JUDGMENT 1. His Highness the Maharaja of Tipperah is the proprietor of a permanently settled estate, Chakla Hasnabad situate in the District of Tipperah. He granted a potta to plaintiffs in Chaitra 1344 B.S. in respect of Cadastral Settlements plots 17, 78 and demarcated portions of plots No. 30 and 18 of village Beal Chakla. On the basis of the tenancy, title which they allege they had acquired some years before the grant of the said potta and which the said potta confirmed, the plaintiffs filed two title suits, Nos. 171 and 256 of 1939 in the Court of the Munsif at Brahmanberai against the defendants who were in possession at the date of the suits. The Maharaja of Tipperah was made a pro forma defendant in both the suits. The first suit is in respect of plot No. 17 and demarcated portions of plots No. 30 and 18 and the second suit is in respect of plot No. 78, Plot No. 78 and the said demarcated portion of plot No. 18 are the dry lands adjoining a beel and the other plots, namely, plot No. 17 and the said demarcated portion of plot No. 30 are dry lands adjoining the channel of a small and shallow river. Their case is that all these plots were the khas lands of the Maharaja who settled them on them in tenancy right. They alleged dispossession by the principal defendants shortly before the institution of the suits and prayed for recovery of possession. The Maharaja of Tipperah supported them but their claims were resisted by the principal defendants. Their defence is of a two-fold character, namely (1) that the lands in snit are included in their tenancies which they hold under the Maharaja, and alternatively, (2) that they have acquired tenants' right by adverse possession. Both the trial and the appellate Court found that the lands in suit are not included in the tenancies which the defendants hold under the Maharaja. Both the Courts below also have found that the defendants were in possession for a period much exceeding twelve years. The trial Court dismissed both the suits on the ground that the defendant had acquired by adverse possession against the Maharaja the limited interest of tenants in all the plots in suit before the Maharaja had granted the settlements to the plaintiffs. The trial Court dismissed both the suits on the ground that the defendant had acquired by adverse possession against the Maharaja the limited interest of tenants in all the plots in suit before the Maharaja had granted the settlements to the plaintiffs. The lower appellate Court has modified the decree of the trial Court passed in Suit No. 171. That suit has been dismissed in respect of plot No. 17 and the said demarcated portion of plot No. 30 (the dry land of the adjoining river) and has been decreed in respect of the said demarcated portion of plot No. 18 which constitutes the dry land bordering the beel. The Maharaja of Tipperah and the plaintiffs are appellants before us in Second Appeal No. 1535 and their appeal is confined to plot 17 and the said portion of plot 30, and some of the principal defendants are the appellants in second Appeal No. 438, and their appeal is confined to the said portion of plot No. 18 which adjoins the beel. Both these appeals are in Suit No. 171. The decree of the trial Court made in the other suit (No. 255) was affirmed by the lower appellate Court. Second Appeal No. 1220 is against the decree made in that suit, and is by the plaintiffs. Its subject-matter is plot No. 78 which is the land adjoining the beel. The judgments of the appellate Court in both the suits proceed on adverse possession. The only question before us in all the three appeals is whether on the facts found by the lower appellate Court it can be held that the principal defendants hare acquired tenancy right under the Maharaja by adverse possession. The material findings of the lower appellate Court are as follows: (1) That the lands are situate in an uninhabited village. (2) That the lands are capable of producing Boro paddy only and are unfit for producing any other crop. (3) That Boro paddy is sown in about Augrahayan and reaped in chaitra, and the lands are left fallow till the rains set in. (4) That during the rains the lands are submerged. (5) That the defendants have been raising Boro paddy year after year and every year without any gap for more than thirty five years before suit. (3) That Boro paddy is sown in about Augrahayan and reaped in chaitra, and the lands are left fallow till the rains set in. (4) That during the rains the lands are submerged. (5) That the defendants have been raising Boro paddy year after year and every year without any gap for more than thirty five years before suit. (6) That during submergence in the rainy season wild grass grows on the plots which are the subject matter of suit No. 171 and the defendants of that suit take the grass. There is, however, no such finding in suit No. 255. In Suit No. 225 the evidence is onesided to the effect that plot No. 78 has ails on all sides and during submergence the ails are not washed away. When the water dries up the lands appear with the same identifying ails. There is further onesided evidence in both the suits that the depth of the water during submergence is moderate, namely about two cubits or so. 2. In the light of these findings and evidence we are to see if continuity of possession on the part of the defendants is to be taken as broken when the lands remain under water. 3. In Hemanta Kumari Debi and Others Vs. Midnapore Zemindary Co. Ltd., AIR 1942 Cal 233 , a Division Bench (Nasim Ali and Pal JJ.) had to consider the case of adverse possession in respect of an area of land which went under water every year during the rains. The land was capable of yielding two crops and it did not become absolutely incapable of enjoyment when it remained submerged but the defendant did not in fact exercise any act of user. As in the cases before us the defendant company claimed to have acquired tenancy right by adverse possession. It was found that the defendant raised those two crops every year for the statutory period of 12 years. In these circumstances this Court held that continuity of possession was not broken by reason of the seasonal submergence in every year and accordingly the defendant had acquired tenancy right by adverse possession. It was found that the defendant raised those two crops every year for the statutory period of 12 years. In these circumstances this Court held that continuity of possession was not broken by reason of the seasonal submergence in every year and accordingly the defendant had acquired tenancy right by adverse possession. The learned Advocate appearing for the plaintiffs and the Maharaja has realised that having regard to the findings of fact in the cases before us this decision would be an authority in favour of the defendants, and if followed by us would give the defendants tenancy right in all the plots in suit. His contention is, however, that this decision has been