JUDGMENT Gangeshwar Prasad, J.
1. These are eighteen connected appeals arising out of eighteen connected and consolidated suits. The trial court disposed of the suits by a common judgment and the appeals against the judgments and decrees of the trial court were likewise disposed of by a common judgment by the court of first appeal. I also propose to deal with these appeals by a common judgment.
2. The suits were filed by Zamindars and tenants of village Indarpur against the residents of village Cheruiyan for perpetual injunction restraining the defendants from interfering with the plaintiffs' possession over certain plots of agricultural land and in the alternative for possession. Village Indarpur lies to the east while village Cheruiyan lies to the west of river Sarju, in the district of Ballie it was alleged by the plaintiffs that the land in dispute which was formerly on the eastern side of river Sarju and which used to remain submerged under water of the river during rainy season was transferred to the western side as a result of a sudden change in the course of the river in 1941. The land, however, remained identifiable and continued to be in possession of the plaintiffs. In November 1951! the defendants started causing interference in the possession of the plaintiffs and that, according to the plaintiffs, led to the institution of the suits. The defence in all the suits was the same. The defendants pleaded that under an immemorial custom river Sarju was the constant boundary between villages indarpur and Cheruiyan and whatever land was thrown upon the western side of the river on account of its fluvial action accreted to village Cheruiyan and the plaintiffs lost their rights to it.
It was denied by the defendants that there was any sudden change in the course of the river in 1941 as alleged by the plaintiffs, and it was asserted that as a result of the slow movement of the river which constantly shifts its course the land in dispute had become part of village Cheruiyan by gradual accretion starting from before 1881-82. The defendants claimed that they had been taking possession of the land as and when it accreted to their village Cheruiyan and had continued in possession ever since. It was denied that the land in dispute was subject to submersion under water every year during the rainy season as alleged by the plaintiff, and the suits were said to be barred by limitation. It was also denied that the land claimed by the plaintiffs was identifiable on the spot. Some other pleas which were more or less of a technical nature were also taken but they are no longer of any importance. The trial court dismissed all the suits and its decrees were affirmed by the learned Civil judge on appeal.
3. The findings recorded by the learned Civil Judge on the Issues which are relevant for the purposes of these appeals may be summarised as follows. The land in dispute was formerly a part of village Indarpur and lay on the eastern side of river Sarju but it was transferred to the western side of the river as a result of a change in the course of the river. The transfer of the land in dispute to the western side was, however, by gradual accretion during the course of a period of about 60 years preceding the suits and it did not take place on account of a sudden emergence of the land out of the water of the river in 1941 as alleged by the plaintiffs. The custom set up by the defendants was not established and river Sarju was not the constant boundary between villages Indarpur and Cheruiyan. The plaintiffs were not in possession of the disputed land on the date of the suit nor were they in possession thereof within the period of limitation allowed for instituting a suit for possession and consequently they lost their rights in the land. The defendants were, on the other hand, in possession and had acquired rights in the land on account of the expiry of the period of limitation prescribed for suits for possession against them. The plaintiffs bad not succeeded in proving that the land in dispute used to remain under water every year during the rainy season and as such the possession of the defendants was not Interrupted and limitation was not saved. The defendants had further acquired adhivasi rights in some of the plots in dispute.
4. At the hearing of these appeals, the findings of the learned Civil Judge that the land in dispute originally formed part of village Indarpur and that there was no custom under which river Sarju was to be the constant boundary between villages Indarpur and Cheruiyan, were not challenged and the learned counsel for the parties addressed their arguments accepting these findings as correct. The conclusion that flows from these findings inevitably is that the land appearing on the side of village Cheruiyan as a result of the action of the river would still remain the property of the plaintiffs if it is identifiable as having belonged to the plaintiff when it was on Indarpur side of the village, unless the plaintiffs have lost their rights by limitation or the defendants have acquired rights under same statutory provisions. This conclusion is not dependant in any manner upon whether the change in the course of the river was abrupt or gradual. The law on this matter may now be taken as settled in view of the two Division Bench decisions of this Court in Sri Krishna Dutt Dube v. Ahmadi Bibi, 1935 All L. J. 235 : (AIR 1935 All 187) and Mahadeo v. Baleshwar Prasad, 1939 All L. J. 708 : (AIR 1939 All 626); In the latter case Niamatullah J. after referring to the Privy Council decision in Maharaja of Dumraon v. Secretary of State, ILR 6 pat 481: (AIR 1927 P.C. 89) and to the Division Bench decision of this Court in 1935 All LJ 235: (AIR 1935 All 187) observed as follows.
