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Appeal from Original Decree No. 35 of 1941 decided on 8th August, 1950 against the Decree of Amulya Kumar Guha, Subordinate judge, 3rd Court of Zilla Dacca, dated the 31st August, 937, in Title Suit No. 13 of 1936.
, S. 5 (1)‑Reference under‑Not a suit‑Limitation Act (IX of 1908), S. 28 Whether applicable‑Submersion of land‑Whether title could be acquired against true owner during period of.
A case under section 5 (1) of the Bengal Alluvial Lands Act is in fact a reference and not a suit, and it is only for the purpose of procedure that the Act provides that it shall be deemed to be a suit. The only point for determination in this suit or reference is the question of title.
Section 28 of the Limitation Act refers to a suit for possession. Reference under section 5 (1) of the Bengal Alluvial Lands Act is not a suit within meaning of section 28 of Limitation Act.
So long as the lands remain submerged, no title can be acquired against the true owner, and constructive possession of lands, if any, remains in the true owner.
For the statute of limitation to apply there must be both absence of possession by the original owner as well as actual possession by another.
Aziz Uddin v. Maqbul Hussain I L R 1939 All. 454, p. 457; Secretary of State for India in Council v. Krishnamoni Gupta and others 29 I A 104 ; Gobordhan Banerjee v. Sukhomoy (alias) Bhowani Prosad Banerjee and others 83 C L J 373, p. 388 ; Sree Promotha Nath Roy and others v. Kishore Lal Saha and others A I R 1917 Cal. 802, p. 804 ; Swamirao Shriniwas Parvati v. Bhimabai Kom Padappa Desai and another 45 Bom. 1020, p. 1023 ref.
Radhikaranjan Guha, Syed Modaris Ali and Jnanabrata Ray, for Appellants.
Birendra Kumar De, Khondkar Muhammad Hasan and Nurul Huda, for Respondent.
---This suit out of which this appeal arises was registered in the 3rd Court of Subordinate Judge at Dacca, on a reference by the Collector of Dacca on the 13th of August, 1934, under section 5 (1) of the Bengal Alluvial Lands Act, 1920.
This Act was passed to make provision for the prevention of disputes concerning the possession of certain lands in Bengal gained by alluvion or by dereliction of river or sea. Under section 3 of the Act the Collector, if he is credibly informed that a dispute likely to cause breach of the peace exists, or is likely to arise, in regard to any alluvial land which, in his opinion, has recently formed, may attach it, demarcate it with boundary pillars and manage it himself or through a Receiver during the period of attachment. Soon after the attachment, he should cause a survey to be made and a map prepared of the land, and as soon as that is done, he shall make a reference to the principal Civil Court of Original jurisdiction in the district for a decision as to what person has a title to the land. The Act makes provision for the principal Civil Court of the district on receipt of the reference to transfer it to any Court subordinate thereto and competent to try or dispose of the suit. After determination of this question of title, the Court shall certify its decision to the Collector who shall, thereupon, put the person stated in the order of the Court to be entitled to the land in possession thereof.
The reference in this case which was made to the District Judge of Dacca, who transferred it to the Subordinate judge, relates to Char Bilashpur formed in the bed of the river Padma within the police‑station of Dohar in the Sadar Sub‑division of Dacca. The extent of the lands is 2,334 acres, and this was attached in 1929 under the orders issued by the Sub‑divisional Officer of the South Dacca, who comes within the definition of Collector under the Act. The ground for ordering attachment was that there was likelihood of a breach of the peace in some portions of the Char ; and the statement of facts which had been sent to the Civil Court by the Collector shows that the parties to this appeal or their predecessors‑in‑interest were parties to that dispute. When this reference was taken up by the Subordinate judge there were 315 claimants, and he determined the title to the entire Char in Title Suit No. 13 of 1936.
