JUDGMENT
Khaleel Ahmad, J.
1. All these six appeals are directed against a common judgment involving a common point of law and, therefore, they have been heard together and disposed of by the same judgment.
2. The appeals are by the plaintiffs against the judgment and decree dated 20-12-1948 passed by the 1st Additional Subordinate Judge of Arrah, confirming the judgment and decree passed by the trial Court. The suit was for declaration of title and confirmation of possession, and, in the alternative, for recovery of possession of a piece of land covered by khata nos. 3, 6, 8, 11 and 12 in village Pirthi Chapra, which is at present in the district of Shahabad.
3. The trial Court as also the first Court of appeal held that originally the plaintiffs had the title in the land in dispute but they lost it by adverse possession. The only point, therefore, that has been canvassed in this Court is whether the finding arrived at on the point of limitation is correct or perverse.
4. The case of the plaintiff-appellants was that village Pirthi Chapra was originally in the remote past a part of Gazipur district. Sometime in the middle of the last century it was recorded in Bal-lia and then in 1930 in the district of Shahabad. These changes took plase as a result of frequent alluvion and diluvion of the land. The plaintiffs claimed that they were the descendants of Pirthi Lal, who according to them, had about 112 bighas of land in that village. This Pirthi Lal had two sons Kanhaiya Lal and Tirbhuan Lal. Kanhaiya Lal was recorded in the survey record of right of 1865-66 in respect of 48 and odd bighas in village Pirthi Chapra. The plaintiffs alleged that the village had diluviated completely some time before 1882. Then at about 1912-13 a portion of it, it is said, came out of water and the plaintiffs came into possession of that land in that year. It, however soon diluviated again and came out in 1930-31 in the district of Shahabad. The plaintiffs on its reappearance in 1930-31 identified the land and took possession of the same. The land, according to the plaintiffs, was then low, sandy and subject to inundation for a few years. In 1935-36 the survey operation started in that village. In the course of that survey proceeding the Maharaja of Dumraon, the landlord, and, the tenants of village Nainijore claimed the land as a part of their village. On enquiry the survey authorities decided the case in favour of the tenants of village Nainijore. The plaintiffs’ contention was that these tenants of Nainijore had in fact no concern with the land nor that tract of land was an accretion to the land of that village Nadnijore. They also asserted that in spite of this entry in the survey record-of-rights they remained in possession but contended that a cloud had been cast over their title as a result of wrong entry in the survey re-cord-of-rights and hence they were forced to institute the present suit for the declaration of title and confirmation of possession, though, in the alternative, they also prayed that in case their
possession was not found they should be restored to its possession.
5. The defendants in answer pleaded that the suit was barred by limitation and they acquired title by adverse possession. They also alleged that the plaintiffs had no title to the land and the land had never belonged to their family nor they had never been in possession of it. According to the defendants it had come out of water more than 30 years back and since then they have been in possession of it as tenants. They also claimed that the land was not subject to annual innundation and flood and that it in fact appertained to village Nainilore and not Pirthi Chapra. The genealogy given by the plaintiffs in the plaint was also challenged.
6. The learned Munsif held that the plaintiffs’ genealogy though incomplete in certain, respects was correct” as far as the plaintiffs’ claim to be the successors of Pirthi Lal was concerned. Secondly he found that the suit land appertained to Pirthi Chapra. He also held that the portion of the suit land in plots 26, 63, 47, 81 and 86 belonged to the family of the plaintiffs formerly. These three findings arrived at by the learned Munsif were not challenged in the Court of appeal. The leamed Munsif, however, in conclusion held that the plaintiffs’ title to the portion of the land did not subsist because of the effect of the statutory period of limitation and that the suit was barred by limitation. He also held that the land was not liable to submergence and, therefore, the possession of the defendants if proved for the necessary statutory: period could not be interrupted as a result of annual innundation. On this ground of limitation, therefore, the suit was dismissed.
