1. This appeal is directed against the judgment and decree in O. S. No. 67 of 1953 on the file of the Subordinate Judge's Court, Masulipatam. The suit was brought by Koneru Survanarayana and Vemulapalli Subbayya (respondents 1 and 2 in the present appeal) on behalf of all the owners of the lands covered by patta No. 50 of Bobberlanka village, claiming possession of an extent of 32 acres of land marked in the colour yellow in the plan attached to the plaint on the ground that the said land was a lateral accretion to their pre-existing lands situate in an island in the Krishna river. The 1st defendant to the action is the State of Andhra Pradesh represented by the Collector, Krishna, The 7th defendant is the Field Labour Co-operative Society, Kokkoligadda permitted by the 1st defendant to occupy whole or portions of the disputed land. Defendants 2 to 6 are office-bearers of the said Co-operative society.
2. The plaintiffs arc all residents of the Bobberlanka village. Their lands, included in patta No. 50, are situate in an island to the west of the village Bobberlanka. The plaintiffs claim that at that point the Krishna river is non-tidal, non-navigable and fordable, that their patta lands originally comprised of an extent of 199 acres and through a process of erosion of the river large portions of their lands got submerged under water, with the result that in the re-survey of 1923 their holdings had dwindled to 50 acres in extent, that nevertheless, they were paying full assessment of Rs. 700/- that in order to prevent further erosion of their lands by the fluvial action of the river in S. No. 4, they took preventive steps by planting 'Rellu' grass, that as a result from about 7 years prior to the suit a sand bank commenced to form, abutting the eastern edge of S. No. 4, and that by the accumulation of the silt on the sand bank there was an accession in the area of S. No. 4 by about the year 1950 or 1951. It is alleged by them further that in 1952 the Government leased out the disputed land for cutting the 'Rellu'' grass and had also permitted others to enter upon it. The plaintiffs claim that the accreted land belong to them and upon that footing have asked for possession.
3. The 1st defendant has filed an elaborate written statement, resisting the claim of the plaintiffs on various grounds. It is alleged that at Bobberlanka the Krishna river is both tidal and navigable, that the, bed of the river vests in the Government, that in the survey of 1923, it was found that the patta land of the plaintiffs consisted only of 166-34 acres and that that survey had become final and conclusive. It is also alleged that by 1923 survey it was found that portions of R. S. Nos. 4 and 5 of an extent of 17-33 acres were submerged under water, and the same not having been relinquished by the plaintiffs was surveyed as R. S. No. 14 and designated as river poramboke. The 1st defendant-Government states that the extent of 17-33 acres aforesaid, which pertains to R. S. Nos. 4 and 5, was restored to the plaintiffs and the remaining extent of 45-91 acres was demarcated in two lots, Nos. 14 and 15. The 1st defendant denies that the plaintiffs are entitled to any land more than what was given to them in the manner aforesaid. The Government denies that the suit lands are accretions to the plaintiffs land by gradual means. The allegation in the plaint that the plaintiffs had taken, protective measures had been, in express terms denied. The Government asserts that it was perfectly entitled to deal with the suit land and auction the right to cut the 'Rellu' grass therein in Fasli 1362. The 1st defendant has also raised the plea that by applying for leasehold rights in the suit lands the plaintiffs are estopped from putting forward the present claim and also that the suit as framed was not maintainable. The 2nd defendant filed a written statement substantially adopting the contentions of the 1st defendant and defendants 3 to 7 have adopted the pleas contained in the written statement of the and defendant.
Upon those contentions, the trial Court framed the following issues: -
1) Whether the suit land is an accretion to the plaintiffs' patta land, and whether the accretion is gradual, slow and imperceptible, and if so, what is the extent to which the plaintiffs are entitled?
2) Whether the plaintiffs are entitled to sue for possession in a representative capacity ?
3) Whether the river Krishna is navigable and tidal at the place wherein the suit land is situated?
4) Whether the plaintiffs are estopped by reason of the statement dated 12-9-52'.
4. The learned Subordinate Judge held on issue 1 that the disputed land was an accretion by gradual means, but that the accretion was not only to R. S. Nos. 4 and 5, but also to the Government land in R. S. Nos. 6 and 15, and that, therefore, the plaintiffs are entitled to the lands adjacent to R. S. No. 4 and 5 only. On issue 2, he held that the plaintiffs were entitled to sue in a representative capacity by reason of the order passed in I. A. No. 921 of 1953, which had become final. On issue 3, the learned Subordinate Judge held that the river Krishna at the situs of the suit lanka is navigable, but not tidal. On issue 4, it was held that the estoppel pleaded by the defendants had not been made out. In view of his findings on issue 1, the trial Judge decreed the suit of the plaintiffs for demarcation and separate possession of the accreted land adjacent to and contiguous with R. S. Nos. 4 and 5.
5. Against the decision of the learned Subordinate Judge, the State of Andhra Pradesh has preferred A. S. No. 479 of 1958. The plaintiffs have preferred A. S. No. 144 of 1959 in respect of the portion of their claim that had been disallowed. These appeals have been argued together before me. I shall now take up for consideration the appeal filed by the Government.
6. The findings of the learned Subordinate Judge on issues 2 and 4, have not been canvassed before me. The finding of the trial Court that the land in dispute is a lateral accretion by gradual, slow and imperceptible means to the plaintiffs' lands in R. S. Nos. 4 and 5 has been assailed before me by the learned Government Pleader.
7. It is contended by the learned Government Pleader, first, that the suit lands are not accretions formed laterally to the plaintiffs' lands by gradual, slow and impreceptible means, but by sudden formation due to abnormal causes; secondly, that even assuming that the suit lands are lateral accretions, they have been formed not by natural processes, but by artificial reclamation resorted to by the plaintiffs, and that, therefore, they cannot claim the benefit of such accretions; and thirdly, that the plaintiffs are entitled only to 17-33 acres representing the area of the lands appertaining to R. S. Nos. 4 and 5, which got under water prior to 1923 survey and reformed in situ, which was restored to them, and that they are not entitled to any other portion of the present suit land. Lastly, it is contended that the accreted land, apart from what was restored to the plaintiffs, is an accretion to Padugu Lanka.