"The view accepted on these cases is that, if the land in dispute is identifiable with reference to its physical features, land marks, or by measurement, it should be deemed to continue to belong to the former owner, whether its transfer from one side of the river to the other was by a sudden change in the course of the river or was the result of the river gradually receding on one side and throwing up land on the other unless a custom to the contrary is established."
5. The counsel for the parties did not dispute that this was the true view of the law and the controversy was narrowed down to the following questions:
1. Whether the land in dispute or any part thereof is identifiable ? This is substantially issue No. 13.
2. Whether the plaintiffs lost their rights in the land in dispute because of not being in possession within the period of limitation prescribed for the Institution of a suit for possession and whether the defendants acquired rights in the land on that account. This question is covered by issues Nos. 7, 10 and 14.
3. Whether the defendants acquired Adhivasi rights in the land in dispute or any part of It? This in short is issue No. 11.
6. The counsel for the parties were agreed that these were the questions really involved in these suits. But I am constrained to observe that in regard to none of these questions the approach of the learned Civil Judge can Be regarded as correct or his findings as having been arrived at in a legal and satisfactory manner.
7. I may first take up the question of the identifiability of the land in dispute. On this question the view taken by the learned Civil Judge does not appear either clear or consistent. "While dealing with the plots involved in each suit separately, he has mentioned that some of them correspond to plots shown in the records of village Cheruiyan, and yet he does not appear to have accepted in the concluding part of his Judgment that these plots at least are identifiable. He has observed that the plaintiffs have not given the corresponding numbers of the suit plots on Cheruiyan side and that it was Imperative for them to have done so. it would certainly have been better for the plaintiffs to give the corresponding numbers of the suit plots on Cheruiyan side to facilitate their identification but when according to the law the land remained a part of village Indarpur and did not become a part of village Cheruiyan irrespective of the fact whether it was thrown up on the western side of the river suddenly or appeared there gradually and imperceptibly the plaintiffs cannot be said to have been wrong in describing them by the numbers that they bear in the records of village Indarpur.
If river Sarju did not constitute the constant boundary between the two villages the plots in dispute are as much as part of village Indarpur after being transferred to the western side of the river as they were when then lay on Its eastern side. Not much fault can, therefore, be found with the plaints filed in these suits on the ground that they described the plots in dispute by the numbers by which they are shown in the records of village Indarpur. The records of village Cheruiyan might be more correctly maintained with regard to them and might be helpful or even necessary for identifying and correctly locating the plots, but that would not imperatively require reference in the plaint to the numbers that these plots bear in the records of that village. aH that is necessary is that the land in dispute should, in the words used in the case of 1039 All LJ 70S : (AIR 1939 All 626) be 'identifiable with reference to its physical features, land marks 01 by measurements.' Coming to the evidence on this question, I find that although the defendants have denied the identifiability of the land in dispute in their written statements their witness Dhana Chaudhari (D. W. 3) has stated that 35 bighas disputed land can be identifiable on the spot, and Jagdish Narain (D. W. 8) has also admitted in his statement that he can identify the disputed land on the spot.
No reference is, however, to be found to these statements in the judgment of the learned Judge, and having regard to their bearing on this aspect of the case it cannot be denied that these statements should not have been Ignored. Apart from this, there are on record applications filed by the defendants which appear to me to be of great value in determining the correspondence of the plots in the records of villages Indarpur and Cheruiyan. These applications were filed on 16th April 1949, after measurements had been carried out by the Amin under the directions of the court, for amendment of the written statements in each of the suits, mentioning at the foot of the applications to what plots as shown in the records of village Cheruiyan the plots mentioned in the plaints correspond, These applications were no doubt rejected as the amendments sought by the defendants were considered by the court as unnecessary. But the rejection or the applications cannot do away with the effect of the statements made therein regarding the correspondence of the plots. This important material on record has obviously been overlooked by the learned Judge. He has observed that "all of the old marks have been obliterated and the old boundaries washed away by the fiuvival action of the river and the identity of the plaintiffs' land cannot easily be fixed.
