Bhagwati, J.:—
This is a second appeal against the decision of the learned District Judge of Surat who modified the decree passed by the learned Civil Judge at Bulsar in favour of the plaintiffs. The facts which gave rise to this second appeal may be shortly stated as under.
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. 302/1/1 belonged to certain Kolis and it was purchased from them by defendant No. 1 by a sale-deed dated September 25, 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 defendant No. 1 and the Kolis that if the Kolis got possession of the said land, they should hand it over to defendant No. 1 or defendant No. 1 should obtain possession of the land by lawful means from Mrs. Ansell. Mrs. Ansell, however, continued in possession of the same and the possession of that piece of land could not be recovered either by the Kolis or by defendant No. 1. Defendant No. 1, therefore, filed a suit being suit No. 44 of 1941 in the Court of the Second Class Subordinate Judge at Bulsar against Mrs. Ansell claiming possession of the piece of land together with the trees therein and for damages, injunction and other reliefs. Mis. Ansell died during the pendency of that suit and her son Capt. Ansell was brought on the record of the suit as her son and heir. During the pendency of this suit applications 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 and on October 29, 1942, the Government granted this alluvial land to Capt. Ansell under a grant which is exh. 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 and 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 and 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 and as the property which had been claimed by Mrs. Ansell. The grant which was made on October 29, 1942, was in fact made in favour of Captain Ansell, the son and heir of Mrs. Ansell, and 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 applicant Jeram Gopal and 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 and others were the Kolis who had sold the land which was the subject-matter of suit No. 44 of 1941 to defendant No. 1.
Suit No. 44 of 1941 resulted in a consent decree and 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 Court was declared to be of the ownership of Capt. Ansell and Capt. Ansell agreed to pay Rs. 100 to defendant No. 1 in lieu of the same. Capt. Ansell gave in favour of the plaintiff all his rights or share (hak hissa) over the property that was in his possession out of the suit property remaining after leaving the property above mentioned and defendant No. 1 was to enjoy all those rights and Capt. Ansell was to give to him on May 15, 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 and which stood in the name of Capt. Ansell should be kept as it was and Capt. Ansell should give the necessary statement or kabulayat for getting the remaining property entered in the name of defendant No. 1 and defendant No. 1 should pay the Government revenue in respect of the same. Capt. Ansell agreed to give to defendant No. 1 the property out of the property mentioned above after removing the barbed wire fencing with the nails which had been put up by Capt. Ansell. A description of the property was annexed to the consent decree in which the boundary to the west was described as the Arabian Sea after leaving the Government land that had come out of the sea. This consent decree was obtained on April 14, 1943, and five days later, viz. on April 19, 1943, Capt. Ansell sold to the original plaintiffs in this suit the alluvial land which had been granted to him by the Government under the grant of October 29, 1942. On December 31, 1943, the father of defendant No. 1 entered into an agreement on his behalf with defendant No. 2 granting him certain rights to cut babul trees on this alluvial land for the consideration therein mentioned. Defendant No. 2 exercised these rights under that agreement and it was thereupon that the original plaintiffs filed this suit against defendants Nos. 1 and 2 asking for an injunction restraining them from entering upon the suit land or ushering their men in it to cut babul trees and from removing them therefrom.
The suit came on for hearing before the learned Civil Judge at Bulsar, who, after hearing the evidence, oral as well as documentary led before him, came to the conclusion that the plaintiffs had established their title to the suit land, that they had been in possession thereof at the date of the filing of the suit and that they were entitled to the injunction as prayed, and he passed a decree accordingly in favour of the plaintiffs.
Defendant No. 1 filed an appeal against this decision. Pending the disposal of the appeal the original plaintiffs by a conveyance dated July 14, 1948, transferred the alluvial land to the present appellants, who were substituted in place and stead of the original plaintiffs in the appeal. The appeal was finally heard by the learned District Judge, Surat, who came to the conclusion that the plaintiffs had not proved their title to the suit land, that they had failed to prove their possession thereof and that they were not entitled to the injunction as prayed, except in regard to the small portion of land which had been reserved by Capt. Ansell to himself admeasuring 8 or 14 gunthas out of survey No. 302/1/1. The learned District Judge, therefore, modified the decree of the trial Court in accordance with that judgment of his. This decree of the learned District Judge of Surat has been appealed against and has come on for hearing before us in second appeal.