7. In the Court of appeal the only point raised was that of limitation and it was contended that in the circumstances of the case Article 144, Limitation Act and not 142 applied. In the light of that contention it was argued that the trial Court did not approach the case from a correct angle of vision and that there was no finding arrived at by the learned Munsif to the effect that the defendants had discharged the onus and had in fact proved that they acquired title by adverse possession. The first Court of appeal on considering the materials on the record came to the conclusion :
“This is certain that this land has remained out of water since about the year 1930. The plaintiffs’ case that they are in possession cannot be believed in view of the survey khatians Ext. 14 series and the clear admission by one of the plainiffs in his deposition to the effect that the Tewaris of Nainijore, that is to say, the tenant defendants are in possession of the entire village Pirthi Chapra. The plaintiffs were undoubtedly out of possession during the time of the survey. They have no doubt proved their title in remote past. In view of the khatauni of 1326 and the entries in the survey khatians in my opinion the evidence on behalf of the defendants that the plaintiffs have not been in possession for much more than 12 years ought to be believed,”
“In my opinion the finding of the learned Munsif that the land doss not go under water is correct. The land is undoubtedly capable of adverse possession. The people of Nainijore that is to say the defendants have been in possession of this land since at least 1931 i.e. from more than 12 years of the institution of the suits under appeal. The defendants have therefore acquired title by1 adverse possession.”
In the light of these findings the Court of appeal affirmed the judgment of the trial Court.
8. The findings arrived at by the Court of appeal, clearly indicate that it accepted the plaintiffs’ case at least to the extent that they had proved their possession and title over the land in dispute up to 1866, though, according to the plaintiffs, they had been in possession of it and had title therein up to the year 1882 when the land went under water. On reappearance of the land from water again in 1912 or 1913 the plaintiffs claimed to have come in possession though that ease of the plaintiffs was not accepted by either of the Courts. It is also clear that the land in the light of the findings arrived at by the two Courts below did not come out of water till the year 1931 and that on the reappearance of the land in that year the plaintiffs did not come into possession of the land and that it was the defendants who got possession of it on its reappearance. Mr. Awadh Bihari Saran appearing for the plaintiff-appellants has contended that the finding arrived at by the Court of appeal on the point of limitation in the face of the facts found by it is perverse for a number of reasons. In the first place, he contended that in case it is held that the plaintiffs were directly; in possession till the year 1882 and thereafter by implication till the year 1931 when the land emerged out of water as found by the Court, then, the provisions of Article 144, Limitation Act would be applicable to the facts of the case and not those given in Article 142, Limitation Act. He secondly contended that the Court of appeal erred in not considering the evidence of possession of the plaintiffs during the period from 1866 to 1881 or 1882 when the land went into water. His third contention was that the learned Court of appeal did not take into consideration, the entire evidence on the record on the point as to when the actual possession was exercised by the defendants on the land in dispute on its reappearance from water in the year 1931 and that the finding on the point of possession in favour of the defendants should not have been based on the entries in the khatauni prepared in the year 1326, which is Ex. G on the record, and the khatian (Ex. 14 series) which was prepared in the year 1936.
9. In support of the first contention it was argued that the suit was based on the title alone with the allegation that the plaintiffs were in possession. There was no allegation in the plaint that they had been dispossessed by the defendants at any time after 1930-31. I think, this contention is correct and the observation made by the trial Court to the effect that
“the plaintiffs made a definite case that they took possession of the land on its reappearance in 1931-32 and the defendants dispossessed them after the lands were cadastrally surveyed in their names”
is to that extent wrong. This question of exact allegations In the plaint assumed some importance in the course of argument as it was alleged by the respondents that the applicability of the provisions of Article 142 or Article 144 depended on the allegations made in the plaint and not on the findings arrived at by; the Court. Even if it be, conceded, as indirectly held in the case of –‘Kanchan Teli v. Moga Mahtoa’, AIR 1934 Pat. 593 (A), that the application of articles depends also to some extent on the allegations, it cannot be so in the present ease as in the plaint there is no allegation that the plaintiffs had been dispossessed by the defendants on their coming into possession of it after the year 1931. I further think that the observation made in the case of –‘Kanchan Teli v. Moga Mahton (A), was subject to certain conditions. I find that this point was directly raised and decided in another decision of this Court in the case of –‘Badri Khatik v. Narain Singh’, AIR 1946 Pat 185 (B). In that case it was held:
“So far as Article 142 is concerned, it is not stated there that the suit should be one in which the plaintiff should allege that he has been in possession and dispossessed. It is not the form of allegations of the plaintiff which will determine the nature of the suit, but it is the substance and the actual facts found by the Courts which will go to decide whether the suit is one which comes within the purview of either Article 142 or Article 144.”
