Sham Chand Bysack, - Appellant; Kishen Prosaud Surma alias Rajah Baboo, - Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 26 March 1872 |
| Date | 26 March 1872 |
| Court | Privy Council |
English Reports Citation: 20 E.R. 908
ON APPEAL FROM THE SUDDER DEWANNY ADAWLUT AT CALCUTTA.
SHAM CHAND BYSACK,-Appellant; KISHEN PROSAUD SURMA alias RAJAH BABOO,-Respondent * [March 16, 23, 26, 1872]. On appeal from, the Sudder 'Dewanny Adawlut at Calcutta. Two riparian proprietors of land on opposite sides of a River, respectively claimed churs which had been diluviated for a great many years, and afterwards re-formed by a change of the course of the River, as belonging to their respective estates. After a police inquiry, the Magistrate, in 1836, put A. in possession. B., the other riparian proprietor, took no steps till the year 1847 to obtain possession of the churs. Held (1), that the long delay in bringing a suit raised a presumption against B's title, and (2), that he had failed to identify the churs as having been formerly part of his lands or an accretion thereto. This suit (being one of three suits based on similar grounds of action) was instituted by the Appellant against the Respondent, to recover possession of a chur (alluvial land), as appurtenant to a Talook, called Meer Syud Mahomed, in which Talook the Appellant had as proprietor a share. He claimed the [596] lands on the ground, that the same were a re-formation, and had reappeared on the original sites of the northern portion of a chur named Goag and of the whole of chur Bhedur, as formerly appertaining to that Talook, both of which churs he alleged had been covered with water, and for a time had disappeared by the action of the united streams of the two Rivers Dhuneesurree and Booreegunga ; and that his predecessors had been dispossessed of the lands of the two churs, after their re-formation and reappearance, by the Darogah, of the adjoining Thanna on the 21st of May, 1835, acting under the Order of the Revenue Commissioner of the District, and at the instance of Gopal Pershad, the Father of the Respondent, who had been put in possession under a Magistrate's Order. The appeal was brought from a Decree of the late Sudder Dewanny Adawlut, dated the 31st January, 1861, which reversed a Decree of the Principal Sudder Ameen of Zillah Dacca, dated the 8th of March, 1858, raised three questions-first, whether the lands formed part of the two churs, Bhedur and Goag, and appertained to the Appellant's Talook, called Meer Syud Mahomed, as contended by him; or whether the lands formed part of the Respondent's Talook, Bucktbully, as insisted by him; secondly, whether the High Court were right in deciding the case was one falling within sect. 4, cl. 1, of Ben. Reg., XI. of 1825, as both the Appellant and the Respondent had treated the case as one of reappearance or reformation of land * Present: Members of the Judicial Committee,-The Right Hon. Sir James [William Colvile, the Right Hon. Sir Montague Edward Smith, and the Right Hon. Sir Robert Porrett Collier. 908 V. KISHEN PROSAUD SURMA [1872] XIV MOORE IND. APP., 597 on its original site or sites, after having been submerged for a time by the waters of the two above-mentioned Rivers; and thirdly, whether the Appellant had established by evidence, that the re-for-[597]-mation of the lands had taken place on the original sites of the churs, Bhedur and Goag. By the decree of the Principal Sudder Aineen of Zillah Dacca (Mouloy Mahomed Nazim Khan, Bahadoor), he held that a Khal or channel called the Coomaria-bhanga Khal was the boundary between the Appellant's churs, Bhedur and Goag on the south, and the Respondent's Talook Bucktbully on the north; and that the Appellant had proved that his predecessors had held...
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