Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
First Appeal No. 60 of 1951, decided on 8th January 1955 from the decree of the Court of Mian Muhammad Saleem, Civil Judge 1st Class, Bhakkar District Mianwali, dated the' 30th April, 1951.
S. 11 read with Punjab Land Revenue Act (X VII of 1887), S. 122‑Jurisdiction of civil Court to grant possession of hold ing allotted to plaintiff not barred even if the suit is brought within 3 years of final scheme‑Punjab Land Revenue Act (XVII of 1887), S. 158.
There is nothing in the Consolidation of Holdings Act to bar jurisdiction of civil Court to grant possession of holdings allotted to the plaintiff even if the suit is brought within three years of the final scheme.
Section 11 of the Consolidation of Holdings Act does not make the provisions of section 122, or of any other section, of the Punjab Land Revenue Act (XVII of 1887) applicable en blec to the proceedings for delivery of possession of hold ings allotted to a party under the scheme of consolidition. There is, therefore, no warrant for the contention that the Consolidation Officer is also bound to deliver possession with in three years of the final scheme. On the contrary he is given the discretion to put the allottees in possession "from such date as he may deem expedient."
Section 158 of Act XVII of 1887 has no application to the powers exercised under Act IV of 1936.
The plaintiff in this case, moreover, was not asking, nor could he have asked, the Consolidation Officer to put him in possession of the holdings allotted to him under the scheme of consolidation. This was the usual suit for possession against a trespasser.
Gurdit Singh v. Labh Singh 63 PR 1894 inapplicable.
(b) Adverse possession‑--Submerged land‑--Possession of trespasser interrupted for periods of submersion.
Adverse possession must be continuous, actual and visible.
If the land adversely possessed was submerged in water, the period of submersion breaks the continuity of possession. In such a case constructive possession could not be attributed to the trespasser ; such possession in fact reverted to the title holder.
No presumption ragarding possession can be made in favour of a squatter and therefore constructive possession, which is a concomitant of the fundamental right alone, cannot be imputed to him. His possessive in order to be adverse must, inter alia, be actual and visible. If there is any visible break in his possession either by an act of the owner or from independent trespasser, or by viz major his previous possession if it falls short of the statutory period becomes nullified.
A land becomes derelict' (forsaken or abandoned) the moment it becomes submerged and not when it has remained in that state for a long time.
Where, however, the extent of floods is such as not to affect the normal and actual use of the lands it cannot be said that the lands have become incapable of being possessed and derelict and, therefore, the possession of the trespasser, which can be only actual and physical, has determined.
Secretary of State v. Krisnamoni Gupta 89 I A 104, rel.
J. B. Hearsey v. Karam Singh A I R 1917 Oudh 330 dissented from.
Ramasray Prasad v. Ramsurat Singh A I R 1940 Pat. 131 and Hemanta Kumari v. Midnapore Zemindary Co. A I R 1942 Cal. 233 distinguished.
Ghulam Abbas Jafery, for Appellant.
Dr. Qutub‑ud‑Din Ahmad, for Respondent.
‑One Risaldar Ata Muhammad brought a suit against the appellant Khan Muhammad in the Court of Sub‑Judge, Bhakkar, District Mianwali, for Khasra Nos. 477 and 539, measuring 122 kanals 11 marlas. The suit was decreed by the trial Court and the defendant has come to this Court in first appeal.
The land in suit is situate in Patti Nawah Sahib in the village Darya Khan Nashaib, in which the holdings have been recently consolidated in accordance with the provisions of the Punjab Consolidation of Holdings Act. Admittedly the plaintiff was allotted the lands in suit as a proprietor during those proceedings. The plaintiff came to Court with the allegations that the defendant entered into the possession of the lands in suit as a tenant‑at‑will, but since a month prior to the suit he has been denying the tenancy. It is further alleged m the plaint that as the land remains submerged under water every summer it was impossible for the defendant to have been in adverse possession continuously for over twelve years. The defendant set up title to the property in suit by adverse possession for over 12 years. He alleged that the flooding of the river never affects the lands in suit, which yield three crops annually and are always under cultivation either partially or wholly. On the pleadings of the parties the learned Sub‑judge framed the following issues :‑
1. Has the defendant been in possession of the land in suit as a tenant under plaintiff and from which date to which date
2. On proof of issue No. 1, is the plaintiff not entitled to obtain possession of the land in suit .
3. What is the effect of the previous suit in respect of Khasra No. 998 on this suit
4. Is the suit within time
5. Has defendant been in adverse possession of the land in suit, or any part of it, for more than 12 years and what is the effect
6 Is the plaintiff ‑estopped from suing by word or deed
7. Relief.
All the issues were found in favour of the plaintiff and against the defendant.
