Judgement Appeal and cross-appeal from a decree of the High Court (June 8, 1888) which varied in favour of the plaintiffs a decree of the Subordinate Judge of Zillah Faridpore in Bengal (March 18, 1896) which had decreed only to a very small extent the plaintiffs suit. The plaintiffs (the Mozumdars) on March 30, 1894, sued to recover possession of 2245 bighas, or any further quantity to which they might be found entitled, of chur land (alluvial formation), on the ground that the same was a reformation on the site of part of their permanently-settled estates called turuf Silimpore in pergunnah Amirabad, and turuf Durgapore in pergunnah Birhampore, and that they had been wrongfully ousted from the same by the defendant. The case made in the plaint was that the two estates formerly belonged to Joy Sunker Mozumdar and his brother Earn Sunker Mozumdar, from whom they descended to the Mozumdar plaintiffs ; that a large portion of the said estates having been washed away at some date unstated by the force of the current of the river Pudma, reformed again, and was upon such refor mation taken possession of and held by the Mozumdars; that in August, 1827, 9407 bighas of the land which had so reformed were released by the Government to the Mozumdars; that various proceedings took place in the years 1830, 1845, and 1846, and fresh diluvion and alluvion took place, and that thak and Revenue Survey measurements took place in the years 1857 to 1859, and the reformations on the site of the lands belonging to the Mozumdars were measured as belonging to and were taken possession of by the Government, and a lease hold settlement in respect of the reformed lands was concluded with the Mozumdars; that there was then again further diluvion, and the lands in question began to reform from the year 1884, when the Mozumdars took possession of the same, and were dispossessed by the Government in June, 1885. The Secretary of State in his written statement denied that the Mozumdars were ever in possession of the land in suit under any claim of proprietary right; and that the land in suit was any part of any of the estates alleged to belong to the Mozumdars; and submitted that the Mozumdars, having acknowledged the title of the Government to the said lands by taking farming settlements of the same from the Government from 1849 to 1882, were estopped from denying the Governments title thereto. He further denied that the land in suit was any portion of the 9407 bighas of land alleged to have been released to the Mozumdars in August, 1827, or was a reformation in situ of any of the Mozumdars estates. Further, he denied that the Mozumdars villages lay to the immediate north of the Government estates of Dhunchi, Sonakandar, and Gachiadaha, and alleged that the villages had the river Pudma lying on their immediate north; and submitted that it appeared clearly from the Thakbust and Revenue Survey measurements of 1858-59 that the land in suit was part of the Government estates of Dhunchi, Sonakandar, and Gachiadaha, and that this had been admitted by the Mozumdars, who had for over thirty years acknowledged the title of the Government by taking leases of the said land from the Government, who had resumed khas or direct possession of the leased lands in April, 1882. The Subordinate Judge held that from the thak and survey maps it was clear that all but a very small portion of the land in suit lay within the Government khas (or directly owned or held) estates of chur Dhunchi, Gachiadaha, and Sonakandar. That it was admitted that in earlier times the river Pudma had Laln to the north of those estates, and had separated them from certain lands which in process of time were diluviated; that as this diluviation took place, there began to be reformation on the southern bank Law. Rep. 29 Ind. App. 104 ( 1901- 1902) Secretary of State for India in C ouncil V. Krishnamoni Gupta 34 of the river Pudma contiguous to the estates of chur Dhunchi, chur Sonakandar, and chur Gachiadaha, and that such reformation was taken possession of by the Government in 1846, notwithstanding objections preferred by the Mozumdars. Rep. 29 Ind. App. 104 ( 1901- 1902) Secretary of State for India in C ouncil V. Krishnamoni Gupta 34 of the river Pudma contiguous to the estates of chur Dhunchi, chur Sonakandar, and chur Gachiadaha, and that such reformation was taken possession of by the Government in 1846, notwithstanding objections preferred by the Mozumdars. That upon such resumption the tract be resumed was settled with or let on a lease to the Mozumdars, who took the same as lessees from the Government under various successive settlements which lasted from 1849 to 1882. He was of opinion that at the time of the thak in 1857, and of the Revenue Survey in 1858-59, the Mozumdars again unsuccessfully claimed these lands as the lands of their zemindari. That the Government had been in possession both before and ever since that date, and that as the Mozumdars had failed to prove that they had had possession of any of the land which was demarcated in the thak and survey maps of 1857-58 and 1859, as lying within the limits of