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Case Number

Appeals from Original Decrees Nos. 173 and 174 of 1935, against the decrees of Babu Jogendra Narayan Roy Chowdhury, Subordinate Judge, 2nd Court of Zillah Faridpur in Title Suits Nos. 10 and 11 of 1933 dated the 29th of March, 1935, respectively

Attorney(S)

Atul Chandra Gupta and Pashupati Ghosh for the Appellants in both the appeals.
S.C Basak, Rama Prosad Mookerjee and Bankim Chandra Banerjee in Nos. 173 and 174, Birendra Kumar De, Probodh Chandra Kar, Jatindra Nath Sanyal, Bhupendra Kishore Basu and Manindra Narayan Majumdar in No. 173, Panna Lal Chatterjee for Deputy Registrar in No. 173, Bhupendra Kishore Basu and Probodh Chandra Kar in No. 174 and Surjya Kumar Aich for Deputy Registrar in No. 174 for the Respondents.

Judges

Mitter
Roxburgh, JJ.

Acts

provisions of Art. 142 of the 1st Schedule of the Limitation Act.
Art. 142 of the first Schedule of the Limitation Act
Art. 142 he said:The Limitation Act
sec. 32, cl. (2) of the Evidence Act,
Art. 142 of the Limitation Act.
sec. 13 of the Evidence Act
sec. 36 of the Evidence Act

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

Two title suits were brought by the Plaintiffs, described as the Kanchanpur Baboos, seeking khas possession of a compact block of char land (about 6,000 bighas). The suits were originally Title Suits Nos. 74 and 75 of 1925 in the First Court of the Subordinate Judge at Faridpur, later re-numbered as 10 and 11 of 1933 in the Second Court of the Subordinate Judge at Faridpore. Suit No. 75 covers about 3,790 bighas (western portion) and Suit No. 74 about 2,342 bighas (eastern portion). The Secretary of State for India in Council is a defendant in both suits (principal defendant in No. 75; Defendant No. 7 in No. 74); other principal defendants in Suit No. 74 include Sarat Chandra Chakravarty and the Guhas. Many tenants were impleaded as defendants.

The Plaintiffs' title depends on their claim that the disputed block is a reformation in situ of Mouza Ramkantapur appertaining to Touzi No. 959 (Nasibshahi Ramkantapur), and they rely on historical documents and maps and on related suits. The defendants pleaded, inter alia, that (i) at the Decennial and Permanent Settlements the lands were part of the river bed and therefore not included in estate No. 959; (ii) the lands are reformations in situ of other estates (No. 381 Bhattichur Part II and No. 940 Teprakandi) belonging to the Guha defendants and Government respectively; (iii) the suits are barred by limitation; and (iv) the defendants (or the Secretary of State) had acquired title by adverse possession.

The Subordinate Judge dismissed the suits, finding (i) the Plaintiffs failed to prove the lands were reformation in situ of Ramkantapur and (ii) the suits were barred by time under Article 142 of the First Schedule of the Limitation Act. The Plaintiffs appealed; the present opinion is the appellate court's judgment addressing these appeals.

Legal Issues Presented

Whether the lands in suit are reformation in situ of Nasibshahi Ramkantapur (Touzi No. 959) and therefore within the Plaintiffs' title (patni) under Touzi No. 959.
Whether the Plaintiffs' suits are barred by limitation under Article 142 of the First Schedule of the Limitation Act.
Whether the Defendants (including the Secretary of State for India in Council and the Guha defendants) have acquired title by adverse possession.
The admissibility and evidentiary weight of (a) the Chowhuddibandi (boundary) papers produced in 1799 (Ex. 10) and (b) Major Rennel's maps (Ex. 23(b), Ex. 23(a) and related plates), and whether those materials can be used to fix historical riverbanks and village boundaries for the relevant settlement period.
Whether findings in prior judgments not inter partes can be used as evidence in these suits to establish boundaries or facts.

Arguments of the Parties

Appellants' (Plaintiffs / Kanchanpur Baboos) Arguments

The disputed block (Stations 1–25 on the Commissioner's map) is reformation in situ of Nasibshahi Ramkantapur (Touzi No. 959) and therefore belongs to the Plaintiffs' patni.
They relied on documentary and cartographic evidence: Chowhuddibandi (boundary) papers (Ex. 10C), Major Rennel's map and printed copies (Ex. 23(b), Ex. 23, Ex. 23(a)), and the proceedings/decisions of several earlier suits (suits of 1888, 1902, 1905, 1906) to establish village boundaries and the position of the river at the time of the Decennial and Permanent Settlements.
They contended the Chowhuddibandi papers are admissible and probative; they urged the printed version of Rennel's map obtained from the Government map office is genuine and should be relaid; they pointed to the suits of 1902 (decreed by the Judicial Committee) as fixing the eastern limit of Nasibshahi Ramkantapur in the locality.

Respondents' (Defendants, including Secretary of State, Guhas, Sarat Chandra Chakravarty) Arguments

The lands in suit lay in the bed of the river Padma (Bhubaneswar) at the time of the Decennial and Permanent Settlements and therefore were not part of Touzi No. 959.
The lands are reformations in situ of other estates: Estate No. 381 (Bhattichur Part II) belonging to the Guha defendants and Sarat Chandra Chakravarty, and Estate No. 940 (Teprakandi) belonging to Government.
They pleaded that the suits are barred by limitation (Art. 142) and alternatively that the Secretary of State and other defendants have acquired title by adverse possession.
Dr. Basak (for Respondents) attacked the Chowhuddibandi papers as not admissible for the Plaintiffs' case (because those papers were boundary papers for Patpashar, not Touzi No. 959) and as inaccurate; he challenged the genuineness/admissibility of the printed Rennel map (Ex. 23(a)) on the grounds that the 1914 prints had been withdrawn by Government and therefore sec.36 Evidence Act could not save Ex. 23(a). He also argued that even if Rennel's map showed a boundary at an earlier date (1764–1773), the river's course had changed sufficiently by 1790/1793/1799 to make Rennel's map unreliable for fixing the Decennial/Permanent Settlement boundary.
Respondents relied on documentary settlement maps, registers (D Register), settlement and resumption records (e.g., Robakary, sales certificate), and previous judgments (including those from the suits of 1888, 1902 and 1905) to support their contentions on estate identity and adverse possession.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Haradas Acharjya Chowdhury v. Secretary of State for India in Council	Demonstrated that Chowhuddibandi papers filed by zemindars on government forms (1799) were given weight by the Judicial Committee; those papers were used as authoritative boundary returns and were relied upon in that decision.	The court followed the Judicial Committee's valuation of such boundary papers and held Ex. 10 (Patpashar Chowhuddibandi) admissible under sec. 32, clause (2) of the Evidence Act because the returns were made as government returns and the declarants were dead. The court treated the Haradas decision as binding on the weight to be attached to those papers.
Gobinda Narayan Singh v. Sham Lal Singh (Judicial Committee)	Authority that findings in judgments not inter partes are not admissible as evidence to bind non-parties.	The court relied on this principle to reject reliance on a finding in an earlier judgment (Ex. 24(e) C.168) which was not inter partes, and therefore to exclude that finding as evidence on the point of boundary positioning.
Kally Churn Sahoo v. Secretary of State for India in Council	Earlier authority on possession during submergence of alluvial lands (the court notes it has been limited/overruled).	The court observed that this case was overruled by the Judicial Committee in Secretary of State for India in Council v. Krishnamoni Gupta to the extent indicated, and therefore it did not follow Kally Churn Sahoo on constructive possession in the present case.
Secretary of State for India in Council v. Krishnamoni Gupta	Clarified constructive possession for lands incapable of possession (e.g., alluvial lands): the rightful owner's possession continues constructively when land is under water and revives until dispossessed; relevant to Art. 142.	The court invoked this decision to explain that physical possession at the time of last submergence is not necessary and that constructive possession continues for the owner unless extinguished by adverse possession before submergence. This undermined the Subordinate Judge's conclusion on limitation if Plaintiffs had proved title.
Kumar Basanta Kumar Roy v. Secretary of State for India in Council	Lord Sumner's exposition of Art. 142 — constructively possession continues during submergence and is not lost by mere absence of use when land is incapable of enjoyment.	The court relied on Lord Sumner's statement to hold that the Plaintiffs' lack of physical possession at the last submergence did not, by itself, prevent them from invoking constructive possession under Art. 142 if they otherwise had subsisting title not extinguished by adverse possession.
Rakhal Chandra Ghosh v. Durgadas Samanta	Contains an obiter dictum (by two judges) that a Plaintiff must show possession down to the time of last submergence; the present court rejected that dictum as not good law.	The court expressly stated that the dictum in Rakhal Chandra Ghosh cannot be considered good law and therefore did not apply it; instead, the court followed Krishnamoni Gupta and Kumar Basanta Kumar Roy on constructive possession.
Suresh Chandra Mukherjee v. Shitikanto Banerjee; Gopal Chandra Maity v. Mon Mohini Dassi; Alabaksh v. Bir Bikram Manikya	Laid down that in forest or alluvial land cases a Plaintiff may discharge burden under Art. 142 by proving constructive possession — either by showing lands appeared above water within 12 years of suit or became fit for user within that period.	The court cited these authorities to support the proposition that Plaintiffs may rely on constructive possession for limitation purposes in alluvial-land suits and to explain how the onus may be discharged, had Plaintiffs proved subsisting title at submergence.
Secretary of State for India in Council v. Kalika Prosad Mukherjee	Used in the opinion as a source summarizing the Secretary of State's written statement and the mapping and boundaries considered in the 1902 suits; provides factual findings about estates and maps used in that litigation.	The court used the summary and maps in that decision (and the Judicial Committee's treatment) to help fix the eastern boundary of Patpashar Ramkantapur and to conclude that the Patpashar zemindary had no lands in Parganah Nasibshahi, which assisted the court in defining the eastern limit of Nasibshahi Ramkantapur in the locality.