The appellants are some of the claimants in Claim Case No. 27 of 1937, and one of the claimants in Claim Case No. 39 of 1937. The respondents are claimants in Claim Case No. 65 of 1939, and some of the claimants in Claim Case No. 39 of 1937. We are concerned only with these claimants, and the extents of the land to which this appeal relates is 1,250 bighas, known as Muaza Kalikapur within Char Bilashpur.
There was originally a dispute in respect of this extent of land amongst (1) Abdur Rauf, the predecessor‑in‑interest of the claimants in Claim Case No. 65, (2) Rahimuddin Bhuiya, the predecessor‑in‑interest of the claimants in Claim Case No. 39, and (3) the claimants in Claim Case No. 27. This dispute was amicably settled on the 28th of August, 1891 ; but the land went under water and after the Char reformed, the dispute was revived and it led to proceedings under section 145 of the Cr. P. C., which, however, ended in a compromise under which the claimants in Claim Case No. 27 of 1937 were given a 5# arenas share in the jote right relating to these lands Rahimuddin Bhuiya yeas given a 5 annas share and Abdur Rauf and another a 51 annas share. This division was made in 1908 in respect of the jote right. But these parties had superior interest also in the lands. The case of the claimants in Claim Case No. 65 was that Rauf, in the exercise of his superior right in respect of the lands in question, filed a suit in 1918 against Rahimuddin Bhuiya and the claimants in Claim Case. No. 27, that he obtained a decree against them ex parte in respect of the rent due to him from them, that he brought their shares in the jote right to sale in execution to the decree, that he purchased those shares himself and that he thus became owner of the 16 annas share in the jote. If was also their case that the claimants in Claim Case No. 27 and Rahimuddin Bhuiya, the predecessor‑in‑interest of the claimants in Claim No. 39, amicably gave up possession of their respective portions of the jote and that possession continued with Rauf or his successors‑in‑interest till the lands became submerged in 1920 subsequent to the confirmation of the Court sale.
The case of the appellants, on the other hand, was that they were not aware of either the decree or the sale, that neither the sale nor the decree was binding on them, that they continued in possession of the lands of their respective shares and that their title to those shares in the jote should be declared.
The sale relied on by the claimants in Claim Case No. 65 was held on the 25th of March, 1920, and it was confirmed on the 11th of May of the same year. The sale certificate, which was issued in 1926, was filed on behalf of these claimants and oral evidence was adduced in respect of their case that possession was given up by the appellants. The relevant portions of the record of rights, which have been filed, show that Abdur Rauf had a larger share in the superior interest in the lands than the predecessors of the claimants in Claim Case No. 39 or the claimants Claim Case No. 27. The appellants in their statement seem to suggest that they had the same shares in the superior rights as they had in the jote, and that the record of rights was not correct. But our attention has not been drawn to any specific evidence supporting this part of their case ; on the other hand, the relevant portions of the record of rights indicate that Rauf had in himself a 7j annas share, while Rahimuddin Bhuiya, on the one hand, and the claimants in Claim Case No. 27, on the other, had only an anna and odd and less than an anna's share respectively. The learned Advocate for the claimants in Claim Case No. 65, however, contends that their share including not only the share which was entered in the name of Rauf but also that in the name of other members of the family, comes up to 9 annas. But we do not propose to record any finding on this contention. It is sufficient for the purpose of this appeal to take note of the fact that the share of the claimants in Claim Case No. 65 in the superior interest is larger than that of the claimants in Claim Cases Nos. 27 and 39.
In support of their case regarding possession, the appellants examined four witnesses, who claimed to be the tenants under all the three co‑sharers, and filed certain dakhilas indicating that subsequent to the sale the claimants in Claim Cases Nos. 27 and 39 were also exercising rights of ownership over the lands in question. Some of these dakhilas were granted by one Sashi, who was once in the employ of Rauf.