the said estates chur Dhunchi, chur Sonakandar, and chur Gachiadaha, at any time since the date of the said thak and Revenue surveys, their claim to any of such lands was barred by the law of limitation. He also pointed out that the thak and the Revenue Survey maps included the major portion, if not the whole, of the disputed land within the Government property, and further that the maps shewing the lands, the subject of the said leasehold settlements made with the Mozumdars, had been plotted by the Civil Court Amin on his map made for this case, and that such plottings covered the whole of the lands in dispute, save a few small pieces. He summed up his finding on this subject as follows "The plaintiffs have failed to make out their title to the land in dispute by any clear and reliable evidence. He summed up his finding on this subject as follows "The plaintiffs have failed to make out their title to the land in dispute by any clear and reliable evidence. There is nothing to shew that the disputed land was included within the plaintiffs zemindaris, and that the same forms a reformation on the old site of land appertaining to such estates." He then dealt with the case made by the Mozumdars to shew that the land now in dispute fell within the lands released to their predecessors in 1827, and held that the Mozumdars had wholly failed to do so, and he concluded this part of his judgment as follows " The plaintiffs hence have thus failed to make out their title to the disputed land, which according to the thak and survey maps, is comprised within the Government estates chur Dhunchi, chur Sonakandar, and chur Gachiadaha. According to the evidence on both sides, there stood the river to the north of these Government khas mehals, and it seems to me that the disputed land has been gained by the Government from the river bed. In cases of boundary disputes and in questions of parcel or no parcel, the thak and the survey maps are the best evidence on the point, and these maps disprove the plaintiffs title and establish the title of the Government." He held, however, that the Mozumdars had made out their title to so much of the disputed land as? according to the thak and survey maps, fell outside of the limits of the Government mouzahs of chur Dhunchi, chur Sonakandar, and chur , Gachiadaha, and within the limits of their own estates, and he gave them a decree for such lands. As to all the rest of the disputed lands, he held that the Mozumdars claim was bad, both on the ground of title and limitation. The High Court in their judgment followed the various proceedings which had taken place with regard to the land in dispute, as the result of diluvion and alluvion, as the river travelled northward or southward, down to the Collectors order in March, 1859, in which it was held that the Mozumdars claim to the then newly accreted lands was not made out, but that the same belonged to the Government. The High Court found that upon such decision the Mozumdars had applied for and obtained from the Government a lease of the said newly formed land which had so been heldto belong to the Government, and that such leasehold settlement extended for eleven years from the year 1859 to the year 1869, both years inclusive. Law. Rep. 29 Ind. App. 104 ( 1901- 1902) Secretary of State for India in C ouncil V. Krishnamoni Gupta 35 They found that at the thak of 1857 and the regular survey of 1858-59, the said lands had been thaked as part of the Government khas estate, notwithstanding the objection of the Mozumdars. They also found that the Mozumdars took from the Government in 1869 a fresh lease or settlement of the said lands, which, extended by subsequent settlements, lasted until 1882. They stated the case of the Mozumdars from that date as follows "In 1882 the river appears to have reached again its southernmost limit, and at that time the plaintiffs either did not wish to take or did not obtain from Government a settlement of the chur lands, which it claimed as belonging to its khas mehal. Between 1882 and 1884, which corresponds with the Bengali year 1291, the river moved up again towards the north and threw up a considerable quantity of land on the southern side, and the plaintiffs case is that they took posses sion of the same through their tenants, remained in possession for a year or so, and were then ousted by Government. They accordingly bring this suit to recover possession of all the lands lying to the south of the river and to the north of the old jajira chur resumed in 1845 or 1846 by the Government, on the ground that they are reformation in situ of their mouzah Mowkuri appertaining to their permanently settled estate of turuf Silimpore. They claim to have been in possession of these lands all along by virtue of the various settlements they took from Government. They say that in 1859, and for a considerable time after, the condition of their family was such that they could not fully apprehend their rights, and that therefore the fact that they took settlements from Government should not debar them from putting forward their present claim. That, at least, is what we