10. In the preserit case the Court of appeal has found that on the emergence of the land in dispute in the year 1931-32 the plaintiffs did not come into possession of it and therefore there could not be a case of their being dispossessed by the defendants. Reliance was also placed by the appellants in support of their contention on a Privy Council decision in the case of — Basanta Kumar v. Secretary of State’, AIR 1914 PC 18 (C). This case has been elaborately discussed and followed in the case of –‘Abdul Latlf v. Habibulla1, AIR 1939 Cal 354 (D). This is a judgment of Mitter and Sen JJ. wherein their Lordships observed :
“It is well settled that Article 142 applies if the plaintiff has sued on the footing that while in possession he was dispossessed by the defendant, or if the fact be established that while in possession he was dispossessed by the defendant. In the plaint there is no admission which would bring the case within the first category. The plaintiffs were not in physical possession, either themselves or through persons holding under them at any time after their lands had re-formed on the other side of the river. They never exercised acts of possession and they were not turned out, neither physically expelled nor by reason of adverse acts on the part of the defendants their acts of possession were interfered with and effaced. Through a fiction of law they, the plaintiffs, were in possession till the lands became fit for possession. It may be taken that , they were by reason of this fiction in possession right up to the time when the lands became fit for possession but the question is whether they were ‘dispossessed’ or whether they ‘discontinued’ their possession within the meaning of Article 142 after the lands had re-formed and had become fit for possession e.g. had become cultivable. There cannot be any question of discontinuance of possession on their part. That term connotes three elements, two physical and one mental. There must be (1) actual withdrawal, (2) with an intention to abandon and (3) that another should step in, begin to occupy after the withdrawal. Dispossession signifies expulsion, an adverse act which has the effect of putting out. It presupposes physical contact, a collision, either with another person or with his physical acts. The physical presence on the property of the person affected is not necessary but the adverse act of the other party must have the quality of destruction. Acts of possession of the former must be effaced by the latter. On these concepts it would be difficult to say that the rightful owner, who is only presumed to be in possession, till a chur becomes fit for enjoyment is dispossessed simply because he does not take possession as soon as it becomes so fit but an-other person occupies it and begins to till. Such a case would in our judgment come within Article 144 and not Article 142 and the defendants must prove adverse possession for 12 years or over before suit. This is our reading of Lord Summer in –‘AIR 1917 PC 18 (C)’.”
The same principle was laid down in a Bench decision of this Court. That was in the case of --'Madan Mohan v. Brij Bihari', AIR 1921 Pat 36 (E). The judgment in that castr was delivered by Das J. It was observed therein : "That being so, the problem under Article 142 is not solved by a finding that the plaintiff has been out of possession for over 12 years. The sole question to which we must address ourselves is, what is the date of dispossession or discontinuance? Just as discontinuance implies the abandonment of possession followed by the actual possession of another person, so dispossession implies an ouster from possession followed by the possession of another person. It has been found by the Courts below that the defendants have been in possession for less than 12 years. It must, on this finding, follow that the plaintiffs brought this suit within 12 years of dispossession or discontinuance." 11. There are two other cases to which I should like to refer. In the case --'Smith v. Lloyd', (1854) 9 Ex. 562 (F), Baron Parke laid down the law as follows: "we are clearly of opinion that that statute applies not to cases of want of actual possession by the plaintiff, but to cases where he has been out of it, and another in possession for the prescribed time. There must be both absence of possession by the person who has the right, and actual possession by another, whether adverse or not, to be protected, to bring the case within the statute. We entirely concur in the judgment of Blackburn C. J. in -- 'M. Donnell v. M. Kinty', (1847) 10 Ir. L. R. 514 (G), and the principle upon which that decision is founded."
The principle laid down in the case was approved of in the celebrated case of –‘Trustees and Agency Co. v. Short’, (1886) 59 L. T 677 (H), which itself was followed by the Judicial Committee in the case of — ‘Secretary of State v. Krishnamoni Gupta’, 29 Ind App 104 (I). These cases have I think, conclusively settled the point. In my opinion, therefore, if it is held that the plaintiffs were in possession till the year 1930-31 then the provisions of Article 144 and not those given in Article 142, Limitation Act are applicable to the facts of the present case. My attention was drawn by learned counsel for the respondents to the cases of — ‘Suresh Chandra v. Shiti Kanta’, AIR 1924 Cal 855 (J) and of — ‘Birendra Nath v. Satis Chandra’, AIR 1926 Cal 1166 (K). In the case reported in –‘AIR 1924 Cal 855 (J)’, the allegation of the plaintiff, as it appears from the facts stated therein, was that he had been in the course of his possession dispossessed and, the suit had been framed for the recovery of possession on that allegation. Therefore, there can be no doubt that in the light of those facts the Article applicable was 142 and not 144, Limitation Act. In the case reported in –‘AIR 1926 Cal 1166 (K)’, the plaintiffs as it appears from the facts stated in the judgment, alleged that the land in dispute formed part of the plaintiffs’ ‘patni taluk’ and they had been in possession of the same up to the (time when the lands diluviated. When these lands reappeared the plaintiffs went to exercise act of possession over them but found the defendants in possession. Under those circumstances their Lordships held :
“The appellant contends that the article which would apply to the present case is Article 142, Limitation Act and not Article 144. To discover which is the correct article applicable to the case it is sufficient for us to look at the allegation in the plaint. The plaintiffs’ case there is that these lands formed part of their patni taluk and that they were in possession of them up to some time which they, do not state when the lands delivered and when they reappeared the plaintiffs went to exercise acts of possession over them but found the defendants in possession. In other words their suit is one for recovery of possession after dispossession. The learned advocate who has appeared for the respondent devoted some considerable time in endeavouring to pursuade us that this suit for some reason or other was not a suit for recovery of possession. It seems to me perfectly clear on the point itself that it is a suit for recovery of possession after dispossession and therefore Article 142 applies. In dealing with this point the learned Judge remarked ‘so this is not a case in which” while in possession, the plaintiff has been dispossessed or has discontinued possession. If it is said that the plaintiffs’ father wanted to enter into possession before the dilution, the plaintiff was not certainly dispossessed and neither did he discontinue possession by reason of the diluvion.’ I admit that I am unable to follow the learned Judge’s argument.”