The questions which have been agitated before us are, firstly whether the plaintiffs established their title to the suit land, secondly, whether in any event defendant No. 1 acquired any right to the suit land under the terms of the consent decree in suit No. 44 of 1941, and, thirdly, whether the plaintiffs are entitled to an injunction as prayed for.
The first question in regard to the title of the plaintiffs to the suit land turns on the construction of certain sections of the Bombay Land Revenue Code, 1879. This being an alluvial land and first sections which we have got to consider are ss. 63 and 64 which run as under:
“63. When it appears to the Collector that any alluvial land, which vests under any law for the time being in force in the Crown for the purposes of the Province, may with due regard to the interests of the public revenue be disposed of, he shall offer the same to the occupant (if any) of the bank or shore on which such alluvial land has formed.
The price of the land so offered shall not exceed three times the annual assessment thereof.
If the said occupant shall refuse the offer, the Collector may dispose of the land without any restrictions as to the price to be asked.”
“64. When alluvial land forms on any bank or shore, the occupant, if any, of such bank or shore shall be entitled to the temporary use thereof unless or until the area of the same exceeds one acre. When the area of the alluvial land exceeds the said extent, it shall be at the disposal of the Collector subject to the provisions of the last preceding section.”
Section 63 deals with the manner in which the Collector can dispose of alluvial land which vests under any law for the time being in force in the Crown for the purposes of the Province. Section 64 lays down the right of the occupant of the adjacent land to the temporary use of the alluvial land unless or until the area of the alluvial land exceeds one acre. If, however, the area of the alluvial land exceeds one acre, the Collector is entitled to dispose of the same subject to the provisions of s. 63. It may be noted that s. 64 makes no distinction between alluvial land which vests under any law for the time being in force in the Crown for the purposes of the Province and which vests under any law for the time being in force in any other party. It deals with alluvial land which exceeds one acre in area. If such alluvial land exceeds one acre in area, the Collector is entitled to dispose of the same, but the limitation which is imposed on his power of disposal is that he cannot dispose of it except in accordance with the provisions of s. 63 where the same would be applicable. Section 63 provides for a particular type of cases only, viz. where the alluvial land vests under any law for the time being in force in the Crown for the purposes of the Province. The other cases where the alluvial land might vest under any law for the time being in force in any other person are not covered by the provisions of s. 64 and in such cases one would have to look to other provisions of law in that behalf. So far as alluvial land could vest under any law for the time being in force in the Crown for the purposes of the Province we have s. 37 of the Code which lays down that all public roads, lanes and paths, the bridges, ditches, dikes, and fences, on, or beside, the same, the bed of the sea and of harbours and creeks below high water mark, and of rivers, streams, nallas, lakes, and tanks, and all canals, and water-courses, and all standing and flowing water, and all lands wherever situated, which are not the property of individuals, or of aggregates of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force are and are hereby declared to be, with all rights in or over the same, or appertaining thereto, the property of the Crown, and it shall be lawful for the Collector, subject to the orders of the Commissioner, to dispose of them in such manner as he may deem fit, or as may be authorised by general rules sanctioned by the Government concerned, subject always to the rights of way, and all other rights of the public or of individuals legally subsisting. This section enacts in as wide terms as possible the ownership of the Crown in all public roads, etc., and all lands which are not the property of others wherever situated, so that unless and until it is established that under any law for the time being in force the alluvial land vested in any person other than the Crown, the Crown would be the owner of the same. It was, however, pointed out in the arguments before us by Mr. S.M Shah for the respondents that s. 46 of the Code provided for cases where alluvial lands could vest under any law for the time being in force in the holders of alienated lands. This is, in our opinion, an exception to the general rule laid down in s. 37 of the Code. It is only in those cases where the land is alienated, i.e transferred in so far as the rights of the Provincial Government to payment of the rent or land revenue are concerned, wholly or partially, to the ownership of any person [vide s. 3(20) of the Code], that this s. 46 comes into operation. It may have to be considered whether under any law for the time being in force the alluvial land vests in the holder of the alienated land. Then would come the question of considering whether these alluvial lands are liable to the payment of land revenue in spite of the fact that the alienated lands themselves to which they are accretions were not so liable. This is a special case which has been provided for in s. 46 of the Code, and it cannot, therefore, be urged by having resort to the same that s. 37 of the Code would not apply to alluvial lands in the manner which we have indicated above. In our opinion, except to the extent that alluvial