Gorakh v. Board Of Revenue, U. P. Allahabad — 1984 DIGILAW 652 (ALL)

JUDGMENT K. P. Singh, J. 1. This is a defendant's writ petition against the judgment of the second appellate court dated 10-5-1983. 2. The plaintiff-opposite parties filed a suit under sections 59/180 of the U. P. Tenancy Act against the defendants petitioners on the allegations that the plaintiffs were occupancy tenants of the plots in suit and that the defendant was a Sajhi, but got certain revenue entries in his favour, hence asserting possession over the disputed land ; therefore, the necessity for the suit. The defence in the case was that the defendant had been in possession for more than 12 years continously ; therefore, the defendant had acquired tenancy right in the disputed land. The defendant had also claimed tenancy right on the basis of settlement of paying rent to the plaintiffs. He had denied that he was either servant or Sajhi of the plaintiffs and various other pleas were taken to negative the claim of the plaintiffs as is evident from the issues framed in the suit. 3. The trial court through its judgment dated 19-8-1970 decreed the plaintiffs' suit. In appeal the defendant partly succeeded and his appeal was allowed with regard to plot no. 3048/4 and 3074/1, but it was dismissed with regard to plot no. 3074/2. Aggrieved by the judgment of the appellate court the plaintiffs preferred an appeal and the defendant preferred a cross-objection. The second appellate court has allowed the plaintiffs' appeal and has dismissed the defendant's cross-objection through its judgment dated 10-5-1983. Aggrieved by the judgment of the second appellate court the defendant has approached this Court under Article 226 of the Constitution. 4. The learned counsel for the petitioner has contended before me that the second appellate court has patently erred in interfering with the findings of fact recorded by the first appellate court and that it has patently erred in recording finding within four corners of the rulings mentioned in its judgment without discussing the evidence on record, hence its judgment should be quashed. The second contention raised on behalf of the petitioners who are descendants of the defendant Bhoora is that if the disputed plots were under water due to flood for a few days the continuity of trespass would not be broken as held by the first appellate court, but the second appellate court in the circumstances of the present case has patently erred in interfering with the findings of fact. 5. The learned counsel for the contesting opposite parties has tried to refute the contentions raised on behalf of the petitioners. He has submitted that a clear question of law arises in the circumstances of the present case hence the second appellate court was fully justified in interfering with the findings of the first appellate court. He has also submitted that on the evidence on record it is evident that the disputed plots undergo water every year during rainy season and the defendant is unable to have any control or possession over the disputed land, hence the second appellate court has rightly arrived at the conclusion that Kharif crops not grown on disputed plots. He has emphasised that it is incorrect to say that the disputed plots were under water only for a few days, hence continuity of trespass by the defendant was not broken in the circumstances of the present case. 6. I have considered the contentions raised on behalf of the parties. My attention was drawn by the learned counsel for the petitioners to the ruling Apcharddinand v. Gurdudayal, AIR 1949 Cal. 335 and a broad contention has been raised before me that if the disputed land was under water only for a few days as held by the first appellate court the continuity of trespass was not broken and the second appellate court has patently erred in holding Otherwise. I have gone through the ruling. I do not find that the broad contention raised on behalf of the petitioners is at all supported by the ruling. No doubt in para. 3 of the aforesaid ruling some observations have been made to lend a little support to the contention raised on behalf of the petitioners, but those observations relate to the peculiar circumstances of the case reported in Hemanta Kumari Devi v. Midnapore Zamindary Co. Ltd., AIR 1942 Cal. 233 as well as the ultimate decision in this ruling also supports the petitioner's contention due to peculiar facts. Ltd., AIR 1942 Cal. 233 as well as the ultimate decision in this ruling also supports the petitioner's contention due to peculiar facts. In both these cases the learned Judges have emphasised that the defendant could have control over the land in question when under water; therefore, the learned Judges indicated that the continuity of trespass had not been broken. 