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PETITIONER: AMBIKA PRASAD THAKUR AND ORS.

       Vs.

RESPONDENT: MAHARAJ KUMAR KAMAL SINGH AND ORS.

DATE OF JUDGMENT: 08/09/1965

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1966 AIR  605            1966 SCR  (1) 753

ACT: Evidence  Act  (1  of 1872), s. 114-Existence  of  state  of things  proved--Inference  of  continuity  backwards-Whether permissible.

HEADNOTE: The appellants claimed title to the lands in dispute on  the basis  of  s.  4(1)  of the  Bengal  Alluvion  and  Deluvion Regulation XI of 1825.  To establish their claim based  upon the clause, the appellants had to prove that the lands  were gained by gradual accession from the recess of the river and that the lands were accretions to plots in the possession of the appellants or their ancestors.  Since the survey records from  1892  to 1909 showed that appellants’  ancestors  held some of the frontier plots, the High Court was asked to draw the inference that they held those plots during 1845 to 1863 when the lands in dispute accrcted.  The High Court  refused to draw the inference. In appeal to this Court, HELD : If a thing or a state of things is shown to exist, an inference  of its continuity within a  reasonably  proximate time both forwards and, in appropriate cases, backwards, may be drawn under s. 114, Evidence Act.  But it was not safe to assume  in  the present case that a state of  things  during 1892 to 1909 existed during 1845 to 1863 since the  interval of time was too Inng. [760 H] Anangamanjari  Chowdhrani  v.  Tripura  Sundari  Chowdhrani, (1887) L.R. 14 I.A. 101, 110, approved. Observation contra in Manmath Nath Haldar, v. Girish Chandra Roy,  (1934)  38  C.W.N.  763, 770  and  Hemendra  Nath  Roy Chowdhury v. Jnendra Prasanna Bhaduri, (1935) 40 C.W.N. 115, 117, disapproved.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 435 to 437 of 1959. Appeals from the judgment and decree dated April 24, 1953 of the Patna High Court in First Appeals Nos. 119, 192 and  189 of 1948 respectively.