I am afraid, the proposition laid down in this case is not in accordance with the principle laid down in the decision of the Privy Council reported in –‘AIR, 1917 PC 18 (C)’. Over and above it I have already referred to the decision of this Court where it has been held that the applicability of Article 142 or 144, Limitation Act depends on the finding arrived at by the Court and not on the allegations made in the pleadings. I, therefore, hold that in the circumstances of the present case the provision of law laid down in Article 144 will apply, and not that which is given in Article 142, in case it is held, as alleged by the plaintiffs, that the plaintiffs were in possession of it till the year 1882 when the land went into water and only on its reappearance in 1930-31 the defendants got possession over it. In the present case the first Court of appeal does not appear to have discussed this aspect of the case. In the concluding portion of the judgment the learned Subordinate Judge has observed:
“The land in suit admittedly appeared on or before 1931. The plaintiffs have in my opinion failed to prove that they had title at that time to any portion of the suit land. There can be no doubt that they have not been in possession since 1931. The plaintiffs have failed to prove their subsisting title. The suit is barred by limitation also.”
I accept the contention made by learned counsel for appellants that this observation by implication indicates that the learned Subordinate Judge was of the opinion that even if it were found that the plaintiffs were in possession of the land in law till the year 1930-31 when it came out of water and that on its emergence the defendants came into possession, the Article applicable to the facts of the case would be 142 and not 144. I think this view of the learned Subordinate Judge is not correct.
12. Secondly it was contended that the finding arrived at by the Court of appeal to the effect that “their title to these lands having been proved up to 1866 is not in controversy before me” was correct no doubt but was incomplete. The Court of appeal did not take into consideration, as was contended by the appellants, their evidence on the point of possession which related to the period intervening between 1866 and 1882 until the land did not go into water. I have gone through the judgment carefully and I do not find that any discussion has been made by the learned Subordinate Judge on the point of possession during the period between 1866 and 1882; nor does it appear from the discussion given in the judgment that there was no evidence regarding possession an between 1866 and 1882. The learned Subordinate Judge should have found either that there was no evidence on that point or that if there was any evidence that was either worthy of reliance or not fit to be accepted. The judgment, on the other hand, is completely silent on these points. I, therefore, agree with the learned counsel appearing for the appellants that the finding arrived at on the point of possession is not complete and it is silent as to whether the plaintiffs had led any evidence on the point of their possession between 1866 and 1882. It was also contended that even if there was no evidence given by the plaintiffs in support of their case of possession during the period between 1866 and 1882, the rule of presumption as laid down in Section 114, Evidence Act should have been applied, illustration, (d) given under that section reads:
“That a thing or state of things which has been shown to be in existence within a period shorter than that which such things or states of things usually cease to exist, is still in existence.”
I need not here express my opinion as to the inference which should be drawn in the present case in the light of the circumstances disclosed at the trial. I, however, think that this aspect of the question deserves consideration and I leave it for the first Court of appeal to take it into consideration and arrive at the conclusion after considering all the facts present on the record.