Court's Reasoning and Analysis

The court structured its reasoning around whether the Plaintiffs had proved the contested lands to be reformation in situ of Nasibshahi Ramkantapur and, if so, whether limitation or adverse possession would defeat their claim.

Admissibility and weight of Chowhuddibandi papers (Ex. 10):

Respondents argued Ex. 10 was not admissible under sec.13 Evidence Act (it was boundary papers of Patpashar, not Touzi No. 959) and that the papers were inaccurate.
The court held Ex. 10 admissible under sec. 32, clause (2) of the Evidence Act because they were government returns furnished by zemindars in discharge of duty and the declarants were dead; it followed the approach in Haradas Acharjya's case which had given weight to such returns.
The court rejected the accuracy challenges to Ex. 10 raised by Dr. Basak as not established on the evidence; where apparent discrepancies existed they could be reconciled (e.g., by recognizing different Dholai entries) and, on balance, Ex. 10 established that Patpashar Ramkantapur lay immediately west of Nasibshahi Ramkantapur in 1799 and that the eastern portion of Nasibshahi Ramkantapur was between two channels of the Bhubaneswar (Padma) river.

Rennel's maps (Ex. 23 series) and the Commissioner's relay:

The Plaintiffs relied on Major Rennel's maps to fix the northern channel (the main channel) of the river as at the Decennial/Permanent Settlements. Multiple versions/copies (original tracing Ex. 23(b), printed Ex. 23(a)) were before the court.
The Commissioner relaid a printed copy (Ex. 23(a)) in place of the tracing Ex. 23(b). The court found that the Commissioner should not have substituted Ex. 23(a) for Ex. 23(b) without orders or disclosure to the other side, and that the differences between the tracing and the printed sheet were substantial.
Further, Government records showed the 1914 prints had been withdrawn and sale stopped; sec. 36 Evidence Act was inapplicable to save Ex. 23(a). Consequently the relay of Ex. 23(a) by the Commissioner was set aside as inadmissible.
Even if Rennel's maps could be relaid, the maps showed significant changes in the river's southern and some changes in the northern channel between the plates dated c.1764–1773 and later periods; thus Rennel's maps could not, on the evidence, safely fix the position of the river at the Decennial/Permanent Settlement (c.1790–1793). The court therefore declined to remand solely to relay Rennel's maps.

Fixing boundaries from prior suits and maps:

The court accepted that the Chowhuddibandi (Ex. 10) coupled with the 1902 suits (Title Suits Nos. 16, 17, 19, 20) and the Judicial Committee's decree provided sufficient basis to fix the eastern boundary of Nasibshahi Ramkantapur (at least in part) and that that eastern boundary practically tallied with the eastern boundary of the block now in suit.
The southern boundary was fixed with confidence from the Thak and Revenue Survey maps (Thak Mouza Ramkantapore — Ex. 13, map 16). The southern boundary of the lands in suit was essentially the northern boundary of Thak Mouza Ramkantapur (with a small intervening strip excluded by earlier decree in Suit No. 70 of 1893).
However, the court found it could not fix the western and northern boundaries of Nasibshahi Ramkantapur with reasonable precision in the locality. The absence of Touzi No. 959's own Chowhuddibandi papers (they did not exist) and the ambiguity about intervening villages (e.g., Bittirchar alias Bittigram, Natikata) left a critical evidentiary gap as to whether other villages or estates lay between Durgapore and Nasibshahi Ramkantapur or whether Ramkantapur extended to the western limit the Plaintiffs asserted.

Evidence of conduct and historical proceedings:

The court reviewed historic resumption (1843 robakary), Thak and Revenue Survey results (1857–1859), sales and D-registers (showing Touzi Nos. 380, 381 and 940) and subsequent suits (1888, 1902, 1905) and compromises. Many of these records showed lands now in suit were treated as Government khas (or as parts of Bhatichur/Teprakandi/Touzi Nos. 380/381/940) at various times, and the Plaintiffs or their predecessors had, in several prior proceedings, described or admitted significant portions as not within their patni.
The court found these conduct-related records and admissions by the Plaintiffs and predecessors-in-interest weighed against a finding that the Plaintiffs had the precise title covering the whole disputed block as of the Decennial/Permanent Settlement.

Adverse possession and limitation (Art. 142) analysis:

The court held that Article 142 applies and that the Plaintiffs bore the onus to show possession within twelve years of the suit. However, on the law of alluvial lands it agreed with the Judicial Committee authorities (Krishnamoni Gupta, Kumar Basanta Kumar Roy) that constructive possession continues when lands are under water and physical possession at the time of submergence is not necessary so long as the owner's title had not been extinguished by adverse possession before submergence.
The Subordinate Judge's holding that the Plaintiffs were out of time because they lacked physical possession at the last submergence was held to be incorrect in principle. The appellate court stated that had the Plaintiffs proved subsisting title, Article 142 would not have barred them since the lands reappeared and became fit for user within twelve years of suit.
On adverse possession, the court found the Defendants had not made out a continuous, unequivocal adverse possession for the statutory period; settlement maps and records showed extensive periods when lands were submerged or covered with sand, settlement registers indicated no continuous tenant occupancy rights in Teprakandi, and later maps showed disappearance and reformation of the char at various times. The court concluded the Defendants failed to establish adverse possession on the evidence.

Ultimate assessment:

The fundamental failing was evidentiary: the Plaintiffs could not precisely fix the western and northern boundaries of Nasibshahi Ramkantapur at the time of the Decennial/Permanent Settlements so as to show exactly which portions of the disputed block belonged to their patni. Because they sought recovery of possession, that failure was decisive — they could not identify the part they claimed with the necessary certainty.
Consequently the court treated the limitation and adverse possession questions as unnecessary to the primary decision, though it recorded conclusions on them (principally that the Subordinate Judge erred on limitation and that the defendants failed to prove adverse possession).

Holding and Implications

Holding: The appeals are dismissed. The court concluded that the Plaintiffs (Appellants) failed to prove title to the lands in suit as reformation in situ of Nasibshahi Ramkantapur, and therefore their suits must be dismissed. The opinion states explicitly: the appeals must be dismissed with costs.

Implications / Consequences:

Direct effect on parties: The Plaintiffs' claims for khas possession of the disputed block fail; the dismissal upholds the defendants' position as to those lands insofar as the Plaintiffs could not establish title to them. The court's disposal preserves the legal effect of prior surveys, resumption, settlement records and prior decrees insofar as they bore on what the Plaintiffs could reasonably establish in evidence.
On limitation and adverse possession: The court held (i) that Article 142 does not bar a rightful owner's claim for alluvial lands where constructive possession continued during submergence unless title had been extinguished by adverse possession prior to submergence; and (ii) that the defendants had not proved adverse possession on the facts of this case. These points are recorded as findings, but the court treated them as subsidiary because the primary title proof by the Plaintiffs failed.
Precedential effect: The decision applied established authorities (including decisions of the Judicial Committee) on admissibility of government boundary returns and on constructive possession under Art. 142. The court did not state that it was creating new law; rather it applied existing principles to the evidence before it and dismissed the appeals for failure of proof of title.

Note: This summary reflects only the matters expressly stated in the provided opinion and does not add facts or conclusions not contained in that text.

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Gadadhar Chowdhury v. Sarat Chandra Chakravarty

The Judgment of the Court was as follows:—

These two appeals are in two suits brought by the Plaintiffs called (hereafter the Kanchanpur Baboos) for khas possession of a compact block of char land about 6000 bighas in area. First Appeals Nos. 173 and 174 correspond respectively to Title Suits Nos. 74 and 75 of 1925 of the First Court of the Subordinate Judge at Faridpur, which on transfer were re-numbered as 10 and 11 of 1933 of the Second Court of the Subordinate Judge at Faridpore. The Plaintiffs are the same in both the suits but the Defendants are different, except that the Secretary of State for India in Council is common to both the suits. He is the principal Defendant in Suit No. 75 and Defendant No. 7 in Suit No. 74. The other principal contesting Defendants in Suit No. 74 are six in number, namely Sarat Chandra Chakravarty and the Guhas. In both the suits a large number of tenants claiming to hold parcels of land either under the Secretary of State for India in Council or under Sarat Chandra Chakravarty and the Guhas, have been impleaded as Defendants. As shown in the locality Suit No. 75 comprises an area of about 3,790 bighas and Suit No. 74 an area of about 2,342 bighas. The subject-matter of the former suit is the western portion and of the latter the eastern portion of the compact block depicted with yellow borders within Stations Nos. 1 to 25 of the Commissioner's map (Map No. 1). The Plaintiffs' title in both the suits rests upon the same grounds and the defence in both the suits is practically the same.