lands might vest under any law for the time being in force in any holder of alienated land under the provisions of s. 46 of the Code, all alluvial lands to which no individuals or aggregates of persons legally capable of holding property could lay claim as having vested in them are declared as of the ownership of the Crown and these alluvial lands would, therefore, come within the ambit of s. 63 of the Code which enacts the powers of the Collector over such alluvial lands which vest under any law for the time being in force in the Crown for the purposes of the Province. If we acceded to the argument which was advanced by Mr. S.M Shah for the respondents, viz. that s. 64 should be read in the restricted manner as covering only those cases which fell within the ambit of s. 63 of the Code, it would involve us into the absurdity that according to the general principles of the common law as propounded before us all owners of the adjacent lands would be the owners of the alluvial lands adjoining thereto and there would be no case whatever of the Crown ever having any alluvial land vested in it. Considerable stress was laid on the argument which found favour with the lower appellate Court based on the decisions in Nasarvanji Pestanji v. Nasarvanji Darasha and Thakurain Ritraj v. Thakurain Sarfaraz(2) that an alluvial land is an accretion to the adjacent land and should be held to belong to the owner of the adjacent land. If that is the correct position in law, no alluvial land would ever vest in the Crown. All owners of the adjacent lands would have the alluvial lands as accretions to the lands of their ownership and ss. 63 and 64 would be a dead letter put on the statute book by the Legislature without having done anything between the year 1879 and the year 1950 byway of claiming any alluvial land as having ever vested in the Crown. We are not prepared to go to that absurd length. We cannot read s. 64 as being confined only to the case of alluvial lands which are within the ambit of s. 63 of the Code. The terms of s. 64 are very wide and there is no warrant or justification for reading them in that restricted manner. Having regard to the wide terms of s. 37 of the Code and the intendment of s. 64 of the Code, we have come to the conclusion that all alluvial lands which do not come Within the exception which is laid down in s. 46 of the Code do vest in the Crown for the purposes of the Province and it would be open to the Collector to dispose of the same subject no doubt to the limitations which have been imposed in s. 63 of the Code viz. that the occupant of the adjacent land should be first offered and an outsider should be offered only in the event of a refusal by the occupant to take it up on the terms therein mentioned.
This being the true position in law, we have got to consider what was the effect, it any, of the grant which was made by the Government in favour of Capt. Ansell on October 29, 1942. Before we proceed to do so, however, this is the proper place for us to refer to an application which was made by Mr. S.M Shah for the respondent for taking additional evidence under O. XLI, r. 27, of the Civil Procedure Code. He urged before us that after the decision in this suit was given by the trial Court defendant No. 1 made an application to the Government to revise the order, dated October 29, 1942, inter alia on the grounds of fraud and forgery, the fraud being that Mrs. Ansell and her son Capt. Ansell after her had obtained the order fraudulently and by a clear subterfuge, the forgery being that to bring about the desired result Government records were tampered with. It does not appear whether Capt. Ansell or his successors-in-interest in regard to this alluvial land were ever heard by the Government. It is of the very essence of these proceedings that before passing any order against a party even the Government should conform to the principles of natural justice and hear the party or parties against whom any order is sought to be made. Even though it may be urged that these orders are ultimately made by the Government having resort to the provisions of s. 211 of the Bombay Land Revenue Code, 1879, we are of the opinion that it is incumbent upon the Government to hear the parties against whom orders are going to be made by it. On the record of the case we do not know at all whether Capt. Ansell or his successors-in-interest in regard to this alluvial land were ever heard by the Government. Mr. S.M Shah, however, pointed out to us that on December 17, 1947, an order was made by the Government under which the Collector of Surat had been asked to put defendant No. 1 in possession of the alluvial land adjoining survey No. 302/1/1 of Bhadeli Jagalala, District Surat, if defendant No. 1 paid the occupancy price equal to three times the assessment. By what process of reasoning that conclusion was arrived at by the Government we are absolutely in the dark. Defendant No. 1 attempted to take possession of the alluvial land in pursuance of this order dated December 17, 1947, and it was, therefore, that in this second appeal No. 1076 of 1947 a rule was granted by this Court and was made absolute restraining the respondents from attempting to take possession of the alluvial land in pursuance of the order of the Government, dated December 17, 1947. As a matter of fact apart from this rule which was made absolute by this Court, on the application of the present appellants an order was made by the Government on February 23, 1949, under which the Collector of Surat was requested not to disturb the possession of the alluvial land in question pending the decision of the High Court on the appeal preferred by the appellants and the appellants were asked to approach the Collector of Surat in the matter.
