- (1.) The plaintiff sues to recover possession of a jalkar in the River Bhairab, of which he alleges he obtained a lease from Ganga Prasad Paroi. The jalkar is said to be situated in the lakhiraj lands of Mowla Baksh; it was let to, and held for many years by, Sarup Chandra Paroi, whose right and title were sold in execution of a decree, and purchased by Ganga Prasad, The plaintiff, after being in possession for some time, was evicted on 15th Chaitra 1259 by the defendants, who prevented his catching fish. The defendants claim to hold the jalkar from Raja Baradakant Roy, and deny the plaintiff's right to the jalkar, as also the charge of having ousted him.
(2.) Both Mowla Baksh and Raja Baradakant Roy appeared in Court, and were made parties to the suit; and the conclusion come to by both the lower Courts, on the evidence of witnesses produced by the plaintiff, was that though the fisheries of the Bhairab River might originally have been settled with the Raja, as shown by papers from the Collector's office, yet he had been out of possession of the jalkar in dispute for more than twelve years, and that possession was with the plaintiff and his lessors during that period; and though the Raja is now in possession, by some means or other, he was not entitled to retain possession as against the plaintiff.
(3.) In special appeal, it was urged that the plaintiff had failed to make out any title either in himself or his lessors; that as the Raja had now recovered possession, the fact of plaintiff's possession for more than twelve years gave him no title to the property; that adverse possession for more than twelve years, while it barred the remedy, did not extinguish the right, and could not confer title upon the plaintiff; and therefore the lower Courts were wrong, on mere proof of possession for upwards of twelve years, in giving him a decree as if he had proved a title.;