A permanently settled estate, Touzi No. 204 of the Jessore Collectorate in Pargunah Nasib Shahi which was subsequently transferred to the District of Faridpore and numbered Touzi No. 959, belonged to Krishna Kishore Ghose and later to his widow Barnamoyee Dasi. On the death of Barnamoyee Dasi, there was a partition in 1899 amongst the heirs of Krishna Kishore Ghose. Upendra Nath Ghose got in his allotment among other properties, Dihi Kristopur appertaining to the said Touzi No. 959. On the 23rd October, 1901, he granted a patni taluk to Mohesh Chandra Saha Chowdhury, the predecessor of the Plaintiffs, comprising the Mouzas in Dihi Kristopur and the lands of some other taluks or zemindaries (Ext. 6-C, 207). Mouzas Ramkantapore, Khord Ramkantapur, Bhalabad, and Brittirchar alias Bittirgram are some of the Mouzas in Pergunah Nasibshahi appertaining to Dihi Kristopur of these Mouzas, Mouza Ramkantapur is of importance in the two suits. The Plaintiffs claim the whole block in suit covered by Stations Nos. 1 to 25 as reformation in situ of the said Mouza Ramkantapur. In the plaint, however, they claimed the same as reformation in situ of Ramkantapur and of other Mouzas of Dihi Kristopur and alternatively as accretions to those Mouzas of Dihi Kristopur, but at the trial in the Court below and also before us they confined their claim as stated above. The Defendants Respondents do not contest the fact that Ramkantapur is a village included in the said permanently settled estate No. 959 or the Plaintiffs' patni right in the said village.

The writen statement of the Defendants, the Guhas, the Secretary of State for India in Council and of Sarat Chandra Chakravarty, raised the following defence now material:—

(i) that the lands in suit were at the time of the Decennial and Permanent Settlement of 1790 and 1793 respectively in the bed of the large public navigable river Padma or Bhubaneswar as it is called at this place and so had not been included in the permanently settled estate No. 959 of the Faridpore Collectorate:

(ii) that the lands in suit are reformations in situ of estate No. 381 (Bhattichur Part II), which belongs to the Guha Defendants and Sarat Chandra Chakravarty, and of Estate No. 940 (Teprakandi alias Tepurchar) which belongs to Government. This Estate No. 940 according to them comprised Bhattichur Part I and other lands formed from the river bed;

(iii) that the suits are hatred by limitation; and

(iv) that in any event the Secretary of State for India in Council and the said Defendants have acquired title by adverse possession.

The learned Subordinate Judge has dismissed the suit. His material findings are (i) that the Plaintiffs have failed to prove that the lands in suit are reformation in situ of Ramkantapur of Dihi Kristapur and (ii) that suits are barred by time under the provisions of Art. 142 of the 1st Schedule of the Limitation Act. These findings have been assailed by the Appellants' Advocate, Mr. Gupta, while the Advocate for the Respondents, Dr. Basak, has in addition to the pleas successfully urged by his clients in the Court below, urged their case of acquisition of title by adverse possession.

The claims of the Plaintiffs Appellants to the lands in suit as reformation in situ of Ramkantapur rests mainly upon (a) the Chowhuddibandi papers (Ex. 10C. 323-330), (b) the map prepared by Major Rennel, (c) proceedings of Suits Nos. 16, 17, 19 and 20 of 1902, (d) the proceedings of Suits Nos. 11, 12 and 32 of 1888 and (e) the proceedings of Suits Nos. 60 and 63 of 1905 and 40 and 41 of 1906. We will hereafter call Ramkantapur appertaining to Touzi No. 959 as Ramkantapur or Nasibshahi Ramkantapore to distinguish it from another Ramkantapore in Parganah Patpashar which will hereafter be called Patpashar Ramkantapur.

The case of the Plaintiffs as presented in the lower Court and before us is that Nasibshahi Ramkantapur was at the time of the Decennial and Permanent Settlement firm land, an island between two channels of the river Padma, the Northern channel, the main channel, called Bhubaneswar, and the southern channel, a narrow one, being more or less of the nature of a creek flowing from the Bhubaneswar and again joining it. According to them the whole of the island on which Ramkantapur was marked with a flag in Rennel's map Ex. 23(b) — map 20 — was Ramkantapur of Nasibshahi as included in permanently settled estate Touzi No. 959. That a considerable portion of said Mouza was later on swallowed up by the main channel of the river Bhubaneswar and what remained of it — the southern portion only — was measured at the thak survey in 1857-1858 as Ramkantapur and was shown as such in the Revenue Survey map of 1858-1859 with tola Ramespur, (Thak map Ex. 13, Map No. 6; Revenue Survey map Ex. BB map No. 23). There were frequent changes in the course of the river at that place and lands of Ramkantapur came up and went down at short and frequent intervals. In October, 1915, the lands in suit formed, but were covered with sand. Only in January or February, 1918, they became fit for cultivation. They define at the hearing the lands of Ramkantapur as it was at the time of the Permanent Settlement thus:—

Northern boundary:— The main or the northern channel of Bhubaneswar (Padma) as at the time of Permanent Settlement.

Southern boundary:— The southern boundary of the Ramkantapur as shown in the Thak and Revenue Survey Maps of 1857-1858 and 1858-1859 respectively.

Eastern boundary:— The western boundary line of the lands for which decrees were passed in Title Suits Nos. 16,17, 19 and 20 of 1902. These suits will hereafter be called the suits of 1902.

Western boundary:— The eastern boundary line of the lands for which decrees were passed in Title Suits Nos. 11,12 and 82 of 1888 and in Title Suits Nos. 60 and 63 of 1905 and 40 and 41 of 1906. These suits will hereafter be called the suits of 1888 and 1905 respectively.

We will now proceed to record our findings on the main question, namely whether the lands in suit are reformation in situ of Ramkantapur.

It appears from the evidence that a part of Parganah Nasibshahi has another Parganah, Parganah Patpashar, both to its east and west. The said Parganah appertains to the permanently settled estates No. 115 and No. 160 of the Dacca Collectorate named Mahadeb Mukhopadhya and Kharija Taluk Charhai Madhabdia. The latter, namely No. 160 was later on numbered as Touzi No. 4,002 of the Faridpore Collectorate. These two estates will hereafter be called the Patpashar zemindary. The Appellants and their predecessors are and were part proprietors of this zemindary. The suits of 1888 and 1902 were by the Patpashar zemindars against the Secretary of State for India in Council for recovery of possession of chur lands on the ground that they were reformation in situ of their zemindary. The suits of 1905 were also similar suits against the Secretary of State for India in Council. The Patpashar zemindars or their tenure-holders were Plaintiffs but the predecessors of the Appellants claimed relief both on the basis that they were part proprietors of the Patpashar zemindary and were also patnidars under the proprietors of Touzi No. 959.

The Chowhuddibandi (boundary) papers of Touzi No. 959 have not been produced as on the application of the Appellants the Collector informed them that they do not exist. But the Chowhuddibandi papers of the Patpashar zemindary, which had been filed in the Collectorate in 1799, have been produced. They have been marked as Exhibit 10 (C. 323). The boundaries of Mouza Ramkantapur in Patpashar with Chak Shibnathpur and Jhawkandi as given there are as follows:

North:— River Bhubaneswar and on the other bank of the river (par) Mansurabad and Santoshpur.

South:— River Bhubaneswar and on the other bank of the river (par) Baghurhat, Hajinagar, Hajiganja with Bhadrasan towards the south-eastern corner.

East:— Chars known as Parchar and Mouza Harirampore.

West:— Ramkantapur of Parganas Nasibshahi.

It may be noted here that of the above places Ramkantapur, Mansurabad and Hajiganj are shown in Rennel's map [Ex. 23(b) and EE, EE1 maps 20, 26, 27] which were prepared about 1767. The northern, southern and western boundaries are important. They show that in 1799 Patpashar Ramkantapur with Chak Shibnathpur and Jhowkanda was a block of land between two channels of the river Bhubaneswar and the whole of its western boundary was Nasibshahi Ramkantapur. The eastern part of the last mentioned village accordingly extended to the north at least up to the northern channel and to the south at least up to the southern channel of the river Bhubaneswar as in 1799. How far these conclusions would help the Appellants is however a different matter.

Dr. Basak has attacked these Chowhuddibandi papers (Ex. 10) on the following grounds:

(a) they are not admissible in evidence and

(b) they are not accurate.