13. Thirdly it was contended that as it was found by the first Court of appeal that the land emerged out of water in the year 1931 after it had gone into it in 1882, it should have been presumed that plaintiffs continued in possession of the land in dispute till the year 1931 when it emerged out of water. This contention is based on the footing that they had title and possession even during the period between 1866 and 1882. If the first Court of appeal after the scrutiny of the evidence on the record comes to the conclusion that the plaintiffs were also in possession during the period between 1866 and 1882 and that the land, for all practical purposes, reappeared after 1882 in the year 1930-31, this contention, I think, has to be accepted. If, however, the Court of appeal failed to find that they, had title and possession during the period between 1886 and 1882 then the fiction of law arising out of fact that the land went into water in 1882 and emerged in the year 1931 will fail to help the appellants to content that they continued in possession till the year 1931 when the land emerged out of water. I, therefore, propose to remand the case to the first court of appeal for fresh hearing and judgment in the light of the observation made above. It was also contended that as the provision of Article 144, Limitation Act was applicable to the facts of the case it was for the defendants to show as to when the land in fact became fit for the purpose of cultivation and as to when the defendants actually started acts of adverse possession over the land after its emergence from water in the year 1931. It has been submitted and I think rightly that its finding on the point of defendants’ possession is mostly if not exclusively based on two documents, namely, khatauni prepared in 1326 lasli corresponding to 1919, which was exhibit G on the record, and the survey record-of-rights prepared in 1936. I must at the outset observe that in the circumstances disclosed by the entries in the khatauni it cannot be relied upon to prove that any person was in fact in physical possession of the land at the time when the khatauni was prepared. In the remarks column it is definitely stated therein that the land was under water. If it was so, nobody could be in fact in possession over the land in dispute at that time. Those entries can neither be used to hold that the persons entered therein were in possession at the time when the land went into water in the year 1882 and for that reason their names were continued even in the year 1919, when the Khatauni was prepared. The entry in the khatauni can at best be a piece of evidence under Section 15 (44 ? ) of the U. P. Land Revenue Act leading to the presumption that the state of affairs recorded therein at the time when it was recorded was correct. The important state of affairs as disclosed by it is that the land was then under water and, therefore, nobody could be in possession of it. The presumption arising out of that entry can in no case prove the fact of possession of the persons recorded therein at a time prior to 1326. If any authority is needed in support of that contention, I may refer here to the case of — ‘Hemendra Math v. Jnanendra- Pra-sanna’, AIR 1935 Cal 702 (L). Therein their Lordships observed:
“There is a presumption that a state of things found to exist at a particular point of time continues, taut there is no rule of evidence by which one can presume backwards: — ‘Manmatha Nath v. Girish Chandra’, AIR 1934 Cal 707 (M)”.
I, therefore, think that the entry made in the khatauni (Ex. G) is of no avail to prove the fact that any other person and not the plaintiff was in possession of the land in dispute then or even before it. Further even if it be found that the land was then in possession of a third party and not in the possession of either the plaintiffs or the defendants as evidenced by the khatauni, then the possession of that third party cannot be tagged in law to the possession of the defendants in order to enable them to discharge their onus for proving adverse possession under Article 144, Limitation Act. The khatian is equally, in my opinion, of no value in the circumstances of the present case to prove the point in controversy. The names of the defendants are no doubt recorded over the plots in dispute in the khatian but it was prepared in the year 1936 and, therefore, it cannot be used to prove as to the state of affairs that existed before 1936. Even, however, if the entry made therein as to what was the state of affairs in the past is taken into consideration then it is stated therein that the possession of the defendants began only two years before that entry. The possession of the defendants, therefore, in the light of that statement can at best be presumed to have started in the year 1934. That being so, the period intervening between 1934 and 1-10-1945, when the present suit was instituted, comes to less than 12 years. Therefore, these two documents, namely, khatauni (Ex. C) and the khatian (Ex. 14) do not help the defendants much and do not by themselves lead to the inference that the defendants came into possession in the year 1930 or 1931. The oral evidence on this point has not been unfortunately taken into consideration by the learned Subordinate, Judge. I, therefore, think that this point should also be reheard and finding arrived at in the right of the aforesaid observations. I would like to make it clear that in the lower appellate Court much attention was paid on the point that the land was or was not subject to annual flood. On that point the learned Subordinate Judge has come to the conclusion that that was not subject to annual flood and that it was fit for cultivation even during monsoon and flood period. I think little can be said against that finding and that has not been challenged in this Court. The plaintiffs in the light of that finding are not, therefore, likely to succeed in pressing that the defendants, on the ground of annual flood, could not get title by adverse possession.
14. The appeals are accordingly allowed and
the judgment of the learned Subordinate Judge is
set aside. They are remanded for rehearing and
fresh judgment in the light of the observations
given above. Cost will abide the result of the
appeals.