These were the circumstances which were sought to be proved by Mr. S.M Shah for the respondent in his application for additional evidence under O. XLI, r. 27, of the Code. He urged that in the interests of justice or for adjudicating upon all the rights of the parties before us we should allow this additional evidence to be taken. When his attention was drawn to the provisions of O. XLI, r. 27, of the Code, he could only point out the ground “for any other substantial cause” as justifying his application. We have already pointed out that the order dated December 17, 1947, was obtained by defendant No. 1 on the allegations inter alia of fraud and forgery. We have already stated that we do not know whether Capt. Ansell or his successors-in-interest in regard to this alluvial land were ever heard by the Government. In any event such serious allegations in regard to fraud and forgery could not be entertained by us vitiating the original grant, dated October 29, 1942, which had been made by the Government in favour of Capt. Ansell. If they were entertained by us, it would involve our going into the question whether the original grant, dated October 29, 1942, was obtained by Cap. Ansell by fraud and forgery. We could not take evidence here in regard to those allegations and it would involve our remanding the case to the trial Court to record its finding after framing proper issues in that behalf. After all, the provisions of O. XLI, r. 27, of the Code, invest us with a discretion in the matter of allowing additional evidence and under these circumstances we feel that it would be unfair to the appellants and would not be in the interests of justice at this stage to grant such an application for taking additional evidence. If defendant No. 1 had any grievance in that behalf, he having obtained the necessary order from the Government on December 17, 1947, would be in a position to file a substantive suit against the appellants, if so advised, basing his title to the alluvial land on that grant or order which he had obtained from the Government and pursue the appellants in the proper forum in order to substantiate his rights, if any. We, therefore, reject this application for additional evidence made by Mr. S.M Shah for the respondents.
We have already pointed out that this alluvial land vested in the Crown under the provisions of s. 37 of the Code, and the area of this land being in excess of one acre, it was open to the Collector to dispose of the same under the provisions of s. 64 of the Code. He could not, however, do so without having regard to the provisions of s. 63, and he was, therefore, bound to offer the alluvial land to the occupant of the adjacent land. The terms “occupant” has been defined in s. 3(16) of the Code. The “occupant” means a holder in actual possession of unalienated land, other than a tenant: provided that where the holder in actual possession is a tenant, the landlord or superior landlord, as the case may be, shall be deemed to be the occupant. The term “holder” is defined in s. 3(11): “to hold land” or to be a “landholder” or “holder” of land means to be lawfully in possession of land, whether such possession is actual or not. 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 and he must be in actual possession of unalienated land. It was urged that defendant No. 1 was an occupant and therefore it was the duty of the Collector before giving this alluvial land to any other party to offer it to him. The difficulty, however, in the way of defendant No. 1 is that even though he might in a conceivable case be the holder of the land by reason of the consent decree which was obtained by him against Capt. Ansell on April 14, 1943, he was certainly not in actual possession of the land. Even in the plaint which he had filed against Capt. Ansell he had stated that the Kolis were not in possession of the land but Mrs. Ansell was in possession thereof and that the Kolis were to make all efforts to obtain possession and hand it over to defendant No. 1 or defendant No. 1 was at liberty to adopt such proceedings as he was advised to obtain such possession. In the consent decree itself it was stated that Capt. Ansell should hand over possession of the suit property except the portion reserved for himself to defendant No. 1. Clause (3) of the consent decree mentioned that Capt. Ansell had given in favour of defendant No. 1 all his rights or share (hak hissa) over the property that was in his possession out of the suit property remaining after leaving the property which had been reserved to himself. If this is no clear admission of the possession of Capt. Ansell over this property which was the subject-matter of the suit, we do not understand what else it is. Even after obtaining this consent decree, in exh. 117 which is the agreement which was entered into between the father of defendant No. 1 acting on his behalf and defendant No. 2, for the cutting of the babul trees on the alluvial land, Mrs. Ansell and thereafter Capt. Ansell had been described as persons in possession, though wrongfully according to the construction put upon this document by the Lower appellate Court. All this goes to show that so far as possession was concerned defendant No. 1 was certainly not in possession of the adjacent land and therefore did not enjoy the status of an occupant which it was necessary for him to do before the Collector would be bound to offer the alluvial land to him under the provisions