The Subordinate Judge has overruled the first contention on the ground that they were held to be admissible in the suits of 1902 in which the Secretary of State was a party. He further held that the Guhas and Sarat Chandra Chakravarty cannot also question their admissibility as their defence is based on a title derived from the Secretary of State for India in Council. Dr. Basalt's contention is that the reasons given by the learned Subordinate Judge are unsound. We think that there is considerable force in this argument, but this does not necessarily dispose of the matter. Dr. Basak says that these papers were rightly admitted in evidence in the suits of 1902 under sec. 13 of the Evidence Act as the Plaintiffs in those suits claimed the lands as part of Patpashar zemindary of which those papers were the boundary papers, but that section is not available to the Appellants before us because the papers are not the boundary papers of Touzi No. 959. We do not think that Ex. 10 is to be ruled out simply because sec. 13 of the Evidence Act cannot be invoked by the Appellants, nor can they be admitted simply because they were admitted in the suits of 1902. In Haradas Acharjya Chowdhury v. Secretary of State for India in Council(1), judgment was given in favour of the Patpashar zemindars on the basis of those papers. Lord Buckmaster did not mention sec. 13 of the Evidence Act. He put great value on them on the ground that they were furnished by the zemindar not voluntarily, but on Government forms at Government's request, and for enabling the latter to have information on important points. They were accordingly filed by the zemindars in 1799 in pursuance of a duty. Such returns had to be made by every zemindar of Bengal. They are therefore in our judgment admissible under sec. 32, cl. (2) of the Evidence Act, the persons making the statements contained in them being dead. We accordingly overrule the first contention of the Respondents and hold Ex. 10 to be admissible in evidence.

The second contention of Dr. Basak has not in our opinion been established. To establish that the Chowhuddibandi papers cannot be relied upon as accurate he has drawn our attention to the boundaries as given therein of Mouzas Durgapur, Binayabati with Biswanathpur, of Mouza Madhabdiya, of Mouza Betikata together with Char Betikata and Debipur and to a finding in the judgment of the Subordinate Judge in the suits of 1888 [Ex. 24(e) — C. 168 at 172]. From the boundaries of the said three Mouzas it appears that Brittichar alias Brittigram in Parganah Nasibshahi was to the east of Durgapur, etc. Brittigram was the southern boundary (in part) of Betikata, etc., the eastern boundary of which was Dholai in Parganah Nasibshahi. The suits of 1888 related to Durgapur. The case map of that suit is Exhibit V(1) (Map No. 40). Dr. Basak says that if Mouza Dholai Chur Thak No. 481 be taken as Dholai of Parganah Nasibshahi as mentioned in Ex. 10, Dholai would be the western and not the eastern boundary of Betikata as mentioned in the Chowhuddibandi papers. There is however, another Mouza shown in the said map as Dholaipur Chur No. 3,460. If that be Dholai, the boundaries of all the aforesaid mouzas as given in the Chowhuddibmdi papers would fit in correctly. Seeing that map No. 40 was prepared about 90 years, after the Chowhuddibandi papers and that there were vast and almost constant changes in the river course thereafter it would not be safe to assume, that Dholaichur Thak No. 481 had reformed in the same place as Mouza Dholai of 1799, especially when the boundaries fit in with reference to Dholaichur No. 3,460. We cannot accordingly accept this argument of Dr. Basak.

Dr. Basak next draws our attention to the finding in Ex. 24(e) (C. 168) to the effect that Bittirchar was to the north east of Nasibshahi Ramkantapur which would not make Bittirchar as the eastern boundary of Durgapur, if the whole of Durgapur be taken to be in suit in 1888. We do not think that Dr. Basak can rely upon the said finding. The judgment Ex. 24(e) being not an inter partes judgment, the Appellants before us or their predecessors-in-interest not being parties, the said finding is not admissible in evidence. Moreover Mr. Gupta's rejoinder is that if findings in judgments not inter partes can be used in evidence, the Judicial Committee in the suits of 1902 held that the boundaries of Patpashar Ramkantapur were correct and relied upon them to support one part of their judgment and decree [Haradas Acharjya v. Secretary of State for India in Council]. As we hold that findings in judgments not inter partes are inadmissible in evidence, and in this respect we are supported by the decisions of the Judicial Committee [Gobinda Narayan Singh v. Sham Lal Singh], we overrule this point of Dr. Basak also. The Chowhuddibandi papers (Ex. 10) accordingly establish that to the immediate west of Patpashar Ramkantapur with Chak Shibnathpur and Jhawkanda is Nasibshahi Ramkantapur and the eastern portion of the last mentioned village was between two channels of the river Bhubaneswar as in 1799. As the Decennial Settlement was only a few years before 1799, we can infer that the state of things was the same at that time as in 1799. If therefore the position of the northern channel of Bhubaneswar as at the time of the Decennial Settlement can be located and also the western limits of Patpashar Ramkantapur, then the whole of the eastern limit and the eastern portion of the northern limit of Nasibshahi Ramkantapur can be fixed with certainty.

To fix the said northern channel the Appellants rely upon Major Rennel's map Ex. 23(b) (map No. 20). This locality as depicted in the said map was probably surveyed by Major Rennel in October, 1764, as his journal indicates (Rennel's Journal, pp. 27-28). The Appellants filed this map, Ex. 23(b) in Court. It is a certified copy. This was sent to the Commissioner for local investigation. As Ex. 23(b) was on tracing cloth, which made the Commissioner's work of relay difficult, he asked the Appellants to obtain its printed version from the Government map office at Calcutta. Two sheets in print were accordingly obtained from the map office and supplied to the Commissioner. They have been marked Ex. 23 and 23(a) (Maps Nos. 18 and 19). Ex. 23(a) contains the portion which is relevant. These copies do not bear any certificate of accuracy. The endorsement on Ex. 23 shows that they were printed by Government at Shillong in 1914. The Respondents did not know that Ex. 23 and Ex. 23(a) had been supplied to the Commissioner at his request. The Commissioner found discrepancies between Ex. 23(a) and 23(b), still he proceeded to relay Ex. 23(a) and not Ex. 23(b) ignoring those discrepancies as negligible. When the consideration of the Commissioner's report came up before the Court, the Respondents took objection to the admissibility and accuracy of Ex. 23(a) (A. 827, paragraphs 17 and 33). They further made the case that Ex. 23(a) was not genuine and had not been published under the authority of the Government (A. 836). To refute these objections the Appellants made persistent efforts to lead evidence of witnesses for proving that the said copy had been purchased from the Government map office at Calcutta. They also applied to the Court to call for a report from the said office. But all their applications were opposed and rejected. They also prayed for a relay of Ex. 23(b), if Ex. 23(a) was either inadmissible or inaccurate, but that prayer was also rejected, and the learned Judge dismissed the suit on the ground that Ex. 23(b) had not been relayed and Ex. 23(a) was inadmissible in evidence. As the Appellants were all along under the impression that; Ex. 23(a), which was undoubtedly printed by the Government at Shillong was the printed version of Ex. 23(b), we thought that ends of justice required the matter to be cleared up. We accordingly asked Dr. Basak about his attitude. He had no objection to our taking as additional evidence the documents we have marked as X5 to X12. On the said additional evidence being thus taken, Dr. Basak urged before us on the strength of Major Hirst's Memoir on Rennel that the maps of Rennel published by him before 1917, [which would include Ex. 23 and 23(a)] had been withdrawn by him on the ground of inaccuracy. As the preamble to Major Hirst's memoir only showed that he had withdrawn his memoir of 1914 to which Rennel's maps were appended but had not stated the reasons for his withdrawal, we, at the instance of both the Appellants' and Respondents' Advocates, called for a report from a gazetted officer of the map office. That report states that the maps of Rennel published in 1914 were withdrawn and the sale of copies printed in 1914 had been stopped under orders of Government, but further states that the reasons for such withdrawal do not appear. They may be for inaccuracy or for some other reason. It now appears that Ex. 23(b), the map filed originally by the Defendants for relay, is a tracing cloth copy or extract of plate 46, i.e, of a map issued in the Atlas published with Major Hirst's Memoir of 1917, a printed copy of which was produced before us. The differences between Ex. 23(b) and Ex. 23(a) are far greater than could be explained by an assumption of minor errors in tracing, and the Commissioner was wholly wrong in proceeding to relay the supposed printed version Ex. 23(a) as a substitute for Ex. 23(b) without any orders from the Court and unknown to the other side. Furthermore, in any event, although most of the grounds urged by the Respondents in the lower Court fail, on the materials we have before us, Ex. 23(a) itself cannot in our judgment be held to be admissible; sec. 36 of the Evidence Act is inapplicable as the sale of copies of Ex. 23(a) had been stopped by Government at the time when by mistake it was sold to the Appellants. The relay of Ex. 23(a) by the Commissioner must accordingly be set aside. This makes it unnecessary for us at this stage to decide whether the Commissioner had taken the substation of the Trigonometrical Survey at the Collectorate Building at Faridpur or the site of Faridshah's Darga in that town as the correct fitting points for relaying Rennel's map or not. If the Plaintiffs had identified all the other three boundaries of Ramkantapur in relation to the lands in dispute, namely the southern, eastern and western boundaries, and had satisfied us that the position of the river was the same in 1799 as at 1764-72, we would have remanded the case for the purpose of relaying the three versions of Rennel's map. Ex. 23(b), Ex. EE and Ex. EE1 on the suit lands both from Faridshah's Darga, the G.T Sub-station and from such other place from which the Commissioner would have thought fit to relay them. As we are of opinion that the position of the river at the time of the Decennial and Permanent Settlement cannot be safely inferred from Rennel's map and on the evidence the identification of the western boundary has been left in a nebulous state, we do not follow that course.

