P L D 1952 Dacca 133 (PLP)

ISPAHANI, J.‑--‑This appeal arises out of a suit filed by the plaintiff for declaration of title to some lands and for recovery of khas possession. The lands in suit are described in Schedule Ka, Kha and Ga to the plaint. The lands of Schedule Ka, comprise C. S. Plots Nos. 14, 16, 22, 50, 90 and 100 of Khatian No. 84 of Mauza Astadone and the lands of Schedule Kha comprise C. S. Plots Nos. 25 and 141 of the same Khatian. The lands of Schedule Ga comprise C. S. Plot No. 50/146 of Khatian No. 40 of Mauza Astadone. The lands of Schedule Ka appertain to Tauzi No. 16610 of the Dacca Collectorate. The owners of this Tauzi are one Pratap Chandra Gope and the Mazumdars. The lands of Schedule Kha appertain to Tauzi No. 2577, the owner of which is one Surja Kanta Mazumdar. The lands of Schedule Ga appertain to Tauzi No. 2454. The plaintiff's case is that the suit lands originally belonged to four brothers, Haladhar, Jaladhar, Adhar and Felani, who is defendant No. 17, in jote right and that Felani and the heirs of the other three while in possession sold the suit lands to the plaintiff for Rs. 500 by a Kabala, dated the 6th September 1938, corresponding to the 20th Bhadra, 1345 B. S. He alleged that after his purchase he obtained possession of the lands purchased by him, but was dispossessed by defendants Nos. 1 to 16 in daista, 1346 B. S. Defendants Nos. 18 to 25 are the heirs of Haladhar, Jaladhar and Adhar. After plaintiff's dispossession he started a suit in the Munsif's Court on the 10th October 1939, against defendants Nos. 1 to 16 and valued the suit at Rs. 500 only. On the 14th December 1940, the plaint was ordered to be returned to the filing Pleader on the ground of under‑valuation and for want of pecuniary jurisdiction. On the 17th September 1941, the plaint was actually returned to the filing Pleader and refiled on the same day in the 2nd Subordinate Judge's Court, Dacca. Defendants Nos. 26 to 28 were added subsequently as parties to the suit in the Subordinate Judge's Court. The defendants contended, inter alia, that the plaintiff could not succeed in the suit as he was never in possession of the suit lands after his purchase on the 6th September 1938, nor his vendors even were in possession before or after that date. The learned Subordinate judge, 3rd Court, Dacca, after an exhaustive enquiry, dismissed the suit on the ground of limitation, both general and special. On appeal the learned Additional District Judge, 1st Court, Dacca, upheld the decision of the trial Court. From that decision the appellants, who are the heirs of the original plaintiff, have come to this Court in second appeal. On behalf of the appellants Mr. Nandi has argued the question of limitation from two angles, namely, general and special. His contention is that both the Courts below have erred in law in holding that the suit was barred by the general law of limitation inasmuch as the evidence establishes clearly that the suit is not so barred. In considering this point certain relevant facts have to be stated. Haladhar and his brothers, the predecessors‑in‑interest of the appellants filed a suit in 1926, for recovery of khas possession of the suit lands upon declaration of their title thereto. That suit, on transfer to another Court, was renum bered as Title Suit No. 28 of 1928. They alleged dispossession in 132 t B. S. corresponding to 1914. Defendants Nos. 6, 10, 11 and 15 of this suit were defendants in that suit and they alleged in the written statement that they were bargadars of Pratap Chandra Gope, one of the co‑sharer proprietors of the suit lands. In spite of their defence, the said Pratap Chandra Gope was not made a patty in that suit, which was decreed on compromise against some of the defendants and ex parte against the others. In execution of that decree, Haladhar and his brothers took delivery of possession through Court on the 4th October 1928. The decree as passed can never be binding on Pratap Chandra Gope, who was not made a party ,in that suit in spite of the defence of some of the defendants, as stated above. It would appear from the concurrent finding of both the lower Courts that Haladhar and his brothers were unable to obtain actual possession of the lands. It is, therefore, clear beyond any doubt that at the time of taking symbolical possession Haladhar and his brothers were out of possession of the suit lands for more than 12 years from 1914 and the title was clearly barred by limitation so far as Pratap Chandra Gope was concerned. If the predecessors of the appellants had lost title to the suit lands in I q28, clearly they had no title in the suit lands at the time they transferred the same to the original plaintiff by the Kabala or when the present suit was filed. We are, therefore, satisfied that the present suit whether filed on the 10th October 1939, in the Munsif's Court, or refiled in the Subordinate Judge s Court on the 17th Sep tember 1941, is barred by the general law of limitation. In this connection Mr. Nandi has argued further that in computing general limitation the act of possession of Haladhar and Bochai, who were accused in a certain criminal case brought by Pratap, should be taken as the starting point and, therefore, the present suit will not be barred by limitation. The facts in this connection are the following : It would appear after the decree in the title suit mentioned above was passed, Haladhar and Bochai tried to .take posses sion of the suit lands and in Baisakh, 1335 B. S., corresponding to April 1929, they went on the same and sowed thereon. Pratap Chandra Gope brought a criminal case against them and both were convicted under section 426 of the Penal Code on the 210th October 1929, as would appear from Exh. E, the judgment. On the 6th January 1930, the Appellate Court upheld the decision of the trial Court (Exh. C). On the 7th May 1930, the High Court confirmed the decision of the lower, appellate Court (Exh, C. 1). Mr. Nandi has argued that as Haladhar and Bochai asserted their title to the suit lands and actually went thereon and sowed crops, that act by itself is will not be barred if it is held that the date of the institution of the suit is the 10th October 1939, when it was originally filed in the Munsif's Court. This argument, in our opinion, must fail because the solitary act of trespass and mischief committed by Haladhar and Bochai cannot be construed to mean that they were actually in possession of the suit lands on that date. It is to be noted that after their conviction they did not file any suit to establish their title. The position, therefore, is that as we have held that they were not in actual possession by virtue of that solitary act, the question of computing the period of limitation up to the first date of the institution of the suit or the subsequent date does not arise. Mr. Nandi also advanced arguments on the question of special limitation so far as the lands of Schedule Ka and Ga are concerned, both the Courts below holding that the suit was also barred under that law in respect of the lands of the said two Schedules. As we have already held that the suit is barred under the general law of limitation, it is not necessary to consider this point. Mr. Nandi lastly argued that on the finding of the lower appellate Court that th3 lands were under water at the time of delivery of possession on the 4th October 1928, during the period of submergence the rightful owners, namely, the predecessors of the appellants, must .be deemed to be in constructive possession of the suit lands and, as such, the suit would not be barred by limitation if the period of limitation is computed from that date. We have been referred to cases reported in 29 I A 104 ; 44 I A