Very often old marks are obliterated and old boundaries washed away by the fluvial action of a river even when a land remains on the same side of the river. Can it be said in such cases that the land has become unidentifiable? Measurements and fixation of boundaries in such cases wilt certainly present difficulty but the difficulty can be no justification for regarding the land as unidentifiable. Again, the learned Judge says that the various portions of each plot of the plaintiffs in each case have gone to a number of different plots of village Cheruiyan and the original number does not retain its identity. A plot of land belonging to a person may have been split up Into several portions and included in different plots of land belonging to some other person or persons, but it cannot on that account be said that the plot does not retain its identity. It may have lost its identity in the sense that it does not bear its old shape but if physical identity can be established by measurements or otherwise a change of the above description cannot at all matter. The learned Judge concludes his finding on this question in the following manner :
"The plaintiffs have also lost their right to a majority of the suit plots by six months adverse possession or the defendants prior to the enforcement of Act 17 of 1S39 (even if it be assumed that no adverse possession over the remaining plots has matured after 1941). The land in respect of which the claim of the plaintiffs is liable to be dismissed in view of the finding on issue of Adhivasi right and limitation, cannot at all be demarcated from the rest of the land. I would, therefore, hold that there is no cogent and convincing evidence on the record to establish the identity of the land in dispute."
8. I confess my inability to understand how adverse possession of the defendants or acquisition of Adhivasi rights by them can stand in the way of identification of the plots or their demarcation in fact if it is possible to predicate of some plots that the defendants have been in adverse possession of them or have acquired Adhivasi rights in them, those plots have already been identified; and obviously, it would be incorrect to say that because the disputed plots or some portions of the disputed plots cannot be identified the entire land in dispute is unidentifiable. it is apparent that the questions regarding the idenfinability of the land involved in each suit has to be separately determined and issue No. 13 has to be decided afresh.
9. The question of limitation resolves itself into different parts. Firstly, it has to be ascertained as to what was the prescribed period of limitation for a suit for possession when the possession of the defendants on the disputed land began. The learned Civil Judge has observed that the period Of limitation for a suit prior to the coming into force of the U. P. Tenancy Act of 1913 was only six months, in taking this view he was clearly in error, under the Agra Tenancy Act of 1926 which was in force prior to the enactment of the U. P, Tenancy Act of 1939 a person taking or retaining possession of land without the consent of the land-holder and in contravention of the provisions of that Act was liable to ejectment under Section 44 of the Act and the period of limitation prescribed for each a suit was 12 years commencing from the time when the landholders first knew of the unauthorised occupation.
Although the learned Civil Judge has not mentioned the section, lie had probably in his mind Section 99 of the Agra Tenancy Act of 1926. That section was however, limited in its application to suits by a tenant against his landholder or a person claiming through, such landholder. If the land in dispute never in law formed part of village Cheruiyan the Zamindar of village Cheruiyan never became a landholder of the land nor did the plaintiffs become his tenants, and the defendants could not therefore have been sued under Section 99 of the Agra Tenancy Act of 1926. The only section of the Act under which a suit could have been filed was Section 44 and for a civil suit for possession the period of limitation was obviously 12 years from the date of dispossession. Of course, as has been observed by the learned Civil Judge after the enforcement of the U. P. Tenancy Act of 1939 a suit for possession had to be brought under Section 180 of the Act.
10. The next point to be considered in relation to the question of limitation is the effect of the submersion of the land under water of the river every year during the rainy season. If the allegation in that respect is found correct. It is well established that submersion of a land under water puts an end to the possession of the person who was in wrongful possession of it before the Submersion and restores the land to the possession of the rightful person who is deemed to be in constructive possession of it during the period of submersion. The most authoritative pronouncement on this matter was made by the Privy council in the case of Secretary of State v. Krishnamoni Gupta, ILR 29 Cal 518 (PC). it was probably this Privy Council case, if I may respectfully make a guess, that the Division Bench in the case of Baldev Thakural v. Ugra Nath Misha, AIR 1915 All 286 followed. While dealing with the facts of that case it observed:-
"There remains the question of title acquired by prescription. Even assuming that the plaintiffs have cultivated those portions of the land which became cuiturable we have it from the mouth of their own patwari that the land is only cuiturable in the Rabi season, that it is every year covered with the flood water. White the floods are over the land, the plaintiffs cannot be said to have remained in possession. They have been then dispossessed by vis major and in the eyes of the law, the possession during flood time will be deemed to have been in the defendants who had title. To acquire a title by prescription the plaintiffs must hold con thuously for a period of 12 years. in the circumstances it has been Impossible for them to do this and, therefore, impossible for them to acquire title by adverse possession for a period of 12 years.
