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
section T Desai U P Singh and D Goburdhan for the appellants
G section 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 39a to 39d 40 to 42 44 45 46a to 46d 47 48 49 74 to 79 and legal representatives of respondent No 1 in C As
435 and 436 of 1959 and respondents Nos
14 759 to 16 18a 18d 19a to 19c 21 23 25 26 and legal representatives of respondent No 1 in CA No 437 of 1959
Sarjoo Prasad Kanhaiyaji and A G Ratnaparkhi for respon dent No 80 in CAs
435 and 4361959 and respondent No 1 in CA No 437 of 1959
D P Singh for respondent No 81 in CAs
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 section 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 24710 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 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 section 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 section 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 section 114 of the 
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 vs Tripura Soondari Chowdhrani 1 and England see Bristow vs Cormican2 Deo vs Young1
The broad observation in Manmatha Nath Haldar vs Girish Chandra Roy4 and Hemendra Nath Roy Chowdhury vs Jnanendra Prasanna Bhaduri5 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 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 exhibit 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 section 502 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 502 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 LR 14 IA 101 110
2  669 670
  4  770
5 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 exhibit L 113 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 1845 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 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 section 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 section 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


Summary:
The appellants claimed title to the lands in dispute on the basis of section 41 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 section 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 vs Tripura Sundari Chowdhrani 1887 LR 14 IA 101 110 approved
Observation contra in Manmath Nath Haldar vs Girish Chandra Roy  770 and Hemendra Nath Roy Chowdhury vs Jnendra Prasanna Bhaduri  117 disapproved