BACHAWAT, - (1.) THE following Judgment of the court was delivered by :
(2.) CIVIL Appeals Nos. 4,3.5 to 436 of 1959 are appeals, which arise out of Title Suit No. 10 of 1942 of the court of the First Subordinate Judge of Arrah and F. A. Nos. 119 and 192 of 1948 of the High court of Patna. The plaintiffs claim recovery of possession of lands measuring 614 bighas 12 kathas 16 dhurs in village Dubha Taufir appertaining to Bheria Mahal Tauzi No. 1298 in the District of Shahabad. The revisional survey of 1937 showed that the area of Dubha Taufir then was 738 bighas 17 dhurs. Two strips of Dubha Taufir measuring about .3.5 and 77 bighas respectively are not the subject-inatter of the suit. The claim in this suit is in respect of the remaining portion of 614 bighas 12 kathas 12 dhurs. Mahal Bheria consisted of 12 mauzas including Dubha, Gangauli and Kharha Tanr lying to the west of the Ganges. The Mahal was a permanently settled estate, and the Dumraon Raj was its proprietor. The revenue-paying Mal land of the Mahal was measured in the 1845 revenue survey. Part of the Mal land was then in the bed of the Ganges. Between 1845 and 1863 due to the recession of the Ganges to the east the submerged Mal land and considerable Taufir or excess land emerged from (lie bed of the river. The Taufir land was subject to the annual flood of the Ganges. From time to time, the Taufir land was temporarily settled with the Maharaja by the government under Regulation VII of 1822 read will) Regulation IX of 1825. The area of Dubha Taufir settled with tlie Dumraon Raj was about 720 bighas in 1866, 1,103 bighas in 1882, 576 bighas in 1896, 514 bighas in or about 1907, 36 bighas in 1913. Tlie causes of the fluctuations in tlie area were alluvion and diluvion by the action of the river Ganges, declaration of part of tlie Tanfir as Mal land in 1901-) and erroneous treatment of a large portion of the Taufir in 1913 as an appurtenance to Sheopur Diara. In Shahabad District, the general course of the river is from west to east, but near Dubha its course is from north to south. Nevertheless, in the description of the boundary of Dubha and Dubha Taufir in depositions, documents and orders, the Ganges is referred to as lying to the north of tlie village. The popular north is really the magnetic east. From about 1900 onwards, we find a shifting stream of water called the Bhagar running through low-lving lands in Dubha Taufir. During 1920 to 1930, the Ganges receded further to the east, and the Bhagar dried up. Tlie Ganges was the boundary between District Shahabad on tlie cast and District Ballia on the west, hut since the settlement survey of 1934-35, the 1882 line of the Ganges is the dividing line between the two Districts. The plaintifts and defendants 3id and 4th parties are descendants of one Dihal Thakur. The defendant 5th party is the Maharaja of Dumraon. The defendants 1st party are pattadars claiming to be tenants of 497 bighas of the disputed lands under the Maharaja. The defendants 2nd and 4th parties are co-sharers of the defendants 1st party. The defendants 1st. 2nd. 4th and 5th parlies contest tlie plaintiffs' claim.
(3.) THE case of the plaintiffs finally put forward in this court is that between 1845 and 1863 Dihal Thakiir, the common ancestor of the plaintiffs and defendants 3rd party held all the frontier plots of village Dubha as occupancy tenants under Dumraon Raf and by Cl. (1) of S. 4 of Reflation XI of 1825 acquired occupancy tenancy rights in the entire Dubha Taufir accreted in front of his plots between 1845 and 1863 and thereafter, and his rights in the Taufir lands devolved upon the plaintiffs' and the defendants 3rd party jointly. THE plaintiffs claim exclusive title to occupancy rights in the entire Dubha Taufir under alleged oral arrangements with the Dumraon Raj. Though they disclaim title by adverse possession. they claim before us title as occupancy tenants by virtue of their alleged occupation of the Taufir lands, THEy allege dispossession on 27/05/1940 within 12 years of the suit. THE contesting defendants dispute the plantiffs' title, and also contend that tlie suit is barred by limitation. The Subordinate Judge held that the plaintiffs are occupancy tenants of the disputed lands and the suit is not barred by limitation. Unfortunately, lie did not examine the basis of the plantiffs' title In the High court, counsel for the plaintiffs claimed that their ancestors were occupancy tenants of frontier plots of village Dubha before 1863 and by the first clause of S. 4 of Regulation XI of 1825, they acquired tenancy rights in all the Taufir lands accreted in front 608 of those plots. The High court negatived this claim and also the claim based upon the alleged oral arrangements with the Dum- raon Raj, and held that the plaintiffs' title to the lands in suit was not established and the suit was barred by Art. 47 of the Indian Limitation Act. 1908. The carliest documents on the record are the rent receipts. Exs. 5. 5 (c), A-3 (1), A-3 (11), B-3 (11) dating from 1293 fasli, showing that several Thakurs separately held as tenants several plots of land in Dubha. For purposes of the settlements of the Dubha Taufir with the Dumraon Raj, a survey was made in 1892, and as more lands were brought under cultivation, a revised survey was made in 1895. A fresh survey was made in 1904. The settlement records disclose the following holdings of land in Dubha Taufir: JUDGEMENT_605_AIR(SC)_1966Html1.htm By 1907, the ancestors of the plaintiffs and defendants 3rd party were cultivating more alluvial lands in front of their holdings, and their claim of occupancy tenancy rights in the newly accreted lands under the first clause of S. 4 of Regulation XI of 1825 was upheld against the Dumraon Raj in Suits Nos. 22 to 31 and 139 of 1907. By 1909-1910, considerable Taufir lands were washed away. and moreover, a part of the Dubha Taufir was declared to be Mal land. The records of the cadastral survey of 1909-1910 disclose that only about 35 bighas of land were tenanted and the remaining area measuring 355 bighas was uncultivated sandy land. Most of the plots in the strip of .3.5 bighas were recorded in the names of the ancestors of the plaintiffs and defendants 3rd party. In 1909-1910, the channel of the Bhagar ran close to the strip of 35 bighas In 1909 the Sheopur Babus as lessees of Sheopur Diara in Ballia District on the eastern bank of the Ganges claimed that the entire land of Dubha Taufir between the Bhagar and the Ganges appertained to Sheopur Diara. On 10/03/1909, by an order under S 145 of the Code of Criminal Procedure, the Sheopur Babus were declared to be entitled to possession of the disputed land. On 12/10/1909, the ancestors of the plaintiffs instituted a suit for declaration of their title against the Sheopur Babus. This suit was subsequently withdrawn, and on September 20, 1911, the ancestors of the plain- tiffs and defendants 3rd party instituted Suit No. 247/10 of 1911/1913 against the Sheopur Babus. The plaint and the judgment of the trial court show that the subject-matter of this suit was 244 bighas 11 kathas 12 dhurs of land between the Bhagar and the main stream of the Ganges and bounded on the west (popular south) by the Bhagar and thereafter Dubha Taufir. On June 28, 1913, the trial court decreed the suit, and on 8/11/1913, the ancestors of the plaintiffs and defendants 3rd party obtained possession of the disputed land through court. On 17/06/1915, the appellate court set aside the decree of the trial court., and dismissed the suit on the ground that the land did not appertain to Dubha Taufir and was not in possession of the ancestors of the plaintiffs and defendants 3rd party and on 30/11/1915, the Sheopur Babus were restored to possession of the disputed land. The appellate decree was confirmed by the High court. ;