wrongly decided being against the decision of the Judicial Committee of the Privy Council in Kumar Basanta Kumar Roy v. Secretary of State for India in Council, 44 I.A. 104 : (A.I.R. 1917 P.C. 18), and that we need not refer the matter to the Fall Bench as the decision of the Judicial Committee supports his contention. It is, therefore, necessary to examine that decision of the Judicial Committee in the light of principles which are well established. Those principles are: (1) As prescriptive title depends upon possession, the person claiming such title must show that he was in actual possession for the statutory period of twelve years. He cannot rely upon constructive possession for any period of time, however small, during the statutory period. (2) That as soon as the land becomes derelict the possession of the trespasser ceases, and the rightful owner is deemed to be in possession during the period of time when the land remains derelict (Secretary of State for India in Council v. Krishnamoni Gupta, 29 I.A. 104 : (29 Cal. 518 P.C.). (3) That possession is acquired by acts of user accompanied by a certain intention, namely the intention of excluding others, but once possession has been acquired in that manner acts of user need not be exercised from day to day or from month to month or quarter to quarter during the requisite period to maintain possession already acquired. ''The fact of possession may be continuous though the several acts of possession are at considerable intervals." AIR 1934 23 (Privy Council) . 4. In Krishnamoni Gupta's case: (29 I.A. 104 : 29 Cal. ''The fact of possession may be continuous though the several acts of possession are at considerable intervals." AIR 1934 23 (Privy Council) . 4. In Krishnamoni Gupta's case: (29 I.A. 104 : 29 Cal. 518 P.C.) the facts bearing on the question of adverse possession were as follows: A char was found in the river Padma about the year 1859. It remained above water till 1869, for about ten years. Daring that period the Government which had no title to that piece of land, remained in possession. In 1869 the river eroded it and it was again in the bed of the river for about ten years. It was held that the possession of the Government came to an end as soon as the char was submerged in 1869, and during the period that it was in the river the rightful owner was in constructive possession, and that constructive possession of the owner destroyed the continuity of the possession of the Government. The relevant passage in Lord Davey's judgment is as follows: 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 (who appeared for the Secretary of State), 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 vis major of the floods the constructive possession of land was (if any where) in the true owners......Their Lordships think that for this purpose dispossession by vis major has the same effect as voluntary abandonment. 5. In that case the site had been completely washed away. The land became derelict after 1869 and remained derelict for 10 years, and the action of the river was vis major in every sense of the terms. 6. 5. In that case the site had been completely washed away. The land became derelict after 1869 and remained derelict for 10 years, and the action of the river was vis major in every sense of the terms. 6. In Kumar Basanta Kumar Roy v. Secretary of State for India in Council, 44 I.A. 104 : (A.I.R. 1917 P.C. 18), the char in dispute was a char of the river Bhagirathi (River Hooghly). After it had formed in every year there were floods and during the seasonal floodings which lasted from June to October the char was submerged in the river. Lord Sumner in delivering judgment referred to Krishnamoni Gupta's case: (29 I.A. 104 : 29 Cal. 518 P.C.) and observed that no rational distinction could be made between that case where the submergence was for years and the case which was before him, where the submergence lasted for few months of the year only owing to seasonal flooding of the river. In our Judgment those observations mean that the length of the period of submergence is not material. It may be long or may be short, but in order to make the land derelict the submergence must be the result of vis major. The word vis major imports something abnormal and with reference to the contest 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. Rainfall in Bengal at certain parts of the year is a normal occurrence, and if as a result of rainfall only, a piece of low lying land is simply covered with water it cannot, in our opinion, be said that the submergence so occasioned is the result of vis major and so land is to be regarded as derelict during the time it remains under water. It is common knowledge in Bengal that during the rainy season the water level of the river Hughly rises by several feet and this rise is not entirely due to the rain water that the river directly receives through the drainage of the country through which it flows, but is largely due to the water of heavy floods of other streams rushing into its channel. In Kumar Basanta Kumar Roy's case: (44 I.A. 104 : AIR 1917 P.C. 18 ) the character and the cause of the seasonal submergence were entirely different from what we have before us. The report of the case does not give details, but there are indications that during these months, Jane to October, the char in question on submergence became to all intents and purposes a part of the channel of the river and incapable of any enjoyment and an examination of the records of that case confirms this indication. During those months the river engulfed the char and made it its own. In the case before us it is quite clear that during the period of submergence the defendants could have exercised acts of possession and could have derived some benefit from the submerged soil, if they were so minded. In fact in Suit No. 171 they did derive some benefit by taking the wild grass that grew on the submerged soil. Moreover the fact that they may not have chosen to exercise acts of possession during that period could not in our judgment, be deemed to have caused a break in their possession. We accordingly hold that the decision in Kumar Basanta Kumar Roy's case: (44 I.A. 104 : AIR 1917 P.C. 18 ), is inapplicable to the case which we have before us. 7. The result is that second Appeals Nos. 1535 and 1220 of 1941 fail and are hereby dismissed. The other appeal, namely second Appeal No. 438 of 1942 succeeds and is hereby allowed. The net result is that both the title suits are dismissed in their entirety on the finding that the principal defendants have by adverse possession become tenants of the Maharaja. In view of the fact that the defendants have failed to substantiate their main defence that the lands in suit are included in the tenancies which they held under the Maharaja and that the plaintiffs have lost on the ground of adverse possession we direct the parties to bear their respective costs throughout.