understand from the allegations contained in paragraph 3 of the plaint. That, at least, is what we understand from the allegations contained in paragraph 3 of the plaint. They further allege that during the whole time they were holding these lands under settlement from Government they were paying revenue in respect of them as part of their permanently settled estate, and that therefore in equity the Government are not entitled to say they have lost their rights thereto." They then held that the lands had reformed within ten years before the date of the suit; that the plaintiffs have sufficiently shewn that a considerable portion of the lands in suit are a part of the tract of 9407 bighas released to them in 1827 as forming part of their permanently settled estates. But they held that the Mozumdars had lost title so found in their favour through adverse possession by the Government of all the land lying to the south of the river bank of 1869, but were entitled to a decree for all the disputed land which lay to the north of the said river bank; which divided the disputed lands into two nearly equal portions. Cohen, K.C, and Branson, for the appellant, the Secretary A State, contended that the plaintiffs, the Mozumdars, had on the evidence failed to make out their title to the lands which the High Court had awarded to them. They had failed to shew either that those lands had been released to them in 1827, or that they had not been resumed by the Government in 1846. They ought to be held bound by the result of the thak and survey proceedings of 1857- 1859, when it was judicially decided after all their objections had been considered that the lands in suit were Government lands. No sufficient reasons were given in the judgment appealed from that the last occasion on which the lands had reformed was less than twelve years from date of suit. They ought to have held that the Government had acquired a good title to the lands in suit by adverse possession for more than twelve years. They ought to have found that the Government had been in possession since 1859. The possession was adverse see Des Barres v. Shey (( 1874) 22 W. R. (Eng.) 273.) ; Taylor d. Atkyns v. Horde. ((1757) 2 Sm. They ought to have found that the Government had been in possession since 1859. The possession was adverse see Des Barres v. Shey (( 1874) 22 W. R. (Eng.) 273.) ; Taylor d. Atkyns v. Horde. ((1757) 2 Sm. L. C. (10th ed.) 635) The plaintiffs had accepted leases from the Government for thirty years, and were accordingly estopped from disputing their landlords title. The Government were found by the High Court to have been in possession through their tenants of some of the said lands at the date of the last diluvion in 1859, and it ought to have been held that their possession continued during the time of submersion, so as to perfect their title. Consequently when the land Law. Rep. 29 Ind. App. 104 ( 1901- 1902) Secretary of State for India in C ouncil V. Krishnamoni Gupta 36 reformed it still belonged to the Government see Rally Churn Sahoo v. Secretary of State for India (Ind. L. R. 6 Calc. 725.); Manomohun Ghose v. Mothura Mohun Roy. (( 1881) Ind. L. R. 7 Calc. 225, 240.) Mayne and C. W. Arathoon, for the respondents, the plaintiffs-, contended that on the evidence the High Court was right so far as they found that the lands in suit were part of the lands released to them in 1827. They were part of the plaintiffs permanently settled estate. The title was in them, and, although they took a lease from the Government and paid them rent, that did not destroy their own title, which title was founded on contract with the Government, modified but not overridden or destroyed by the later arrangement. The lease was of land which was at the bottom of the river. The land was submerged more or less from 1869 to 1885. Whilst it was submerged the constructive possession remained with the true owner, and not with either lessor or lessee in respect of the lease. At the least, there could not be that actual possession by a trespasser or person without title which could found a title by prescription. See Savigny on Possession (Perrys translation), bk. iii. pp. 245, 253, 258, and 265. Actual possession was in abeyance while the land was under water, and the possession contemplated by the Limitation Act, arts. 142 and 144, is a continuous possession. [Lord Davey referred to Trustees, Executors, and Agency Go. v. Short. (13 App. Cas. See Savigny on Possession (Perrys translation), bk. iii. pp. 245, 253, 258, and 265. Actual possession was in abeyance while the land was under water, and the possession contemplated by the Limitation Act, arts. 142 and 144, is a continuous possession. [Lord Davey referred to Trustees, Executors, and Agency Go. v. Short. (13 App. Cas. 793.)] The possession, moreover, was not adverse unless an action of ejectment could have been brought. Actual ejectment could not have been brought, and a suit to declare title would have been at the discretion of the Court whether it should be allowed, and is not one which it is obligatory to bring so as to save the statute. Title, therefore, was