Jugal Kishore Prasad Singh and Others vs Manaka Singh and Others

James, J.—On 23rd December 1924, the plaintiffs obtained a decree for recovery of possession of certain land on the banks of the Ganges. The defendants were left in possession until execution of the decree was barred by limitation: and the plaintiffs then in September 1932 instituted the suit out of which this appeal arise praying again for recovery of possession of this land. On the face of it, the suit appeared to be barred by the provisions of Section 47, Civil P.C., but the plaintiffs alleged in their plaint that their right had remained intact, because the land in suit was submerged under water during the rainy season in almost every year. The Courts have found that the land was subject to annual inundation which interfered with the Cultivation of the land during the rainy season but the suit has been dismissed on the ground that the plaintiffs had never actually recovered possession and therefore the provisions of Section 47, Civil P.C., barred the suit.

Mr. P.R. Das on behalf of the plaintiff-appellants argues that on the findings of the Appellate Court, it ought to have been held that whenever inundation occurred, the plaintiffs actually acquired possession of the land in suit so that it was not necessary for them to enter upon the land or td obtain execution of their original decree. He relies upon the decision of the Judicial Committee in Secy. of State v. Krishnamoni Gupta (1902) 29 Cal. 518 wherein it was held that when possession of alluvial land was interrupted by the destruction of the land by fluvial action, the adverse possession of the occupiers ceased, and it was remarked that then the constructive possession of the land was in the true owner. Their Lordships were in that case dealing with an instance of the washing away of land for a considerable time by fluvial action. But on behalf of the appellants reference is made to the decision of the Judicial Committee in Basanta Kumar Roy v. Secy. of State AIR (1917) P.C. 18 wherein the Judicial Committee was dealing with alluvial land in the course of re-formation in situ. It was held then that the possession of the person who occupied the land when it re-appeared in situ was interrupted so long as submergence occurred for several months in each year. In the present case, it does not appear from the pleadings or the findings that there was anything of these annual inundations to attract the operation of the provisions of Regn. 11 of 1825 or calling for the application of the law regarding alluvion and erosion.

All that has been pleaded and proved is that since 1924 the river has, during the rainy season, overflowed its banks and flooded this land in such a manner as to make agricultural operations impossible during the period of inundation. The learned District Judge has pointed out that one of the crops of the year has been spoilt on account of those submersions; but, it appears that for the rest of the year, the land has been cultivated in the ordinary course. The principles laid down in these decisions which have been quoted which apply to land affected by changes in the course of rivers, cannot, in our judgment, be properly applied to land lying on the banks of, a river which merely spills over its bank during the annual rainy season in times of flood. It cannot, in our judgment, be properly held in such circumstances that there was any dispossession by vis major of the defendants, or that the plaintiffs at that time enjoyed constructive possession such as would give them a right to institute a new suit.

That being so, the suit is barred by the provisions of Section 47, Civil P.C. The only proper remedy open to the appellants was by proceedings in execution of their decree; and that remedy was barred by the provisions of the Limitation Act: AIR 1925 18 (Privy Council) . I would dismiss this appeal with costs.

Chatterji J.

I agree. The grounds on which the plaintiffs want to get over the bar of Section 47, Civil P.C., is that when the lands in suit became submerged under water, the plaintiffs came into constructive possession and thereby the decree was satisfied. To my mind, when a decree for recovery of possession has been obtained, it cannot be satisfied unless the decree-holder gets actual possession of the land. Take, for instance, a case where under a decree a plaintiff is entitled to recover actual possession of the land but by process of execution he takes what is called symbolical possession only, although he could recover actual possession through Court. In such a case he cannot subsequently bring a fresh suit on the allegation that he has been dispossessed from the land.

In this connexion I may refer to a decision of this Court in Sovani Jena v. Bhim Ray A.I.R (1922) . Pat. 407 where the plaintiff having already got symbolical possession of land in execution of a previous decree brought a fresh suit on the allegation that he was dispossessed and his allegation not being proved, it was held that the fresh suit was barred by Section 47, Civil P.C. It is not the plaintiffs'' case here that since the decree was passed on 23rd December 1924, the lands in suit became altogether diluviated or, in other words, became derelict. In that case different considerations perhaps might have arisen but the plaintiffs'' clear and distinct allegation in para. 1 of the petition for amendment of the plaint was that the land in suit remained submerged under water during rainy season almost every year for certain period of time.

On this allegation it is impossible to hold that the land became derelict, so that it was not at all necessary for the plaintiffs to apply for execution in order to recover possession of the land decreed to them in the previous suit.