The learned Subordinate Judge held that Sashi had no power to issue dakhilas on behalf of Rauf, and that the decree and sale could not be challenged as they had not been set aside. He accepted the claim and declared the tight of the claimants in Claim Case No. 65 to 16 annas share of the jote in Char Kalikapur.
The factum of sale or its validity has not been questioned before us. But it has been contended for the appellants (1) that according to the sale certificate only the share of Rahimuddin Bhuiya was purchased by Rauf in execution of the ex parte decree and, not share of the claimants in Claim Case No. 27; (2) that even in respect of the share of Rahimuddin Bhuiya the version that possession was given to Rauf amicably should not have been believed, that Rauf was never in possession and that whatever rights he obtained at the Court auction sale were extinguished under section 28 of the Limitation Act, as a suit for possession was not filed by the claimants in Claim Case No. 65 within twelve years from the date of the confirmation of sale but that, on the other hand, their claim was presented to the Court in this case only in 1936.
The first contentions is based on the language of the portion of the sale certificate which, as translated in the paper book, is "having purchased the defaulting mahal Lot No. 1 of the judgment‑debtor No. 1". The judgment‑debtor No. 1 in the certificate is Rahimuddin Bhuiya, the predecessor‑in- interest of the claimants in Claim Case No. 39. As there was a difference of opinion among the learned Advocates with regard to this translation, we had the sale certificate translated by the Court Translator, and his translation of the relevant portion is : "having purchased Lot No.1, being the mahal in arrear belonging to judgment‑debtor No. 1". The argument of the learned Advocate for the appellants is that the certificate, which is the only record filed regarding this sale, shows that only the share of the claimants in Claim Case No. 39 was sold at this auction sale.
We are unable to take this view of the sale certificate. There is no material difference between the two translations before us. It is quite that what was sold was the mahal in arrear or the defaulting mahal, and if what has been quoted above was all that the certificate had indicated, there might have been considerable force in the contention of the learned Advocate for the appellants ; but there is the schedule of the defaulting mahal" or mahal in arrear. In this schedule reference is made to khewats Nos. 30/2 and 30/3, which relate to all the judgment‑debtors ; and in the last sentence it is stated : the remaining portion of mauza Kalikapur. Land measuring about 1,250 bighas. Share 10 annas 5 gandas". It is not disputed that in the compromise in the proceedings under section 145 of the Criminal Procedure Code, referred to already, the claimants in Claim Case No. 27 and Rahimuddin Bhuiya, the predecessor of the claimants in Claim Case No. 39, together got only 10 annas 5 gandas share. It is significant that this contention regarding the sale certificate does not appear to have been raised before the Court below ; nor have we been shown anything in the statement filed by the claimants in Claim Case No. 27 to indicate that their position in the Court below was that their share was not sold at the Court auction. The certificate read as a whole, in our opinion, indicates that the purchase was of the shares claimed by the appellants, and that the statement in it that what was sold belonged to judgment‑debtor No. 1 is incorrect. The claimants in Claim Case No. 27 as well as the predecessor‑in‑interest of the claimants in Claim Case No. 39, it is seen from the certificate, were defendants in that suit. The first contention of the appellants, therefore, fails.
As for the second contention, we are not prepared to hold that the case of the claimants in Claim Case No. 65‑that the other two co‑sharers gave up possession to Rauf amicably has not been established. The fact that evidence in this respect is oral is not surprising, as possession was not taken through Court. The evidence of Rauf's possession is no doubt that of his son and two other persons who were working under him ; but on that ground alone that evidence cannot be rejected, especially when the probability is that Rauf would have taken possession through Court, had possession not been given to him amicably, as alleged by the claimants in Claim Case No. 65. It is true that all the co‑sharers of the jote had superior interest in the lands but, as pointed out above, their shares in the maliki right were not the same as their shares in the jote right. Reference has already been made to the fact that the record of rights, portions of which have been printed, indicates that the share of Rauf in rnaliki right was much larger than the shares of the other two co‑sharers. It is, there fore, not surprising that there was something due to Rauf from the other two co‑sharers and that Rauf bought the shares of these co‑‑sharers at the Court sale. Having regard to the fact that the shares of the claimants in Claim Case No. 27 and the predecessor‑in‑interest of the claimants in Claim Case No. 39, in the superior interest, were not appreciable and no steps were taken to have the decree or sale set aside, it appears to us highly probable that after the sale was confirmed, they amicably gave up possession. We find it hard to believe that these persons did not know of the decree or the sale.