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S.   T.  Desai,  U.  P.  Singh and  D.  Goburdhan,  for  the appellants. G.   S. Pathak, B. Dutta & K. K. Singh, for the  respondents Nos. 2, 3 (a), 3 (d), 4 (a) to 4 (c), 5, 6, 7 (a), 8 to  14, 15  (a) to 15 (c), 16, 18 to 20, 21 (a), 21 (b), 22, 23,  25 to  32, 33 (a), 33 (b), 34 to 38, 39(a) to 39(d), 40 to  42, 44,  45,  46(a)  to 46(d), 47, 48, 49, 74 to  79  and  legal representatives of respondent No. 1 (in C. As.  Nos. 435 and 436 of 1959) and respondents Nos. 14 759 to  16,  18(a), 18(d), 19(a) to 19(c), 21, 23,  25,  26  and legal  representatives of respondent No. 1 (in C.A. No.  437 of 1959). Sarjoo Prasad, Kanhaiyaji and A. G. Ratnaparkhi, for respon- dent No. 80 (in C.As. Nos. 435 and 436/1959) and  respondent No. 1 (in C.A. No. 437 of 1959). D.   P. Singh, for respondent No. 81 (in C.As. Nos. 435  and 436 of 1959). The Judgment of the Court was delivered by Bachawat  J.  After  stating  the  facts  of  the  case  and discussing the evidence his Lordship proceeded :] On the question of title also, the plaintiffs must fail.  In the  plaint,  the  basis of their claim  of  title  was  (a) occupation  of  426 bighas 18 kathas and 9  dhurs  of  Dubha Taufir by their ancestor Naurang Thakur as occupancy  tenant and  the record of his rights in the survey papers  of  1892 and  (b)  the oral arrangement with the  Dumraon  Raj.   The first  branch  of this claim is  obviously  incorrect.   The survey papers of 1892 do not record occupancy tenancy rights of  Naurang Thakur in 426 bighas 18 kathas and 9 dhurs.   In the High Court, counsel for the plaintiffs conceded that  in the  Khasra of 1892-1893 survey the plaintiffs’  branch  was recorded  as  tenant  for about 19 bighas  only.   The  oral arrangement  is  not established, and the second  branch  of this  claim  also  fails.  The  Subordinate  Judge  did  not examine  the basis of the plaintiffs’ claim of  title.   His finding in favour of the plaintiffs’ title was based chiefly on (1) oral evidence, (2) depositions of witnesses in previ- ous  litigations,  (3) possession, (4) an admission  of  the Maharaja.  The oral evidence on the point is not convincing. The claim is not supported by the documentary evidence.  The survey  papers  of 1892, 1895, 1904, 1909 and  1937  do  not support  the  plaintiffs’ claim of occupancy rights  in  the lands  in  suit.   The depositions  of  witnesses  in  other litigations do not carry the matter further.  The deposition of defendant No. 1 1, Ram Dass Rai, in Suit No. 217 of  1911 is of weak evidentiary value.  Though admissible against him as  an  admission, it is not admissible  against  the  other defendants.   The  other  depositions  relied  upon  do  not satisfy  the test of S. 33 of the Indian Evidence  Act,  and are not admissible in evidence.  We have already found  that the plaintiffs and their ancestors were not in possession of the disputed land since 1909.  The oral evidence as to their possession  before  1909 is not convincing, and we  are  not inclined  to accept it.  The documentary evidence  does  not support the story of their possession before 1909.  With 760 regard  to the admission of the Maharaja in Suit No.  247/10 of 1913 relating to the plaintiffs’ title to 244 bighas,  we find that in his written statement the Maharaja asserted his khas  zeraiti rights and denied the alleged guzashta  kastha rights of the plaintiffs’ ancestors.  It seems that in Bihar ’guzashta  kasht’  means a holding on a rent not  liable  to enhancement.  Later, on June 10, 1913, a petition was  filed on  his behalf stating that the plaintiffs’  ancestors  were

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tenants  in occupation of the disputed land having  guzashta kasht rights.  The Maharaja was interested in the success of the  suit, and it was necessary for him in his own  interest to  make  this  admission.  The  admission  was  made  under somewhat suspicious circumstances at the end of the trial of the case when the arguments had begun.  Though this petition was  filed, the written statement of the Maharaja was  never formally amended.  In the circumstances, this admission  has weak evidentiary value.  In this suit, the plaintiffs do not claim  tenancy right either by express grant or  by  adverse possession.   Title  cannot  pass by  mere  admission.   The plaintiffs  now  claim  title  under cl.  (1)  of  s.  4  of Regulation XI of 1825.  The evidence on the record does  not establish this claim. The claim of title based upon cl. (1) of s. 4 of  Regulation XI  of  1825 was not clearly made in the pleading.   It  was clearly  put forward for the first time in the  High  Court. It  was contended that the decision in Suits Nos. 22  to  31 and  199 of 1937 conclusively established this  claim.   The High  Court  rightly pointed out that those  suits  did  not relate  to any portion of the subject-matter in the  present suit, and the decision in those suits cannot operate as res- judicata.   The plaintiffs now contend that the judgment  is admissible  to show that the plaintiffs’ ancestors  asserted title  to  other Taufir lands as an  accretion  to  frontier Dubha  Mal  plots under the Regulation and their  claim  was recognised.    But   the  plaintiffs’  ancestors   did   not consistently  assert such a title.  In  Attestation  Dispute Cases Nos.  1 to 253 of village Dubha they claimed title  to the  lands in suit as an accretion to their 77  bighas,  and this claim was negatived. The  survey  records of 1892, 1895, 1904 and  1909  disclose that  the  ancestors  of the plaintiffs  held  some  of  the frontier plots of Dubha Mal.  The High Court was, therefore, asked to draw the inference that their ancestors held  those plots  during 1845 to 1863 when the Taufir  lands  accreted. The  question is whether such an inference should be  drawn. Now,  if a thing or a state of things is shown to exist,  an inference  of its continuity within a  reasonably  proximate time  both  forwards and backwards may sometimes  be  drawn. The   presumption  of  future  continuance  is  noticed   in Illustration (d) to S. 114 of the Indian Evidence Act, 1872. In 761 appropriate cases, an inference of the continuity of a thing or  state  of  things  backwards may  be  drawn  under  this section,  though on this point the section does not  give  a separate  illustration.   The rule that the  presumption  of continuance may operate retrospectively has been recognished both  in  India, see Anangamanjari  Chowdhrani  v.   Tripura Soondari   Chowdhrani  (1)  and  England,  see  Bristow   v. Cormican(2),  Deo  v. Young(1).  The  broad  observation  in Manmatha  Nath Haldar v. Girish Chandra Roy(4) and  Hemendra Nath  Roy  Chowdhury v. Jnanendra Prasanna  Bhaduri(5)  that there  is no rule of evidence by which one can  presume  the continuity  of  things backwards cannot be  supported.   The presumption of continuity weakens with the passage of  time. How  far  the presumption may be drawn  both  backwards  and forwards  depends  upon  the nature of  the  thing  and  the surrounding  circumstances.  In the present case,  the  High Court  rightly refused to draw the inference from the  state of  things  during 1892 to 1909 that the  ancestors  of  the plaintiffs  held frontier plots of Dubha Mal in  1863.   The High  Court  pointed out that even during 1894 to  1905  the ownership  of some of the plots had changed, and  also  that

