JUDGMENT
1. This is an appeal on behalf of the plaintiffs in an action for recovery of possession of 125 bighas of land which they claim as reformation in situ of their Mouzali Khanka deluviated by the river Bhairao. The Courts below have concurrently found upon the question of title in favour of the plaintiffs. The Court of first instance, however, dismissed a portion of the claim on the ground that the defendants had acquired a good title by adverse possession for the statutory period. Upon appeal by both parties the Subordinate Judge has varied the decree of the original Court and has held that the plaintiffs are entitled to succeed in respect of a smaller area.
2. The plaintiffs have now appealed to this Court and on their behalf, it has been contended that the Subordinate Judge has failed to apply to the facts of the present case the principles applicable to cases of acquisition of title by adverse possession in respect of chur lands. In our opinion, the judgment of the Subordinate Judge in so far as it disallows a portion of the claim of the plaintiffs, cannot be supported.
3. As pointed out by the Subordinate Judge, the disputed land is divided into two parts by a towpath. The land towards the south of this tow-path became fit for cultivation within twelve years of the commencement of this suit and consequently the plaintiffs are entitled to a decree in respect of this southern portion against the defendants. As regards the northern portion, it has been found that the land was reformed more than twelve years before the institution of the suit. But though this finding of fact cannot be successfully assailed in second appeal, the judgment of the Subordinate Judge is open to criticism, as he does not find specifically that the defendants or their tenants were in actual occupation of these lands, continuously for a period of twelve years so as to enable them to acquire title by adverse- possession. Reference has, no doubt, been made in the judgment of both: the Courts below to various qabuliyats executed in favour of the landlords defendants by their tenants from time to time, and it has been assumed that the fact of the execution of qabuliyats was sufficient to justify an inference that the defendants were in actual occupation of the land. This view clearly cannot be supported. The principle applicable to cases of this description was explained in the cases of Ananda Hari Basah v. Secretary of State for India in Council 3 C.L.J. 316 and Mirza Shamsher Bahadur v. Kunj Behari Lal 7 C.L.J. 114 : 12 C.W.N. 273 : 3 M.L.T. 212. In the first of these cases, it was pointed out, on the authority of the decision of the Judicial Committee in the case of Radha Moni Debi v. Collector of Khulna 27 C. 943 : 27 I.A. 136 : 4 C.W.N. 597, that in order to prove title to land by adverse possession, it is not sufficient to show that some acts of possession have been done, but the possession must be adequate in continuity, in publicity and in extent of area to establish that it is possession adverse to the competitor and to take the title out of the true owner. It was further pointed out in the same judgment that the doctrine of constructive possession applies only in favour of a rightful owner, and must not, as a rule, be extended in favour of a wrong-doer whose possession must he confined to the land of which he is actually inoccupation. A general statement, therefore, that the defendants or their tenants had taken possession of the lands as they formed is obviously insufficient for the disposal of the case. If the landlords defendants rely upon possession through their tenants, as they are entitled to do, evidence must be given to show that the tenants wereinaclual occupation and thatsuch possession covered the whole of the disputed land. [See Mirza Shamsher v. Kunj Behari Lal 7 C.L.J. 114 : 12 C.W.N. 273 : 3 M.L.T. 212]. If it is not established in respect of a particular portion that it has been continuously in possession of the defendants either directly or through their tenants, clearly the title of the plaintiffs has not been extinguished. Then, again it has to be remembered, as explained in the case of Jogendra Nath v. Baldeo Das 35 C. 961 : 12 C.W.N. 127 : 6 C.L.J. 735, that adverse possession to be effective must be actual, visible, exclusive, hostile and continuous for the statutory period. In so far as this last element is concerned, we may point out that the judgment of the lower appellate Court regarding the parcels called Amanat Khamar is clearly defective. The Subordinate Judge appears to have held that the defendants took possession of these lands upon reformation and by their tenauts grew mustard and us crops on it before the land became sandy, and ‘that afterwards it lay palit for eight or ten years. If so, it is obvious that the elements, which must be established to create a good title by adverse possession, have not been proved, and as the possession of the defendants was not continuous, the acquisition of statutory title by adverse possession was interrupted. The learned Vakil for the respondents has, however, suggested that even if after possession had been taken by them, the lands became, by reason of the action of the rivers covered with sand and incapable of occupation, their possession must, in the eye of law, be deemed to have continued over this waste tract of land. This contention is clearly opposed to the principle of the decision of the Judicial Committee in the case of Secretary of State for India v. Krishnamoni Gupta 29 C. 518, which shows that the possession of the defendants terminated in the eye of law and the possession of the true owner revived, as soon as the lands became incapable of use or occupation. In our opinion, important principles of law applicable to the case before us have been completely overlooked, and it has not been properly tried by the Subordinate Judge.
4. The result, therefore, is that this appeal must be allowed and the judgment of the Subordinate Judge set aside in so far as it dismissed the claim of the plaintiffs. The case will be remitted to him in order that he may-consider the evidence from the point of view explained in this judgment. Costs of this appeal will abide the result.
