1. This appeal arises out of a suit for a declaration of the plaintiff's occupancy right in 2.36 acres and 7 kadis of land appurtaining to Current Settlement Plot No. 1725, of touzi No. 1434 in Mouza Ratalang. The land was formed by gradual accretions from the bed of the river Knar-Kadi during the last fifteen years and it was found fit for cultivation about five years ago. Plot No. 1725 is recorded as Anabadi river belonging to the landlord, defendant 11. It is admitted that the plaintiff owns his occupancy holdings on the bank of the river and they are recorded as plots Nos. 1725/2548, 1725/2559 and 1729. These plots adjoin the newly formed land to the south, and consequently the accretions from the river bed to the plaintiff's plots are being enjoyed by the plaintiff as a part of his occupancy holdings. In the year 1945, defendants 1 to 10 claiming to be lessees from defendant 11, disturbed the possession of the plaintiff and that gave rise to this litigation. The defendants contended: firstly that as the land had been formed out of the Kharkadi Nala which is the private property of the zamindar the accretion belonged to the zamindar; and secondly that he was in possession through his transferees. Both the Courts below have come to concurrent findings in favour of the plaintiff. They have held that the plaintiff is entitled to the accreted lands as an increment to his tenure under Clause (1) of Section 4 of Bengal Regulation No. 11 of 1825, and that neither the zamindar nor his transferees were ever in possession of the land.
2. The admitted facts are that the river bed which has thrown up the disputed land belongs to the zamindar and that the land has been so formed as to form part and parcel of the existing lands of the plaintiff--the gradual silting up of the river bed has resulted in the emergence of an enlarged area of the plaintiff's holding. It is accordingly contended that the law laid down in Bengal Regulation No. 11 of 1825 entitles him to retain possession of the newly formed land as an accretion or increment to his tenure. On the side of the landlord it is contended that Clause (1) of Section 4 of the Regulation, on which the plaintiff relies, applies only to a river bed which formed the property of the Crown and not to rivers which are the private property of a zamindar and that Clause (4) of that Section would apply to the latter class of cases. In other words it is contended that the application of Clause (1) of Section 4 should be limited to public rivers which are the property of the State and should not be extended to private rivers. The question is which of the two rival contentions is correct.
3. Clause (1) of Section 4 of Bengal Regulation 11 of 1825 reads as follows:
'When land may be gained by gradual accession, whether from the recess of a river or of the sea, it shall be considered an increment to the tenure of the person to whoseland or estate it is thus annexed, whether such land or estate be held immediately from the Government by a zamindar or other superior land-holder, or as a subordinate tenure by any description of under-tenant whatever.'
The interpretation of this clause has led to sharp divergence of opinion between the Patna High Court and the Calcutta High Court.
4. The foundation for the contention on behalf of the appellant-landlord is a passage occurring in the judgment of the Judicial Committee in -- 'Lopez v. Muddun Mohun Thakur',13 Moo Ind App 467, at p. 475. That was acase between two proprietors holding estateson either side of the banks of a river. Theplaintiff was the proprietor of a considerableestate on the bank of the Ganges, which byencroachment, wholly submerged that estate.After the lapse of some years the water ultimately retired and new land was formed onthe soil which was formerly the plaintiff's. Thisnew land was formed adjoining the property ofthe defendant. The defendant, therefore, claimed it as an accretion to his property underSection 4 of the Regulation. Their Lordships of theJudicial Committee held that there was nothingin the Regulation to warrant the inference thatone proprietor could claim confiscation of property belonging to another. Passage which hasgiven rise to a difference of opinion is as follows :
'In truth, when the whole words are lookedat, not merely of that clause but of the wholeRegulation, it is quite obvious that what thethen Legislative authority was dealing withwas the gain which an individual proprietormight make in this way from that which waspart of the public territory, a public domainnot usable in the ordinary sense that is tosay, the sea belonging to the State or a public river belonging to the State. This was agift to an individual whose estate lay upona river or lay upon the sea, a gift to him ofthat which, by accretion, because valuableand usable, out of that which was in a stateof nature neither valuable nor usable.'
The principle deducible from this is that ifthe ownership of the submerged site remainedas it was, a deposit of alluvium directly uponit may as well be an accretion and vertical accession to the site, as it might be a longitudinalaccession to the river frontage of the adjoiningproperty. It will be noticed that their Lordships were discussing the rights of a proprietorto an accretion formed out of public territory.If, therefore, an accretion is formed eitherlongitudinally or vertically from a public riveror the sea, on the land of a proprietor, he canclaim it as an increment to his tenure asagainst the Crown provided the original site isidentifiable. This case does not lay down thata tenant also cannot similarly claim an accretion to his tenure from a river bed, the property of his landlord. Bengal Regulation 11 of1825 would, in terms, equally apply to the casesof subordinate tenures of whatever description.There is nothing in it to indicate that its application should be restricted to public rivers, andthe observations of their Lordships must beread in the context of the facts of that case.They do not purport to apply to all rivers.