The law on this point is covered by a decision of their Lordships of the Privy Council and is not contested before us ......"
11. In the case of Basant Kumar Roy v. Secretary of State ILR 44 Cal 858: (AIR 1917 PC 18) it appears to have been urged before their Lordships of the Privy council that a distinction should be made between submersion of a land under water after a gap of few years and regular periodical submersion for a few months every year and that in the latter case continuity of unlawful possession should not be regarded as having been broken and the rightful person should not be deemed to have regained possession. This contention was repelled by their Lordships and they held that such a distinction was not rational and the principle that the owner is deemed to be in constructive possession of a submerged land was equally applicable where the refolding was seasonal and occurred for several months in each year. Reference in this connection may be made also to the cases of Maharaja of Cooch Behar v. Mahendra Ranjan Roy, AIR 1921 Cal. 277; Secretary of State v. Ram Bachan Lal AIR 1941 fat 122; and Ram Sunder Rai, v. Ramasray Rai AIR 1960 Pat 237. The distinction which was sought to be made before their Lordships of the Privy Council in the case of Basant Kumar Roy 1LR 44 Cal 858: (AIR 1917 PC 18) was pressed by the learned counsel for the respondents in his arguments before me but in view of the decision of the Privy Council and of the other cases mentioned above, particularly the case of AIR 1915 All 286 decided by this Court, the distinction cannot be regarded as having any rational basis and cannot be accepted.
12. It has then to be considered whether, the principle that a land seasonally submerged under water every year reverts to the possession of the owner was applicable to suits under Section 44 of the Agra Tenancy Act of 1926 and Section 180 of the U. P. Tenancy Act of 1939. The principle. it must be conceded, is not based on any statutory provision but is founded on the true concept of possession and dispossession and as such, in my opinion, there is no reason why Its applicability should be limited to suits which fall under Arts. 142 and 144 of the limitation Act and it should have no application to suits under the tenancy laws. For time to run against the rightful person it was necessary that the wrong doer must have been in possession. The benefit of the doctrine of constructive possession not being available to a person wrongfully obtained possession, he could not be regarded as having continued in possession even while the land was under water. Since submersion of a land under water had the effect of restoring possession to the rightful owner the possession of the person who had wrongfully occupied it must be regarded as having come to an end.
The question, however, whether the plaintiffs lost their rights to the land in dispute on account of the expiry of the period of limitation prescribed under the various tenancy laws must be decided having regard to the fact of seasonal submersion of the land in dispute every year if such submersion is found established in fact. On this aspect of the question of limitation the learned Civil Judge has expressed no opinion presumably because of his finding that the plaintiffs had failed to prove that the land in dispute used to be submerged under water every year, and it is that finding which now proceed to examine.
13. The finding by the learned Civil Judge on this part of the case is so short that it may be reproduced in entirety. It is as follows:
"There la no reliable evidence on the record to establish the plaintiffs' theory that every piece of the disputed land used to be under water throughout the year. There is the single testimony of Sahdeo P. W. 1 on this point. The report (36 C) of Rageshwari Dayal, Vakil only proves that after filing of the suits, the land was found to be submerged under water in Kharif season. But this re port is in my opinion, Insufficient to cogently establish that the land in suit used to be submerged every year under water since 1307 F. The defendants have led evidence to the effect that in some stray years the Kharif crop is washed away by floods. The plaintiffs have, in my opinion, failed to establish their possession within limitation."
