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1938 Supreme(Cal) 265
CALCUTTA HIGH COURT
Abdul Latif & Ors. - Appellant
Versus
Nawab Khajeh Habibulla & Ors. - Respondent
Decided On : 11-08-1938
Headnote:
Adverse Possession - Land Ownership - Limitation Act, 1877 Sections 142, 144 - The court analyzed the applicability of Sections 142 and 144 of the Limitation Act, 1877, in determining the time limit for claiming possession of land that had re-formed after a river shifted its course. The court held that Section 144, which requires proof of adverse possession for 12 years, applied in this case because the plaintiffs were not physically dispossessed but rather their possession was interrupted by the formation of the land and subsequent occupation by others. The court also considered the impact of a deed executed by the government acknowledging the plaintiffs' title and the implications of the defendants' possession for more than 12 years. The court's decision was influenced by the interpretation of the concept of 'dispossession' and the legal principles governing adverse possession.
Fact of the Case:
The plaintiffs, 32 in number, claimed title to land that had re-formed on the eastern side of a river, which had shifted its course. The defendants claimed the land as accretions to a government estate or as Crown lands. The dispute centered around the time when the land became fit for possession and whether the defendants had acquired title through adverse possession.
Finding of the Court:
The court found that the land in dispute was part of the plaintiffs' village. It determined that the land had become fit for possession at different times for different portions. The court held that the defendants had been in possession of a portion of the land for more than 12 years, but this possession did not extinguish the plaintiffs' title completely. The court also found that the defendants were tenants of the plaintiffs at the time of the suit.
Issues: The main issues were: (1) whether the plaintiffs' suit was barred by time under the Limitation Act, 1877, specifically Sections 142 and 144; (2) whether the defendants had acquired title by adverse possession; (3) what relief the plaintiffs were entitled to in light of the defendants' possession and the government's acknowledgment of the plaintiffs' title.
Ratio Decidendi: The court applied the principle that Section 144 of the Limitation Act, 1877, applies when the rightful owner is not physically dispossessed but rather their possession is interrupted by the formation of the land and subsequent occupation by others. The court also held that the government's acknowledgment of the plaintiffs' title did not extinguish the defendants' rights acquired through adverse possession. The court concluded that the plaintiffs were entitled to a declaration of their title and to have their possession confirmed through the defendants, who were considered their tenants at the time of the suit.
Final Decision: The court allowed the appeal in part and modified the decree of the lower court. The plaintiffs were granted khas possession of a portion of the land and a declaration of their title to the remaining portions. The court confirmed the plaintiffs' possession through the defendants, who were considered their tenants at the time of the suit.
JUDGMENT
1. This appeal is on behalf of defendants 2 and 7 to 10 in a suit for establishment of title and recovery of possession. The plaintiffs are 32 in number. Plaintiffs 1 to 31 claim title on the basis of a patni taluk granted to their predecessor in interest, Bibi Manjura Banoo by the 13 annas proprietors of Touzi No. 22 of the Tippera Collectorate in the year 1880. The patni kabuliat is Ex. 28, an extract from which is printed at 11-181. It included village Sovarampore, alias Jitrampore. Plaintiff 32 is the proprietor of the remaining 3 annas share of the said estate. The plaintiffs' case is that the lands in suit which are described in three schedules, A, B and C, annexed to the plaint are re-formations in situ of their village Sovarampore, on the other side, namely the eastern side, of the river Meghna, which at the time of the that and revenue survey, formed the eastern boundary of their village, but which since then has shifted its course far to the west. According to them the lands in suit began to rise above water from 10 or 12 years before the suit which was filed on 15th September 1925, and the lands of Schedules A, B and C became fit for possession at different times. In the plaint they do not state precisely when the lands of Schedule A became so fit, but in respect of the lands of Schedules B and C the statement is that they "formed and became fit for cultivation 7 or 8 years before the suit." The contesting defendants claim the lands in suit as re-formations in situ of or accretions to the Government Khas Mehal Estate Char Maricha Kandi, Touzi No. 2717 of the Tippera Collectorate. Nos. 7-10 claim under a taluka settlement from the Government, that is, they set up the claim to hold them as permanent tenure holders under the Government under Ex. 21(11-158). Defendant 2 claims that Schedules A and G and a good part of the lands of Schedule B falls within his occupancy holding held under defendants 7 to 10. The other defendants do not appear. The contesting defendants set up an alternative case (para. 38 of the written statement of defendants 7 to 10), that if the lands in suit or any portion thereof do not form a part of Government Estate Char Maricha Kandi, they were in the bed of the navigable river Meghna at the time of the that and revenue survey and they are accordingly the Crown lands of the Government. In that case they say the plaintiffs are to be defeated on the plea of jus tertii.
2. In the written statement there is no assertion that no part of Sovarampore was included in Bibi Manjuri Banoo's patni, but the statement is that plaintiffs 1-31 did not purchase the putni, at least they got no title to the said village by their purchase. They say that the lands of Schedule A had formed and had become fit for possession before 1900 and were being possessed by their predecessors since then through their tenants, and that the lands of Schedules B and C had formed and had become fit for possession long before 1910 and were being similarly possessed since they became so fit. They accordingly say that the plaintiffs' suit is barred by time; at any rate their title, if any, has been extinguished by their adverse possession. There is a special defence of defendant 2 contained in para. 15 of his written statement. It is that as he has been bona fide holding the lands in ryoti right he cannot in any case be ejected. This defence is founded on the principle laid down in Binadlal prakrshi v. Kale Pramanik (1893) 20 Cal. 708 (F.B.).
3. For the purpose of determining whether the lands in suit form part of Mouza Sovarampore a Civil Court Commissioner was appointed to relay the relevant maps. He relayed them and reported that all the lands in suit fell within the plaintiffs' village Sovarampore. His map is map No. 1 in part II of the map volumes. In his map he has shown the position of the river Meghna as it was at the time of the that and revenue survey. It is just to the east of the lands in suit. The Subordinate Judge ac