This was the view taken in the Full Bench decision reported in -- 'Khubi Mahaton v. Lachmi Das'. 2 Pat 18, a case between a tenant and his landlord. Sir Dawson-Miller. ChiefJustice, held that the section applied in all cases where the tenant claimed as an increment to Ms tenure lands gained by gradual accretion from the recess of the river, the property of his landlord, and that that section was not confined to lands which are the property of the State. Mullick J., observed that Clause (1) of Section 4 deals with rivers of all classes and is subject to ho words of limitation for restriction. Jwala Prasad J., also agreed that Clause (1) of Section 4 deals with lands gained by gradual accretion from the recess of all kinds of rivers or the sea. In a later case decided by the same High Court, reported in -- 'Bishun Deo v. Hem Narain', AIR 1947 Pat 193, the same principle was applied and it was held that the recognition of the tenant's right to claim the land gained by alluvial action does not amount to confiscation of the proprietor's right to the bed of the river and that he is entitled to claim the land under Clause (1) of Section 4. The principle that has been well established, therefore, appears to be this. If the property belonging to a proprietor is lost by submersion or diluvian by the action of the river and new land is reformed on that site the land thus formed belongs to the proprietor to whom the site belonged, and Regulation 11 of 1825 does not warrant its confiscation by a neighbouring proprietor to whose land it may be attached. The latest decision on this question is the Privy Council case reported in--'Maharaja of. Dumraon v. Secretary of State', 54 Ind App 156. The reason of the rule, as I understand these decisions, is that the land washed away and afterwards reformed on the old site cannot be described as land 'gained by gradual accession' -- the incummentum latens of the civil law. The Regulation does not apply to cases where the land has been lost to the original proprietor by the encroachment of the sea or of the river, and which after diluvion reappears on the recession of the sea or of the river, as there is no express provision taking away or destroying the right of the original proprietor in such cases. In such cases the ownership of the land covered by water remains unaffected and the law makes no difference between land covered by water & land covered by crops, provided the ownership of the land can be ascertained. But if new land is formed by gradual throwing up of silt by a river on the land of a person and that person's land gains by the accretion an increment to his existing land, he can retain the increase as a part of his existing land, irrespective of whether the river is public or private.
5. The appellant, however, relies upon certain decisions of the Calcutta High Court which appear to take the contrary view. The case of -- 'Badulla v. Aminaddi', AIR 1932 Cal 507, was strongly relied on by him both in the lower appellate Court as well as here. That case purported to follow the observation of Mitter J. in an earlier decision reported in --'Rahimiddi v. Naimaddi', AIR 1927 Cal 565 which was a case by a landlord against his tenant for ejectment from lands described in Schedule Ga, which was admittedly a re-formation in situ. The defendants had taken up the position that notwithstanding that fact they were entitled to hold the land as an accretion to their tenure on payment of rent. Graham J. held: firstly, on a construction of the Kabuliayat under which the tenants held the adjoining lands that the plaintiff had reserved his right to a fresh settlement of the land thatmay be reformed later. The defendants never applied for a fresh settlement of the newly-formed lands described in Schedule Ga. Secondly, he held that as the lands in question were reformations they formed a part of the estate of the appellant-zamindar who had been deprived of its enjoyment owing to its temporary submersion by the river. The principle that the word 'gain' occurring in Clause (1) of Section 4 does not apply to cases of reformation of lands on sites which get submerged temporarily by fluvial action of a river was followed. The Full Bench case of the Patna High Court in --'Khulu Mahaton v. Lachmi Das', 2 Pat 18 was distinguished on the ground that that was a case of accretion to a raiyati holding from a river bed which belonged to the zamindar. Mitter J. accepted the principle of the Patna decision when his Lordship observed:
'It is true that in Clause (1) of Section 4 there is nothing to indicate that that clause is not applicable to rivers which are private property, that is to say in cases where the bed of a navigable river belongs to a private individual and the riparian bank belongs to a different proprietor.'
But His Lordship held that the Full Bench of the Patna High Court had put a wider interpretation on Section 4 of the Regulation than was intended but observed;
'But it is not necessary in this case to express a final opinion as to whether the view taken by the Patna High Court is right or wrong, for the present case is not a case where the accretion was an accretion from a river-bed which was the property of the landlord.'