8. On behalf of the respondents, it is contended by their learned counsel Mr. Sambasiva Rao, first, that the finding of the trial Court that the land claimed as lateral accretions by gradual means is fully warranted by the evidence; secondly that the contention that the plaintiffs had disentitled themselves from claiming the suit land as accretion by reason of their having resorted to artificial reclamation, was not raised or pleaded in the written statement, nor urged before the trial Court; thirdly, that such steps as the plaintiffs had taken were purely protective in their character and not with the intention of enlarging their lands; fourthly, that the basis of the suit was not on the foot of re-formation in situ, but on the basis of lateral accretions by gradual means; and lastly, that there was no plea in the written statement that the accreted land, exclusive of 17-33 acres restored to the plaintiffs, is an accretion to Padugu lanka, and such an important defence cannot be raised at the stage of appeal.
9. Before dealing with the contentions so forcibly presented before me at the bar by both the learned counsel it would be necessary to refer to the topographical setting of the island on which the plaintiffs' patta lands are situate to some of which the suit land is claimed to be an accretion.
10. In the present suit, a retired Assistant Engineer, P. W. D., was appointed as Commissioner. He prepared a plan (Ex. A-2) and annexed it along with his report (Ex. A-1). The plan was prepared after his personal inspection of the suit locality and also with reference to the data derived from the field measurement books, sketches, working sheets and other relevant papers, including the settlement registers prepared at or about the time of the survey of Bobberlanka village in 1862, 1893 and 1923. He has noted the position of the river at the time of these three surveys and the present situs of the lankas and of the lands that are now the subject-matter of litigation. Some of the features of the plan have been subjected to criticism in the trial Court. In respect to the general features of the topography of the disputed lands, I think Ex. A-2 may be taken as being fairly accurate. Bobberlanka village is on the eastern flood bank of the river. The patta lands of the plaintiffs are located in an island to the west of the Bobberlanka village. In between the island and the Bobberlanka village flows the eastern arm of the Krishna river.
We have no precise data as to when exactly the island in which the patta lands of the plaintiffs are located was formed in the river. All we can say is it should have been formed some time anterior to the survey of 1862 as the lands of the plaintiffs covered by patta No. 50 were surveyed as belonging to the island. From Ex. A-2 it is to be seen that to the west of the island flows the western arm of the Krishna, which according to D. W. 1, the Executive Engineer, flows in two branches. On the western bank of the river is the village Oleru. The island in question is marked in red ink. The island is now split up into two by a streak of water which runs almost in the middle of the island with an inclination towards north-east. To the south of the streak of water is Nayudumma lanka represented by points A/1 to A/13 marked by the Commissioner. We are not concerned in this litigation with Nayudamma lanka. It is also seen that there is a streak of water running between S. No. 16 to the east and R. S. Nos. 4, 5, 6 and 15 on the west. The disputed portions are marked by the Commissioner as points A/41, A/42, A/44, A/48. A/55 and A/56. The lands represented by the points aforesaid are on the plan (Ex. A-2) shows as adjacent to and contiguous with R. S. Nos. 4, 5, 6 and 15.
11. One of the questions that fell to be considered by the trial Court was whether the river at the locus of the island under reference is navigable and tidal. This controversy is reflected in issue 3. The case of the plaintiffs is that the river at Bobberlanka is non-tidal, non-navigable and fordable. According to the Government, the river is both tidal and navigable.
12. Under the common law of England, the bed of a non-tidal river vests in the riparian proprietor and he will be entitled to insulae natae in alveo opposite his lands usque ad medium filum acuae. That would be so, irrespective of the fact whether the river is navigable or not (Vide Halde Jure Maris (Chapter-IV) and the observations of Lindley, L. J., in Hindson v. Ashby, (1896) 2 Ch 1 at p. 9). In a long catena of decisions, the Judicial Committee of the Privy Council have taken the view that the presumptions in respect of the non-tidal rivers of England cannot be applied to the large rivers in India, such as, the Ganges and the Godavari. In Balusu Ramalakshmamma v. The Collector of Godavari District, ILR 22 Mad 464 (PC), the Privy Council expressed
'grave doubts whether the presumption applicable to little English rivers applies to the great rivers such as Godavari.'
The size and the scope of the river Godavari have been described in a telling and picturesque passage by Mr. F.R. Hemingway, I. C. S., in the District Gazetteer of Godavari, which was extracted by Leach, C. J., in Maharaja of Pithapuram v. Secy. of State, ILR (1942) Mad 532 at p. 537 : (AIR 1942 Mad 406 (2) at p. 407). The river Krishna is perhaps not so big, but is large enough, as makes no difference for the present purpose. Taking its rise in the western ghats near Mahabaleshwar Krishna flows for nearly 800 miles across the entire breadth of the Indian peninsula before reaching the sea in the east. Its waters are augmented by great tributaries like the Bhima, Varna, Tungabhadra and Musi. It is the base of large irrigation system and a mighty project for impounding its water is now under way. It is looked upon as one of the sacred rivers of the south, along with Godavari, and Cauvery, and its fame is celebrated in ballad and song.
In the District Manual of Krishna compiled by Gordon Mackenzie, I. C. S. (or the Government of Madras (Chapter VIII page 252), the Krishna is described thus: -
'The river Kistna has a course of 800 miles and the area which it drains is computed at 97,050 square miles. The averages fail of the river in the 259 miles above Bezwada is 3.5 feet per mile, but after the stream quits its narrow, rocky bed among the hills at Chintapalle and widens out past the Kondapalle range of hills, the average fall is only 1.5 feet per mile. When it reaches Bezwada, it is confined between two gneissic hills, the width of the gorge being about 1,300 yards. At this point, the velocity of the river current in flood is rather more than 6 1/2 miles an hour, and the maximum flood discharge attains the enormous figure of 761,000 cubic feet per second. The silt carried by the flood water is ----- of the entire432 bulk. Bezwada is about 47 miles distant in a direct line from the sea, but the river tends to southward and has a course of 60 miles below Bezwada before it disembogues into the Bay of Bengal (Vide also the Imperial Gazetteer of India, Vol. XV at page 334, and the Times Gazetteer of the World edited by G.G. Chisholm (1889) page 821.'