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the  frontier Mal plots and the corresponding  Taufir  plots were  not always held by the same person.  In 1845, part  of the  Mal  lands  was under water.  The  frontier  Mal  lands reformed  between  1845  to  1863  were  subject  to  annual inundation.  It is well-known that settlements of char lands are seasonal and temporary.  There is a considerable gap  of time  between 1892 and 1845.  It is not safe to assume  that the state of things during 1894 to 1905 existed during  1845 to 1863. In  Ex.  L- 1 (13), the Khatian of Mauza Dubha published  on January 2, 1912, the tenancies of serveral plots held by the ancestors of the plaintiffs are described as Sharah  Moaiyan (at  fixed rate of rent).  The plaintiffs contend that  this record  read  in  conjunction with s. 50(2)  of  the  Bengal Tenancy Act, 1885 shows that the ancestors of the plaintiffs must  have held those plots from the time of the,  Permanent Settlement.    The   contention  is  based   on   fallacious reasoning.   Section 50(2) of the Bengal Tenancy  Act,  1885 raises  in a suit or proceeding under the Act a  presumption that  a raiyat has held at the same rate of rent  since  the Permanent  Settlement, if it is shown that the rate of  rent has  not been changed during the last 20 years.   Fixity  of rent may arise not only from this presumption but also  from express grant.  An entry in the 1. (1887) L.R. 14 I.A. 101, 110. 2. (1878) L.R. 3 A.C. 641, 669 670. 3. (1845) 8 Q.B. 63,115 E.R. 798. 4. (1934) 38 C.W.N. 763, 770. 5.   (1935) 40 C.W.N. 11 5, 117. 762 record of rights showin that the tenancy was at a fixed rate of  rent  does  not necessarily mean  that  the  tenant  was holding the land from the time of the Permanent  Settlement. The point based on the entries in Ex.  L-1(13) was not taken in the Courts below, and the circumstances under which  they came to be made and the question whether they relate to  the frontier  plots  of Dubha have not  been  investigated.   We think  that  this new point ought not to be  allowed  to  be raised at this stage. The  suit as framed must fail, even if we presume  that  the ancestors  of  the  plaintiffs’  branch  held  some  of  the frontier plots in Dubba Mal between 1845 and 1863, when  the Taufir  lands  accreted.  The ancestors of  the  defendants- third  party’s branch also held numerous frontier  plots  of Dubha  Mal  between  1892  and 1909,  and  making  the  same presumption in their favour, it would appear that they  also held numerous frontier plots of Dubha Mal between 1.845  and 1863.    The  ancestors  of  the  plaintiffs’   branch   and defendants-3rd  party’s branch separately held  and  enjoyed the  several frontier plots of Dubha Mal, and on the  plain- tiffs’  own  case, the ancestors of the  plaintiffs’  branch would  be  entitled to the alluvial accretions in  front  of their plots and similarly, the ancestors of the  defendants- 3rd  party’s  branch  would  be  entitled  to  the  alluvial accretions in front of their plots.  The alluvial accretions of  each plot must be apportioned by  drawing  perpendicular lines  from  its boundary points to the new  course  of  the Ganges,  so that each plot acquires a new river frontage  in proportion to its old river frontage.  The plaintiffs  could claim  no  more than the alluvial accretions to  the  plots, held by the ancestors of their branch.  In the Courts below, no  attempt  was  made by the plaintiffs  to  apportion  the accretions  amongst  the several  frontier  plots.   Without further investigation, the alluvial accretions in respect of each plot cannot be ascertained.  This is not a fit case for