Having regard to these observations, therefore, it seems to me that the decision in -- 'Rahimaddi v. Naimaddi', is no authority for the position taken up by the appellant in this case. That case is a direct authority for the position that lands which are reformations of a river bed, which was formerly in the direct possession of the landlord, also belong to that landlord. The decision in --, 'AIR 1932 Cal 507', merely follows the observations made by Mitter J. in -- 'Rahimaddi v. Naimaddi' and there is no discussion as to the view of the Full Bench in the Patna case should not be adopted as representing the correct interpretation of Clause (1) of Section 4 of Regulation 11 of 1825.
6. In -- 'Naku Sheikh v. Harischandra', AIR 1934 Cal 411 the plaintiff claimed settlement of certain accreted lands from the darpatnidar of the zamindar whereas the defendants obtained a settlement of the same land from the zamindar direct. It is not clear from the report whether it was a gradual accession of land to the plaintiffs holding. It appears, however, that after the formation of the land a separate estate was created and settled with the defendants by the landlord. Jack J. held that where it has been found that the land belonged to the estate of the zamindar the Regulation would have no application, and the Full Bench decision of the Patna High Court was distinguished on the ground that that was not a case where the tenants on one side held under a darpatnidar and those on the other held under the zamindar direct; and his Lordship was compelled to recognise that the view taken by the Patna High Court appeared to be in consonance with the terms of Clause (1) of Section 4 of the Regulation. In a later case of the same High Court reported in -- 'Prakash Chandra v. Abdul Jabbar', AIR 1935 Cal 711, the dispute wasbetween the plaintiffs who were the tenants of the Maharaja of Tippera and the defendants who were tenants under a Talukdar under that Maharaja. Nasim Ali J. held that if the substantive part of Clause (1) of Section 4 is allowed to operate on rivers, the beds of which belonged to private individuals, there is partial confiscation of private property. There was no reference to the Full Bench decision of the Patna High Court and the decision of the case depended on the applicability of Clause (4) of Section 4 of the Regulation. Another case of the Calcutta High Court reported in -- 'Monohar v. Jagdis', AIR 1942 Cal 357 was also relied on by learned counsel for the appellant, but this was a decision under Section 4 Clause (3) and not under Clause (1) of that section.
7. None of these cases, therefore, is an authority for the position that Clause (1) of Section 4 has no application to accretions made out of private rivers to the land of a tenant. On the other hand a direct authority on the point, of the Calcutta High Court is to be found in -- 'Gourhari v. Bhola', 21 Cal 233. That was a Full Bench decision of five judges in which the plaintiff sought to obtain possession of fifteen gandas of land on the ground that it was an accretion to his raiyati jhote which he had held for more than twelve years. The defendants claimed to be in possession by virtue of a settlement from the zamindar. Petheram C. J. delivering the judgment of the Full Bench held that the terms of Regulation 11 of 1825 Section 4 Clause (1) entitled the plaintiff who was in occupancy raiyati in a jhote to hold the land as an increment of that jhote. That decision has been followed by Henderson J. in -- 'Prakash Chandra v. Abdul Jabbar', in AIR 1935 Cal 711 and his Lordship distinguished the Full Bench case as dealing with Clause (1) of Section 4 of the Regulation and as being inapplicable to the case before him which was under Clause (4).
8. None of the Calcutta cases relied on by learned counsel for the appellant is an authority for the position that, where the accretion is gradual the owner of the plot to which the accretion becomes an increment cannot claim the benefit of Section 4(1). And I see no sufficient reason to ignore the decision of the Full Bench of the Patna High Court in -- 'Khulu Mahaton v. Lachmi Das', 2 Pat 18. Even without the high authority of the Full Bench of the Patna High Court I would myself have arrived at the same conclusion on the ground that there are no words of limitation in Clause (1) of Section 4 which would be inconsistent with the view taken in the Full Bench decision. Even if Clause (1) does not apply, the residuary Clause (5) would cover a case like this, as it is consistent with local usage and is based upon the universal law of equity and justice. Where the accretion is gradual and imperceptible, it is impossible to say to whom the land belongs, and equity would suggest that it should go to the owner of the plot to which it has accreted. The Calcutta cases can easily be distinguished on the ground that they were cases of shallow rivers where a sand bank or 'Chur' was thrown up as contemplated in Clause (4); while the Privy Council cases were between rival proprietors. I am accordingly satisfied that the decision in the Full Bench case of the Patna High Court in -- '2 Pat 18' and the earlier Full Bench decision of the Calcutta High Court, laid down the correct interpretation of Clause (1) of Section 4 ofBengal Regulation 11 of 1825 which applies to the present case.
9. The Courts below have taken the rightview in following the Patna case, and I wouldaccordingly affirm the judgment of the learnedDistrict Judge and dismiss this appeal withcosts.