The present appeal has not been filed against the entire decree; it relates only to an area of 91 kanals 18 marlas, and the claim to the remaining 30 kanals 13 marlas has been given up. At the hearing before us the claim of the defendant- appellant shrank further as his learned counsel expressly con fined his arguments to only Khasra Nos. 3631/999, 3651/999, 3652/999, 1000, 1001 and 1002, six of' the original numbers which were included, either partly or wholly, in No. 539 during the consolidation proceedings. Out of these only 1001 is an entire number ; the rest are 'rains' (portions). As all these six plots are now included in the Khasra No. 539 it follows that the plaintiff has relinquished his claim to Khasra No. 477, in respect of which the decree of the trial Court will stand, and this appeal is confined to only portions of the Khasra No. 539. At the end of the hearing the learned counsel for the appellant expressed a doubt whether these were the relevant numbers. He said as these were the numbers allotted to the respondent in the consolidation proceedings (and re‑numbered as 539), his client's adverse possession should be considered not with reference to these but to the other numbers in lieu of which these were allotted to the plaintiff. If this were so then the entire case of the appellant must fall to the ground because all the evidence on record, regarding adverse possession by the defendant, relates only to these numbers and not to those other unknown numbers. It is, however, not known whether there is any substance in the theory advanced by the appellant's learned counsel or in fact these numbers are the original numbers in lieu of which the plaintiff was allotted in the patti a consolidated area of land which was numbered as 539. Be it as it may, the defendant having proceeded all along in the lower Court on the assump tion that the possession of these numbers alone is to be considered for the decision of his plea he cannot now be allowed to turn round and say at this late stage that he was suffering under a misapprehension and the case should be remanded for a trial de'novo. The evidence on record relates only to these numbers, there is no trace of any other number, and on this evidence alone the defendant tried to take title by adverse possession during the arguments in Court the below and in this Court. We repel the appellant's suggestion as unworthy of consideration.
It was contended for the appellants that the civil Court had no jurisdiction to entertain this suit within three years of the final order in the consolidation proceedings. The argument was based upon the provisions of section 11 of the Punjab Consolidation of Holdings Act (IV) of 1936 and section 122 of the Punjab Land Revenue Act (XVII) of 1887, which are reproduced below ;‑
Section 11 of Act IV of 1936.
"The landowners and tenants affected by the scheme of consolidation, shall be entitled to possession of the holdings and tenancies allotted to them under the scheme, and the consolidation officer shall by order direct that they be put in possession thereof from such date as he may deem expedient after the final confirmation of the scheme and may, if necessary, exercise the powers of a Revenue Officer under the Punjab Land Revenue Act, 1887, in order to give possess‑ion."
Section 122 o f Act X VII o f 1887.
"An owner or tenant to whom any land or portion of a tenancy, as the case may' be, is allotted in proceedings for partition shall be entitled to possession thereof as against the other parties to the proceedings and their legal represen tatives, and a Revenue Officer shall, on application made to him for the purpose by any such owner or tenant at any time within three years from the date recorded in the instrument of partition under the last foregoing section give effect to that instrument so far as it concerns the applicant as if it were a decree for immovable property."
It was argued that because section 11 of Act IV of 1936 autho rises the Consolidation Officer to deliver possession to the landowners after the final confirmation of the scheme of consolidation and further confers upon him the powers of a Revenue Officer under Act XVII of 1887 and as the one hundred twenty‑second section of the latter Act gives a party to a partition proceeding the riglit to have the possession of the property allotted to him in the partition delivered to him through the agency of a Revenue Officer within three years, ergo, Consolidation Officer too, in the capacity of a Revenue Officer, can give possession to a landowner within three years and a suit for possession by such a party cannot be entertained by a civil Court within that period. Reliance was placed upon a ruling of the late Punjab Chief Court reported as Gurdit Singh v. Labh Singh (63 P R 1894.), in which it was laid down that, in view of the provisions in section 122 of Act XVII of 1887, a civil Court has no jurisdiction to entertain a suit for possession of the property allotted to the plaintiff in partition proceedings for three years from the date on which the partition is to take effect.
