1. In this case we have had the benefit of an exhaustive argument on both sides and are particularly indebted to the learned Government Pleader, Mr. Ramesam, for the pains he has taken in presenting the facts to us in the clearest and most intelligible light. I have also had the advantage of perusing the judgment which my learned brother is about to deliver, and can add nothing material to it. The evidence leaves no doubt in my mind that the lower Court's decision on the question of fact is correct. The nucleus of the suit lanka is not an island formed vertically in the bed of the Godavari, but an accretion to plaintiff's pre-existing Voota Chiguru Lanka formed in 1883 and severed from the latter about four years later. I do not think we should be justified in refusing to recognize plaintiff's title to the land thus formed on the ground of the comparative rapidity with which the formation took place. No doubt the reported decisions of the English Courts would, seem to indicate that they Would refuse to treat such a formation as an accretion, if it occurred in an English river. An addition of over 600 acres in the course of a single flood season could not be described as slow and gradual according to the standard of additions by alluvion in English rivers. But there is nothing abnormal in such a phenomenon in Indian rivers, and although several cases have been quoted in which the Privy Council has dealt with claims to accretions by alluvions in Indian rivers, I find none in which this claim has been rejected merely on the ground of the extent of land thus newly formed and the shortness of the period occupied in formation. In Lopez v. Muddun Mohan Thakoor (1870) 13 M.I.A. 467 and Hursuhai Singh v. Syud Loot Ali Khan (1874) 2 I.A. 28 the lands claimed as accretions measured in round figures 2,500 and 5,000 acres respectively. The exact length of time occupied in formation does not appear but it would seem to have been within a space of about fifteen years in each case The claims by accretions were rejected solely on the principle of re-formation and there is nothing in the judgment to suggest that apart from this their Lordships would have hesitated to admit the claim by accretion. It seems to me the recognition of title by alluvial accretion is largely governed by the fact that the latter is due to the normal action of physical forces: and the different conditions of Indian and English rivers is such that what would be abnormal and almost miraculous in the latter is normal and common place in the former as pointed out by their Lordships of the Privy Council in Srinath Roy v. Dinabandhu Sen I.L.R. (1915) Calc. 489 Such a difference cannot be ignored in the application of the legal principles of alluvial accretions and it seems to have been given effect to in Bengal Regulation II of 1825. The only requirements in Section 4 of that enactment is that this accretion should be gradual, not that it should be slow or imperceptible. Abnormal changes due to sudden alterations of course and violent avulsions are separately provided for; but all accessions by gradual alluvion are treated alike irrespective of the rate of formation.
2. I must confess to some doubt as to the extent to which the rapidly changing character of the formations in Indian rivers should affect the principles of re-formation. The permanence of the formations by alluvial accretions seems to vary inversely with their rapidity and the lanka formed in the course of a year or two is frequently destroyed in an equally short space of time. Whether the proprietor of such an evanescent property should be deemed to be entitled ipso facto to all subsequent formations over the same portion of the river-bed whatever their origin seems to me open to question. The re-formation principle was certainly recognized and acted upon by the Privy Council in two of the cases cited above, but the circumstances were peculiar and its general applicability to cases like the one before us does not follow. Fortunately although a certain amount of argument was devoted to this point, it is not one which need be decided for the purpose of the present appeal.
3. I concur in the conclusions arrived at by my learned brother and would dismiss this appeal with costs.
Srinivasa Ayyangar, J.
4. This is a suit by the Zamindar of Vizianagram against the Government for a declaration that a certain lanka formed in the bed of the Godavari belongs to him as an accretion to his adjoining lankas. The defendant, the Government, denied that the suit lanka was an accretion in the legal sense of the term, and also urged that, even if the suit lanka was an accretion, it was not formed laterally as an adjunct to, or in contiguity with, any lanka belonging to the plaintiff but was formed vertically as an island in the bed of the Godavari. At the place where the suit land lies, the Godavari is both navigable and tidal and it is not disputed that the bed of the river at that place belongs to the Government. The lanka in dispute is now an island surrounded on all sides by the river. The trial Judge decided that the lanka was formed by alluvion in contiguity with the plaintiff's land and was subsequently separated therefrom by the river and gave a decree to the plaintiff. The Government appeals.
5. In the Court below, the main contest seems to have been raised on the question whether the suit land was formed as an island surrounded on all sides by the waters of the Godavari. In fact, the trial Judge devotes practically the whole of his judgment to the consideration of this question. In this Court, more especially after we had intimated to the Government Pleader that we agreed with the Lower Court that the suit lanka was originally formed in contiguity with the plaintiff's land, the main arguments addressed to us were on the second question, viz., whether the suit lanka was an accretion in the technical sense of the term. The parties are not in agreement as to the time when the suit lanka was formed.
6. The materials for the determination of the question in dispute here consist of the several maps or plans of the river at the place of dispute from time to time, the amarakam or rent roll accounts of the plaintiff which are exhibited as T series and certain muchilikas, executed in favour of the plaintiff far his lankas for some of the years between 1873 and 1905. The oral evidence in the case is not of much value.
7. The village of Kotipalli which belongs to the plaintiff and the village of Kota which now belongs to the Government are two adjoining villages on the northern bank of the river Godavari. It appears that in or about the year 1838, there was some dispute about the boundaries of these two villages. At that time the plaintiff owned a lanka called Betaru lanka as an adjunct to the Kotipalli village to which it was evidently an accretion on the southern side. The Kota village had a similar lanka on the southern side called the Kotaseri lanka. Between the two lankas, Betaru lanka belonging to the Kotipalli village and the Kotaseri lanka belonging to the Kota village there were the waters of the Godavari. But even so early as 1838 it was anticipated that a lanka was likely to be formed in the place between the two lankas above said; and by the year 1850 a lanka was formed touching Betaru lanka on the west and Kotaseri lanka on the east. It is in fact a rough parallelogram wedged in between the two lankas and in the proceedings in this case is called the Thurpu lanka, 'Thurpu' meaning 'east' this is east of the plaintiff's Betaru lanka. It was also called Yelapu lanka because during the disputes as to the title of this lanka between the Government and the plaintiff it was auctioned year by year. After its complete formation in 1850, there were disputes between the parties with regard to this lanka and the matter was not settled till the year 1867 or thereabouts, when in consequence of the claim of the Government to the whole of the lanka the plaintiff instituted a suit, Original Suit No. 3 of 1867, on the file of the District Court, Godavari, to recover it from the Government with mesne profits. It may be mentioned that when it was originally formed, the area of the lanka was about 390 acres, but between that time and the time when the suit was instituted it was reduced to about 270 acres by erosion of the waters of the river. In 1863 it was determined finally in Suit No. 3 of 1867 that the plaintiff was entitled to that lanka and in the year 1870, the plaintiff was placed in possession of it. There is a survey plan of the village of Kota prepared in the year 1863 (Exhibit VI), which gives a very good idea of the Betaru lanka, the Kotaseri lanka and the Thurpu lanka which then was the subject of dispute. When Original Suit No. 3 of 1867 was instituted the plaintiff filed along with the plaint the plan Exhibit Z and the Government when they put in their written statement in the beginning of 1868, put in a plan Exhibit DD which, it is not disputed, correctly shows the configuration and relative positions of the three lankas. It will be seen from the plan Exhibit DD that a portion of the Thurpu lanka had even then been washed away and Exhibit H (5) the plan prepared by Mr. Larminie of the Public Works Department according to which delivery of the Thurpu lanka was made to the plaintiff, shows that after the decree in 1868 and before delivery in 1870, other portions of that lanka had been washed away. There are two pillars shown at the eastern extremity of the Map H (5); a red line joins the two pillars and is produced south. That line is called Larminie's line and shows the eastern limits of Thurpu lanka including the washed-away portions delivered to the plaintiff. There are two other lankas Vuta lanka and Chiguru lanka which are also of considerable importance in connection with the questions in dispute now. It is seen in Exhibit DD that just to the south and east of the junction of the Betaru lanka and the Thurpu lanka there is a small green space marked H in the plan which was wet land and just west of it a triangular piece of land being the southern portion of block G in DD formed in the south-east of the Betaru lanka which is found shaded pale pink in Exhibit DD. These two were the Chiguru lanka and Vuta lanka which were formed as an accretion to the Betaru lanka and belonged to the plaintiff. Their extent in 1868, it is not possible now to find. As the plaintiff claims the present suit lanka as an accretion to his Betaru lanka, of which he was the owner originally the Thurpu lanka to which his title was established by the suit of 1867 and the Vuta and Chiguru lankas which admittedly belonged to him and in part as a re-formation on the site of the said lankas after their erosion by the river, it becomes necessary to advert to and keep in mind the position of these lankas from time to time.
8. Comparing the three maps Exhibits VI in 1863, DD in 1868, and H (5) in 1870, it will be seen that north of the Thurpu lanka there was a small creek of the river separating that lanka from the mainland, that a considerable portion of the Thurpu lanka had been washed away between 1863 and 1867, and another small portion in the south after the decree in 1868 and before delivery of possession in 1870, and that between the two dates, the Vuta lanka and the Chiguru lanka which were jutting out from the Betaru lanka of the plaintiff to the east and the south with a small narrow creek dividing these two in the north from the Betaru lanka and the Thurpu lanka had been washed away. It will also be seen that the river had cut the newly formed Thurpu lanka into two portions nearly south to north in the direction of the Kota lanka, which is a fixed position in the landscape, the river joining the creek in the north across the Thurpu lanka. In the place where the Vuta lanka and Chiguru lanka were at the time when Exhibit DD was prepared a very small strip of land with a south-east curvature was formed in contiguity with the plaintiff's Betaru lanka and at the south and the east of it was the river. One other important matter to be observed is that the suit lanka had not begun to be formed. That was the state of affairs in 1870.
9. Between 1870 and 1872, we have no documents on the record to show the position of these lankas. But in 1872 according to the Amarakam account (Exhibit T) Vuta lanka was only 8 tooms in extent equal to about 3 acres; from the same document it is found that Betaru lanka aud southern Badava. which shall hereafter be called Betaru (west) was 113 putties in extent or about 904 acres. Another portion of Betaru lanka apparently the south-eastern portion and Thurpu lanka which I shall hereafter refer to as Betaru. (east) and Thurpu was of the extent of 68 puttis and 15-tooms (or 550 acres). It will be noticed that the Thurpu lanka which was placed in possession of the plaintiff in 1870 according to the plan exhibit H (5) was only 276 acres in extent including the portion submerged by the river after the decree. How much of the original Betaru lanka is included in these 68 puttis and 15 tooms is not clear. In 1873 the same document shows that the Vuta lanka had become wholly submerged by the waters of the Godavari and there can be no doubt on a comparison of the plan Exhibit H (5) with Exhibit DD that the Chiguru lanka marked as H in Exhibit DD had been washed away between the two dates and only a very small portion of the Vuta lanka which as I said before was just west of it and at the southern extremity of Betaru lanka of the plaintiff was being gradually eroded till in 1873, it had become wholly submerged; between 1873 and 1876, we have no document and it is impossible to say what changes had been made in that locality. The learned Judge in the Court below thinks that the plaintiff's Vuta lanka had at this time extended to the south of Kotaseri lanka and he refers to exhibit W as leading to that conclusion; but the new lanka transferred to Kotipalli shown as the southern boundary of Kotaseri lanka in W appears to me to refer to the Thurpu lanka delivered to the plaintiff in execution of the decree in Original Suit No. 3 of 1867 and for the purpose of the present case it is necessary to keep distinct the plaintiff's Vuta Chiguru lanka, and Thurpu lanka of which he obtained delivery in 1870, and it is quite clear that the plaintiff's Vuta Chiguru lanka did not extend to anywhere near the place where the Kotaseri lanka then was. In the year 1876 we have a map, Exhibit VII, a river conservancy map, which shows the course of the river Godavari. The lankas apparently were not surveyed, but the map is clear enough to show the configuration of the various lankas. Looking at that map it will be seen that the eastern portion of the Thurpu lanka east of the channel as shown in H (5) had become considerably eroded by the waters of the Godavari, while there was an accretion to the western part of the Thurpu lanka. At the same time it is clear that the Vuta lanka Chiguru lanka which had disappeared, in 1873 had re-appeared or rather there had been some re-formation at or about the place where the original Vutalanka Chiguru lanka was. That this re-formation was not of considerable extent will be clear from Exhibit T (1) which is the amarakam account for fasli 1287 which also gives the extent leased in fasli 1286. The extent was 2 puttis or 16 acres. It will be seen that Betaru (east) Thurpu lanka was then of the extent of 50 puttis while Betaru (west) was 41--10. By comparison, then, of the extent of Betaru (west), and Betaru (east) Thurpu, it will be seen that west Betaru had been considerably eroded between 1873 and 1876, so that what was 113 puttis in extent in 1873, was reduced to 4110 in 1876, and as regards east Betaru Thurpu what was 68-15 in extent had become reduced to 50 puttis and at or about the place where the original Vuta lanka Chiguru lanka was, that is, at about the south-eastern extremity of the Betaru at the place where it joined the Thurpu, a small extent of land was newly formed. In fasli 1287, Betaru (east) Thurpu and the Vuta lanka Chiguru lanka, remained the same in extent while Betaru (west) was still further reduced by 10 puttis, so that its extent in 1877 was only 31-10. There is a Muchilika Exhibit J (22) for fasli 1288 but unfortunately there are no details of the various lankas included therein. In fasli 1291 for which year we have an Amarakam account Exhibit T (2) and the Muchilikas Exhibits J (3) to J (7), the Vuta lanka Chiguru lanka which in fasli 1287, was only about 2 puttis in extent had increased to 21 puttis. The description by boundaries of the Vuta lanka and Chiguru lanka contained in Exhibits J (3) to J (7) leaves no room for doubt that the Vuta lanka Chiguru lanka which was leased in that year was at or about the place Where the original Vuta lanka Chiguru lanka was, as shown in the plan Exhibit DD and Exhibit Z, that is, at the junction of the original Betaru lanka and Thurpu lanka in the south-eastern extremity of the Betaru lanka. In the same year it is interesting to note that Betaru (west) had become still further reduced to 25 puttis while Betaru (east) Thurpu lanka had increased slightly to 55 puttis or thereabouts. There was practically no change in fasli 1292. In fasli 1293, the west Betaru had become still further reduced to 1615 while the east Betaru Thurpu practically remained the same and about a half of Vuta lanka Chiguru lanka which is called here Pulugula Tippu had been washed away leaving an extent of 11-12-8 or 11 5/8 puttis [see T (3) in the column Amarakam of the previous fasli 1293 and J (14), J (21), J (25) and J (26)]. Fasli 1294 is an important year as there appears to have been a very considerable change in that year; from Exhibit T (3) which is the Amarakam account for fasli 1294 and which also gives the extent of each holding in the previous fasli, it will be seen that out of 16.15 puttis of Betaru (west) only one putti remained. So that out of the extent of 113 puttis of Betaru (west) in fasli 1282 only one putti remained in fasli 1294 the rest having been washed away; at the same time there was a very large accretion, to the extent of about 80 puttis in that fasli to Betaru (west) possibly at the north-western end of that lanka; Betaru (east) Thurpu lanka practically remained the same. Out of 11-12-8 which was the extent of Vuta lanka Chiguru lanka in fasli 1293, 9 puttis were washed away and there was a very large addition of 76-7-7 puttis or 610 acres more or less to those lankas. As there was only a very small quantity, viz., one putti which remained out of the original western Betaru, that one putti was taken along with Vuta lanka and Chiguru lanka which had a very large accretion of 76-7-7 puttis and the total extent of 80 puttis was leased in two lots of 30 and 50 puttis. This does not include Betaru (east) Thurpu lanka or the new accretion of 30 puttis to Betaru (west). Pausing here for a moment it is quite clear there has been a very large addition in continuation of Vuta lanka Chiguru lanka belonging to the plaintiff and it is the Government Pleader's case and there can be no doubt on the plans, that a portion of the present suit lanka must be a portion of that addition in fasli 1294. In fasli 1295 there was no change except that the 80 puttis which then formed Vuta Chiguru lanka, with the small addition of one putti which originally formed part of Betaru (west) together with Betaru (east) Thurpu except the north-eastern portion of Thurpu which went by the name of Jillella Gedda making a total extent of 124-15 puttis were leased out to two tenants in equal portions of 62-7-8 puttis each [T (5), J (10), J (27)]. In fasli 1296 there was no change except that out of the new addition of 30 puttis in western Betaru two had been eaten away leaving 28 [Exhibit T (5)] and in 1887-88 (i.e., fasli 1297) a considerable portion of this remaining 28 puttis of Betaru (west) must have been washed away. But in this year, i.e., fasli 1297 it appears from Exhibit T (6) which is the Amarakam account for fasli 1298, that the Vuta lanka Chiguru lanka became reduced to 34 puttis or 272 acres and in fasli 1298 the extent remained the same Exhibits [T (6), J (13), S (1), J (12)]. From this year on to about 1899 the extent comparatively speaking did not vary very much; the variation ranging between 272 and 240 acres [T (7), J(1) and T (8) to T (19)]. J (1) is a lease for 10 faslis from fasli 1300 to 1309 and T (8) to T(19) are the Amarakam accounts for the corresponding period. During this period there does not appear to be much variation in the extent of Betaru (east) Thurpu either.
10. There are two important documents, Exhibits J (13) and J (2), which not merely account for the large diminution in the extent of the Vuta Chiguru lanka, in 1887-88, but also prove that the present suit lanka must have begun to be formed adherent to or on the site of the original Vuta Chiguru lanka of the plaintiff. J (13) is the Muchilika for Vuta lanka and Chiguru lanka for fasli 1296 and J (12) for fasli 1298. It will be seen from Exhibit J (13) that the river Godavari was finding a way to the north through the lands adjoining the lankas known by the name of Vuta and Chiguru lanka though it had not then wholly cut across the land. (See the description of the northern boundary of Vuta and Chiguru lanka and the stipulation at the bottom of page 81 in the printed papers.) From Exhibit J (2) it will be found that the river had cut across and the boundaries and description of the Vuta lanka Chiguru lanka which are given in Exhibit J (1) show that Vuta lanka Chiguru lanka had been made into an island from a peninsula. There is no reason to doubt that the Vuta lanka Chiguru lanka which the plaintiff has been leasing from at least 1872, whatever may be its extent, whether it was diminished by erosion or added to by new formations, large or small, relate to lands at or about the place where the plaintiff's original Vuta lanka and Chiguru lanka was according to Exhibits Z and DD. Exhibit M which is another river conservancy map of the year 1890, shows a portion of the present suit lanka as an island. Comparing Exhibits H-3, VII and M the learned Government Pleader said, and that statement was not disputed by the learned Advocate-General for the plaintiff that taking three lines one at the eastern extremity of Thurpu lanka, i.e., Larminie's line, one along the eastern edge of the western block of Tharpu lanka as shown in VII at its largest breadth and one along the boundary between the original Betaru lanka and Thurpu lanka including the Vuta Chiguru lankas as they stood in 1870, the said lines Would fall just outside or just inside the island shown in Exhibit M. This statement was made to show that the island shown in M which afterwards developed into the suit lanka Was formed outside the limits of the plaintiff's lankas. This statement however makes it clear that the plaintiff's lankas must have extended right up to the island shown in M in the south and the fair inference to be drawn from Exhibits J (13) and J (12) is that the land shown as an island in M was a continuation of the plaintiff's lankas in the north till it was severed by the erosion of the river in 1887, or thereabouts, The Amarakam accounts and the muchilikas reviewed above leave no room for doubt that the plaintiff was leasing these lands including what is shown as an island in M as forming their Vuta and Chiguru lanka.
11. A glance at the map (Exhibit M) in 1890 shows that the channel of the Godavari which divided the Thurpu lanka into two portions in a line south to north of the Kota tank had become filled up and that the river had cut its Way through the land which was formed in contiguity with the original Vuta lanka and Chiguru lanka of the plaintiff at the south-eastern extremity of the place where the plaintiff had his Betaru lanka in the year 1870. From J the lease of 1890, it appears that the Vuta lanka Chiguru lanka remained an island and its extent was 258 acres, and as already stated that seems to have been practically its extent down to the year 1899 or 1900.
12. Exhibit F is another river conservancy map of the year 1895. It will be seen from a comparison of Exhibit M with Exhibit F that the river course has considerably changed and the plaintiff says that the channel which had out an island as shown in Exhibit M silted up and the river again cut another channel across in a different portion of the plaintiff's lanka forming the present suit island. The learned Government Pleader says that this silting up of the channel to the north of the island in M and the cutting of a channel in another place in 1895 is not true. But I do not attach much importance to this matter; because if my conclusion is right that the present suit land began originally to form in contiguity with the plaintiff's land, or in the place where his land was of which I feel no doubt whatever subsequent changes which may have taken place by the river running across that land or by again joining that land to the main land and cutting another channel would make no difference in the title of the plaintiff to the land which was originally formed in contiguity with his land if on the application of the law of accretion he is entitled to the new formation. But the subsequent changes in the configuration and in the extent if they are traceable may be of some value in the determination of the question as to whether the formation of the land in the year 1883 was an accretion in the technical sense of the term. But unfortunately the subsequent changes in the configuration of the island as shown in Exhibit M is hot traceable, year by year and it is not now possible to say to what extent the land which was of the extent of about 250 to 270 acres from 1888 down to 1900 became extended thereafter. One may even doubt whether the extent of about 250 to 270 acres between 1888 to 1900 shown in the Amarakam accounts as the area of Vuta Chiguru lanka is itself correct; for after the lease J(1), which lasted till 1900, the increase or decrease in the lands affected only the lessee and the figures given in the Amarakam accounts year by year may not represent accurately the actual extent of the lankas.
13. In the year 1900 after the expiry of the term of the lease J (1) there was a lease of the Vuta lanka Chiguru lanka to others. The total extent so leased is 600 acres but that extent obviously includes what I have been referring hitherto has Betaru (east) Thurpu. The next important document is Exhibit 5 in 1902. That is a plan prepared by the agent of the plaintiff showing the position of the Thurpu lanka which was delivered to the plaintiff in 1870, the Vuta Chiguru lanka which then belonged to the plaintiff, the subsequent formations and the portions of the original Betaru lanka and Thurpu lanka which then existed. That plan and Exhibit 22 is of use for the purpose of showing the locus in dispute, the extent to which the new formation is on lands which belonged to the plaintiff.
14. From Exhibit 5, it will be seen that the original Betaru lanka had almost been washed away, so also a considerable portion of the Thurpu lanka which was delivered in the year 1870. Exhibit V also contains a statement that the channel which divided the eastern portion of Thurpu lanka from the western, had become silted up and river Godavari found a different way which seems obvious on a comparison of Exhibit H(5) and Exhibit M.
15. Exhibit 23 is a lease of the year 1903, which gives the extent of Thurpu-Vuta and Chiguru lanka as 842 acres, an increase of 242 acres in three years, and in 1907 the same land had increased to 930 acres (Exhibit 23a).
16. Before the year 1889, the new formations were to the west of Larminie's line which was understood whether rightly or wrongly to form the boundary between Kotapalli and Kota in the river. In 1889 land began to be formed by alluvial action to the east of Larminie's line (Exhibit XI), but in continuation of the land to the west and there were constant quarrels between the Kotipalli and Kota ryots as the extent of the land in the east increased gradually. It is unnecessary to go into these disputes now, but it may be mentioned that there was a fresh extension of land in 1894 about which again the ryots of the two villages quarrelled (Exhibit XVII). Mr. Spencer settled one of these disputes in 1896 and a plan which was made in connection with that dispute shows only a small extent of land to the east of Larminie's line (C 2). The Government Pleader said it was about 25 acres in extent. In 1900 another plan (Exhibit XX) was prepared by a Revenue Inspector in connection with one of these recurring quarrels between the two villagers and that plan, it was said, showed that the eastern portion had then increased to 103 acres. At the time of the suit in August 1909 the extent was about 550 acres east of Larminie's line and west of it about the same or a little more.
17. It is clear from the foregoing review of the history of the formation of the suit lanka that the first question raised in this case, namely, whether the land in dispute was formed originally in the bed of the river as an island, i.e., as a vertical formation, or as a lateral extension of the plaintiff's lanka or at least of the site of the plaintiff's lanka must be found for the plaintiff. It is also clear that the suit lanka was formed very rapidly and in some years during the annual rise very large additions were made which could not but be perceptible as soon as the water subsided.
18. The further question is whether the plaintiff is entitled to the suit land as an accretion to his lankas. The learned Advocate-General strongly pressed on us that his original Betaru lanka and the Thurpu lanka delivered in 1870 and the jutting out land called the Vuta lanka and Chiguru lanka on the south-eastern corner where the original Betaru lanka and Thurpu lanka joined, were really one lanka without there being any discriminating boundary between these portions and was one big block of land by whatever name portions of the same may be described and was subject to erosions or encroachments by the river and the additions formed were additions to the lanka as a whole and not to any particular portion of it. He laid stress on this matter as a basis for his contention that however large in extent the additions may appear to be as the formations were in contiguity with a long rivery line they fall within the definition of accretions. The question then as a question of fact is whether the additions were additions made to a long coast line. I am inclined to think that the additions were to a somewhat narrow coast line of the land belonging to the plaintiff, that is, that the additions were in fact, in or about the place and in extension of the Vuta lanka and Chiguru lanka which occupied the narrow promontory and the additions were not to a long coast line. In the course of the argument here and in the evidence before the Lower Court the plaintiff who in his plaint claimed the suit land as an accretion to the lankas, also, put forward a case of re-formation in situ of his own lanka as regards the portions of the new formation. An examination of Exhibit 22 which for this purpose may be taken to be fairly accurate shows that the re-formation at the site of lands which belonged to the plaintiff is only a very insignificant portion of the huge block of land, which is now claimed by the plaintiff. At the same time I accept the argument of the learned Advocate-General that it is not possible to say the exact degree of additions and erosions from time to time, though I think that in some years at least there have been very considerable additions especially in the year 1888 when there was such a large addition of 76-7-7 puttis amounting to about 610 acres in the course of a single year. It is also clear that out of that addition of 610 acres a considerable portion must have been washed away between 1887 and 1888 and there must have been subsequent additions till about the date of the suit. The whole island was over a thousand acres in extent. This being my conclusions on the facts of the case, it remains now to apply the law.
19. The law of accretion which is now a part of the law of all civilised countries seems to have had its origin in the civil law, though no doubt in the application of the principle the conditions prevailing in different countries have necessarily to be taken into account; French Code, 556 to 563 and German Civil Law, Article 331 (Schuster). It is now quite settled in England that land to be an accretion must be formed by gradual, slow and imperceptible degrees. By imperceptible is meant imperceptible in its progress, i.e., step by step as the accretion is formed and not imperceptible in the result (i.e.), after a long lapse of time. It is scarcely necessary to refer to more than two cases, one the leading case of Rex v. Yarborough (1824) 3 B.& C. 91; s.c. 27 R.R. 292 reported subnomine Gifford v. Yarborough (1824) 2 Bligh (N.S.) 147 a decision of the House of Lords and the other, Attorney-General v. M'Carthy (1911) 2 Ir. R. 280. It is the manner of the formation not the result which decides whether the addition is an accretion or not, and it was said that if the addition was by gradual and insensible degrees it is an accretion while if a considerable increase takes place at one time it is not an accretion: Rex (nom. Gifford) v. Yarborough (1824) 3B.& C. 91; s.c. 27 R.R. 292, In Attorney-General v. M'Carthy (1911) 2 Ir. R. 280 Justice Gibson, pointed out that a sudden accretion would not give the land to the owner of the adjoining land. He stated however the difficulty in the application of the doctrine in these terms:
What is the base to which the addition is to be made and what is to be the method of observation? Is the increase to be latent at the end of a week or of a month?
20. He answered the question by saying that it must be imperceptible to an ordinary person as the addition is being formed. In a still more recent case from the Colonies Lord Shaw delivering the judgment of the Privy Council stated that the accretion should be natural and should be slow and gradual, so slow and gradual as to be in a practical sense imperceptible in its course and progress as it occurs. And in another place he said that natural silting up, if gradual and imperceptible, will give the land to the adjoining owner: Attorney-General of Southern Nigeria v. John Holt & Co. (Liverpool) Limited (1915) A.C. 599 . I do not know if it is necessary to refer to any other case in England as to the meaning of the words 'gradual, slow and imperceptible'; but I may as well refer to a few cases in England where the principle was applied in concrete instances. In Attorney-General v. Chambers (1859) 4 De. G. & J. 55 the Lord Chancellor referring at page 69, to the evidence of witnesses for the Crown who said that the alluvial land has not been added to the main land gradually and imperceptibly but rapidly, observed as follows:
If by the word 'rapidly' the witnesses mean perceptible, then the Crown and not the defendant will be entitled to these accretions, but if the witnesses merely mean that at the expiration of some period of time they could perceive changes which had taken place although they could not discern them in their progress then another important question may arise.
21. In Foster v. Wright (1878) 4 C.Pl. D. 438 Justice Lindley as he then was, said:
the change of the bed' of the river has been gradual and although the river bed is not now where it was, the shifting of the bed has not been perceptible from hour to hour, from day to day, from week to week nor in fact at all except by comparing its position of late years with its position many years before.
22. A case where it was decided that the accretion was not imperceptible and therefore did not belong to the adjoining owner may usefully be referred to, for the purpose of showing in what sense this phrase is understood in England. In Attorney-General v. Reeve (1885) 1 T.L.R. 675 the evidence was that the accretion was going on for a long number of years and that it averaged about 30 feet in a year. The accretion was perceptible in a month. During the interval 1878, and the date of the action (which was about five years after) the accretion was 800 feet. There are some instructive observations in the course of the argument. Lord Coleridge in his judgment after referring to the Institutes, Bracton and Lord HALES' book and Rex nom. Gifford v. Yarborough (1824) 3 B. & C. 91; S.C. 27 R.R. 292; s.c. 2 Bligh (N.S.) 147 In re Hall and Selby Railway Company (1839) 5M. & W., 327 and Attorney-General v. Chambers (1859) 4 De. G. & J. 55 as to the meaning of the words gradual and imperceptible, said that unless the evidence established that the increase was so insensible that it could not be determined even that the sea was there, the land would not belong to the adjoining owner. And referring to the evidence in that case (he) said:
that this advance of the tide and receding of the line of ordinary high water mark could be plainly perceived from time to time as it went on, that when the wind was blowing strong from north-west to north with a high tide it was even visible from day to day and that the witness had frequently noticed daring the prevalence of such winds that the line of ordinary high water mark receded some 10 or 12 feet in a single tide.
23. If that test is applied to this case or the test as laid down by the Privy Council in Attorney-General of Southern Nigeria v. John Holt & Co. (Liverpool), Limited (1915) A.C. 599 I am afraid it is not possible to say that the accretion was gradual, slow and imperceptible. But in England they have not such large rivers as we have in India.