13. At the flood season the discharge at Bezwada is: 'a quantity one hundred times as great as the maximum discharge of the Thames at Stains.' (Vide Walsh Vol. 1 page 3 cited by Burn, J., in Secy. of State v. Venkatanarasimha Naidu, 11 Mad LW 256 at p. 274 : AIR 1920 Mad 295 at p. 303). According to D. W. 1, the Executive Engineer, examined on behalf of the Government, the distance between the western arm of the river and Bobberlanka is 2 1/2 to 3 miles. There is, therefore, no question that Krishna is a mighty river and belongs to the class of great rivers of India to which the presumptions applicable to English rivers, cannot be applied in their entirety.
14. According to the Indian law as expounded by the Privy Council, the bed of a public navigable river is presumed to be the property of the Government, whether tidal or not. (Vide Hara-das v. Secy. of State, 26 Cal LJ 590 : (AIR 1917 PC 86) and Tarakdas Acharjec Choudhury v. Secy. of State, 69 Mad LJ 171 : (AIR 1935 PC 125'), In Maharaja of Pithapuram v. Madras Province, AIR 1949 PC 3 at p. 7 Lord Normand observed that
'the rule to be applied is that the bed of a navigable river in any part of India, whether tidal or not, is vested in the Government, unless it has been granted to private individuals.'
Under the Indian law, therefore, the public owner ship of the bed of the river does not depend upon its tidality, but upon its navigability. In this case, the question of the tidality of the river at the locus of the island principally depends upon the evidence of P. W. 1. He has stated that there were records to prove that the river was tidal. But those records were not produced. The learned Subordinate Judge, in my view, was right in rejecting the case that the river is tidal at the site of the island. Equally right is, to my mind, his conclusion that the river is navigable.
In the Inland Waterways in the Madras Presidency (Ex. B-2) a Government Publication issued by the Chief Engineer for Irrigation, the following passage occurs, which has a material bearing on the question now in issue:
'3. Kistna river below the anicut:-
From Bezwada to Adavipalem lock at the tail-end of the Kistna western Bank Canal, the river is navigable for light steamers, launches and heavy cargo boats during the flood season from July to the end of November. Thereafter navigation is difficult in this reach till the arrival of floods in July. For the rest of the year i. e., December to June, the river is navigable up to fourteen miles above Adavipalem for light crafts of 30 tons drawing 3 to 4 feet of water.
The reach from Adavipalem lock to the sea is about 16 miles. It is tidal and navigable at all seasons of the year for light river steamers, launches and cargo boats.'
15. The literal connotation of the expression 'navigable' is 'affording facilities for steering ships through.' In Secretary of State for India v. Bijoy Chandra Mahatap, ILR 46 Cal 390 : (AIR 1919 Cal 768) it was held that a river in India is not navigable in the legal sense, unless it is navigable throughout the year. But, that does not mean that every part of the river must be navigable throughout the year. In AIR 1949 PC 3 at p. 5 Lord Normand, who spoke for the Judicial Committee observed thus:-
'In the High Court the argument proceeded, as the judgment records, on the footing that the Godavari is a public navigable river, but counsel for the appellant submitted to their Lordships that because the river was not navigable at all seasons in all parts of the eastern side at the locus it must be treated as non-navigable on the eastern side. Their Lordships have no hesitation in rejecting this novel contention or in holding that an embanked river which includes a navigable channel is to be treated as without qualification a navigable river between its embankments.'
16. No doubt, in this case, the Commissioner had stated that the Krishna river between the village Bobberlanka, and the suit lanka flows only for a few months in the rainy season and for the rest of the year boats cannot ply. The Commissioner's report, as pointed out by the learned Subordinate Judge, does not take into account the situation in the western arm of the river.
17. The evidence of P. Ws. 3 and 7 is that between the lanka and Oleru on the western bank bouts ply. The fact that the river on the western side of the lanka is navigable is enough to bring the case within the principle enunciated by Lord Normand in Pittapuram's case, AIR 1949 PC 3. I think, therefore, the finding of the learned trial Judge that the river is not tidal, but navigable, is fully justified. That being so, it follows that the bed of the river must be held to belong to the State.
18. The fact, however, that the bed of the river vests in the State will not disentitle a riparian proprietor from claiming the ownership of a land formed laterally as an adjunct to or in contiguity with his pre-existing property. In 26 Cal LJ 590 (AIR 1917 PC 86) Lord Buckmaster said thus:-
'The bed of a public navigable river is the property of the Government though the banks may be the subject of private ownership. If there be slow accretion to the land on either side, due, for instance, to the gradual accumulation of silt, this forms part of the estate of the riparian owner to whose bank the accretion has been made.'
In Secy. of State v. Raja of Vizianagaram, ILK 45 Mad 207 : (AIR 1922 PC 105) which relates to river Godavari, it was found by all the Courts that at the locus of the island in question the river was both tidal and navigable and, therefore, the bed of the river belonged to the Government Nevertheless, it was held by the Madras High Court and by the Privy Council that the Raja of Vizianagaram was entitled to the property claimed as lateral accretions to his pre-existing lankas. Following the above decision of the Privy Council a Bench of the Madras High Court in Naganna Naidu v. Satyanarayana, 123 Ind Cas 31 : (AIR 1930 Mad 181) held that even where the owner of the river bed is different from the riparian owner, a gradual accretion to the shore will belong to the riparian owner and not to the owner of the river bed.