We have also to consider the argument of Dr. Basak in relation to the northern boundary to the effect that even conceding that from relay of Rennel's maps we can obtain an accurate delineation of the river banks in 1764 or 1773, this would be useless for the purpose of finding the position of the banks at the time of the Decennial Settlement in 1790. Ex. 23(b), as already noted, is a copy of an extract of plate 46 of the Atlas of 1917, Ex. EE is a copy of plate 49 of the same Atlas and bears a note to the effect that the position of the river had changed between the points “A” and “B” after the construction of map No. VIII (depicted in plate 46). In his memoir referring to plates 46 and 49 (paragraphs 62 and 65) Major Hirst gives the date of survey for plate 46 as 1764 to 1773, and for plate 49 as 1764 to 1772, and the date of plate. 46 as 1772, and that of plate 49 as 1773. In his special remarks on plate 49 he notes that the course of the Ganges changed along the line A B to the course shown after plate 46 of the new Atlas was constructed. A comparison of the maps also shows that there was considerable change in the southern channel, with the result that the island on which Rennel has placed Ramkantapur in Ex. 23(b) and the island to the west of it had in the interval of four years or so undergone considerable changes in shape and size, and Ramkantapur bazar itself had apparently disappeared, since it is not shown in plate 49. From these facts and from the fact that the river Padma is an erratic river which rests uneasily on its banks, Dr. Basak argues that the state of things prevailing in 1764 or 1773 cannot in the circumstances be presumed to be what was existing either in 1790 or in 1793, when the Decennial and Permanent Settlements were made, or in 1799 when the Chowhuddibandi papers were filed. In this connection he relies upon a remark in the judgment in Haradas Acharjya Choudhury's case, where the map of Major Rennel [from the relay in map No. 3 it would appear that the same map as we have in Ex. 23(a) was used] and the same Chowhuddibandi papers were produced. This remark is to the effect that the Plaintiffs would have been placed in difficulty if the river had been one of the boundaries of their estate as disclosed in the boundary papers. The Judicial Committee only said that the difficulties of the Plaintiffs would have been increased in that case and not that the map of Major Rennel would have been useless. To us it seems that on such a point each case must depend upon its own facts. If on the facts an inference can be safely made that the position of the river must have remained practically unchanged between Major Rennel's Survey and the Decennial and Permanent Settlement, Rennel's map would be helpful when the river is shown as the boundary of the estate or of the village in question, but not otherwise. In the case before us a comparison of plate 46 [Ex. 23(b)] with plate 49 (Ex. EE) shows considerable changes in the southern channel and some change in the northern channel. The change in the southern channel of the river as shown in Ex. EE, Ex. E and Ex. EE1, does not affect the Appellants, for they rely for the southern boundary, not upon the map of Major Rennel, but upon Thak and Revenue Survey map of Ramkantapur. It is conceded that if the relay of these maps of Major Rennel shows that some of the disputed land was in the bed of the southern channel, then such portions must be excluded from the Plaintiff's claim. The change in the northern channel is however important. The maps show that even in 1772 or so the change in the northern channel had commenced. The Decennial Settlement was concluded about 18 years later and the Chowhuddibandi papers were filed about 27 years later. There were considerable changes later on. We think that in these circumstances it would not be Safe to infer that the state of things existing in 1772 or so, continued up to 1799, especially where the river was erratic by nature.

Moreover, as we have pointed out in discussing the Chowhuddibandi papers above, even if the position of the southern bank of the northern channel of the Permanent Settlement river can be determined, this will fix only the position of the north-eastern corner of Nasibshahi Ramkantapur. Thus the presumption of continuity taken with the relay of Rennel's map would not alone afford sufficient evidence to fix the whole of the northern boundary of Nasibshahi Ramkantapur, unless the Appellants can establish that the whole of the island on which Rennel marked Ramkantapur was the site of that village.

There is no difficulty in fixing the southern boundary of Ramkantapur. It is shown in the Thak map of Ramkantapur (Ex. 13, map 16). This, which we will call Thak Mouza Ramkantapore, has been plotted on the case map by the Commissioner. The southern boundary of the lands in suit is practically the northern boundary line of Thak Mouza Ramkantapur. A narrow space intervenes and is not included in these suits owing to the result of Suit No. 70 of 1893 in which Barnamoyee Dassi was the Plaintiff and the Secretary of State for India was the Defendant. We will have to deal with the proceedings of that suit and of some other suits in some detail later on.

We will now consider whether the eastern boundary of Ramkantapur as it existed at the time of the Decennial and Permanent Settlement can be fixed with reasonable accuracy. The Chowhuddibandi papers of the Patpashar zemindary (Ex. 10) filed in 1799 may, as we have already found, be taken to be a correct representation of the locality at the time of the Decennial and Permanent Settlement. The western boundary of Patpashar Ramkantapur is stated therein to be Nasibshahi Ramkantapur. If therefore the western limits of Patpashar Ramkantapur can be defined in the locality by the Appellants, they would succeed in fixing the eartern boundary of Ramkantapur. For this purpose they rely upon the proceedings in and the final result of the suits of 1902.

Before 1902 eight annas of the Patpashar zemindary belonged to the Appellants before us, the Kanchanpur Babus; four annas to the Acharjyas of Muktagacha and the remaining four annas to the Mukherjees of Birnagore. In 1902 four suits were filed against the Secretary of State for India in Council by these different sets of co-proprietors of the Patpashar zemindary for recovery of possession of their share in the same block of land on the ground that it was reformation in situ of the land of their Patpashar zemindary. Two were filed by the Mukherjees of Birnagore, one by the Kanchanpore Babus and the fourth by the Acharjyas of Muktagacha. They were numbered as Title Suits Nos. 16, 17, 19 and 20 of 1902. The block of land claimed in those suits and decreed ultimately by the Judicial Committee of the Privy Council has been depicted in the case map. The western boundary of that block of land (stations 34 to 31 in green) practically tallies with the eastern boundary of the block of land claimed in the suits which we have before us (stations Nos. 1 to 6 of the case map). The relay of the Commissioner of the case map of the said suits of 1902 on the present case map has not been challenged before us by any party. The plaints of those four suits are of the same type. For our judgment we will consider the plaint of suit No. 16, which was filed by the Kanchanpore Babus (Ex. U5—C 215). The, written statement filed by the Secretary of State for India in Council is not on record, but a summary of it is given in the judgment of this Court. [Ex. 24—C 268 also reported in sub nomine Secretary of State for India in Council v. Kalika Prosad Mukherjee(3)]. The case map is Ex. 5 (map No. 3). The rough sketch showing the position of missing mouzas is Ex. 5(a) (Map No. 4), the judgment of the Judicial Committee is 24(d) [Haradas Acharjya's case], the order of His Majesty in Council is Ex. 25 (C 276), the map prepared at the execution stage is Ex. 27 (map 21) and the judgment of the Subordinate Judge passed in the execution proceedings is Ex. 24(a)(C 282). We need not refer to the judgment of the High Court and of the Judicial Committee of the Privy Council passed in the proceedings for execution, for, so far as the Kanchanpur Babus were concerned, the matter was compromised between them and the Secretary of State for India in Council when the appeal was pending in this Court. The petition of compromise is Ex. B(C 291) and the order of this Court recording the compromise is Ex. V(5)(C 302). We will have to consider all these documents in deciding the question as to whether the eastern, limits of Nasibshahi Ramkantapore can be fixed in the locality. Some of them with other documents will also have material bearing on the question of the western boundary limits of that village.