of s. 63 of the Code. If this was the true position, there was no question of the Collector offering the alluvial land to defendant No. 1 and there was no question of his ever refusing to take the same. The provisions of s. 63 of the Code did not come into operation at all, and therefore having regard to the provisions of s. 64 of the Code, the Collector was entitled to dispose of the alluvial land unfettered by the provisions of s. 63. This he did when he made the grant, dated October 29, 1942, in favour of Capt. Ansell. It was urged that in the grant itself he described Capt. Ansell as the riparian owner. Whatever be the description, the fact survives that there was no breach of any of the provisions of s. 63 of the Code, non-compliance with which would have given some vestige of a right to defendant No. 1. Defendant No. 1 was out of the picture altogether by reason of the fact that he was not the occupant of the adjacent land, and it was open to the Collector to dispose of the alluvial land unfettered by any limitations imposed on his power of the nature contained in s. 63 of the Code. The Collector decided between the Kolis on the one hand who wanted the alluvial land for the village use and Mrs. Ansell and Capt. Ansell on the other whom he described as the riparian owners. Whether they were the owners of the adjacent land is not clear on the record. Whether the Collector considered them to be the owners of the adjacent land is similarly not clear on the record. But one thing is clear and it is this that Capt. Ansell was the person to whom the grant was made by the Collector acting under the powers which he had under s. 64 of the Code and therefore the grant which he made on October 29, 1942, was well within his powers and was a valid grant made by the Government to Capt. Ansell of the alluvial land which is the subject-matter of this suit.
This is the title of the plaintiffs to the suit land and we are satisfied that the plaintiffs have succeeded in establishing the same. Assuming, however, that we may be wrong in the construction of the relevant sections of the Bombay Land Revenue Code which we have put upon them as above, it remains to consider whether even otherwise the plaintiffs are not entitled to succeed in this suit which they have filed against defendants Nos. 1 and 2. The position as it obtained at the date when the suit was filed was that the plaintiffs were in possession of the land by virtue of the title which they had obtained under the grant of October 29, 1942, and the transfer which had been made by Capt. Ansell in their favour. In order to entitle the plaintiffs to obtain the relief which they had prayed for in the plaint, viz. injunction against defendants Nos. 1 and 2 it would not be strictly necessary for them to prove their title to the suit land, because under s. 54 of the Specific Relief Act even if they proved that the defendants invaded or threatened to invade their enjoyment of property, the Court would grant a perpetual injunction in the cases therein mentioned. Mr. A.G Desai for the appellants drew our attention to a decision of their Lordships of the Privy Council in Ismail Ariff v. Mohamed Ghous where it was held that lawful possession of land was sufficient evidence of right as owner, as against a person who had no title whatever, and who was a mere trespasser. The former could obtain a declaratory decree, and an injunction restraining the wrongdoer. The ratio of the judgment of their Lordships of the Privy Council is to be found in the passage at p. 842:
“It appears to their Lordships that there is here a misapprehension of the nature of the plaintiff's case upon the facts stated in the judgment. The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By section 9 of the Specific Relief Act (Act I of 1877), if the plaintiff had been dispossessed otherwise than in due course of law, he could, by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able to prove a title, it is certainly right and just that he should be able, against a person who has no title and is a mere wrong-doer, to obtain a declaration of title as owner, and an injunction to restrain the wrong-doer from interfering with his possession. The Appellate Court, in accordance with the judgment above quoted, has dismissed the suit. Consequently, the defendant may continue to wilfully, improperly, and illegally interfere with the plaintiff's possession, as the learned Judges say he has done, and the plaintiff has no remedy. Their Lordships are of opinion that the suit should not have been dismissed; and that the plaintiff was entitled in it to a declaration of his title to the land; It was not necessary for him to negative that the land was dedicated to religious or charitable purposes, a question upon which the Original and Appellate Court have differed, and which, as the only defendant was not entitled to maintain the Wakfnama, and other persons would not be bound by an adverse decision, their Lordships do not decide.”
This decision of their Lordships of the Privy Council lays down that it is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and his possession was invaded or threatened to be invaded by a person who had no title whatever. It would, therefore, be necessary to determine what was the nature and extent of the right, if any, which defendant No. 1 had acquired to the alluvial land under the terms of the consent decree obtained by him in suit No. 44 of 1941 on April 14, 1943.
