.C.J. 260, 'No rational distinction can be drawn between that case and the presetat one, where the re-flooding was seasonal and occurred for several months in each year. It was held that when the land was re-submerged, the possession of the Government determined, and that, while it remained submerged, no possession could be deemed to continue so as to be available towards the ultimate acquisition of title against the true owner.' Basanta Kumar Bay v. Secretary of State for India 40 Ind. Cas. 337 : 44 C. 858 : 44 I.A. 104 : 1 P.L.W. 598 : 82 M.L.J. 505 : 21 C.W.N. 642 : 15 A.L.J. 398 : 25 C.L.J. 487 : 19 Bom. L.R. 480 ; (1917) M.W.N. 482 : 6 L.W. 117 : 22 M.L.T. 310 (P.C.). In that case the plaintiff did not come to Court on the allegation that he had been dispossessed. It was held that the suit was one to which Article 144 of the Limitation Act was applicable and it was, therefore, for the defendant to show that plaintiff's title bad been extinguished by reason of the adverse possession, of the defendant. In the present case it is for the plaintiff to establish a subsisting title. There is no evidence that the land was inundated during the two years in question and that there was a cessation of the dispossession by the defendants by reason of the submergence of the land. The principle on which the cases of Krishnamoni Gupta 29 C. 518 ; (P.C.) ; 29 I.A. 104 : 6 C.W.N. 617 : 4 Bom. L.R. 537 : 8 Sar. P.C.J. 260 and Basanta Roy 40 Ind. Cas. 337 : 44 C. 858 : 44 I.A. 104 : 1 P.L.W. 598 : 82 M.L.J. 505 : 21 C.W.N. 642 : 15 A.L.J. 398 : 25 C.L.J. 487 : 19 Bom. L.R. 480 ; (1917) M.W.N. 482 : 6 L.W. 117 : 22 M.L.T. 310 (P.C.) was decided was that the possession of the defendant was in fact determined by the submergence of the land, when it became derelict and, as was observed in the formar case, on the dispossession of the defendant (Government) by the vis major of the floods the constructive possession of the land was (if anywhere) in the true owners [See Secretary of State for India v. Krishnamoni Gupta 29 C. 518 ; (P.C.) ; 29 I.A. 104 : 6 C.W.N. 617 : 4 Bom. L.R. 537 : 8 Sar. P.C.J. 260.] In the present case there is no suggestion that the inundation had the effect of dispossessing the defendants or rendering the land derelict, and in my judgment that principle does not, therefore, apply in the present case. The case of Kuthali Moothavar v. Peringati Kunharankutty 66 Ind. Cas. 461 : 48 I.A. 395 : 44 M. 883 : 14 L.W. 721; (1921) M.W.N. 847 : 41 M.L.J. 650 : 30 M.L.T. 42 : 26 C.W.N. 666 : 24 Bom. L.R. 669; (1922) A.I.R. (P.C.) 181; (P.C.) was also a case falling within Article 144 of Limitaion Act and, moreover, the plaintiff there had proved the exercise of various acts of possession during the currency of his title and is, therefore, different from the present case.
86. It is next urged that the respondents only cultivated small areas during the period of their possession and their possession of a part did not amount to possession of the whole. But assuming the fact to be so, in this case there is the connecting link of claim of title and close connection and interdependence between the part and the whole, as the respondents were in possession by virtue of Settlements obtained from Government of the entire land, which was surveyed at intervals and depicted in maps, and on the whole of which revenue was assessed. Then, again, the respondents partitioned the entire land among themselves in 1899 when it was again surveyed and masonry pillars erected in order to demarcate the portion of each co-sharer. The circumstances contemplated as operating in favour of a wrong-doer in the case of Mohini Mohan Roy v. Promoda Nath Roy, 24 C. 256 : 1 C.W.N. 304.; 12 Ind. Dec. (N.S.) 837 which has been approved by the Privy Council in Basanta Roy's case 40 Ind. Cas. 337 : 44 C. 858 : 44 I.A. 104 : 1 P.L.W. 598 : 82 M.L.J. 505 : 21 C.W.N. 642 : 15 A.L.J. 398 : 25 C.L.J. 487 : 19 Bom. L.R. 480 ; (1917) M.W.N. 482 : 6 L.W. 117 : 22 M.L.T. 310 (P.C.) are established in this case. This argument of the appellant also fails.
