1. The Local Government, under Rule 17 of the Kamaun rules, have referred to this Court the following points for opinion: (1) Was the suit out of which this reference has arisen governed by Section 2 or by Section 4 of Regulation XL of 1825? (2) If Section 4 governs the suit, was the second appellate Court correct in applying Clause (1) of that section in preference to Clause (2). having regard to the finding of first appellate Court as to the suddenness of the changes in the river's course and to the principles laid down by their Lordships of the Privy Council to be observed in such cases
2. The dispute between the parties has reference to a portion of land which lies adjacent to the river Kosi, which is subject to fluvial action and which is, therefore, a river to which the rules contained in Regulation XI of 1825 would apply. We have satisfied ourselves by a reference to the authorities that Regulation XI of 1825 has been extended to the parganna of Kashipur. The finding of the Deputy Commissioner of Naini Tal, who was the first appellate Court, is to the effect that the land in dispute is land which had been washed away by sudden change in the course of the river, a change sufficiently sudden to entitle the appellants before him, viz., Muhammad Husain and others, to return the land, which, he holds, has by this sudden change been cut off from the village of Darhial and is now situate adjacent to village Dhundewala in the district of Naini Tal. He also holds that the land in dispute is clearly recognisable. These are distinct findings of fact and the learned Deputy Commissioner has based them upon evidence on the record. It is contended before us on the part of the Zamindars of Dhundewala that the question which was before the Courts was not a pure question of fact but a question of mixed law and fact. Had this been the case, there is no, doubt that it would have been open to the Commissioner to consider the findings arrived at by (he Deputy Commissioner of Naini Tal.
3. After having carefully considered what has been said to us upon this point, we hold to the view that the question before the Court was a pure question of fact and not a question of mixed law and fact.
4. This being so, the Commissioner was bound to accept the findings of the first appellate Court and should not have interfered with them. Upon the findings of fact, this case is one which falls within the second paragraph of Section 4 of Regulation XI of 1825 and the view taken by the learned Deputy Commissioner was the right view, namely, that the case before us is governed by Clause (2) of Section 4 and not by Clause (1). This is the effect of what was held by their Lordships of the Privy Council in Felez Lopez v. Muddan Mohan Thalcur 13 11. 1. A. 467 : 14 W.R. 11 : 5 B.L.R. 521.
5. Our opinion then is: On the first point, that the suit is governed by Section 4 and on the second point, that Clause (2) of Section 4 applies to the case and not Clause (1). The order, therefore, which we consider should be made is that the suit should be dismissed with costs in all Courts. Let this be returned to Government as our opinion upon the points referred.