14. It will first be noticed that the learned Judge starts with stating that there is no reliable evidence on the record to establish the plaintiffs' theory that every piece of disputed land used to be under water throughout the year. This was not the plaintiffs' theory nor was it necessary to establish it. Proceeding further, the learned Judge says that there is the single testimony of Sahdeo F. W. 1 on this point. The fact that Sahdeo P. W. 1 wag the only witness examined on the point on behalf of the plaintiffs is certainly correct and it is also correct that he was a party to the case. But even his statement should not have been discarded without subjecting it to any criticism or assigning any reason. Moreover, both the parties having led evidence on the point, a comparative evaluation of their evidence ought to have been made. But, it will be noticed, there is no mention at all of the witnesses examined by the defendants or of the nature of their testimony. All that has been salt, about the evidence on the side of the defendants is that the defendants have led evidence to the effect that in some stray years the Kharif crop is washed away by floods. This can hardly be regarded as 3 proper mode of dealing with evidence, further, in making this observation the learned Judge appears to have either misread evidence or to have Ignored material parts in the statements of witnesses examined by the defendants. Sahdeo Chaudhari D. W.
conceded in his statement that no Kharif crop is ever sown in the disputed land.
This was in complete confirmation of the case of the plaintiffs and was certainly not a statement which could have been ignored. Then I find that there are some entries in the documents on record which have a material bearing on this part of the controversy between the parties, but no notice has been taken of those entries. For a proper appreciation of the materiality of those entries 1 may state that the case of the plaintiffs was that during the rainy season the land in dispute used to be flooded and to remain under water and it was only after the rainy season that it could be brought under cultivation. According to the plaintiffs therefore, only Rabi crop used to be raised on the land in dispute and there was no Kharif cultivation on it. The defendants' case on the other hand was that both Kharif and Rabi crops were grown on the land regularly every year. it was not the case of the defendants that no Kharif crop was raised on the land in dispute in spite of the fact that the land was not covered under water. The existence or other wise of Kharif cultivation on the land in dispute was in these circumstances a matter of vital importance in determining whether the land used to remain under water every year during the rainy season or not. Copies of the Khasra of village Cheruiyan for several years have been filed by the defendants themselves and they all show only Rabi crop as having been raised on the plots mentioned therein and a total absence of Kharif crop. surely a finding arrived at without taking into consideration this piece of evidence cannot be accepted. This question too, therefore, has to be decided afresh.
15. It has to be seen whether apart from anything else the defendants have acquired Adhivasi rights in the land in dispute or any portion of it. These rights could have been acquired under Section 29(b) of the U. P. Zamindari Abolition and Land Reforms Act and under Section 3 of the U. P. Land Reforms (Supplementary) Act and the point may therefore, be discussed under two separate heads.
16. The learned Civil Judge has mentioned the plots on which the names of some defendants are found entered in the Khasra of village Cheruiyan for the year 1356 Fasli but he has not indicated the nature of the entries in the Khasra. In view of the Full Bench case of Ram Dular Singh v. Babu Sukhu Ham, 1963 All L. J. 667 : (AIR 1964 All. 498) a person cannot be deemed to be recorded as an occupant within the meaning of Section 20(b) of the U. P. Zamindari Abolition and Land Reforms Act if his name is entered either as a tenant or as a sub tenant. An examination of the Khasra would show that none of the defendants is entered otherwise than as a tenant or a sub-tenant and it is, therefore, obvious that they did not acquire Adhivasi rights under the said provision.