87. Lastly, it is urged that plaintiff should, at any rate, be given a decree for that portion of the land which lies south of the Settlement boundary line of 1890, as it was fonnd by the Partition Commissioner in 1899 to be sandy and almost in the bed of the river and could not, therefore, be the subject of effective possession by the defendants. It does not, however, appear that the portion was in the same condition in 1904. Rajani Kanta De, Amin of the Collectorate, who is an independent witness, says: 'In 1903 I found the major portion of the Char under cultivation. About 2 to 2J rashis wide lands from the water edge was sandy. Above that all lands were culturable.' The sandy portion in 1903 would appear to be the portion for which the appellant was given a decree by the trial Court. In any case, the respondents having erected pillars on this portion during the partition proceedings and included it within the rest of the land, the possession of this portion cannot be distinguished from the rest. Thus, all the contentions of the appellant fail.
88. In this view, it is unnecessary to discuss the question as to what would have been the effect of the possession by the respondents if the case fell within Article 144 of the Limitation Act. It is sufficient to say that, under the circumstances of the present case, the possession of the respondents cannot be held to be surreptitious or occasional acts of trespass and that it had not the qualities of adequacy, continuity and exclusivness. I agree that the appeal should be dismissed with costs.
89. I agree that this appeal should be dismissed. In my opinion, it is not incumbent upon the Court in this appeal to consider upon whom lies the burden of proving the dispossession of the appellant because ' as their Lordships find the evidence sufficient to establish a clear conclustion of fact it cannot matter now by which party it was given:' [per Lord Summer in Basanta Kumar Roy v. Secretary of State for India 40 Ind. Cas. 337 : 44 C. 858 : 44 I.A. 104 : 1 P.L.W. 598 : 82 M.L.J. 505 : 21 C.W.N. 642 : 15 A.L.J. 398 : 25 C.L.J. 487 : 19 Bom. L.R. 480 ; (1917) M.W.N. 482 : 6 L.W. 117 : 22 M.L.T. 310 (P.C.)]. The only inference which, in my judgment, can reasonably be drawn from the facts proved at the trial, and set out in the judgment of my brother Newbould, is that the appellant was dispossessed of the lands in dispute more than twelve years prior to the institution of the present proceedings. If that be so, this appeal must fail, because it was undoubtedly incumbent upon the appellant, having regard to the form of his claim, and the provisions of Article. 142 of Schedule I of the Limitation Act, 1908, to establish the fact that he was dispossessed within 12 years prior to the date upon which he launched this suit.