On behalf of the appellants four persons D. W. 1 to D. W. 4, examined in Claim Case No. 27, have given evidence to the effect that they held portions of the lands under the three co‑sharers, paying rent to all the three. There is also the evidence of one of the appellants concerned in Claim Case No. 39 to the effect that the appellants had possession through tenants. D. W. 1; D. W. 3 and D. W. 4 have filed dakhilas, some of which were granted after 1327 B. S. by Sashi who was working under Rauf ; but Rauf's son's evidence is that Sashi was dismissed from Rauf's service in 1327 B. S. and this version is rendered probable by the evidence of the son of Sashi that Sashi died in 1326 B. S.' and left Rauf's service a few years prior to his death. The contention of the learned Advocate for the contesting respondents (claimants in Claim Case No. 65) that Sashi after his dismissal worked against Rauf's estate has considerable force. The dakhilas no doubt show payments purporting to have been made to officers of Rahimuddin Bhuiya as well as the claimants in Claim Case No. 27 ; but if these witnesses were under the influence of Sashi, it is unsafe, in our opinion, to rely on their evidence. P. W. 1 first stated that he paid rent after diluvian, but corrected himself by saying that he did not pay rent after diluvian, though according to him, diluvian started in 1333 B. S. 1926 A. D. D. W. 4's evidence was that the lands were, under water for 9 years. The fact that attachment by the Collector was made in 1929 shows that the period of submersion ended that year, and so according to D. W. 4's evidence the lands were under water from 1920 on wards. But the dakhilas show that payments were made in the years subsequent to 1920. D. W. 2 said he had lost his dakhilas. In our opinion, the evidence adduced by the appellants on the question of possession is not satisfac tory and we are not, therefore, prepared to differ from the Subordinate judge who had the advantage of seeing the witnesses depose before him.
Even if it is assumed for argument's sake that Rauf was not in possession prior to the submersion, the case of the appellants has still to fail. The title to the jote passed on to Rauf as soon as the sale was confirmed. As regards the evidence on both sides as to when the lands became submerged and also when they reformed, reference has already been made to the evidence of D Ws. 1 and 4 in Claim Case No. 27. It is also in evidence of D. W. 5 in Claim Case No. 26 that diluvian began in 1327 B. S. corresponding to 1920 A. D., and reformation began in 1335 or 1336 B. S., corresponding to 1928 or 1929 A. D. It is not the case of the appellants that Kalikapur Char was the first to reform ; on the other hand, having regard to the fact that the attachment was ordered on account of a dispute likely to create breach of the peace, it appears quite likely that this Char appeared not very long before it was attached. In the circumstances, we consider that his Char can be taken to have been under water from about the end of 1920 to about the beginning of 1929. During this period no one was in actual possession ; but as pointed out in Aziz‑ud‑din v. Magbul Hussain I L R 1939 All 454, p. 457, a property cannot remain without an owner and without being in possession of somebody; and if no one is in actual posses sion, it must be deemed to be in constructive possession of its owner, and it is in such a case that the legal presumption that possession follows title applies. As regards the case of submersion of lands by vis major, it has been held that so long as the lands remain submerged, no title can be acquired against C the true owner, and that constructive possession of lands, if any, remains in the true owner, See Secretary of State for India in Council v. Krishnamoni Gupta and others 29 I A 104. Therefore, even if the appellants were in possession adversely to the true owner at the time of the diluvian, the submersion terminated their possession and from that point of time, in the eye of law, possession was in the true owners, that is, the claimants in Claim Case No. 65. The lands were attached in 1929 when they reformed, and we have not been shown any allegation or evidence that between the period of reappearance of the lands and the attachment, the appellants were in pos session. Even if they were, that possession also terminated when the lands were attached, and during the period of attach ment the lands were held by the Collector or the Receiver appointed by him for the benefit of the true owners. It is not disputed that at the time of attachment in 1929, the title of the claimants in Claim Case No. 65 was still subsisting irrespective of the fact of submersion.
The learned Advocate for the appellants in support of his contention relied on the observation in Gobordhan Banerjee v. 'Sukhomoy (alias) Bhowani Prosad Banerjee and others 83 C L J 373, p. 388, where one of the questions was whether the right of an auction‑purchaser was extinguished by the judgment debtor having acquired title by adverse possession. The observation relied on is this :
The sale certificate of Rambrahmo has been put in and that shows that the sale was confirmed on the 4th of January, 1931. This date the learned Subordinate judge has over looked. Under Article 138 limitation against Rambrahmo would run from that date and if he did not institute a suit within 12 years of that date, his title would have been extinguished by reason of the provisions of section 28 of the Limitation Act, but this suit for partition was instituted on the 6th of July, 1942, that is to say, within 12 years of the date when Rambrahmo's sale was confirmed.
This observation does not apply to the facts before us. It has to be considered with the facts of that case where it appears to have been found that the judgment‑debtors were in possession throughout the period in question. But as has been indicated already, the appellants in this case did not have such possession ; and it has been held that for the statute of to apply there must be both absence of possession by the original owner as well as actual possession by another Sree Promotha Nath Roy and others v. Kishore Lal Saha and, others A I R 1917 Cal. 802, p. 804. Similarly, for the right to be extinguished under section 28 somebody else must be in possession. As was pointed out in Swamirao Shriniwas Parvati v. Bhimabai Kom Padappa Desai and another 45 Bom. 1020, p. 1023, an owner of property does not lose his right to pro perty merely because he happens not to be in possession of it for 12 years. Under section 28 his right is extinguished only at the determination of the period limited by the Act to him for instituting a suit for possession of the property. The period cannot be determined unless it has commenced to run, and the period will not commence to run until the owner is aware that some one else in possession is holding adversely to himself. In the present case, even if action had not been taken under the Bengal Alluvial Lands Act and the appellants had entered into possession after reformation, i.e., in 1929 the claimants in Claim Case No. 65 could file a suit within 12 years of the appellants taking such possession. The fact that the claim was filed in 1936, therefore, does not appear to us, in any view of the matter, to affect the title of the claimants in Claim Case No. 65.
Then again section 28 of the Limitation Act refers to a suit for possession; and it has been held in Gobordhan Banerjee's case (supra) the decision relied on by the appellants, that section 28 should be construed very strictly as it takes away a right. In that case a suit filed under rule 103 of Order 21 of the Cole of Civil Procedure was held not to be a suit for possession within the meaning of section 28 of the Limitation Act. The present case is in fact a reference and not a suit, and it is only for the purpose of procedure that the Act provides that it shall be deemed to be a suit. The initial action can be taken only by the Collector under the Act and not by a claimant, and the decision is only with regard to the title, and when that is decided, the Collector puts the party declared to he entitled to the land in possession. The only point for determination in this suit or reference was as to who had title to Kalikapur Char on the date of attachment and, as has been pointed out already, the title of the claimants in Claim Case No. 65 undoubtedly, looked at from any point of view, was subsisting in 1929. That being so, the conclusion of the learned Subordinate Judge that they were entitled to the lands is, in our opinion, correct.
In the result, the judgment and decree of the Court below are affirmed and this appeal is dismissed with costs to the contesting respondents.
---‑I agree.
A. H. Appeal dismissed.
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