untouched while the land was submerged. It was in the plaintiffs when diluvion began, it continued during submerger, and it remained in them after reformation after the river had receded. See Ex parte Fletcher (( 1877) 5 Ch. D. 809, 813.), Jones v. Chapman (( 1847) 2 Ex. 803, 821.), and Lows v. Telford. (( 1876) 1 App. Cas. 414.) In the cross-appeal it was contended that so long as the Government received full revenue from the plaintiffs in respect of their permanently settled estate they could not make title to any part thereof by adverse possession. A trespasser cannot claim title by adverse possession against an owner between whom and himself there are ascertained relative rights such as exist between Government and the holder of a permanently settled estate. It is a case of estoppel against estoppel, which leaves the whole case open. See Secretary of State for India v. Fahamidunnissa Begum. (( 1889) L. R. 17 Ind. Ap. 40, 51.) Cohen, K.C., replied, contending that the authorities cited were not in point, because in this case the lease was given of land under water; the submerger was within the contemplation of both parties, and did not affect their relative rights. The judgment of their Lordships was delivered by LORD DAVEY. The river Pudma is one of those great rivers in India which frequently change their course. Sometimes it has cut from north to south, and then again from south to north, and sometimes it has cut in both directions at the same time. The judgment of their Lordships was delivered by LORD DAVEY. The river Pudma is one of those great rivers in India which frequently change their course. Sometimes it has cut from north to south, and then again from south to north, and sometimes it has cut in both directions at the same time. As the bed of the river has shifted from time to time cultivable lands have been submerged, and, again, lands which had been submerged have been reformed and become cultivable. The plaintiffs in the action out of which these appeals arise are the present representatives of a family named Mozumdar, and they and their ancestors are conveniently referred to as the Mozumdars. A permanent settlement was made with this family under Regulation I. of 1793 of zemindaris Nos. 898 and 148 at a fixed assessment. These zemindaris were on the north of what was at the time of settlement the river bed. They are said to have comprised a mouzah called Mowkuri, but owing to changes in the river bed the name has disappeared from the maps, and the identification of the site of this mouzah was one of the questions of fact in the case. The Law. Rep. 29 Ind. App. 104 ( 1901- 1902) Secretary of State for India in C ouncil V. Krishnamoni Gupta 37 Government are the proprietors of the khas mehals chur Dhunchi, Sonakandar, and Gachiadaha, situate on what was in earlier times the southern bank of the river. The Mozumdars commenced this action on March 30, 1894, claiming certain lands which had been submerged and were reformed as appertaining to mouzah Mowkuri and part of their zemindaris. The Government by their written statement pleaded (among other things) that neither the plaintiffs nor their predecessors ever were in possession of the land claimed in their alleged proprietary right, and that the suit was barred by limitation. The only issues to which their Lordships attention was directed were the second—whether the suit was barred by limitation; and the fourth—whether the land in dispute formed any portion of estates Nos. 898 and 148 at the time of the permanent settlement. The land originally in dispute is defined by a yellow line on the Amins map appended to the High Courts decree. 898 and 148 at the time of the permanent settlement. The land originally in dispute is defined by a yellow line on the Amins map appended to the High Courts decree. It was admitted by counsel for the Mozumdars that they could not maintain their claim to the pointed triangular piece to the south of what is called the line of 1845, and, on the other hand, the Government do not now claim a small piece to the north of the line of 1859. The land now in dispute, therefore, is comprised between the lines of 1845 and 1859, which describe approximately the southern bank of the river at those respecive dates. Those lands are divided into two nearly equal portions by a blue line describing the river bank of 1869. The Subordinate Judge decided wholly in favour of the Government. The High Court decided in favour of the Mozumdars as to the portion of the land lying between the line of 1859 on the north and the blue line of 1869 on the south, and in favour of the Government as regards the southern portion between the line of 1869 and the line of 1845. Both parties have appealed. The learned counsel for the Government, for the purposes of the appeal, accepted the facts as found by the High Court, and relied exclusively on limitation in support of their claim. Their Lordships, therefore, are not called on to discuss any of the questions of fact which were in issue in the Courts below. The High Court has found that the lands now in dispute formed part of a tract of 