19. It, therefore, remains to consider whether the plaintiffs have succeeded in establishing that the lands are accretions to their pre-existing lands formed by alluvion by gradual, slow and imperceptible means.
20. In this case, I am relieved of the need to embark upon an enquiry whether factually the suit lands have been formed as adjacent to and contiguous with some of the plaintiffs' patta lands in the island. I say so, because the real controversy is not as to the emergence of 63-24 acres, but as to the nature of that emergence. According to the plaintiffs, these lands were formed by gradual, slow and imperceptible means, while according to the defendants, they were formed suddenly on account of the abnormal floods of the river in or about 1949.
21. Accretions normally are of three kinds: (i) gradual and imperceptible addition of sediment, so that the bank or the shore is extended into the water. This is accretion by alluvion; (ii) the gradual retirement of the water from the shore by the lowering of its level. This process is known as reliction; and (iii) the process, which is very rare, by which a large quantity of land is suddenly added to the shore by its severance bodily from its former location. This process is known as avulsion. There are some other forms of accretions, such as, the emergence of island is THE bed of the river and the reformation in situ. These formations of accretions are dealt with in Section 4 of the Bengal Regulation XI of 1825. We are in this case concerned with accession by alluvion. The principle of accretion by alluvion is that when land is gained by gradual accession, whether from the sea or the river, it will be considered as belonging to the estate to which it is annexed.
The definition of the word 'alluvion' as given by Justinian (Justinian's Institute, Lib II, Lit. 1, 20); is as follows :-
'The ground which a river has added to your state by alluvion becomes your own, by the law of nations. And that is said to be alluvion which is added so gradually that no one can judge how much is added in each moment of time.'
22. Blackstone in his commentary (Blackstone's Commentaries, Vol. II P. 262 Stephen's Commentaries, Vol. I, Ed. of 1863 P. 457) says:-
'In these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degree, it shall go to the owner of the land adjoining. For de minimis non curat lex and besides these owners being often losers by the breaking in of the sea or at charges to keep it out, this possible gain is, therefore a reciprocal, consideration for such possible charge or loss. But if the alluvion or dereliction be sudden and considerable, in this case it belongs to the king. .......'
23. The principle upon which this rule of accretion by alluvion is based is the necessity for the permanent protection and adjustment of property, and as pointed out in Foster v. Wright, (1878) 4 C. P. D. 438 and in some of the English decisions.
'On the impossibility of identifying from time to time small addition to or subtraction from land caused by the constant action of running water.'
24. Under the law of England, land formed by alluvion by gradual and imperceptible means or land gained by dereliction belongs to the owner of the adjoining terra firma. It is also settled law that where the accession is sudden and perceptible, the land gained still belongs to the original owner. (Vide Rex v. Lord Yarborough, (1828) 2 Bligh (NS) 147, affirmed by the House of Lords sub-nomine in Gifford v. Lord Yarborough, (1828) 5 Bing 163). The whole doctrine of Accretion, according to Smith L. J,, in (1896) 2 Ch 1 at p. 28 is:
'that from day to day, week to week and Month to month a man cannot see where his old line of boundary was by reason of the gradual and imperceptible accretion of alluvium to his land'.
In Attorney General v. Reeve, (1885) 1 TLR 675, Lord Coleridge after referring to the Institutes of Justinian, Barcton and Lord Hales' book and leading cases including that of (1828) 2 Bligh (N. S.) 147, said that the principal requirement is that the increase must be absolutely insensible. The test as to increase being slow and imperceptible in the sense spoken to by Smith, L. J., in (1896) 2 Ch 1 at p. 28 was approved of by Lord Shaw in Attornay General of Southern Nigeria v. John Holt and Co., Ltd., 1915 AC 599 : (AIR 1915 PC 131).
25. The question is whether the rule, which applies to the slow moving rivers of England, which do not experience rapid changes, can be applied to Indian conditions. In some early cases like Doe d. Seebkristo v. East India Company, 6 Moo Ind App 267 (PC) Lopez v. Muddun Mohum Thakoor, 13 Moo Ind App 467 (PC) and Nogender Chander Ghose v. Mahomed Esof, 10 Beng LR 406 and some other cases the expressions 'slow and imperceptible means' have been used in respect of alluvial accretions. In Srinath Roy v. Dinabandhu Sen, ILR 42 Cal 489 : (AIR 1914 PC 48 (2) Lord Sumner observed thus:
'In England the bed of a stream is for the most part unchanging during generations, and alters, if it alters at all, gradually and by slow processes. In the deltaic area of Lower Bengal change is almost normal in the river systems, and changes occur rarely by slow degrees, and often with an almost cataclysmal suddenness.'
In this case, I have, in the earlier part of the judgment, referred to the bigness and the size of the river Krishna. From the plan, Ex. A-2, it would be seen that the course of the river has been changing, that some portions of the island were going under water and new islands were being formed. The Commissioner has located the boundaries of the patta land and the river as per survey of 1863 and has shown it in brown line. The boundaries of the lands in the river according to 1893 survey had been shown in green ink, while the portions emerging from survey of 1923 are shown in black ink. It will be seen that by 1862 survey, certain survey numbers referred to in Ex. A-2 were under water. By the time of 1893 survey some other numbers were under water. By 1923 survey Nayadumma lanka and S. No. 16 were formed. There is also a middle arm of the river formed between S. No. 16 on the east, and R. S. Nos. 4 and 5, and 15, on the west, as per the survey of 1923. These circumstances show that in the river Krishna it is usual for portions of the land to be washed away at the flood and the formation of new lands either in mid stream or bilateral accretion. Therefore, the strict rule of English law as to accretion being slow and imperceptible cannot, as suggested by Lord Sumner, be applied to the river Krishna in its full rigour.
26. It is in appreciation of the special geographical condition of rivers in India that Section 4 (1) of the Bengal Regulation (Regulation XI of 1825) speaks only of 'gradual accession' and no slow and imperceptible accession. The provision is in these terms:
4 (1) : 'When land may be gained by gradual accession, whether from the recess of a rivet or of the sea, it shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed,...........'