The Plaintiffs of those suits, as we have already said, claimed the lands as reformation in situ of the lands of the villages of the Patpashar zemindary. The lands claimed formed a block of land south of Mansurabad and Rustanpur alias Santoshpore, etc., and north of Char Husaini, etc. The western boundary, which is important in this case, was described as the river Padma as it then flowed and Bhatichur of Taranath Chakravarty, father of the Defendant Sarat Chandra, that is Bhatiehar Part II Touzi No. 381. The defence of the Secretary of State for India in Council was that the lands in dispute were not portions of the Patpashar zemindary but were portions of Bhatichur, Teprakandi, Jafrabad and other Government Estates [Secretary of State for India v. Kalika Prosad]. Bhatichur alias Doosra Tarafer Chur and portions of Teprakandi have been shown on the map Ex. 5 (Map No. 3) as to the immediate west of the lands then in suit. This Bhatichar is Bhatichur Part II (Touzi No. 381) which was sold in auction in 1865 to Kali Nath Chakravarty and Ishan Chandra Ghosh. The Robakary of the Collector [Ex. 1(1)—C137], the sale certificate [Ex. 1—C138] and the D Register [Ex. DD(1)—C389-392] show that the lands of Touzi No. 381 are not in Parganah Patpashar but in Parganah Nasibshahi. The D Register of Teprakandi also shows that it appertains to Parganah Nasibshahi [Ex. DD(2)—397-400]. It is also proved from the D Register of the Patpashar zemindary [Ex. 20(b)—C380-381], and that fact is not challenged, that the said zemindary has no land in Parganah Nasibshahi. From these facts we draw the inference that the Patpashar zemindary had no land to the west of the lands claimed in the suits of 1902. The order of His Majesty in Council (Ex. 25—C276), shows that whatever was claimed in those suits with the exception of the bed to the river as shown in Rennel's map was decreed in favour of the Patpashar zemindars. The judgment of the Judicial Committee [Haradas Acharjya's case] shows that the lands decreed included Patpashar Ramkantapur and if we follow that judgment with the rough sketch map [Ex. 5(a)—Map No. 4], it would appear that the side of Patpashar Ramkantapur itself or together with Mauza Harirampur with Char Parchar to its east covered or more than covered to the west and east the disputed lands then in suit, which lay just to the north of the left bank of Rennel's southern channel, and to the immediate east of the line joining stations 28, 29, 30, 31, 32, 33 and up to a point half way between stations 33 and 34 of the case map Ex. 5 (we will call this point station 33/2). In the map prepared at the execution stage (map 2) the stations would be 28, 29, 30, 31, 32, 33 and 2/15. This line has been relaid in the present case map and practically coincides with the eastern boundary of the block of land claimed in the two suits. The judgment of the Judicial Committee was subjected to critical examination and Dr. Basak's contention before us was that the manner in which Lord Buckmaster dealt with the case showed that Patpashar Ramkantapur had land beyond the western limits of the lands claimed there, that is to say, had lands to the west of stations 31 to 33/2. No doubt the basis of the reasoning in that judgment is to the effect that the mauzas of the Patpashar estates more than covered the area then in dispute, and formed a solid block, and that it was therefore not essential to locate each mauza precisely, nevertheless it was the common case of both sides that to the west of the line referred to above lay lands of Nasibshahi Parganah, and none of the parties in those suits claimed any land to the west of this line to be lands of Parganah Patpashar. On these facts the conclusion is in our opinion reasonable, having regard to the western boundary of Patpashar Ramkantapur as given in the Chowhuddibandi papers (Ex. 10 C327) that the eastern part of the block of lands now in suit (at least a portion thereof) represent the reformation in situ of Nasibshahi Ramkantapur. We do not feel impressed with the observations of the learned Subordinate Judge that the Chowhuddibandi papers do not help the Plaintiffs on this part of their case as the boundaries inter se or the relative position of Patpashar Ramkantapur, Jawkanda and Chak Shibnathpur have not been and cannot on the evidence be established. Chak Shibnathpur and Jawkanda may be either hamlets of Patpashar Ramkantapur, or if not so, cannot occupy any portions of the lands now in suit as the Patpashar zemindars in the suits of 1902 never claimed any land to the west of the lands then in suit as within their zemindary. The lands now in dispute as the case map of those suits (Ex. 5) show were then above water.

We do not also feel much impressed with Dr. Basak's argument that the Appellants before us, who before those suits were filed had acquired the patni in Dihi Kristopur and were Plaintiffs in Suit No. 16 of 1902 in their character as part proprietors of the Patpashar zemindary, had no title to this part as they did not then claim the lands now in suit as within their patni under Towzi No. 959, but on the other hand had admitted them in the plaint, and in the other proceedings of those suits to be parts of Bhatichur or Doosra Tarafer Chur, an estate which belongs to the Guha Defendants and Defendant Sarat Chandra Chakravarty (Towzi No. 381). One of such admissions is recorded in Map No. 21 (Exhibit 27) prepared in 1919 by the Commissioner appointed to deliver possession in execution. If the matter had been left on the other evidence in a doubtful condition, those admissions would have been decisive against the Appellants' claim, but inasmuch as the other evidence establishes with reasonable certainty that at least a portion of the eastern part of the block of land now in suit is a part of Nasibshahi Ramkantapore, those admissions, which do not amount to estoppel, lose their importance. This is the view we take, a view, which, we may say in passing, accords with observations made by Lord Buckmaster in Haradas's Case. That judgment is binding on us as a ruling of the Judicial Committee. We are not using the findings therein to bind the Defendants, for the reason that the first six Defendants in Suit No. 74 of 1925 were not parties thereto. Though the recitals and findings in a judgment not inter partes are not admissible in evidence, such a judgment and decree are, in our opinion, admissible to prove the fact that a decree was made in a suit between certain parties and for finding out for what lands the suit had been decreed. We accordingly hold that the Appellants have defined the eastern boundary limits, at least in part, of Nasibshahi Ramkantapur and that it tallies practically with the eastern boundary of the block of land claimed in these two suits.

There now remains for consideration the point whether the Appellants have defined in the locality the western boundary limits of that village. The initial difficulty which meets them is that the boundary papers of Tauzi No. 959 have not been and could not be produced by them. They do not now exist. It is reasonably clear that a portion of Parganah Nasibshahi juts into Parganah Patpashar between Patpashar Ramkantapore on the east and Durgapore, Biswanathpur and Betikata, villages of the Patpashar zemindary, on the west. This the boundary papers of the Patpashar Zeminary (Ex. 10, C323) establish. It is also reasonably clear from the said boundary papers that some villages of Parganah Nasibshahi intervene between Nasibshahi Ramkantapore and Durgapore. In the boundary papers we find at least two of such villages named, namely Bittigram alias Bittirchar and Natikata (also called Lalikata or Ratikata in some documents). What other villages of Parganah Nasibshahi intervened we do not know and whether all villages of Parganah Nasibshahi between Durgapore on the western and Nasibshahi Ramkantapore on the eastern limit appertained to Touzi No. 959 or are within the Appellants' patni is left uncertain on the evidence. We are also in doubt as to whether the villages of Dihi Kristopur formed a compact block of land. We do not also know what villages formed the western boundary of Nasibshahi Ramkantapore at or near about the Decennial and Permanent Settlement. We are further of opinion that the decrees of the suits of 1888 and 1905 are not helpful to the Appellants in fixing in the locality the western limits of Nasibshahi Ramkantapore. In these circumstances the difficulties in the Appellants' way to success are great and when we take into account their admissions and the admissions of their predecessors-in-interest those difficulties appear to us to be insurmountable. They are suing for recovery of possession and would be out of Court unless they can establish that they have title to the whole of the lands in suit, or if they prove title in a part thereof, they must on the evidence establish what exactly that part is. In the case made in the lower Court and before us their title rests entirely upon the site of Nasibshahi Ramkantapur as at the time of the Decennial and Permanent Settlements. They have established that Nasibshahi Ramkantapore has as its eastern boundary the eastern limits of the lands in suit. They also have established the southern boundary, which is the southern boundary of Thak Mouza Ramkantapore—[Ex. 13 Map 6]. The southern boundary of the lands in suit is practically the northern boundary of Thak Mouza Ramkantapore. A small strip in between the Thak Mouza Ramkantapore and the disputed block is not in suit. That had to be given up as a result of the decree in the Suit No. 70 of 1893. But the northern boundary has been left in uncertain state. It is however tolerably certain that the spot where Rennel marked Ramkantapore would be to the north of Thak Mouza Ramkantapore. In fact in the suits of 1902 Rennel's Ramkantapore has been shown much to the north of the Thak Mouza Ramkantapore [Map. No. 3—Ex. 5]. But still the Appellants would not succeed till the western limits of Ramkantapore are precisely fixed by them in the locality.

For fixing the said western limit the Appellants rely upon the proceedings of the suits of 1888 and 1905. The plaints of Suits Nos. 11, 12 and 32 of 1888 are similar, so we will consider only one of them, Ex. U (C. 147). They were suits of the Patpasher zemindars against the Secretary of State in Council. The southern boundary of the suit lands was Nasipore. The eastern boundary is stated to be Government khas Mahal Bhalabad Teprakandi. The suit lands are depicted in the case map of those suits [Ex. V(1) map 40] and have also been relayed by the Commissioner on the present case map. A part of the western boundary of the lands (southern portion) now in suit runs along the eastern boundry limits of the lands then in suit. The Subordinate Judge found the whole of the block claimed as reformation in situ of Durgapore, but gave these Plaintiffs a decree for a part only by excluding the portion in the middle covered by Bhattichar Bandobasti or Baloo Dhoom Sota Bhorati. This was given to Government on the ground of adverse possession [Ex. 24(e) C. 168]. The admission of the Plaintiffs of the Suit of 1888 amounts to this, that the lands beyond the eastern limits of the lands then in suit were not in Parganah Patpashar but in Parganah Nasibshahi, for Teprakandi is shown in the D Register to be in the last mentioned paragraph. The eastern boundary of Durgapore, Binaybati with Biswanathpur is covered by Bittirgram in Parganah Nasibshahi and Betikata in Parganah Patpashar [Ex. 10, C. 323]. Map No. 40 shows that the southeastern corner of the lands then in suit just touches the north western corner of Thak Mouza Ramkantapore—in fact it protrudes a little into it. There is however, no evidence on the record to show the relative position of Ramkantapore as at the time of the Decennial and Permanent Settlement with reference to Bittir Chur or Bittigram. The finding in the judgment [Ex. 24(e) C. 168 at 172] to the effect that Bittirchar was to the north-east of Ramkantapore cannot be evidence in this case, the judgment not being inter partes so far as the Defendants 1 to 6 of Suit No. 74 of 1925 are concerned, and it was also pronounced before the Plaintiffs acquired their present interest in Touzi No. 959. This finding, if evidence, would moreover include a good portion of the lands now in suit in Bittirchar and the Appellants, even if they were allowed at this stage to rest their case on Bittirchar, would find themselves in a difficulty similar to, if not greater than, that which we have already pointed out in regard to their case that the lands now in suit are lands of Ramkantapur. Though Bittigram is included in their patni there is no evidence to fix the limits of Bittigram alias Bittirchar, either the northern, eastern or the western limits. Mr. Gupta made a suggestion to the effect that in those suits the Patpashar zemindars had claimed as appertaining to Durgapur the whole or part of Bittirchar. In other words he would place Nasibshahi Ramkantapur as covering the whole of the present lands in dispute upto the western boundary or at any rate as covering most of them and with Bittirgram to its west covering the remainder of the lands and extending over part of the lands of the 1888 suits. But this suggestion must remain a matter of surmise in the absence of any proof that Bittirchar adjoined Ramkantapur on the west. There is no evidence as to the eastern boundary of Bittirchar or as to the western boundary of Nasibshahi Ramkantapur, and no proof that there was no other village of some other estate intervening and thus covering a portion of the present lands in dispute. There is thus a definite gap in the evidence on the Appellants' side to establish that the whole of the disputed lands up to the western boundary appertain to their estate, and this gap can only be filled by them by surmise and not by evidence. The utmost that the proceedings of those suits can prove is that if the lands of Ramkantapore, as at the time of the Decennial and Permanent Settlement, extended further to the north of Thak Mouza Ramkantapore, that some undefined portion of the lands of that village may be falling somewhere within the block of land to the east of the lands in suit in 1888 as shown in Map No. 40. It would not necessarily follow that the western boundary of Ramkantapur ran exactly along the straight line shown as the eastern boundary limit of the lands then in suit. If Ramkantapore had been mentioned as the boundary village of Durgapore and if the decision in Ex. 24(e) (C. 168) had been given on the same basis as in Haradas Acharjya's case and their patni comprised a group of compact villages, the Appellants would have stood on firmer grounds.