The argument is vitiated by several erroneous assump tions underlying it. Firstly, section 11 of Act IV of 1936 confers upon the Consolidation Officer "the powers" of a Revenue Officer under Act XVII of 1887 only "in order to give possession"; it does not make the provisions of section 122. or of any other section, of that Act applicable en bloc to the proceedings for delivery of possession under section 11 of the former Act. There is, therefore, no warrant for the contention that the Consolidation Officer is also bound to deliver posses sion within three years of the final scheme. On the contrary he is given the discretion to put the allottees in possession "from such date as he may deem expedient." The authority of 63 P R 1894 is, therefore, inapplicable to the present case. Secondly, the jurisdiction of a civil Court to deliver possession of property allotted in partition proceedings is not taken away by anything contained in section 122 of Act XVII of 1887 ; but by section 158, which provides:‑
"A civil Court shall not have jurisdiction in any matter which the Provincial Government or a Revenue Officer is empowered by this Act to dispose of, or take cognizance of the manner in which the Provincial Government or any Revenue Officer exercises any powers vested in it or him by or under this Act."
A Consolidation Officer, even though he possesses the powers of a Revenue Officer under Act XVII of 1887, has no "powers vested . . . . . . . in him by or under" that Act and, therefore, he cannot "exercise" any power under it. Section 158 of Act XVII of 1887 has no application to the powers exercised under Act IV of 1936 ; nor is there any provision in the latter Act barring the jurisdiction of the civil Court. Again the plaintiff in this case is not asking, nor could he have asked, the Consolidation Officer to put him in possession of the holdings allotted to him under the scheme of consolidation. That has been admittedly done already. This is the usual suit for possession against a trespasser.
The only other question which was argued on behalf of the appellant and now remains to be considered is the plea of adverse possession set up by the appellant with regard to the six aforementioned plots which, along with eight others, now constitute the present Khasra No. 539. The appellant contends that he has been in adverse possession of these plots for more than twelve years immediately preceding the date of the suit (namely the 3rd of February 1951) and has sought to establish his possession over these plots from Kharif 1939. It is, therefore, necessary to examine the extent and nature of the appellant's possession over each of these plots separately.
*As regards the plot No. 3639/999 the original area of this plot, as would appear from Exh. P.1, was 4 kanals and 7 marlas. In the same document, which is a copy of the Jamabandi for the year 1938‑39 the appellant is entered as a tenant‑at‑will paying no rent and claiming title in himself. Exh. P. 2, the Khasra Girdawari from Kharif 1939 to Rabi 1943, shows that the appellant was entered as a tenant‑at‑will paying no rent. In all the four Kharifs, from 1939 to 1942, the entire land was vacant,‑ it was cultivated only with Rabi crops. In the Khasra Girdawari of Kharif 1943 to Rabi 1947, Exh. P. 3, the appellant Khan Muhammad is entered as a tenant claiming' title to this plot until Rabi 1946 and in the next two crops, namely, Kharif 1946 and Rabi 1947 Gulla and Sher Muhammad, sons of Sarang, are entered as tenants. Again in all the Kharifs during these four years the land was lying uncultivated and in Rabi 1947 only two kanals was under cultivation. Exh. P. 4, Khasra Girdawri, shows that from Kharif 1947 to Rabi 1950 Gulla and Sher Muhammad are entered as tenants in respect of an area of 2 kanals in this plot; and that the dapellant through one Bakhtawar was the tenant‑at‑will with out rent in respect of an area of 1 kanals "bawajeh banna shikni"; but in Rabi 1949 the area in possession of Gulla and Sher Muhammad was 2 kanals and that in possession of the appellant decreased to 1 kanals and continued to remain the same during the next two crops. The land of Gulla and Sher Muhammad, as also that of the appellant, lay vacant throughout these years, except in Kharif 1947 and Rabi 1949.
The plot No. 3651/999 measuring 4 marlas is shown in Exh. P. 1 as the tenancy‑at‑will of the appellant on account of his having brought it under cultivation for the first time (bawajeh nautore). The appellant is also recorded as a tenant at‑will from Kharif 1939 to Rabi 1943 (Exh. P. 2). The land, however, lay vacant during all the four Kharifs. For the years Kharif 1943 to Rabi 1947 the appellant is shown in Exh. P. 3 as a tenant paying no rent, claiming title. The land lay vacant in Kharif 1944 and in the two yedrs from Kharif 1945 to Rabi 1947 it is shown as banjar. From Kharif 1947 to Rabi 1950 the appellant is entered as a tenant‑at‑will .; but the land was shown as banjar in all these years‑as banjar jadeed from Kharif 1947 to Kharif 1948 and as qadeem from Rabi 1949 to Rabi 1950. The entries with regard to plot No. 3652/999 throughout the years from 1939 to Rabi 1948 are exactly the same as those relating to 3651/999. .In Exh. P. 4 the paper is torn and therefore it is not possible to ascertain the entries from Kharif 1948 to Rabi 1950.