27. The question is whether the Bengal Regulation aforesaid can be applied outside Bengal and to Krishna river, which is situate in the erstwhile Madras Presidency. It is true that in Surya Row Bahadur v. Secy. of State, ILR 36 Mad 57 it was held that Regulation XI of 1825 has no applicability in the Madras Presidency. Obviously, the attention of the learned Judges was not invited to the observations of Lord Hobhouse in ILR 22 Mad 464 (PC) that
'there does not appear to be in Madras, as in Bengal, an express law embodying the principle that gradual accretion enures to the land which attracts it; but the rule, though unwritten, is equally well established. In Secy. of State v. Raja of Vizianagaram, ILR 40 Mad 1083 : (AIR 1918 Mad 1083) Srinivasa Ayyangar, J., observed that the Bengal Regulations afford the best practical guide in applying the law of accretion in the case of large rivers as the Godavari. In ILR 45 Mad 207 : (AIR 1922 PC 105) the Privy Council did not think it necessary to determine whether the law as to accretions promulgated in the Bengal Regulations coincided with the law as to accretions in the Presidency of Madras or elsewhere. Any doubt in that matter has, in my view, been conclusively resolved by the observations of Lord Normand in AIR 1949 PC 3. It had been pointed out in that decision that the Bengal Regulation XI of 1825, which was promulgated after consultation with the law officers on the Mohammadan and Hindu Law, was declaratory of the pre-existing law and the Privy Council declined to countenance the argument that there was any difference between the riverain law of Madras and that of Bengal at the beginning of the century. Under the Bengal Regulation all that is required is that the formation must be gradual. It need not be imperceptible; it need not be slow.
28. Quite apart altogeher from the provisions of Section 4 (1) of the Regulation in Raja of Vizianagaram's case ILR 45 Mad 207 : (AIR 1922 PC 105) the Privy Council held that the words 'slow' and 'imperceptible' in the English rule which provide that all accretions must be 'gradual, slow and imperceptible,' are only qualifications of the word 'gradual' and that that word with its qualifications only defines a test relative to the conditions to which it is applied and the rate of progress applied to the English rivers is not necessarily the same in regard to rivers in India.
29. Now, in this case the question is whether the accretions represented by A/41, A/42, A/44 to A/48, A/55 and A/56 were gradual accretions, or sudden formations by the violent action of the river. In the trial Court the Govt. had come forward with a specific and positive case that the disputed land was formed suddenly by reason of some violent action of the river caused by abnormal floods in 1949. D. W. 1 had stated that there were records maintained in his office to show that the accretions were in 1951 and 1952 and that they were sudden. He had also stated that there was a register of abnormal floods maintained in his office. The records, however, were not produced. We have only the oral testimony of D. W. 1 that the accretions must have been formed suddenly. That statement obviously was based upon his impressions gathered during the course of his inspection made by him very much later. I do not think, therefore, that the learned Subordinate judge was wrong in rejecting this evidence and holding that the 1st defendant had not proved its case that the accretions were sudden formations. I am, therefore, unable to assent to the first contention of the learned Government Pleader.
30. It is next contended by the learned Government Pleader that, judged by whatever test, the period that had elapsed for the formation of the accretions in the present case cannot be said to be gradual. According to the evidence let in by the plaintiffs some protective measures were taken about 7 years prior to the suit and a sand bank had risen with the result, that by slow degree by the year 1950 and 1951 the patta lands of the plaintiffs got augmented. It is contended that the period that had elapsed is not sufficiently long to indicate that the accession was gradual. As pointed out by Lord Carson in Raja of Vizianagaram's case, ILR 45 Mad 207 : (AIR 1922 PC 105) and referring to the river Godavari that
'the actual rate of progress necessary to satisfy the rule when used in connexion with English rivers is not necessarily the same when applied to the rivers in India.'
In ILR 22 Mad 464 (PC), the disputed land was formed, in the course of about 3 years in the river Godavari. In Raja of Vizianagaram's case, ILR 40 Mad 1083 : (AIR 1918 Mad 1083) Srinivasa Ayyangar, J., has referred to several considerations regarding the duration of time necessary to hold that the formation was gradual. Judged by those tests, I am of opinion, that the period of formation in the instant case cannot be said to be sudden.
31. On a careful consideration of the entire evidence on record the trial Court has come to the conclusion that the disputed portion is a latered accretion formed by gradual means and that the plaintiffs are entitled to claim the accreted lands adjacent to some of the lands of the plaintiffs. I am not persuaded that that conclusion is unwarranted, or is opposed to evidence.
32. The next contention of the learned Govt. Pleader is that even though the lands in question may be lateral accretions formed gradually, inasmuch as they were brought about by the artificial reclamation of the plaintiffs, they (the plaintiffs) cannot claim any right to the accreted lands. The learned Government Pleader has referred to the allegations in the plaint and the evidence of P. Ws. 2 to 7 in regard to the plantation of the nanal grass and the rising of the sand bank. It is argued by him that on the admitted case of the plaintiffs, the accession has been brought about not by natural process but by artificial reclamation, which does not confer any right upon the riparian owner for the accreted land. In support of his contention he has placed strong reliance on the decision of the Privy Council in 1915 AC 599 at p. 615 : (AIR 1915 PC 131 at p. 136), The actual principle upon which that decision was rendered is not of direct application to the facts of this case; but the learned Government Pleader, however, has referred to the following passage in the judgment of Lord Shaw, as having a material bearing on the issue I have to determine :-
'Artificial reclamation and natural sitting up are, however, extremely different in their legal results; the latter, if gradual and imperceptible in the sense already described, becomes an addition to the property of the adjoining land; the former has not this result, and the property of the original foreshore thus suddenly altered by reclarnatory work upon it remains as before i. e., in cases like the present, with the Crown.'