Of the proceedings of Suits Nos. 60 and 63 of 1905 and Nos. 40 and 41 of 1906 we have on the record only the compromise decree with two compromise petitions as annexures [Ex. V4—C. 249], the case map [Ex. V4 map 42] and the execution map [Ex. 30—map 22]. In Suit No. 60 of 1905, the Appellants claimed a share of the lands then in suit as part proprietors of the Patpashar zemindary and another share as patnidars of Dihi Kristopur in Touzi No. 959. The Secretary of State for India was the Defendant. The suit was compromised between them and the Secretary of State. By the compromise they got in their share the whole of the disputed land except a small but long rectangular strip (Ka in the decree) in the eastern and a small triangular strip (called Kha in the decree) in the south-eastern part of the lands then claimed. The Case map Ex. V4 (Map 42) and the Execution Map [Ex. 30—map 22] show that the claim was compromised on the basis of the Thak maps of the villagers of the Patpashar zemindary, the Thak map of what had been described Government Kha Mahal Baloodhoom Sota Bharati (Bhattichar Part I) and the Settlement map of Government Estate Teprakandi, and the parties divided the lands in suit between them in accordance therewith. The proceedings of these suits do not help the Appellants in fixing the western boundary limit of Ramkantapore as claimed by them. Maps Nos. 42 and 22 furnish the basis of the compromise decree (Map 22 is clearer). This decree instead of supporting the Appellants goes against them. The lines of map 42 have been relayed in the present case map. The eastern limits of the lands then in suit cover the northern part of the western boundary of the lands now in suit, in fact protrudes into it. These are all the materials on which the Appellants rely for fixing the western boundary of the lands in suit with the alleged western boundary of the Ramkantapore of the Permanent Settlement.

A case was attempted to be made by the Appellants that the whole of the island enclosed by the River Bhubaneswar and its Southern creek, on which Rennel marked Ramkantapore in his map, Ex. 23(b), was the site of Ramkantapur. The Commissioner recorded a finding in favour of the Appellants, though it was not within his function to decide the point. The learned Subordinate Judge did not accept that case and we think the grounds are cogent. Having regard to the purpose of Major Rennel's Survey he did not mark in his map the extent of villages, nor did he note village sites of all the villages of the locality. The fact that no other village site except Ramkantapur has been shown by him on the said island does not necessarily lead to the conclusion that the whole of the island was within Ramkantapore. This in fact was not argued by Mr. Gupta, but considerable emphasis was laid by him on an entry in Rennel's Journal at page 28 to the effect that he passed down a creek from the main river going by Ramkantapur, and he contends that the creek referred to must be that shown in Ex. 23(b) to the west of the island on which Ramkantapur Bazar is marked by Rennel. We are asked to hold that this is an explicit statement by Rennel that Ramkantapur village extended up to the creek but as Rennel was not concerned to note every small revenue unit, we do not think that the entry can bear this interpretation.

The materials placed by the Appellants do not in our judgment enable them to fix the western limits of Ramkantapore. To say the least, the matter is left in doubt. In these circumstances the conduct of the Appellants and their predecessors is relevant, and in our judgment settles the matter. We accordingly now proceed to review the evidence furnished by conduct.

In 1843 the Government resumed an island chur as its property. It was named Bhatichar and numbered Touzi No. 380. There were regular proceedings under Regulation II of 1819. The parties summoned were the proprietors of Patpashar zemindary. The proprietors of Touzi No. 959 were not parties. Exhibit L is the Robakary. It does not appear and it seems to us improbable that notice under sec. 24 of Regulation II of 1819 was served on the latter. The Robakary may not finally conclude the proprietors of Touzi No. 959 on that ground. But if the lands then resumed can be identified wholly or in part with the lands now in suit, those proceedings, which must have been conducted with publicity would offer some evidence against them. A certified copy of the hand-sketch of the lands resumed in 1843 was given to the Commissioner to relay, but he could not satisfactorily relay it. The learned Subordinate Judge however rejected the certified copy on the ground that there was nothing to show that the certified copy was taken from the resumption map of 1843. We called for the original hand-sketch from which the certified copy tendered was taken. On inspecting the same and following the Robakary (Exhibit L) we found that the reasons given by the Subordinate Judge were wrong. We accordingly marked the original as Exhibit L-4 and the certified copy as Exhibit L4 (1). Although we have admitted the same in evidence the said sketch cannot lead us to any certainty. All that can be said is that two large islands, one of about 3000 bighas and another of about 13000 bighas were formed somewhere near the lands now in suit and resumed in 1843. There were frequent changes in the course of the river here between 1843 or so and 1857-1858. But whatever appeared near about after diluvion seems to have retained the name of Bhatichur and the number 380. Those lands were settled by Government in ijara till 1855. In 1855 the Chur, as it then was, was divided into 2 parts—Part I and Part II. Part I, the western portion, retained the old number 380 and Part II, the eastern part, was numbered Touzi No. 381. The whole char was surveyed at the Thak survey in 1857-1858, Part I in Halka 584 as Bhattichar Bandabasti or Boloodhoon Sota Bharati and Part II in Halka No. 585 as Bhattichur or Doosra Tarafer Chur. The portion of the whole island is shown in the Revenue Survey map of the following year [Ex. 16(a) map 16]. In 1865 Part II, Touzi No. 381, was sold in auction to Kalinath Chakravarty and Ishan Chandra Ghosh [Ex. 1(1) and Ex. (1) C. 137 and 138], who were the predecessors-in-interest of Defendants Nos. 1 to 6 of Suit No. 74 of 1925. A good portion of the lands now in suit is covered by the lands of Touzis Nos. 380 and 381 as surveyed at the Thak and Revenue Survey. The lands of Suit No. 74 are those allowed to the predecessors of the Chakravarty and Guha Defendants by the Board of Revenue in a compromise in Case No. 4 of 1884 [Ex. K—map 28] after disputes had arisen with Government on the ground that some of the lands of Mahal No. 381 had been measured in Government Khas Char Bhelabad Teprakandi No. 940. Those surveys of 1857 to 1859 were carried with great publicity and the proprietors of Touzi No. 959 never up to now laid any claim to that portion. On the contrary they as proprietors of Patpashar zemindary in their Suit No. 16 of 1902 admitted in the description of boundaries a good portion of the lands in suit now as part of the said Bhatichur. In 1919 at the execution stage of that suit they made the similar admission before the Commissioner.

Part I of Bhatichur was retained by Government in Khas. The island submerged and came up above water in different shapes and positions at different times. Ultimately a part of it with other lands formed out of the river bed was named as Teprakandi and numbered Touzi No. 940. Many settlements for terms were made by Government with others and at those settlements maps were prepared. These settlement maps are mentioned in the Commissioner's report at page 208 and the following pages of Book B and have been relayed by him in the case map. In their plaint of Suit No. 60 of 1905 the Appellants admitted that Government lands of Teprakandi were the eastern boundary of the lands then in suit and the compromise of that suit was on that footing, as we have already pointed out.

We will now shortly notice other suits instituted by Barnamayee Dassi, the then zemindar of Touzi No. 959. The first suit was of 1868. No definite conclusion can be arrived at with regard to it for the lands then in suit cannot be reasonably identified. The next suit by her is No. 25 of 1879 against the Secretary of State for India in Council. The plaint is Exhibit II(C. 142). The lands north of the lands then in suit were admitted to be the land of Government let out in ijara. To the east was a small channel and a kole (blocked up course of the river). The suit lands have been plotted by the present Commissioner in three ways (B. 206-7), but whatever line be taken as correct, the land to the north of the lands then in suit and the lands to the east of the kole mentioned there, cover parts of the lands now in suit which Barnamoyee Dasi then admitted either as Government land or to which she laid no claim though those lands were above water then.