As regards the plot No. 1000, measuring 2 kanals ‑and 1 marla, the appellant is entered in Exh. P. 1 as a tenant‑at will paying no rent on accouut of having brought the land under cultivation for the first time. He continued to be recorded as a tenant‑at‑will without rent in Exh. P. 2 from Kharif 1939 to Rabi 1943 ; but except in the Rabis 1941, 1942 and 1943 the land lay vacant throughout. In Exh. P. 3 the appellant is shown as a tenant‑at‑will paying no rent on account of nautore. The land was not under cultivation in Kharif 1944 and in Rabi and Kharif 1946. The same entries regarding tenancy appear in Exh. P. 4 ; but the land was under cultivation only in Rabi 1948 and. Rabi 1949. It is not known whether this plot was under cultivation or lay vacant after Rabi 1949 as the paper is torn.
In Exh. P. 1 the appellant is shown as a tenant‑at‑Will of the plot No. 1001, measuring 17 marlas, paying no rent onr account of banna shikni. He is entered as. a tenant‑at‑will, paying no rent, in Exh. P. 2; but from Kharif 1939 to Rabi 1943 it was cultivated only in Rabis 1941, 1942 and 1943. In Exh. P. 3 Khan Muhammad is entered as a tenant; but further particulars about his tenancy are not ascertainable from this document, nor has the learned counsel for the appellant referred us to any other document on the. record for that purpose. The land lay entirely vacant in Rabi and Kharif 1943. The appellant has been shown in Exh. P. 4 as a tenant‑at‑will paying no rent on account of nautore from Kharif 1947 onwards. The land is shown under cultivation only in Rabi 1948. The paper being torn there are no entries relating to Kharif 1949 and Rabi 1950.
As to the last number, namely, 1002, measuring 4 kanals and 13 marlas, Ex. P. 1 shows the appellant to be a tenant‑at will paying no rent on account of banna shikni. Three kanals and 3 marlas of this plot are, however. shown as banjar qadeem and the same entry is continued in Exh. P..2 until Kharif 1945 in respect of an area of 3 kanals and from Rabi 1946 to Rabi 1947 in respect of 1 kanal. According to Exh. P. 2, in which the appellant is recorded as a tenant‑at‑will paying no rent, the land lay entirely vacant from Kharif 1939. to Kharif 1940 and in Kharifs 1941 and 1942. Only 1 kanals was cultivated in Rabi 1941 ; 31 kanals in Rabis 1942 and 1943. The entry regarding tenancy in Exh. P. 1 is repeated in Exh. P. 3 ; the land is shown entirely vacant in Kharif 1944 and Rabi and Kharif 1946, and in Rabi 1945, Kharif 1946 and Rabi 1947 it was cultivated only partially. The entry in Exh. P. 4 regarding tenancy is similar to the one in Exh. P. 1. Only in Rabi 1948 2 kanals out of this number are shown under cultivation. As with the preceding two numbers, the entries from Kharif 1949 onwards do not appear in this document as the relevant portion of the paper is torn.
It will be seen that on account of the mutilated condition of the copy of the Girdawari of 1947‑50 (Exh. P. 4) it is not known whether the appellant cultivated the plots Nos. 3651/ 999, 3652/999, 1000, 1001, and 1002 right up to Rabi 1950, and, therefore, completed twelve years' possession ever them. There are no entries regarding the first two plots after Rabi 1948 and regarding the last three after Rabi 1949. Nor has the appellant's possession over any of the six plots now in dispute been continuous. The plot No. 3639/999 lay vacant in the Kharifs of 1939, 1940, 1941 and 1942, and for the years Kharif 1946‑Rabi 1947, Rabi 1948‑Kharif 1948 and Kharif 1949‑Rabi 1950 ; 3651/999 and 3652/999 in Kharifs 1939, 1940, 1941, 1942 and 1944 and in the two years from Kharif 1945 to Rabi 1947 ; 1000 from Kharif 1939 to Kharif 1940 ; in Kharif 1944, 1947 and 1948 ; in Rabi and Kharif 1946 ; 1001 from Kharif 1939 to Kharif 1940 ; in Kharif 1941, 1942, ' 1947 and 1948 and in Rabi and Kharif 1943 ; and 1002 from Kharif 1939 to Kharif 1940, in hharif 1941, 1942 and 1944 and in Rabi and Kharif 1946. The plot No. 3639/999 was in posses sion of Gulla and Sher Muhammad as tenants in the year Kharif 1946‑Rabi 1947. It will be observed that there were numerous breaks in the defendant's possession and sometimes, in the case of everyone of the six plots, continuously for one whole year or more. Whenever the land lay vacant possession reverted to the plaintiff constructively.