33. Mr. Sambasiva Rao, the learned consenl for the respondents, on the other hand, has drawn my attention to the decision of Romer, J., in Brighton and Hove General Gas Co. v. Hove Bungalows Ltd., (1924) 1 Ch 372. That is a case that deals with the lands on the foreshore of the sea near the Coasts of Kent. The owners of the land and the foreshore were in the habit of erecting groynes for preventing erosion. The common case of all the parties there was that the erection of groynes was a well known and almost a universal process of preventing encroachment of the sea into the land. The question that arose for decision before Romer. J., was whether the accretions that had resulted from such preventive measures could he contrued as accretions to the land belonging to the owner, or whether they belong to the Crown. The learned Judge held that the general law relating to accretions applies to gradual and imperceptible accretion to land abutting upon the fore-shore brought about by the operations of nature, even though it has been unintentionally assisted by, or would not have taken place without the erection of groynes for the purpose of protecting the shore from erosion.
Romer, J., referred in that case to the rule laid down by Blackstone and to the case of (1828) 2 Bligh N. S. 147; 6 Moo Ind App 267 and Attorney General v. Chambers, (1859) 4 De G and J. 55.' He distinguished the opinion of Lord Shaw in 1915 AC 599 : (AIR 1915 PC 131) and observed that the Privy Council in that case would have applied the general law of accretion in favour of the respondents, had they arrived at the conclusion that the silting up was due to stakes and other erections provided by the respondents and their predecessors in title for the mere purpose of preventing erosion by the sea. The learned Judge observed that it was because the Privy Council was confronted with the concurrent finding of fact in the courts below that the addition to respondents' lands was caused by the execution of 'reclamatory works.' That they decided in favour of the Crown on this point. Romer, J., pointed out the distinction between artificial works calculated to increase the lands and works embarked upon as preventive measures which may ultimately result in the accession of land.
34. It seems to me unnecessary to refer to English decisions on this part of the case for the abvious reason that there are two decisions which are binding on me. The first decision is the one rendered by the Madras High Court in Secretary of State for India v. Kadiri Kutti, ILR 13 Mad 369 and the second by this Court in State v. Raja Saheb of Pithapuram, 1959 Andh LT 305. In ILR 13 Mad 369 a Bench of the Madras High Court had to consider the effect of taking artificial steps, on the question of the rights of a riparian owner to accretions caused by alluvion. They referred in that case to the decision in 6 Moo Ind App 267 (PC) and (1859) 4 De G and J. 55. In the first of the two cases, it was held that accretion contributed or even purposely contributed to, by the acts of the parties would not take the matter out of the ordinary law with respect to accretion. In (1859) 4 De G and J. 55, the Lord Chancellor while holding that the rule with regard to accretion is not affected by the nature and character of the operation employed to produce it, made an exception in the case of operations upon the party's own land which 'are not only calculated, but can be shown to have been intended, to produce this gradual acquisition of the sea-shore, however difficult such proof of intention may be.'
In Kadirikutti's case, ILK 13 Mad 369 at p. 378 the Madras High Court followed the view of the Lord Chancellor and held that :
'The proposition, therefore, that the means whereby an accretion is occasioned are immaterial must be taken subject to the proviso expressed in the judgment of the Lord Chancellor, viz., that it is by a lawful use of the party's own land that the accretion was caused. Acts not coming with-in that category done with the intention and result of annexing the soil of a public river are nothing else than acts of encroachment'.
The principle of the above decision was followed by a Bench of this Court consisting of Ansari and Jaganmohan Reddy JJ. in 1959 Audh LT 305 referred to supra.
35. The learned Government Pleader contends that on the admissions made by the plaintiff's witnesses, P. Ws. 2 to 7 the planting of the nanal grass comes within the scope of the rule formulated by the Lord Chancellor in Chambers' case, (1859) 4 De G and J 55 and adopted by the Bench of the Madras High Court in Kadirikutti's case, ILR 13 Mad 369 referred to above. The answer of the learned counsel for the respondents to the above contention is twofold : In the first place, it is contended that the planting of nanal grass per se will not be objectionable, or deprive the riparian owner of the right to claim the consequent additions as an accretion to his property. In support of the above contention he has cited a decision of the Madras High Court in IT Mad LW 256 : (AIR 1930 Mad 295) where it was held that the planting of nanal grass would not disentitle the adjacent land owners from claiming the accretions as theirs, though in that case the nanal grass was planted by the Government for river conservancy. I do not know whether this case is strictly in point, for the reason that it was found there that the nanal grass was planted not by the riparian proprietor, who claims the accretions, but by the Government in the normal exercise of its functions in respect of the river conservancy. The second contention -- and this, in my opinion, is fully sustained by the evidence of P. Ws. 3, 4 and 7 -- is that the purpose of the plaintiffs in planting nanal grass was purely protective in character, and not for the purpose of encroaching into the bed of the river. It is, therefore, contended by the learned counsel that the plantation of nanal grass would not be hit at by the rule enunciated by the Lord Chancellor in Chamber's case, (1859) 4 De G and J 55.
36. It is then contended by the learned Government Pleader that the planting of 'rellu' grass by the plaintiffs was admittedly without the permission of the Government, and, is therefore, in contravention of Sections 11, 12 and 13 of the Madras Rivers Conservancy Act (Act VI of 1884). Accordingly it is contended that the planting of nanal grass constitutes an illegal operation, and if, as a result, of such an illegal operation, there had been an accretion to their lands, the plaintiffs cannot legitimately claim the same as their own.
