1964 Supreme(All) 108

Allahbad High Court
GANGESHWARPRASAD
Kapildeo Rai - Appellant
Versus
Har Narain Ahir - Respondent
Decided On : 07/08/1964

Headnote:

RIVER BOUNDARY - CHANGE IN COURSE - ACCRETION - IDENTIFICATION - LIMITATION - ADHIVASI RIGHTS - U.P. TENANCY ACT, 1939, SEC. 180 - U.P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, SEC. 20(B) - U.P. LAND REFORMS (SUPPLEMENTARY) ACT, SEC. 3.

Fact of the Case:

The plaintiffs, Zamindars and tenants of village Indarpur, filed suits against the residents of village Cheruiyan for perpetual injunction restraining the defendants from interfering with the plaintiffs' possession over certain plots of agricultural land and in the alternative for possession. The defendants pleaded that under an immemorial custom river Sarju was the constant boundary between villages Indarpur and Cheruiyan and whatever land was thrown upon the western side of the river on account of its fluvial action accreted to village Cherulyan and the plaintiffs lost their rights to it.

Finding of the Court:

The court found that the land in dispute was formerly a part of village Indarpur and lay on the eastern side of river Sarju but it was transferred to the western side of the river as a result of a change in the course of the river. The transfer of the land in dispute to the western side was, however, by gradual accretion during the course of a period of about 60 years preceding the suits and it did not take place on account of a sudden emergence of the land out of the water of the river in 1941 as alleged by the plaintiffs. The custom set up by the defendants was not established and river Sarju was not the constant boundary between villages Indarpur and Cheruiyan. The plaintiffs were not in possession of the disputed land on the date of the suit nor were they in possession thereof within the period of limitation allowed for instituting a suit for possession and consequently they lost their rights in the land. The defendants were, on the other hand, in possession and had acquired rights in the land on account of the expiry of the period of limitation prescribed for suits for possession against them. The plaintiffs had not succeeded in proving that the land in dispute used to remain under water every year during the rainy season and as such the possession of the defendants was not interrupted and limitation was not saved. The defendants had further acquired adhivasi rights in some of the plots in dispute.

Issues: 1. Whether the land in dispute or any part thereof is identifiable? 2. Whether the plaintiffs lost their rights in the land in dispute because of not being in possession within the period of limitation prescribed for the institution of a suit for possession and whether the defendants acquired rights in the land on that account? 3. Whether the defendants acquired Adhivasi rights in the land in dispute or any part of it?

Ratio Decidendi: 1. The law on the matter of change in the course of a river and accretion is settled. If the land in dispute is identifiable with reference to its physical features, land marks, or by measurement, it should be deemed to continue to belongs to the former owner, whether its transfer from one side of the river to the other was by a sudden change in the course of the river or was the result of the river gradually receding on one side and throwing up land on the other unless a custom to the contrary is established. 2. The period of limitation for a suit for possession prior to the coming into force of the U.P. Tenancy Act of 1913 was 12 years commencing from the time when the landholders first knew of the unauthorised occupation. After the enforcement of the U.P. Tenancy Act of 1939 a suit for possession had to be brought under Sec. 180 of the Act. 3. Submersion of a land under water puts an end to the possession of the person who was in wrongful possession of it before the submersion and restores the land to the possession of the rightful person who is deemed to be in constructive possession of it during the period of submersion. The principle that a land seasonally submerged under water every year reverts to the possession of the owner was applicable to suits under Sec. 44 of the Agra Tenancy Act of 1926 and Sec. 180 of the U.P. Tenancy Act of 1939. 4. Adhivasi rights could have been acquired under S. 29(b) of the U.P. Zamindari Abolition and Land Reforms Act and under Sec. 3 of the U.P. Land Reforms (Supplementary) Act.

Final Decision: The appeals were allowed, the decrees of the lower appellate court were set aside and the cases were remanded to the lower appellate court for being reheard and disposed of in the light of the observations and the directions made above.