7. The learned counsel for the petitioners also placed reliance upon the following observations made in the ruling reported in Basant Kumar Roy v. Secretary of State for India, AIR 1917 PC 18 at page 21 "The Limitation Act of 1877, does not define the term of 'dispossession' but its meaning is well settled. A man may cease to use his land because he cannot use it, since it is under water. He does not thereby discontinue his possession : constructively it continues until be is dispossessed ; and upon the cessation of the dispossession before the lapse of the statutory period, constructively it revives. There can be no discontinuance by absence of use and enjoyment. " 8. The above observation does support the contention raised on behalf of the petitioners to some extent, but when the ruling is read as a whole and between the lines it is evident that the aforesaid ruling is against the contentions raised on behalf of the petitioners. Later on their Lordships of the Privy Council have emphasised as below - ".........It seems to follow that there can be no continuance of adverse possession, when the land is not capable of use and enjoyment, so long as such adverse possession must rest on de facto use and occupation. When sufficient time has elapsed to extinguish the old title and start a new one, the new owner's possession of course continues until there is fresh dispossession, and revives as it ceases; " In the case of Secretary of State v. Krishnamoni Gupta, (1902) 29 Cal. 518 their Lordships Board applied this view to a case, where a river shifting its course first in one direction and then in the opposite direction first exposed certain submerged lands of which the Government took possession, and then after a few years flooded them again. No rational distinction can be drawn between that case and the present one, where the reflooding was seasonal and occurred for several months in each year. No rational distinction can be drawn between that case and the present one, where the reflooding was seasonal and occurred for several months in each year. It was held that when the land was resubmerged the possession of the Government determined and that, while it remained submerged, no possession could be deemed to continue so as to be available towards the ultimate acquisition of title against the true owner. " In view of the above extract it is clear that no rational distinction can be drawn whether the flooded water remains over the disputed land for a year or for a few months in each year. The moment the land remains submerged the trespass could not be deemed to continue and the possession of the true owner would be supposed. 9. Viewed from this angle I am unable to accept the contention of the learned counsel for the petitioners that if the disputed plots were under water for a few months the continuity of trespass would not be broken. 10. The learned counsel for the petitioners also referred to the ruling reported in Secretary of State v. Ram Bachan Lal, AIR 1941 Patna 422 but that ruling also does not support the broad contention raised on behalf of the petitioners In the aforesaid ruling the following observation has been made (page 425 col. 1 last para.) - "The statement of Lord Sumner is clear that there is no difference in principle between seasonal submersion and one which continues for a length of time. That view has been taken in a number of cases decided by different courts, some of which were in face decided before the observation of Lord Sumner was made. " Later on the following observation has been made which may be of some help to the petitioner's contention (page 426 col. 2) : " .........It appears that the lands were only flooded for a few days at most and that the floods did not in any way interfere with the ordinary use and occupation of the land. The trespasser might be said to be in possession even during the flooding, and that bring so the constructive possession of the true owner could not arise. The trespasser might be said to be in possession even during the flooding, and that bring so the constructive possession of the true owner could not arise. It is to be observed that there was a Letters Patent Appeal from the decision of Dhavle, J. and the Bench which heard that appeal dealt with the case on entirely different grounds and held that having regard to the course which the case has taken the plaintiff was not entitled to rely upon constructive possession to defeat the defence of limitation. The Bench also appear to have thought that the extent of the submergence of the land which was disclosed in the evidence was not such as to attract the doctrine of revival of the possession of the true owner. That being so, this case cannot be regarded as authority for the proposition that seasonal submersion or submergence will not prevent time running in favour of a trespasser." Because of the finding recorded by the first appellate court that the disputed plots were under water for a few days, the learned counsel for the petitioners in view of the observations in the above quoted rulings here and there has seriously contended that the defendent-petitioners succeeded in acquiring tenancy right in the disputed plots, but the second appellate court has patently erred in negativing the petitioner's claim. In my opinion the contentions raised on behalf of the petitioners are not well founded and the petitioners cannot derive benefit out of the rulings cited on their behalf. 11. The facts of the present case are such that it can be reasonably inferred that the disputed plots remained under water during the Kharif season and during that period the defendant had no control over the disputed land nor could use and occupy that land so long as the same was under water. Therefore, I think that every year when the disputed land undergoes water the trespass by the defendant-petitioners stands broken and the second appellate court has correctly appreciated the facts and circumstances of the case. 12. Therefore, I think that every year when the disputed land undergoes water the trespass by the defendant-petitioners stands broken and the second appellate court has correctly appreciated the facts and circumstances of the case. 12. In 1965 RD 50 Kapil Deo Rai v. Har Narain Ahir a learned Single Judge of this Court has indicated at page 55 as below : - ".........