37. The Government, however, have not, either in the written statement, or in the court below raised the question of the contravention by the plaintiffs of Sections 11, 12 and 13 of the Rivet Conservancy Act. The application of Sections 11, 12 and 13 of the Act to the instant case, as contended for by Mr. Sambasivarao, depends upon the survey under Section 3 and the notification under Section 7 of the Act. Whether the river was so surveyed and notified or not is a question of fact which was never investigated in the lower court on account of the lack of any specific plea by the Government in that behalf. It seems to me that the Government cannot raise this question at this stage. '
38. To my mind, there is one other material circumstance, which presses against the tenability of the learned Government Pleader's argument in regard to the effect of artificial reclamation. In the written statement filed on their behalf, the Government have taken a specific and definite stand that the plaintiffs had never planted nanal grass. Paragraph 11 of the written statement of the 1st defendant Government is as follows :
'The allegations in para 7 of the plaint are not at all true. The plaintiffs never took any steps to protect the land from the action of the erosion due to the river nor was there any sand bank formed as a result thereof. The alleged growing of 'rellu' grass and the appointment of watchers are also intended for the suit. The plaintiffs never took any steps in that direction and there was no accretion by the accumulation of silt or formation of sand bank as a consequence of the steps taken by the plaintiff'.
Having taken up that clear position in the written statement it seems to me that it is now not open to the Government to say that the accretions were formed by the unlawful act of the plaintiffs in planting nanal grass for the purpose of raising the level of the bed of the river.
39. It is next contended by the learned Government Pleader that assuming that the suit lands arc lateral accretions to some of the patta lands of the plaintiffs, they (the plaintiffs) are not entitled to anything more than the extent of 17 acres 33 cents. It has also been stated that by the time of 1923 survey an extent of 10 acres and 46 cents adjoining to R. S. No. 5, and 6 acres and 87 cents adjoining to R. S. No. 4 were under water and that the plaintiffs were paying assessment therefor. The submerged area was included in R. S. No. 14. According to the Government that is all the area which the plaintiffs are entitled to on the principle of reformation in situ. Upon that footing, the Government restored that area to the plaintiffs. It is, therefore, contended that the remainder of 45 acres and 91 cents of the total accreted area now is the property of the Government and the plaintiffs are not entitled thereto. It is suggested by the learned Government Pleader that the rights based upon the principle of reformation in situ should prevail over the rights relative to the lateral accretions by alluvion. I am not able to appreciate this argument. In the first place, the plaintiffs have not brought this action on the foot of their rights to land reformed in situ.
According to Mr. Sambasiva Rao, having regard to the large portions of their lands that went under water the plaintiffs could have well sustain-ed the action on the foot of reformation in situ. Whatever that be, it is manifest that that was not the foundation of the present action. In the, second place, the principle that rights arising out of a land reformed at the original site prevails over rights based upon lateral accretions applied to a case of competing claimants, one claiming the right on the basis of reformation in situ, and another on the foot of alluvion. The law relating to re-formation in situ has been fully expounded in the decision of the Privy Council in 13 Moo Ind App 467, which, I may respectfully say, is a lucua classic us on the question. Following Mussumat Imam Bandi v. Hurgovind Ghose, 4 Mgo Ind App 403 (PC), the Judicial Committee held in that case that the land that was washed away and afterwards re-formed on the old ascertained site, was not land gained by increment, within the meaning of Section 4 of the Bengal Regulation XI of 1825, and that that principle was not peculiar to any system of Municipal Law, but partakes of a principle founded in universal law and justice. As early as 1862, it was held by Sir B. Peacock in Romanath Thakoor v. Chundernarain Chowdhury, (1862) Marsh 136 (FB) as follows :
''Lands washed away and afterwards re-formed upon the old site, which can be clearly recognised are not 'lands gained' within the meaning of Section 4, Reg. XI of 1825; they do not become the property of the adjoining owner, but remain the property of the original owner'.
In Hursahai Singh v. Syed Lootf Ali Khan, 2 Ind App 28 (PC), the river Ganges washed away portions of the mauza and after the recession of the water it was found that the submerged land adhered to the adjoined estate of Ramnuggar, which claimed the addition as lateral accretion by alluvion. The Privy Council found on the facts that the adhered portion belonged to mauza Muteor, and following the principle of Lopez's case, 13 Moo Ind App 467 (PC) held that the appellants there were entitled to the land. In other decisions, such as Sarat Sundari Debya v. Soorjya Kant Acharjya, (1876) 25 Suth WR 242 and Maharaja of Dumraon v. Secy. of State, 54 Ind App 156 : (AIR 1927 PC 89) the same view was taken by the Privy Council. In a later case' in 54 Ind App 156 : (AIR 1927 PC 89) after a review of the authorities referred to above, the Privy Council held that the land which by fluvial, action had gradually accreted to that of a riparian owner does not become his property under Bengal Regulation XI of 1825, Section 4 if it is a re-formation on the site of diluviated land of another proprietor who has not abandoned his right to it. The above rule applies whether the land of the two proprietors was originally on the same or on different sides of the river. I therefore see in this case no conflict between the two competing owners, one claiming the property on the foot of lateral accretions and another on the ground of re-formation in situ. It seems to me, therefore, that the rule that reformation in situ prevails over lateral accretion must be taken with reserve in its application to the facts of this case.
40. It is then contended by the learned Government Pleader that in a case where there has been an accretion of land, which is partly a reformation in situ, the plaintiffs' rights must be strictly confined to the reformed area only. In support of this contention very strong reliance is placed upon the decision of a Bench of the Madras High Court consisting of Varadachariar and King JJ., in Secy. of State v. Surya Rao Bahadur, AIR 1938 Mad 470. In that case, one of the questions that had to be considered was whether in addition to an area in a lanka, which was claimed to be re-formation in situ, the Maharaja could be granted a decree for possession of contiguous land on the foot of lateral accretion. It was found that the evidence tendered did not contain an account at the stages in the formation of the suit lanka and, therefore, there was no material for holding that the portion of the suit lands other than those claimed as re-formation in situ were lateral accretions. In that connection reference was made by the learned Judges to the observations of the Privy Council in 10 Beng LR 406 (PC) that
'a title founded on the original ownership and identification of site is to be confined prima facie to the re-formation on that site.'