104. In the latter case their Lordships of the Privy Council observed that there was no distinction between seasonal submersion and submersion for a number of years. Both the Privy Council decision were followed in the cases reported in A I R (1923) All. 75 ; and A I R (1936) Oudh

387. We may state in this connection that no such case was made out in the plaint nor was this point urged before either of the two lower Courts. This argument is founded on a straysentence of the lower appellate Court that the lands were under water at the time of delivery of possession when the question of actual or symbolical possession was being considered by it and for no other purpose. We may, however, refer to the case of Maharani Hemanta Kumari Debi and others v. Midnapur Zemindary Co., Ltd. C W N 782 ; wherein it was held that adverse possession must be actual, open, uninterrupted, notorious exclusive and continuous, and when such possession continued for twelve years it conferred an indefeasible title upon the possessor. It was further held that the doctrine of constructive posses sion was not available to a trespasser and when a trespasser was dispossessed by vis major, such dispossession had the same effect as voluntary abandonment of possession by him. In the very recent case of Apcharuddin, Abdul Ghani add others v. Gurudayal Kapali and others 83 C L J 108, it was held that the word "vis major" imports something abnormal and with reference to the context means that the property by the act of God had been rendered useless, for the time being, that is to say, it was rendered incapable of any enjoyment. Their Lordships observed that rainfall in Bengal at certain parts of the year was normal occurrence, and if as a result of rainfall only, a Piece of lowlying land was simply covered with , water it cannot be said, that the submergence so occasioned was the result of vis major and so the land was to be regarded as derelict during the time it remained under waster. They held further that as soon as the land became derelict the possession of the trespasser ceased and the rightful owner was deemed to be in possession during the period of time when the land remained derelict. The case reported in 44 I A 104 (supra), on which Mr. Nandi relies, was distinguished and the case reported in 45 C W N 728 (supra), was discussed and reviewed. The case reported in 29 I A 104 (supra, was also considered. In the present case there is no evidence nor any finding of the lower Courts that by reason of the submergence the land had become derelict and the predecessors of the appel lants could be deemed to be in constructive possession during the period of submergence and thus save limitation. On the A other hand, there are materials showing that the lands were capable of yielding two crops per year and the respondents were exercising acts of possession without any interruption. Further in view of the finding that appellants vendor's title was extin guished and that of Pratap Chandra Gope was perfected by adverse possession before 1928, constructive possession, during the period of submergence, would be the constructive posses sion of Pratap Chandra Gope and not of the appellant's vendor. The submergence contemplated by law must be such as to render the land derelict, that is, incapable of use for any pur pose and not a seasonal submergence during which the posses sion of the then possessor is not interrupted or discontinued. From a consideration of all the facts and circumstances we are unable to accept Mr. Nandi's argument on the ground that though the land might have been under water at the time of delivery of possession had not become derelict for the purpose of saving limitation so far as the appellant's predecessors are concerned. The result, therefore, is that this appeal is dismissed with costs. CHOWDHURY, J. ‑J agree. A. H. Appeal dismissed.