9407 bighas which had been released to the Mozumdars in 1827 as forming part of their permanently settled lands. Their Lordships need only state the subsequent events so far as may be necessary to make the argument on behalf of the Government intelligible. Between 1839 and 1845 the river had moved northwards to the line of 1845, and an island had been formed on the south of the then river bed. By a proceeding in the Collectorate of April 17, 1846, this land was decreed in favour of the Government as jajira. Ijara settlements were made by the Government with the Mozumdars for this jajira land for terms of ten years. By a proceeding in the Collectorate of April 17, 1846, this land was decreed in favour of the Government as jajira. Ijara settlements were made by the Government with the Mozumdars for this jajira land for terms of ten years. By the year 1859 the river had again moved northwards to the line of 1859, and the lands now in dispute, which in 1845 had been submerged, were reformed. The Government claimed these lands as an accretion to their jajira land, and by proceedings in the Collectorate of February, 1859, they were adjudged to the Government as being within Dhunchi, Sonakandar, and Gachiadaha. Thereupon ijara settlements of these lands also were made with the Mozumdars for terms of ten years from May 1, 1859, to April 30, 1869; and the Mozumdars entered into possession under the ijaras, and paid the jummas thereby reserved. After 1859 the river moved southwards, and in 1869, when the last-named ijara settlements determined, the southern bank was the blue line called the line of 1869, the lands in dispute north of that line having become submerged. The Mozumdars appear to have renewed their ijaras for the parts of the disputed land from time to time unsubmerged, usually from year to year, until the year 1882. The river has now again moved north-wards, and all the lands submerged between 1859 and 1882 have been reformed. Law. Rep. 29 Ind. App. 104 ( 1901- 1902) Secretary of State for India in C ouncil V. Krishnamoni Gupta 38 In 1885 the Mozumdars took possession of the lands in dispute, but were dispossessed by the Government in the following year. On these facts the Government contend that the possession of the Mozumdars under the ijaras granted to them was, in fact and in law, the possession of the Government claiming proprietary right in the disputed lands, and that such possession was in exclusion of and adverse to the claim of the Mozumdars to be proprietors thereof. As regards the southern portion between the lines of 1845 and 1869, the learned judges in the High Court have found that the Government were unquestionably in possession from the year 1859 to the year 1874-5, and they hold that if they acquired an adverse title in respect thereof that title could not be lost unless they were out of possession of the same for sixty years. It may at first sight seem singular that parties should be barred by lapse of time during which they were in physical possession, and estopped from disputing the title of the Government. But there is no doubt that the possession of the tenant is in law the possession of the landlord or superior proprietor, and it can make no difference whether the tenant be one who might claim adversely to his landlord or not. Indeed, in such a case it may be thought that the adverse character of the possession is placed beyond controversy. On the expiration of the first ijara settlement for ten years the estoppel came to an end, and the Mozumdars might have asserted their title against the Government. But they preferred to renew their ijaras from year to year. This part of the case was not seriously contested by Mr. Mayne on behalf of the Mozumdars, and, indeed, it was admitted by him that the Government were in possession from the date of the proceedings in the Collectorate of February, 1859. As regards the northern portion of the disputed lands, other considerations apply. The Government have never had actual possession of the land through their ijaridars for a continuous period of twelve years because the lands became submerged prior to the year 1869, and remained so (it is found by the High Court) until within ten years of the commencement of the suit. But it is urged on behalf of the Government that, having been in possession through their tenants when the lands became submerged, their possession must be deemed to have continued in law while the lands were under water, and to have revived on their being reformed, and reliance is placed on a case of Rally Churn Sahoo v. Secretary of State (Ind. L. R. 6 Calc. 725.), decided by the High Court in 1881. For the purpose of trying the question whether limitation applies, the Government must be regarded as a trespasser and dispossessor of the rightful owners, and in the opinion of their Lordships it would be contrary both to principle and authority to imply such con structive possession in favour of a wrongdoer so as to enable him to obtain thereby a title by limitation. In order to sustain a claim to land by limitation under the Indian Act, there must, in their opinion, be