The burden of proof lies on the plaintiff to establish dispossession within 12 years prior to the suit and to prove possession in cases of land disputes. The principle of constructive possession applies in determining possession and dispossession in land disputes.

JUDGMENT

Newbould, J. - The plaintiff brought the suit out of which this appeal arises for declaration of his title and also recovery of possession of about 1,000 bighas of land. He succeeded in obtaining a decree for a part only of the land claimed and appealed to this Court. His appeal was heard by a Divisional Bench of this Court consisting of Woodroffe and Cuming, JJ. There was a difference of opinion. Woodroffe, J., holding that the appeal should be dismissed while Cuming, J., was in favour of allowing the appeal in part. They held that as there was a difference of opinion and there was no majority varying or reversing the decree appealed from, the appeal should be dismissed. Against this decision the Plaintiff has porferred an appeal under Clause 15 of the Letters Patent. A preliminary objection has been taken that no appeal lies. This objection we overruled at the commencement of the hearing of the appeal. Though we accept the contention of the learned vakil for the Respondents that the decision of the Judicial Committee in Bhaidas Shivdas v. Bai Gulab AIR 1921 P.C. 6 shows that the procedure laid down in Section 98 of the CPC was wrongly applied in the present case, that is immaterial. Had the provisions of Clause 36 of the Letters Patent been followed, the result would have been the same, since the opinion of Woodroffe, J., who is the senior Judge would prevail. Under Clause 15 of the Letters Patent this appeal is clearly competent.

2. The present suit is due to events primarily caused by the movements of the river Ganges at a part where under the name of Bhagirathi it flowed between the Nadia District on its north and the Burdwan District on its south. At the time of the Revenue Survey by Government of 1855 there were chars on both sides of the river. On the north side was char Baliadanga which was temporarily settled with the Defendants predecessors in two estates bearing Touzi Nos. 824 and 2460 of the Nadia Collectorate. On the south side was a char adjoining Mouza Kabirajpur which is a part of the estate bearing Touzi No. 10 of the Burdwan Collectorate, and in this village the Plaintiff has putni right to certain plots. The river moved gradually in a southerly direction causing accretions to char Baliadanga and diluviating first the char adjoining. Kabirajpur and subsequently also part of the Kabirajpur Mouza. This alluvion and diluvion continued until the accretions to char Baliadanga became reformations in situ of Kabirajpur land. While this was going on Government made three surveys and settlements of the land which accreted to char Baliadanga in the years 1880, 1890 and 1903. Even in 1890, some land of Kabirajpur was settled with the Dsfendents as proprietors of estates Nos. 824 and 2460 and in 1890 still more land of that mouza was settled with the Defendants. During the survey and settlement of 1903 the mistake was discovered and the land found to be reformation in situ of Mouza Kabirajpur was excluded from the settlement. The temporarily settled estates Nos. 824 and 2460 were originally undivided - four annas and twelve annas shares of char Baliadanga. In 1893 a partition suit was brought which after protracted litigation ended in a division of the land after survey by a Commissioner in 1899. The plaintiff instituted the suit, out of which the appeal arises, on the 25th February 1916. He originally claimed approximately 1,000 bighas of land. In the trial Court he gave up his claim to a large tract on the east, and at the hearing of the first appeal to this Court, he no longer claimed the land which had been settled with Defendants after the 1903 survey. He originally 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 abosista chak or unnumbered residue. The learned Subordinate Judge gave the