Again there is no evidence to show that the defendant': possession throughout the period remained hostile to the plaintiff. The defendant himself, as D. W. 5. has not said so. He stated that he had brought the land under cultivation (nautore) and paid no rent. It is possible that the plaintiff may not have demanded any rent, at any rate in the first years, for that reason. According to Exhs. P.2 and P. 3 the defendant claimed title to 3639/999 in 1939 and to 3651/999 and 3652/999 only in 1943 ; but he never claimed ownership in the other three plots. Even with regard to 3639/999 he was entered as a mere tenant from Kharif 1939 to Rabi 1943 and from Kharif 1947 to Rabi 1950 ; and regarding 3651/999 and 3652/990 from Kharif 1939 to Rabi 1943 and from Kharif 1947 onwards.
Rejecting the defendant's denial, the learned trial judge found that plots numbering 3631/999, 1000, 1001 and 1002 remained submerged under water for three or four months continuously in several years; and concluded that during such submersions the defendant was out of possession and, there fore, the plaintiff: had constructive possession of these plots. Learned counsel for the appellant argued that upon the finding of the trial Court his client is entitled to the benefit of these periods of submersion of the land as he was in possession immediately before and after the submersions. To support his contention he strongly relied upon the ruling in J. B. Hearsey v. Karam Singh (AIR 1917 Oudh. 330.) where, after an exhaustive con sideration of the decision of the Judicial Committee in Secretary of State v. Krishnamoni Gupta (89 I A 104.), it was laid down that tem porary submersions of land under water do not have the effect o interrupting a trespasser's possession and that that result can follow only where the land has remained submerged for such a long time that it can be predicated that the trespasser liad abandoned possession. The fundamental error, however, in that, otherwise well‑considered, decision lies in the presump tion of possession in the trespasser ; for actual possession he, or for the matter of that anyone, admittedly did not have and could not have, because during the .submergence, for so long as it continued, the land became incapable of being actually possessed. It is a principle of jurisprudence, well established in England as well as in the Indo‑Pak subconti nent, that no presumption regarding possession can be made in favour of a squatter and therefore Constructive possession, which is a concomitant of the fundamental right alone, cannot be imputed to him. His possession in order to be adverse must, inter alia, be actual and visible: If there is any visible break in his possession either by an act of the owner or from independent trespasser, or by viz major his previous posses sion if it falls short of the statutory period becomes nullified.
The proposition laid down in the Oudh case is apparently based upon the fact that in Krishnamoni Gupta's case the land lay submerged under water for several years; but it was not noticed that that factor was not a consideration governing, or a part of the ratio decidendi in that ruling, as is evident from the following observations of Lord Davey in that case:‑
"But it is urged on behalf of the Government that, having been in possession through their tenants when the lands became submerged, their possession must be deemed to have continued in law while the lands were under water, and to have revived on their being reformed, and reliance is placed on a case of Kally Churn Sahoo v. Secretary of State (ILR 6 Cal. 725.), decided by the High Court in 1881. For the‑ purpose of trying the question whether limitation applies, the Govern ment must be regarded as a trespasser and dispossessor of the rightful owners, and in the opinion of their Lordships it would be contrary both to principle and authority to imply such constructive possession in favour of a wrongdoer so as to enable him to obtain thereby a title by limitation. In order to sustain a claim to land by limitation under the Indian Art, there must, in their opinion, be actual, possession of a person claiming as of right by himself or by person deriv ing title from him. The possession of‑the Government was in tact determined by the submergence of the land which then became derelict, and so long as it remained in that state no title could be acquired against the true owner. Sir R. Garth, however, seems to have thought that in such a case the possession of the trespasser would continue until the true owner resumed possession.
Their Lordships cannot agree in this view. On the contrary, they think that on the dispossession of the Govern ment by this vis major of the floods the constructive posses sion of the land was (if anywhere) in the true owners."