actual possession of a person claiming as of right by himself or by persons deriving title from him. The possession of the Government was in fact determined by the submergence of the land which then became derelict, and so long as it remained in that state no title could be acquired against the true owner. Sir R. Garth, however, seems to have thought that in such a case the possession of the trespasser would continue until the true owner resumed possession. Their Lordships cannot agree in this view. On the contrary, they think that on the dispossession of the Government by the vis major of the floods the constructive possession of the land was (if anywhere) in the true owners. In the case of Trustees, Executors, and Agency Co. v. Short (13 App. Cas. 793.), it was Lald down by this Board that " if a person enters upon the land of another and holds possession for a time, and then without having acquired title under the statute abandons possession, the rightful owner on the abandonment is in the same position in all respects as he was before the intrusion took place." And the opinion of Parke B. is there quoted that there must be both Law. Rep. 29 Ind. App. 104 ( 1901- 1902) Secretary of State for India in C ouncil V. Krishnamoni Gupta 39 absence of possession by the person who has the right and actual possession by another to bring the case within the statute. Their Lordships think that for this purpose dispossession by vis major has the same effect as voluntary abandonment, and they are of opinion that the case of Kally Churn Sahoo v. Secretary of State (Ind. L. R. 6 Calc. 725.) was wrongly decided, and ought to be overruled. In the result, therefore, their Lordships agree with the Court below on this part of the case, and the appeal of the Secretary of State fails. Only one point was raised in the cross-appeal of the Mozumdars, which may be shortly disposed of. L. R. 6 Calc. 725.) was wrongly decided, and ought to be overruled. In the result, therefore, their Lordships agree with the Court below on this part of the case, and the appeal of the Secretary of State fails. Only one point was raised in the cross-appeal of the Mozumdars, which may be shortly disposed of. They say that the whole of the disputed land has been found to have been at one time part of their zemindaris, of which (as already mentioned) a permanent settlement was made with them, and they point to the 3rd clause of the Regulation of 1793, by which the Government engage not to raise the assessment on permanently settled lands. They have always paid and continue to pay the full amount of this assessment, and it is argued that the exaction by the Government of the jummas under the ijaras, in addition to the assessment under the permanent settlement, was a breach of their engagement, and the Government (they say) are estopped from asserting khas proprietary rights in the land. It is difficult to see where the estoppel comes in, and what must be meant is that the zemindars should be deemed to have been in possession of the lands as part of their zemindaris, and not under the ijaras (which should be treated as a mere usurpation or overcharge), and therefore there is no case of limitation. The grievance felt by the Mozumdars is intelligible enough; but their Lordships can only decide the questions between the parties according to law, and it is outside their province to deal with any question of hardship. The question really is, what was the character of the possession of the lands after the grant of the ijaras, and whether in the events which have happened they remain or are part of the zemindaris in respect of which the permanent assessment is paid. The answer can only be that the Mozumdars elected and agreed to hold the lands, not as part of their zemindaris, but as a part of the khas mehal of the Government, and to pay the jummas reserved by the ijaras on that footing. What led to the change of the position of the Mozumdars was the decision of the Collectorate in February, 1859, that these lands belonged to the Government as an accretion to their jajira land. What led to the change of the position of the Mozumdars was the decision of the Collectorate in February, 1859, that these lands belonged to the Government as an accretion to their jajira land. This decision was acquiesced in by the Mozumdars, and no case has been proved for relieving them from the legal consequence of their acquiescence. But it may be observed that this decision of 1859 was given prior to the case of Lopez v. Muddun Mohun Thakoor (( 1870) 13 Moores Ind. Ap. 467.), decided by this Board in 1870. It is for the Government, not for their Lordships, to say whether the Government should insist on a title acquired by limitation in consequence of a decision in the Collectorate under an erroneous impression of the law. Their Lordships can only say that they agree on this part of the case also with the learned judges of the High Court, and the cross-appeal fails. Their Lordships will, therefore, humbly advise His Majesty that both appeals should be dismissed, and the appellants in each case will pay the costs of their appeal.