90. I desire, however, to state that I am unable to concur in the view which has found favour with Woodroffe and Newbould, JJ., as to where the burden of proof lies in circumstances such as those obtaining in this case'. While they accept the appellant's contention that, inasmuch as both the title to and the possession of the lands in dispute were vested in the appellant before the river Bhagirathi changed its course and the lands became submerged, the said lands are deemed to have remained in the constructive possession of the appellant so long as they continued to be inundated, the learned Judges are of opinion, that ' it lay upon the plaintiff to prove that the lands were incapable of user within 12 years prior to the suit ' (per Newbould, J.) and that the plaintiff ' must show that his constructive possession continued on account of diluvion, and on account of the land being incapable of possession within 12 years of the suit ' (per Woodroffe, J.). With great respect, I am unable to agree that the burden which lay upon the appellant was of this nature. In my opinion, the true rule was laid down by the Judicial Committee of the Privy Council as follows: ' The Limitation Act of 1877 does not define the term 'dispossession,' but its meaning is well settled. A man may cease to use his land because he cannot use it, since it is under water. He does not thereby discontinue his possession : constructively, it continues until he is dispossessed ; and, upon the cessation of the dispossession before the lapse of the statutory period, constructively it revives. 'There can be no discontinuance by absence of use and enjoyment when the land is not capable of use and enjoyment.' (per Cotton, L.J.) in Leigh v. Jack (1879) 6 Ex. D. 264 at p. 274 : 49 L.J. Ex. 220 : 42 L.T. 463 : 28 W.B. 452 : 44 J.P. 488. It seems to follow that there can be no continuance of adverse possession where the land is not capable of use and enjoyment, so long as such adverse possession must rest on de facto use and occupation. When sufficient time has elapsed to extinguish the old title and start a new one, the new owner's possession of course continues until there is fresh dispossession and revives as it ceases.' Mr. Justice Wilson intended, I think, to lay down the same rule when he observed : ' The true rule appears to us to be this: That where land has been shown to have been in a condition unfitting it for actual enjoyment in the usual modes at such a time, and under such circumstances that that state naturally would, and probably did continue till within twelve years before suit, it may properly be presumed that it did so continue and that the plaintiff's possession continued also, until the contrary is shown. This presumption seems to us to be reasonable in itself, and in accordance with the legal principles now embodied in Section 114 of the Evidence Act:' Mahomed Ali Khan v. Khaja Abdul Gunny 9 C. 744 (F.B.) ; 12 C.L.R. 257 : 4 Ind. Dec. (N.S.) 1145 The rule of constructive possession does not create a new title to or interest in the lands; it merely operates to maintain the continuance of an existing right or interest. Further acts of possession after the waters have subsided are not required to prove possession by the true owner for in law such possession is deemed to have been throughtout continuous and unbroken. The occasion and the necessity for further acts of possession by the true owner arises when, and only when, his right to possess the lands is challenged. So long as 'his possession is neither threatened nor disturbed what need is there of further witness
91. I find myself in agreemement with the following observations of Melville, J., on the subject. ' The burden of proof being upon the plaintiff, what is he required to prove? Simply, that the cause of action accrued within the period of limitation made applicable to the suit. This is by no means equivalent to saying that a plaintiff in an action of ejectment must prove that he has been in possession within 12 years. He may not have been in possession within twelve years, and yet the cause of action may have accrued within that period. If a man buy a piece of open ground, he is not bound to enclose it or to build upon it, or formally to take possession of it; nor, if he do formally take possession of it, is he bound by subsequent acts to proclaim the continuance of his possession. 80 long as the land remains unoccupied his rights are not interfered with, and he is not called upon to assert them. He has no cause of action, and there is no person whom he could sue. His cause of action accrues when another person takes possession of the land': Pandurang Govind Now Bal Krishna Hari 6 Bom. H.C.R.A.C.J. 126 at p. 128. Now, while the doctrine of constructive possession, in my opinion, is equally applicable to cases where the plaintiff seeks to obtain possession of land in the possession of another, and to cases where the plaintiff claims to recover possession of lands of which he alleges that he has been dispossessed, a plaintiff who frames his suit to recover possession of lands of which he has been dispossessed must needs prove that he has been in possession, and that he has been dispossessed within 12 years prior to commencing proceedings to recover possession of the land. He must, further, prove, unless it is admitted, the time when, and the mode in which such dispossession was effected. Having regard to the evidence adduced at the hearing so far am I from being satisfied that the plaintiff in this case has proved that he has been dispossessed of the lands in dispute within 12 years prior to the institution of the suit, in my judgment, the true conclusion to be drawn from the evidence is that the respondents have been in possession of the lands in a manner adverse to the plaintiff's title for more than 12 years before the present proceedings were commenced, In my opinion no question of law is involved in this appeal, which depends solely upon the determination of an issue of fact. For these reasons, it appears to me to be a matter of indifference whether Article 142 or Article 144 of the Limitation Act is applicable in the circumstances of this case, or upon whom the burden of proof lies, for in any event the appeal fails and should be dismissed.