The next series of suits are Nos. 69, 70 of 1893 and 11 of 1894. Suit No. 70 of 1893 was by Barnamoyee Dasi against Secretary of State for India in Council. The plaint is Exhibit U4 (C. 188). The lands in suit are shown in the case map of that suit [Ex. V3 map 41] in yellow colours and marked Kha. That is a part of Thak Mouza Ramkantapur. In the plaint the northern boundary is described as Government land, Khas char Tepura an alias for Teprakandi. This northern land falls within the lands now claimed by the Appellants. The suit was compromised on the Thak of Ramkantapore and whatever fell within that thak was taken by Barnamoyee and whatever fell outside relinquished by her as Government land [Ex. V3C. 192]. The evidence thus furnished by the conduct of the Appellants and their predecessors in interest are against the Appellants. We accordingly hold that the Appellants have failed to prove where the northern and western boundary of Ramkantapur lay. As they have thus failed to show precisely what portion of the lands in suit fall within Ramkantapur of the Permanent Settlement, their suits must be dismissed on this ground. In this view of the matter the two further questions, namely of limitation and adverse possession, become of no importance, but as the matter has been argued before us we proceed to record our findings thereon. We may at once state that if the Appellants had established their title, the evidence is not of such a character as would have enabled us to find a title in favour of the Defendants based on adverse possession.

We have already stated that the evidence is not sufficient to locate precisely the chur that was resumed by the Government in 1843. There is also no evidence as whether the whole of it or what portion of it became fit for possession and at what point of time. We have on record kabuliyats given by the tenants in favour of the Government from 1845 to 1857 [Ex. N. to N6] but no attempt has been made by the Defendants to identify the lands covered by those kabuliyats. In 1857-1858 the lands then above water were surveyed in two Halkas. We do not know the condition of the lands at that time. From 1862 onwards settlements were made by the Government of what went by the name of Khas Mehal Teprar kandi. These settlement maps have been relaid by the Commissioner in the Case map. His report deals with them from page 208 (Vol. B). At the Defendants' instance he made a summary in paragraph 37(e) of his report on which Dr. Basak on behalf of the Secretary of State strongly relies in support of his case of adverse possession. Item No. (vii) shows that 752.15 acres of the lands now in suit were the lands common to the Settlement maps of Teprakandi of the years 1865, 1867, 1874, 1879 and 1885. Item (x) gives the area of 937.59 acres as the area of the Common lands of the Settlement maps of 1867, 1874, 1879 and 1885. From these two statements the argument of Dr. Basak is that 752.15 acres in the one case and 937.59 acres in the other were continuously above water for the periods of 20 and 18 years respectively and the Government therefore had acquired title by 12 years' adverse possession. This argument assumes that the area of common lands were fit for enjoyment for the statutory period of 12 years and were being actually possessed by the tenants of the Government for that period or more. There is no definite evidence on either of these points. The evidence rather indicates a different state of things. In the Settlement map of 1862 (Ex. O) the whole area is shown as covered with sand. In the Settlement map of 1874 (Ex. O3) large patches are shown as still covered with sheets of water. The Robakari of the Settlement of 1885 (Ex. L15 paragraphs 2 and 45) distinctly mentions that no tenant had occupancy right in Teprakandi. That indicates that no tenant of the Government had occupied any parcel of land continuously for twelve years. The above documents have not been included in the printed record but we examined them when our attention was drawn to them. The kabuliyats Exs. N7 to N14, which cover the period 1862 to 1874, have not been relayed, with the result that it is not possible to say what specific portions of Teprakandi had actually been possessed by the Government through its tenants during that period.

The subsequent history of the chur shows that the lands now in suit were never at any time above water for a continuous period of 12 years. In 1886 the whole of Teprakandi had disappeared under the river (D.W 16-A. 940 110). In 1895-6 a small portion on the western side had reappeared (Ex. O5 not printed). Between 1890 and 1899 the chur extended eastwards but before 1905 it had again disappeared under water. Formation again began in 1906 [Ex. M4 Report of Mr. Gupta not printed]. Ex. 30 (map 22), (the map prepared in 1911 at the time of the execution of the decrees of the Suits of 1905—a map relaid by the Commissioner on the case map) shows that nearly the whole of the lands now in suit was either in the river bed, or covered with sand, except a small portion on the north. In this state of the evidence we would have held, if the point had been material, that no case of adverse possession has been made out by the Secretary of State. On the side of the Defendants Nos. 1 to 6 of Suit No. 74 of 1925, the evidence is practically nil.

The question of limitation will now have to be discussed. The Plaintiffs having come to Court on a case of dispossession Art. 142 of the first Schedule of the Limitation Act is applicable. This is not disputed by Mr. Gupta. The onus is therefore on the Plaintiffs to prove that they were in possession within twelve years of the suit. This is also well established. The question in the case is how that onus is to be discharged in case of alluvial or forest lands. Before we proceed to consider the question we record the following findings:—

(a) that the lands now in suit had reappeared above water in 1915 and had become fit for user a year or so later.

(b) that the Plaintiffs were not in physical possession of any portion at the time when it last submerged before reappearance in 1915.

On the basis of the last-mentioned finding the learned Subordinate Judge has held the suits to be barred under Art. 142 of the Limitation Act. We think that he is not right in his decision.

In the case of lands incapable of possession, as for instance, forest lands or lands under the bed of a river, the rightful owner has possession in the eye of law. If a trespasser was in possession before submergence and had not perfected his title by adverse possession for twelve years or more, on submergence his possession ceases and the possession of the owner revives and continues till the lands are again formed and become fit for user and occupied by another. To this extent at least the case of Kally Churn Sahoo v. Secretary of State for India in Council(4), has been overruled by the Judicial Committee of the Privy Council in Secretary of State for India in Council v. Krishnamoni Gupta. The principle is stated in clear terms by Lord Sumner in Kumar Basanta Kumar Roy v. Secretary of State for India in Council. Referring to Art. 142 he said:—

“The Limitation Act does not define the term ‘dispossession’ but its meaning is well settled. A man may cease to use his land, because he cannot use it, since it is under water. He does not thereby discontinue his possession; constructively it continues until he is dispossessed, and upon the cessation of dispossession before the lapse of the statutory period, constructively it revives. There can be no discontinuance by absence of use and enjoyment, where the land is not capable of use and enjoyment.”

This passage makes it clear that the fact that the Appellants had no physical possession at the time of the last submergence is not material for the purpose of enabling them to call to their aid the principle of constructive possession, provided that their title had not been extinguished by adverse possession before the last submergence. The obiter dictum of N.R Chatterjea and Panton, JJ., in Rakhal Chandra Ghosh v. Durgadas Samanta to the effect that the Plaintiff must show his possession down to the time of the last submergence in order to continue his possession during submergence cannot be considered to be good law. In Suresh Chandra Mukherjee v. Shitikanto Banerjee, Gopal Chandra Maity v. Mon Mohini Dassi and Alabaksh v. Bir Bikram Manikya, it was laid down that in the case of forest lands or alluvial lands the Plaintiff can discharge the burden which lies on him under Art. 142 by proving that he was in constructive possession within 12 years of the suit. He would be in constructive possession, if he was the rightful owner and would be in time if he could prove either that the lands had appeared above water within 12 years of the suit; or if they had appeared earlier that they had become first fit for user within that period.

This leads us to the question as to who should prove that the Plaintiffs had subsisting title at the date of the last submergence. Dr. Basak says that the onus is on the Plaintiffs—for till they prove that, the law would not impute possession to them during the period of submergence. Mr. Gupta's contention is that the onus is on the Defendants. We think that when the Plaintiffs have established their title to the suit lands it is for the person who contends that title has been extinguished at any particular time by adverse possession to establish that fact. If he succeeds, he will then have shown that he had subsisting title at the material time, if he fails the Plaintiffs' title will subsist. No doubt whichever side can show subsisting title at the time of submergence will have the benefit of the principle of constructive possession during submergence, but this fact can in no way affect the question that the onus of proving title by adverse possession is on him who asserts it. We have already found that the Defendants have failed to establish at any period a title by adverse possession to the disputed lands. We therefore hold that, had the Plaintiffs succeeded in proving their title to the suit lands as appertaining to their patni in estate No. 959, the lands having come, above water within twelve years of suit, Art. 142 would not have barred their claim. The learned Subordinate Judge's ground for deciding the question of limitation against the Appellants is wrong, for physical possession on their part before the last submergence is not necessary for enabling them to fall back upon their constructive possession during the last submergence.

As we hold that the Plaintiffs Appellants have failed to prove their title, these appeals must be dismissed with costs.

P.C

Gadadhar Chowdhury v. Sarat Chandra Chakravarty

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' (Plaintiffs / Kanchanpur Baboos) Arguments

Respondents' (Defendants, including Secretary of State, Guhas, Sarat Chandra Chakravarty) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gadadhar Chowdhury v. Sarat Chandra Chakravarty

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