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1933 Supreme(SC) 62
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD MACMILLAN, SIR JOHN WALLIS, AND SIR GEORGE LOWNDES.
SECRETARY OF STATE FOR INDIAN IN COUNCIL - Appellant
Versus
DEBENDRA LAL KHAN - Respondents
On appeal from the High Court at Calcutta.
Decided On : Nov. 30. 1933.
Solicitor for appellant :Solicitor, India Office. Solicitors for respondent: Hy. S. L. Polak & Co.
Adverse possession against the Crown requires overt, continuous possession; actual notice to the Crown is unnecessary. In fisheries, granting leases constitutes adverse possession, and a mortgagor may tack the adverse possession of a mortgagee in possession to complete the statutory period.
Headnote:(A) Indian Limitation Act, 1908 - Section 28 and Articles 144 and 149 - Adverse possession against the Crown - Extinguishment of right to property - Period of limitation for the Crown is 60 years - Possession must be adequate in continuity, publicity, and extent to show it is adverse to the competitor - Requirement of possession being nee vi nee clam nee precario - It is not necessary that the adverse possession be brought to the actual knowledge of the Crown; overt possession without concealment is sufficient so that the person against whom time is running ought, if exercising due vigilance, to be aware of it - In the case of a fishery, the granting of leases or licenses by a person other than the Crown is significant evidence of the usurpation of the distinctive rights of the Crown and thus constitutes adverse possession - Where a fishery is claimed in a navigable river open to the public, occasional encroachments or casual fishing by the public are insufficient to deprive the possession of its exclusive character.
(B) Limitation Act - Tacking of possession - A mortgagor is entitled to tack the adverse possession of a mortgagee in possession to his own period of possession to complete the statutory period required for adverse possession.
Facts of the case:
The plaintiff claimed title and fishery rights to a portion of a large navigable river. As the river was navigable, it was prima facie the property of the Crown. The plaintiff asserted that he and his predecessors had been in adverse possession of the fishery for over 60 years, thereby extinguishing the Crown's right under the Limitation Act. The Crown contested the claim, arguing that the possession was not adverse and that a breach in the continuity of title precluded the plaintiff from tacking the possession of a predecessor who had held the land during a critical period.
Findings of Court:
The court found that the plaintiff and his predecessors had exercised exclusive rights by granting leases and licenses for the fishery and drawing revenue therefrom. Official records from the start of the limitation period indicated that the fisheries were in private hands and the Crown had acquiesced in this state without challenge. The court further determined that the predecessor in possession was not an independent trespasser but a mortgagee, allowing the plaintiff to tack that period of possession to his own.
Issues: Whether the plaintiff had acquired fishery rights by adverse possession for the statutory period of 60 years and whether the possession of a mortgagee in possession could be tacked to that of the mortgagor to satisfy the limitation period.
Ratio Decidendi: Adverse possession against the Crown requires overt and continuous possession; actual notice to the Crown is not a legal requirement. For fisheries in navigable rivers, the act of granting leases is a primary indicator of adverse possession, and casual public use does not negate the exclusivity of such possession. Furthermore, a mortgagor can legally tack the adverse possession of a mortgagee in possession to complete the statutory period.
Result: Appeal of the Crown dismissed; judgment of the High Court affirmed.
Legal Category Hierarchy
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property law
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adverse possession
- requirements for possession
- tacking of possession
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crown property
- navigable rivers
- fishery rights
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adverse possession
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limitation act
- statutory periods
Judgement
Appeal (A cross-appeal, consolidated with the appeal, was not proceeded with.) (No. 46 of 1930) from a decree of the High Court (July 30, 1926) modifying a decree of the Subordinate Judge of Midnapore (September 28, 1921).
In 1919 the respondent instituted a suit against the appellant claiming by his plaint a declaration of his title to the bed of the river Cossye (also known as the river Kangsabati) between certain points but excluding indicated parts, the whole extending to about twelve miles in length. He also claimed a declaration of his right of fishery therein. His case was that his zamindari included the above portion of the river, which he alleged was not large or navigable. Alternatively, he claimed title by adverse possession for upwards of 60 years. The appellant by his written statement pleaded that the river was a large and navigable river and had not been included in the respondents estate at the settlement; he denied that any title had been acquired by adverse possession.
Both Courts in India found that the river was a large and navigable river.
The trial judge held that a portion of the river bed was part of the plaintiffs zamindari, but that the rest of his claim failed. A decree was made accordingly.
The plaintiff appealed to the High Court and the respondent filed cross-objections.
The High Court (Greaves and Muckerji JJ.) held that the plaintiff had not shown a title to any part of the bed of the river ; it was a large and navigable river, and the property of the Government. The learned judges held, however, that the plaintiff had established by adverse possession an exclusive right of fishery in the portion of the river in dispute, save as to a specified part.
Both parties appealed to the Privy Council, and the appeals were consolidated; but on it being intimated by the Board that the Secretary of States appeal would be dismissed the plaintiff did not proceed with his appeal.
1933. Oct. 26, 27, 30, 31 ; Nov. 2, 3. Dunne K.C. and Wallach for the defendant-appellant.
Upjohn K.C. and Jinnah for the plaintiff-respondent.
The arguments were principally as to the effect of the evidence. In addition to cases mentioned in the judgment of the Judicial Committee reference was made to the following as to the nature of the right claimed, Srinath Roy v. Dinabandhu Sen (( 1914) L. R. 41 I. A. 221.), Hori Das Mai v. Mahomed Jaki (( 1885) I. L. R. 11 C. 484.), also Malcomson v. ODea (( 1862) 10 H. L. C. 593.) ; as to proof of adverse possession Secretary of State for India v. Chelikani Rama Rao (( 1916) L. R. 43 I. A. 192.), Kuthali Moothavar v. Peringati Kunharankutty (( 1921) L. R. 48 I. A. 395.), Nageshwar Roy v. Bengal Coal Co. (( 1930) L. R. 58 I. A. 29.), and Midnapore Zamindary Co. Ld. v. Trailakhya , (( 1923) 40 Cal. L. J. 238.), as to exercise by public of right to fish ; as to "tacking" period of possession by another, Kumar Basanta Roy v. Secretary of State for India (( 1917) L. R, 44 I. A.
104.), Janoki v. Baikuntha . (( 1922) 36 Cal. L. J. 140.)
Nov. 30. The judgment of their Lordships was delivered by
LORD MACMILLAN. The only question which has been argued before their Lordships in these consolidated appeals is whether the High Court of Judicature at Calcutta have rightly decided that Debendra Lal Khan, the plaintiff in the suit, " has right by adverse possession to the fishery " in a portion of the river Cossye. The Secretary of State for India in Council (hereinafter referred to as " the Crown "), who is the defendant in the suit, contests in his appeal the soundness of this decision. Debendra Lal Khan (hereinafter referred to as " the plaintiff"), besides supporting the decision of the High Court in his favour, raises in his appeal certain other issues which have been decided against him. His counsel, however, intimated that in the event of the decision of the High Court with regard to the fishery in question being upheld by their Lordships, the plaintiff did not propose to proceed with his a