The use of the word "derelict" in this passage seems to have been mainly responsible for leading the learned Judges in Hearsey's case to the conclusion at which they arrived. They say :‑
1 "It is to be observed that in that case and in the case in the Secretary of State v. Krishnamoni Gupta, the land was derelict. It was absolutely abandoned for long periods and during those periods no one attempted to wait for its re‑appearance and utilize it as soon as the water had subsid ed. Before the principle laid down by their Lordships of the Privy Council in Secretary of State v. Krishnamoni Gupta and followed by Mr. Lindsay in Brijraj Singh v. Ganga Bakhsh Singh (28 I C 855.), can be applied it is necessary to establish that the land has become absolutely derelict, abandoned, and incapable of use."
Their Lordships of the Privy Council did not lay down in 29 I A 104, either expressly or by implication that it must be established that the land had become derelict and abandoned absolutely. On the contrary the' language used by them clearly shows that as soon as the land becomes submerged under water the trespasser, by that vis major, is dispossessed and the land becomes derelict in the sense that it ceases to be actually possessed or used by anybody. This is fully borne out by the following sentence in the passage quoted above :‑
"The possession of Government was in fact determined by the submergence of the land which then became derelict, and so long as it remained in that state no title could be acquired against the true owner."
It would be noticed that their Lordships do not say that the possession of a trespasser is determined by the abandonment of the possession by him. The possession, they say, is deter mined by the submergence, i.e., as soon as the land is sub merged under water. The word 'then' in the phrase 'which then became derelict' further shows that, in their Lordship's opinion, a land becomes 'derelict' (forsaken or abandoned) the moment it becomes submerged and not when it remained in that state for a long time, as held in Hearsey's case. Suppose after a trespasser had remained in possession of a certain land for eleven years, eleven months and twenty -five days the land became submerged and remained so for three months and then immediately on its re‑appearance the trespasser again resumed its possession, would the trespasser be deemed to be in possession for six days after the submer gence so as to claim title to the land by virtue of his first possession If the doctrine of abandonment enunciated by the learned Judges of Oudh were valid this result must follow, because six days is too short a time to presume abandonment on the part of the trespasser. Or would the trespasser be allowed to tack his first possession on to his second one This cannot be permitted because adverse possession must be continuous for twelve years. Unconsciously the learned judges, contrary to the rule, far too well‑grounded in principle and long established authority to be questioned, that nothing can be presumed in favour of a tort‑feasor, presumed possession in the trespasser and, therefore, impliedly held that constructive possession, which is an appendix of title alone, can be imputed to a squatter.
The simple solution of the problem that faced the Court in Hearsey's case lay in the fundamental rule that the posses sion of the trespasser must be actual and visible. It the property becomes incapable of actual possession, it can be possessed only constructively and the law ascribes construc tive possession to the owner of the fundamental right alone. The position, however, was put beyond contention by their Lordships of the Privy Council themselves in Basant Kumar Roy v. Secretary of State for India (A I R 1917 P C 18), decided in the same year‑as Hearsey's case; but evidently not reported in India in time to be considered and followed in the latter case, referring to the decision in Krishnamoni Gupta's case, Lord Sumner remarked :‑
"No rational distinction can be drawn between that case and the present one, where the reflooding 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 sub merged, no possession could be deemed to continue so as to be available towards the ultimate acquisition of title against the true owner."
Learned counsel for the appellant also relied on Ramar ray Prasad v. Ramsurat Singh (A I R 1940 Pat, 131.) where the land in suit had occasionally been affected by floods, and on Hemanta Kumari v. Midnapore Zemindary Co. (A I R 1942 Cal. 233.), where there was annual flooding during the rainy season. In both cases it was held that the floods did not interrupt the possession of the trespasser, but on the ground that the flooding did not, in these cases, interfere with the ordinary agricultural opera tions. If we may say so with respect both the cases were correctly decided and in no respect contravene the rule laid down in the two Privy Council cases discussed above. Where the extent of floods is such as not to affect the normal .and actual use of the lands it cannot be said that the lands have become incapable of being possessed and derelict and, there fore, the possession of the trespasser, which can be only actual and physical, has determined. In the present case the lands had admittedly to remain vacant on account of annual sub mersions under flood water.
For the various reasons indicated in this judgment we hold that the defendant has altogether failed to make out title to the plots to which this appeal was confined by his learned counsel by continuous adverse possession for the requisite period.
The appeal is dismissed with costs.
A. H. Appeal dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer