Headnote:A.Alluvial Land - consent decree - sufficient material on record to prove that 8 acres and 14 gunthas was already in possession of Captain Ansell whom total 15 acres of alluvial land was granted by the government - Captian Ansell gave the defendant no.1 the part in his possession under consent decree and sold the other part granted by the government to plaintiff - injunction suit by plaintiff restraining defendants to enter upon the entire land - disposal of alluvial land by the collector under question - Section 63 and 64, Bombay Land Revenue Code 1879 - no alluvial land would ever vest in the Crown, if it is supposed that an alluvial land is an accretion to the adjacent land should be held to belong to the owner of the adjacent land - held, allotment was proper. (para 7)
       B.Injunction - title to the land for which injunction claimed - injunction granted by trial court - appellate court refused as the plaintiff failed to prove the title over the suit - plaintiff proved being in possession of the suit land - held, not necessary to prove title - relied upon Ismail Ariff v. Mahomed Ghous, 20 Cal. 834: (20 I. A. 99 P. C.). ( para 12)
       C.Additional evidence - Order 41, Rule 27 of Code of Civil Procedure - respondent contending original purchaser obtained the land from government by fraud, without proper procedure and hearing - seeking permission to bring on record additional evidence on the ground "for any other substantial cause" - serious allegations- it would involve remanding the matter to trial- not proper at this stage- alternative remedy available- application rejected. (para 8 and 9)
       D.Alluvial land - pre-emptive right to get allotment of - Having regard to the wide terms of Section 37 of the Code the intendment of Section 64 of the Code, all alluvial lands which do not come within the exception which is laid down in Section 46 of the Code do vest in the Crown for the purpose of the Province it would be open to the Collector to dispose of the same subject no doubt to the limitations which have been imposed in Section 63 of the Code, viz., that the occupant of the adjacent land should be first offered an outsider should be offered only in the event of a refusal by the occupant to take it up on the terms therein mentioned - In order, therefore, that a person can be an "occupant" to whom the alluvial land has got to be offered by the Collector, he must first be a holder he must be in actual possession of unalienated land. ( para 7 and 10)

       Relied upon: Ismail Ariff v. Mahomed Ghous, 20 Cal. 834: (20 I. A. 99 P. C.)

Judgement Key Points

Key Points: - The court held that alluvial lands not falling within Section 46 vest in the Crown and can be disposed of by the Collector under Section 63, with Section 64 providing the occupant’s right to temporary use if the area does not exceed one acre (!) (!) . - The grant dated 29-10-1942 in favor of Capt. Ansell was within the Collector’s powers under Section 64 and was valid, making Capt. Ansell the riparian owner for the purposes of that grant, thereby affecting the rights claimed by others (!) (!) (!) (!) . - The applicant-plaintiffs were in possession at the time of suit and are entitled to injunctive relief under Section 54, Specific Relief Act, and Ismail Ariff v. Mahomed Ghous establishes that possession can support a relief of injunction even without proving full title (!) (!) (!) . - The consent decree in Suit No. 44 of 1941 did not give deft. 1 rights to the alluvial land; his claimed rights were limited to interests in the adjacent land and did not extend to possession of the alluvial land, which remained with Capt. Ansell or the Crown, as determined by the appellate court (!) (!) (!) . - The appellate court’s findings that the plaintiffs failed to prove title were reversed; the Supreme Court restored the trial court’s decree in favor of the plaintiffs, affirming their rights to injunctive relief and possession (!) (!) (!) (!) . - The respondent’s application for additional evidence under Order 41, Rule 27 was rejected as inappropriate given the stage of proceedings and the nature of alleged fraud or forgery in the original grant (!) (!) . - The decision clarifies that an alluvial land grant to Capt. Ansell did not survive as a right in deft. 1 to enforce possession or output rights over the alluvial land (!) .

What is the status of ownership or title to the alluvial land in question and the effect of the 29-10-1942 grant to Capt. Ansell on the rights of the plaintiff-appellants?

What is the proper interpretation and application of Bombay Land Revenue Code sections 63 and 64 regarding disposition of alluvial land and the concept of an occupant of adjacent land?

What is the extent to which possession or title is required to grant injunction under the Specific Relief Act, and whether possession suffices to establish rights against a trespasser?

Judgment

Bhagwati, J.

1. This is a second appeal against the decision of the learned Dist. J. Surat who modified the decree passed by the learned Civil Judge at Bulsar in favour of the pltfs. The facts which gave rise to this second appeal may be shortly stated as under.

2. The suit land is an alluvial land adjoining a piece of land out of survey No. 302/1/1 of Bhadeli Jagalala measuring about 15 acres. The adjacent land of about 8 acres out of this survey No. 802/1/1 belonged to certain Kolis it was purchased from them by deft. 1 by a sale-deed dated 25 9-1937. The Kolis were, however, not in possession of that piece of land but one Mrs. Ansell was in possession of the same. It was, therefore, agreed between deft. 1 the Kolis that if the Kolis got possession of the said land, they should hand it over to deft. 1 or deft. 1 should obtain possession of the land by lawful means from Mrs. Ansell. Mrs. Ansell, however, continued in possession of the same the possession of that piece of land could not be recovered either by the Kolis or by deft. 1. Defendant 1, therefore, filed a suit being Suit No. 44 of 1941 in the Ct. of the Second Class Subordinate Judge at Bulsar against Mrs. Ansell claiming possession of the piece of land together with the trees therein for damages, injunction other reliefs. Mrs. Ansell died during the pendency of that suit her son Capt. Ansell was brought on the record of the suit as her son heir. Daring the pendency of this suit applns. were made by Mrs. Ansell as also by the Kolis for allotment to them of this alluvial land which was adjoining to the piece of land in dispute in the suit on 29-10-1942, the Govt. granted this alluvial land to Capt. Ansell under a grant which is Ex. 98 in the case. A sketch was annexed to this grant. The property in dispute in that suit was marked with the red letter D in the sketch the alluvial land which was adjoining thereto was marked with the red letter B. The property marked with the red letter D was described in the sketch as forming part of survey No. 302/1/1 as being in possession of Mrs. Ansell. It was further noted that her name was registered as the kabjedar or person in possession in the records. The land marked with the red letter B was described as comprising 15 acres as the property which had been claimed by Mrs. Ansell. The grant which was made on 29-10-1942, was in fact made in favour of Capt. Ansell, the son heir of Mrs. Ansell, in the grant it was stated that the alluvial land should be given to the riparian owner Capt. Ansell on his paying occupancy price equal to three times the assessment. The grant also mentioned that the appets. Jeram Gopal others of the village who had requested for granting the land to them for the village use should be informed that their request was refused since the riparian owner had a better right over the land. Jeram Gopal others were the Kolis who had sold the land which was the subject-matter of Suit No. 44 of 1941 to deft. 1.

3. Suit No. 44 of 1941 resulted in a consent decree under the terms of that consent decree a piece of property out of the suit property admeasuring 8 or 14 gunthas as mentioned in the judgment of the lower appellate Ct. was declared to be of the ownership of Capt. Ansell Capt. Ansell agreed to pay Rs. 100 to deft. 1 in lieu of the same. Capt. Ansell gave in favour of the pltf. all his rights or share (hak hissa) over the property thats was in his possession out of the suit property remaining after leaving the property above mentioned deft. 1 was to enjoy all those rights Capt. Ansell was to give to him on 15-5-1943, the possession of the property which remained after leaving the property above described. The consent decree proceeded to state that the property reserved for Capt. Ansell which stood in the name of Capt. Ansell should be kept as it was Capt. Ansell should give the necessary statement or kabulayat for getting the remaining property entered in the name

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