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 submission 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. " Later on at page 56 col. 2 he has indicated that ; ".........The benefit of the doctrine of constructive possession not being available to a person wrongfully obtaining possession, he could not be regarded as having continued in possession even while the land was under water. Since submission of a land under water had the effect of restoring possession to the rightful owner the possession of the person who had wrongfully occupied must be regarded as having come to an end. " The aforesaid principle has been made applicable to the suits under section 180 of U. P. Tenancy Act of 1939. 13. In 1969 RD 477 Chandra Mauli Singh v. Bhagelo another learned Single Judge of this Court has followed the ruling reported in 1965 RD 50 Kapildeo Rai v. Har Narain Ahir and has observed as below :- .........Gangeshwar Prasad, J. held that the principle that a land seasonally submerged under water by a river every year, reverts to the possession of the owner, was applicable to agricultural land governed by the U. P. Tenancy Act ; because, the principle is based upon the true concept of possession and dispossession. He observed that for time to run against the rightful person, it was necessary that the wrong-door must have been in possession. The benefit of the doctrine of constructive possession not being available to a person wrongfully obtaining possession, he could not be regarded as having continued in possession even while the land was under water. He observed that for time to run against the rightful person, it was necessary that the wrong-door must have been in possession. The benefit of the doctrine of constructive possession not being available to a person wrongfully obtaining possession, he could not be regarded as having continued in possession even while the land was under water. Since the submersion of the land under water had the effect of restoring the possession to the rightful owner, the possession of the person, who had wrongfully occupied the land, must be regarded as having come to an end. On this view the possession of the respondents over the land in dispute came to an end, the moment the land was submerged under the river. " 14. In 1981 RD 232, Radha Krishna Chaube v. Ram Janam yet another Judge of this Court has followed the ruling reported in 1965 RD 50, Kapildeo Rai v. Har Narain Ahir and held that when the land in dispute sub-merged in flood waters and was not cultivable for a period of about four months, no hereditary right would accrue in such land. The learned counsel for the petitioners has also invited my attention to the ruling reported in Kashi Bai v. Sudha Rani Ghose, AIR 1958 SC 434 in support of his contention that the defendant could not acquire tenancy right in the facts and circumstances of the present case. The aforesaid ruling deals with different situations but the principle of law enunciated in the ruling can safely be relied to support the submission made on behalf of the plaintiffs-opposite parties in the present case. 15. In Ramsunder Rai v. Ram Asray Rai, AIR 1960 Patna page 237 a learned Single Judge of that court has also indicated as below vide para. 8 – "On the finding the position of law, is clear. The constitutive possession of the land in question during the period of submergence every year will be taken to be in the rightful owners, who in the present case, are the plaintiffs, the defendants i st party having not been able to prove their title independent of adverse possession. According to the findings of the lower appellate court the suit land clearly belongs to Betwara plot no. 535, which was given to the plaintiffs ancestors. " 16. According to the findings of the lower appellate court the suit land clearly belongs to Betwara plot no. 535, which was given to the plaintiffs ancestors. " 16. In view of the latter set of rulings of this Court, Supreme Court and Patna High Court, I think that the second appellate court has not erred in negativing the claim of the defendant-petitioners In the circumstances of the present case. It is well known that the findings on the question of adverse possession is a mixed question of law and facts. Moreover on the basis of oral and documentary evidence in the present case it is evident that the disputed plots under- went water in rainy season and the Kharif crops could not be produced thereon, hence the trespasser cannot be said to continue in possession over the disputed land in the present case. The finding of the first appellate court that the land was under water only for a few days was against the documentary and oral evidence hence the second appellate court was fully justified in interfering with the findings. I am unable to accept the contention of the learned counsel for the petitioners that the second appellate court exceeded its jurisdiction re-appraising the evidence and recording contrary finding to the finding recorded by the first appellate court. When the finding recorded by the first appellate court was against the documentary evidence on record' which indicated that only one crop was grown over the disputed plots and that the disputed plots were under water during the Kharif season, I think the findings were amendable to interference by the second appellate court. The finding recorded by the first appellate court was the result of misreading of evidence on record. 17. In view of the above discussions the two points raised on behalf of the petitioners fail and the writ petition being devoid of merit is hereby dismissed. There would be no order as to costs. Petition dismissed.