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remand  at  this  late  stage.   The  further  case  of  the plaintiffs that the defendants3rd party lost their title  to their portion of the Taufir lands is not established.  It is neither  alleged  nor  proved that the  plaintiffs  and  the defendants-3rd party jointly owned and possessed the  Taufir lands.  In the absence of pleading and proof of joint  title and  possession, the plaintiffs’ claim for recovery  of  the entire Taufir lands must fail. Realising  this difficulty, counsel for the plaintiffs  made an  entirely  new case before us.  He submitted  that  Dihal Thakur.   the   common  ancestor  of  the   plaintiffs   and defendants-3rd  party owned all the frontier plots of  Dubha Mal between 1845 and 76 3 1863  and consequently acquired occupancy rights in all  the Taufir  lands accreted in front of his plots,  those  rights have   now   devolved  jointly  upon  the   plaintiffs   and defendants-3rd party, and the plaintiffs and  defendants-3rd party  are  jointly  entitled to the  entire  Taufir  lands. There  is  no trace of this case in the  pleadings  and  the judgment of the trial Court.  This case was not made even in the  High Court.  On the contrary, the plaintiffs’ case  all along  has  been  that the branches of  the  plaintiffs  and defendants-3rd party separately possessed and enjoyed  their respective plots.  Moreover, we are not inclined to draw the presumption  that Dihal Thakur owned all the frontier  plots of Dubha Mal between 1845 and 1863.  Even if we assume  that the descendants of Dihal Thakur owned the frontier plots  in 1892  or  even in 1882, we are unable to  infer  that  Dihal Thakur  held them between 1845 and 1863.  The case  is  made here  for the first time, and was not the subject-matter  of an  enquiry in the Courts below.  There is neither  pleading nor  proof that Dihal Thakur held any of the frontier  plots of  Dubha  Mal  at any time, or that  the  branches  of  the plaintiffs   and   defendants-3rd  party   inherited   their respective holding from Dihal Thakur. To establish their claim based upon cl. (1) of S. 4 of Regu- lation  XI of 1825, the plaintiffs must also prove that  the Taufir  lands  were  gained by gradual  accession  from  the recess  of the river.  Having regard to our  conclusions  on the  other points, we do not wish to express any opinion  on this  question.   Even if the Taufir lands  were  gained  by gradual accession, this gain did not accrue for the  benefit of the plaintiffs.  The plaintiffs have failed to  establish that they or their ancestors held any plot or plots to which the accretions were annexed. The  plaintiffs have failed to prove their title based  upon cl.  (1) of s. 4 of Regulation XI of 1825.  They  have  also failed  to  establish their claim of title based  upon  oral arrangements.  Their claim of title based upon occupation of the  disputed  lands  is also not  established.   They  have failed to prove that they were in occupation of the disputed lands.   Moreover, mere occupation does not  confer  tenancy rights. The  result is that Civil Appeals Nos. 435 and 436  of  1959 must fail. C.   A. Nos. 435 to 437 dismissed. 764