17. Then, as to the question whether the defendants were in cultivatory possession of the land in dispute or any portion of it in 1359 Fasli. In dealing with this question the learned Civil Judge has only mentioned the fact that some plots are shown in possession of the defendants in the Khasra of village Cheruiyan for 1359 Fasli but he has not recorded any clear finding that the plots were actually in cultivatory possession of those defendants. The U. P. Land Reforms (Supplementary) Act requires actual cultivatory possession and not the record of possession in the village papers. Of course, the village papers may furnish valuable evidence of possession but there must nevertheless be a finding regarding the fact of possession. Quite apart from this, there is another matter of considerable importance in relation to this aspect of the cases. If the land in dispute was submerged under water or otherwise unfit for cultivation during the rainy season in 1353 Fasli can the defendants, assuming that they were in cultivatory possession for the rest of the year, be sold to have been in cultivatory possession during 1359 Fasli? The expression 'during 1359 Fasli' used in Section 3 of the U. P. Land Reforms (Supplementary) Act cannot obviously mean 'at any time in 1359 Fasli' and the only meaning that can properly be assigned to the expression in the context in which it is found is 'throughout the course of 1359 Fasli'. In construing the expression one has to bear in mind the fact that the legislature conferred Adhivasi rights upon persons in cultivatory possession of a land just for one year irrespective of the fact whether the possession was lawful or unlawful; and no construction which may have the effect of shortening the period of cultivatory possession necessary for the acquisition of the rights can justifiably be accepted. Of course there would naturally be gaps of time during which no agricultural operations would actually be done out those gaps would be Incidental to and parts of the cultivatory process Itself, and a common sense interpretation of the expression 'during 1359 Fasli' must make allowance for such gaps and regard the cultivatory possession as continuous in spite of them. if, however, during a particular period in the course of 1359 Fasli a person was not in cultivatory possession when in the normal course the land should have been under cultivation, he cannot be regarded as having been in cultivatory possession during that year. The fact that nobody else was in cultivatory possession in that period is a matter of little relevance, because what the taw requires is not that nobody else should have been in cultivatory possession but that the person claiming the right under it should himself have been in cultivatory possession. Cultivatory possession implies both possession and cultivatory nature of me possession, and if in 1359 Fasli a person was either not in possession at all or his possession wag not of a cultivatory nature for a period of time when in the ordinary course the land in question should have been under cultivation it is not possible to hold that such person was in cultivatory possession during 1359 Fasli, whatever the reasons might have been for the absence of cultivatory possession in that period.
18. It has next to be seen whether it makes any difference where the land in respect of which Adhivasi rights are claimed under Section 3 of the U. P. Land Reforms (Supplementary) Act was not available for cultivation for a part of the year 1359 Fasli on account of having been submerged under water. In my opinion the non-availability of the land for cultivation on account of submersion makes no difference in principle. in fact it appears to me that the submersion of the land excludes not merely cultivatory possession but even the possession of every body else except the owner who will himself be deemed to have been in possession during the period of submersion. Applying this principle to these cases it must be held that it was only if the defendants were in cultivatory possession throughout the entire duration of 1359 Fasli that they can claim to have acquired Adhivasi rights under the U. P. Land Reforms (Supplementary) Act. If, on the other hand, they were not in cultivatory possession in the Kharif season, whether on account of the land having been under water or on account of some other reason, it cannot be held that Adhivasi rights accrued to them. The fact whether the defendants or any of them were in cultivatory possession of the disputed land or any portion of it throughout 1359 Fasli has, therefore, to be clearly determined before the issue relating to Adhivasi rights can be decided. This has not been done by the learned Civil Judge and he has recorded a finding only on the basis of the Khasras of village Cheruiyan for the year 1359 Fasli which, as I have already pointed out, show cultivation only in the Rabi season. This question has also, therefore, to be decided again with reference to the evidence on record and the circumstances of the cases.
19. It would thus appear that all the contested issues involve questions of fact which call for reconsideration and fresh findings with reference to all relevant material on record. Virtually the cases have to be decided afresh except as to the question of custom. in such circumstances it appears to me necessary to remand the cases to the lower appellate court for rehearing. It is unfortunate that a litigation which started in 1953 has not yet run out its course but in the circumstance a remand appears to be unavoidable.
20. The issues which the lower appellate court shall decide are issues Nos. 1, 7, 10, 11, 13, 14 and 15, subject to this that in issue No. 11 all that has to be determined is whether the defendants became Adhivasi of the land in dispute under the provisions of the U. P. Land Reforms (Supplementary) Act and whether the provisions of the said Act and those of the U. P. Zamindari Abolition and Land Reforms Act bar the suits against them. The findings recorded by the courts below en the other issues were accepted before me and really they are not open to challenge. Some of those issues were in fact not seriously pressed even in the trial court. Those issues have, therefore, not to be decided again and the cases have to be decided by the lower appellate court by accepting the finding's recorded on those issues as correct.
21. I must make it clear that I should not be understood as having expressed any opinion on any question of fact involved in the cases and the lower appellate court shall make up its own mind on the issues to be decided by it and itself judge the value and effect of the evidence relating thereto.
22. The appeals are allowed, the decrees of the lower appellate court are set aside and the cases are remanded to the lower appellate court for being reheard and disposed of in the light of the observations and the directions made above. Costs snail abide the results.