This is not a case where the plaintiffs are claiming the suit lands on the foot of re-formation in situ. Therefore, the question of their claim being prima facie restricted to the re-formed area would not arise. Further, the decision in Surya Rao's case, AIR 1938 Mad 470 was based on the facts of the case, and I can see no basis for deducing a principle therefrom that a person cannot claim any land which is partly a re-formation in situ and partly a lateral accretion. I am unable to see, either in principle, or on authority, that there is any legal impediment in the plaintiffs claiming the lands as lateral accretions to their terra firma after a portion had been washed away. In Rashmonee Dassee v. Bhubonath Bhuttacharjee, 12 Suth WR 252 it was claimed that a portion of the plaintiff's land was washed away and that the land sued for was an accretion to that remnant and, therefore, belonged to the plaintiff. It was held that the Court must decide what particular parcel (if any) was the remnant of the original estate and must also decide whether the chur formed by accretion to that remnant. I am, therefore, of opinion that there is no force in the contention of the learned Government Pleader that the plaintiffs could not have asked for the lands as lateral accretions in this case after taking the 17-33 acres of land.
41. It is lastly contended that near the lanka where the patta lands of the plaintiffs are situate in Padugu Lanka, which admittedly belongs to the Government and that almost all the plaintiff's witnesses have said that originally there was a streak of water dividing the Padugu lanka and the Ryot's lanka and that the water got silted up and laud was formed (sic). It is, therefore, argued by the learned Government Pleader that this land could as well be the accretion to Padugu lanka. In this connection the learned Govt. Pleader referred to ILR 36 Mad 57. There, in the mouth of the river Godavari an island was formed and it became a part of the main land by the drying up of the intervening channel. It was held by the Bench of the Madras High Court that the adhesion of the island to the mainland was sudden and perceptible and, therefore, it was not an accretion, but mere adjunction. I am unable to see how this case advances the contention of the learned Government Pleader, as the decision was principally based upon the suddenness with which the island adhered to the mainland thereby taking itself out of the rule of accretion by gradual means.
Further, the case that it is an accretion to Padugu lanka was never put forward in the written statements. There is no issue in this behalf. There is no evidence tendered by the defendants that the suit lands are accretions to Padugu lanka. I may add that this question has not been raised even in the memorandum of appeal. On the contrary, D. W. 1, who is the principal witness on behalf of the Government, states that he does not know where Padugu lanka is. An important question like this cannot be raised at the time of argument based upon a few answers given by the witnesses during their examination. The need for formulating a claim with precision and particularity present in all cases is even more so in a case where rights are made to rest upon lateral accretions and reformation in situ etc., which, as pointed out by Patanjali Sastri J., in The Province of Madras v. Jagannadha Raju (1945 (2) MLJ 27) : (AIR 1945 Mad 396) partake of different legal conceptions needing separate pleading and evidence to sustain the same.
42. After carefully considering the several arguments pressed upon me by the learned Government Pleader, I am of opinion, that the finding of the trial court that the suit lands are lateral accretions by gradual means to R. S. Nos. 4 and 5, belonging to the plaintiffs is correct and that this appeal must fail. It is accordingly dismissed with costs.
43. A. S. No. 1144/59 : In this appeal, which is preferred by the plaintiffs in the main suit, the question for decision is whether or not the plaintiffs are entitled to the entirety of the accreted lands. As stated already, in the course of my judgment in A. S. 479/58 (the main appeal) the learned Subordinate Judge found first on issue No. 1 that the lands represented by points A/41, A/42, A/44, A/45, A/46, A/47, A/48, A/55 and A/56, as per the Commissioner's plan (Ex. A-2) are lateral accretions formed by gradual process; secondly, that the points aforesaid are adjacent to and contiguous with not only R. S. Nos. 4 and 5, which are admittedly the portions of the plaintiffs' land, but that they are also adjacent to R. S. Nos. 6 and 15, which belong to the Government; and thirdly, that the plaintiffs will be entitled to separate demarcation and possession of only such of the accreted lands as are adjacent to and contiguous with R. S. Nos. 4 and 5.
44. (Then after dealing with some of the contentions of the plaintiffs (paras 44 to 50) His Lordship proceeded further:) In my opinion, there is another circumstance which wholly invalidates the claim of the plaintiffs. That, as a result of the survey in 1923 R. S. Nos. 6 and 15 were registered as Government lands can hardly admit of any doubt. If the plaintiffs were really owners of those two numbers, as they now say they are, they should have taken steps in conformity with the provisions of Survey and Boundaries Act, for effecting the necessary amendments. They have not taken steps by filing a suit in the Civil Court for the rectification of the entries, and in consequence those entries have now become final. The plaintiffs, therefore, cannot now claim R. S. Nos. 6 and 15.
45. It is then argued by Mr. Sambasiva Rao, that, inasmuch the Government in this case have taken up the position that the suit lands were not gradual, but sudden formations, and having failed to make good that positive case, they cannot now turn round and say that the entirety of the accreted land does not belong to the riparian owner, but part of it belongs to them. There is no substance in this contention. A similar question was considered by the Privy Council in Pahalwan Singh v. Maharajah Muhessur Bukhush Singh Bahadur, 9 Beng LR PC 150 (PC). There, the defendants denied the plaintiff's claim that the accreted land was formed by gradual, slow and imperceptible means and asserted that the lands were formed suddenly by the violent action of the water. The defendants failed to prove that case. The question then was whether he could be precluded from pleading in the alternative that the entirety did not belong to the plaintiff. The Privy Council held that there could be no such bar. In this case also, the Government have taken up the position that the suit lands are not accretions by alluvion on the ground that they are sudden formations due to abnormal floods in the Krishna river. They failed to make good that case. That certainly will not preclude them from showing that the entire lands now claimed by the plaintiffs do not belong to them as lateral accretions by alluvion, and that the Government also is entitled to a portion of it. I am in accord with the conclusion of the learned Subordinate Judge, and being so, the decree passed by him as correct. There are no merits in this appeal and it must, therefore, fail. It is accordingly dismissed with costs.
46. In the result, both the appeals (A. S. No. 479 of 1958 and A. S. No. 144 of 1959) are dismissed with costs.