Under the terms of that consent decree Capt. Ansell gave in favour of defendant No. 1 all his rights or share (hak hissa) over the property that was in his possession. It must be noted that the property which was the subject-matter of the suit was the adjacent land and not the alluvial land. The alluvial land had no doubt been in existence for some time past to the knowledge of the parties and that fact is apparent from the description of the property annexed to the consent decree wherein the boundary to the west is described as “the Arabian Sea after leaving the Government land that has come out of the sea”. The rights which were adjudicated between the parties were in respect of the adjacent land and the adjacent land was the only land which was the subject-matter of the consent decree. It was, however, urged that in the description of all his rights or share (hak hissa) over the property was also included the right which defendant No. 1 got as the owner of the adjacent land to have the alluvial land offered to him by the Government acting under the provisions of s. 63 of the Code. The fallacy, however, in this argument is that even though the rights which were thus given to defendant No. 1 would comprise rights of easement, rights to profits a prendre, right to pre-emption and such other rights, a right which had already been exhausted would not be comprised in that category. No doubt the occupant of the adjacent land had the right to have the alluvial land offered to him in the first instance under s. 63 of the Code and it was only on his refusing the offer that the Government would be entitled to dispose of the alluvial land in favour of any other party. But once the alluvial land had been disposed of, it is impossible to come to the conclusion that any such right of the occupant of the adjacent land survived. If no such right survived in favour of Capt. Ansell after October 29, 1942, there was no question of such right being transferred or given over by him to defendant No. 1 under the terms of the consent decree. Whatever right was enjoyed by the occupant of that adjacent land had already been exhausted by this date and the alluvial land had already been granted by the Government under the terms of the grant, dated October 29, 1942. No right, therefore, survived in regard to the alluvial land which could ever be the subject-matter of the transfer or gift over thereafter to defendant No. 1 under the terms of the consent decree. If that is so, defendant No. 1 got under the terms of the consent decree the ownership of the adjacent land without any right to the alluvial land. The alluvial land had already been granted by Government to Capt. Ansell on October 29, 1942, and could not be the subject-matter of any dealing or disposition therewith by the terms of the consent decree. As a necessary corollary of the above it follows that defendant No. 1 had no right, title or interest in the alluvial land when he sought to exercise his alleged rights in the matter of the giving of the contract to defendant No. 2 for cutting the babul trees therefrom and he was guilty of trespass on the alluvial land which under the circumstances above stated had come to vest in the original plaintiffs and thereafter the appellants. The position, therefore, which obtained when the suit was filed was, within the dicta of their Lordships of the Privy Council in Ismail Ariff v. Mohamed Ghous, that the orginal plaintiffs were in lawful possession of the alluvial land, defendant No. 1 was a trespasser having no right, title or interest therein and the original plaintiffs were, therefore, entitled to an injunction against the defendants as asked for by them.
At the fag-end of the arguments before us Mr. S.M Shah for the respondent started a new point and it was that the present appellants had no right to obtain any injunction against the respondents inasmuch as it was not proved that they were in possession of the suit land. We have already stated above that the original plaintiffs were in possession of the suit land when the suit was filed against the defendants. The original plaintiffs transferred the suit land to the present appellants by a conveyance, dated July 14, 1946, and it was thereafter that the present appellants brought themselves on record of the appeal before the lower appellate Court in place and stead of the original plaintiffs. It was open to the respondents at that stage, if there was anything in this point at all, to have urged it before the lower appellate Court, but nothing of the type was however done by the respondents. The appeal was argued before the lower appellate Court on the assumption that the present appellants had the right to obtain the injunction provided however the original plaintiffs had the title to the suit land and were in possession of the same at the date of the institution of the suit. Having regard to these circumstances, it does not lie in the mouth of the respondents to urge at this late stage that the present appellants should have proved that they were in actual possession of the suit land. This argument of Mr. S.M Shah strikes us as the last straw which is sought to be caught at by the drowning man and does not impress us at all. We do not see anything in that argument which has been advanced before us.
The result, therefore, is that the appeal will be allowed, the decree of the lower appellate Court set aside and that of the trial Court restored. The respondent will pay the appellants' costs throughout. The respondent will also pay the costs of the Civil Application No. 1022 of 1948.
Appeal allowed.
J.G.R
Comments