24. The formation of these lankas in the Godavari was succinctly and accurately described by Mr. Mackenzie in a report made to the High Court in Sri Balasu Ramalakshmamma v. The Collector of the Godavari District I.L.R. (1899) Mad. 464, which was finally decided by the Privy Council. This river which is subject to annual floods, deposits in each season a considerable quantity of silt in certain places thereby forming very large and extensive cultivable soil in the bed of the stream. The flood lasts between June and September, and as soon as the flood subsides the soil newly formed is quite perceptible and is easily distinguishable from the previous existing land. Sometimes of course, these formations are made as islands in the midst of the waters and sometimes they are thrown up in contiguity with a pre-existing lanka or the mainland. What happens underneath the water of course is imperceptible but it is difficult to say that the formation is slow or imperceptible in its progress. If we apply therefore the test which is applied in England there can scarcely be any doubt that lankas formed in the Godavari are not accretions at all; but I doubt whether that is the principle which is applicable in India.
25. In America, where some of the rivers are very large, where also similar formations known as batture are not uncommon; a somewhat different rule is applied. There also the law is stated in terms of the common law rule, they also rely on the institutes of Gaius and Justinian, cite Bracton, Hale and Blackstone, and purport to follow the leading decisions in England, but they understand 'imperceptible' as not perceivable in any given moment of time; and even large additions made rapidly by gradual alluvial process, are considered accretions to the neighbouring land; but where the increase is sudden or instantaneous, it is said, it belongs to the sovereign. Of this rule Baron Pollock remarked:
It can hardly be possible that it can be perceptible each moment of time except in the case of a convulsion: New Orleans v. The United States (1836) 10 Pelters. 662
where the words 'slow and imperceptible' are omitted; Hagan v. Campbell (1838) 33 Am Dec. 267 St. Clair Co. v. Lovingston (1874) 23 Wall 46 ; s. C.90 U.S. 59 and rule in DeLassus v. Fatherty (1901) 58 L.R.A. 193. In Jufferis v. East Omaha Land Co. (1890) 13 U.S. 178 counsel in argument said that in the cases decided in the Supreme Court the changes were very rapid and yet the doctrine of accretion was enforced in them. I may refer for an application of this doctrine to Mulry v. Nurton (1885) 53 Am Rep. 206.
26. In India, there have been several cases decided by the Privy Council with reference to the law of accretion in Bengal. In one of the early cases in which the question was discussed, Lopez v. Muddun Mohun Thakoor (1870) 13 M.I.A. 467 the test laid down was in the language of the English law that the accretion should be gradual, slow and imperceptible and the reason of the law was said to be the necessity of the case and the difficulty of having to determine year by year to whom an inch, or a foot or a yard belongs. There have been other cases in which the extent of land claimed was quite large, for instance, in Ritraj Kunwar v. Sarfaraz Kunwar I.L.R. (1905) All. 655 where the land in dispute was over 2.000 acres in extent and in Jaggot Singh v. Brijnat Kunwar I.L.R. (1900) Calc. 768 where it was about 4 000 acres in extent. But in these two cases the land which was claimed was identifiable as the land of another person; and it is to be observed that in both the cases the rule that to form an accretion by alluvion the addition must be by gradual, slow and imperceptible means was reiterated: see page 668 in Ritraj Kunwar v. Sarfaraz Kunwar I.L.R. (1905) All. 655 per Sir Andrew Scoble, and page 772 in Jaggot Singh v. Brij Nath Kunwar I.L.R. (1900) Calc. 768 per Lord ROBERTSON. The learned Advocate-General in one portion of his argument in fact contended that unless the added land is identifiable as the land of another, it belongs to the adjoining owner whether the same was formed gradually or slowly or suddenly or perceptibly and relied on an extract from a judgment of the Supreme Court of Missouri printed in a note at page 321 of Farnharn on Waters. I doubt if the passage supports the Advocate-General's position and in the absence of the full judgment it is impossible to say what was held in that case. If, of course, everything is an accretion within the meaning of the law, which is not identifiable as another man's land (i.e.), in all cases where land is formed adherent to another man's land by deposits of sand or soil, however large or sudden such deposits may be (i.e), in all cases of alluvial deposits the plaintiff would certainly be entitled to the suit property, far the mud in solution which is precipitated as the waters subside cannot be identified as another man's property; but it seems to me that that is not the law. It is certainly not the law in England Stephen's Blackstone Com., page 339, Hindson v. Ashby (19068) 2 Ch. 1 and Attorney General v. Reeve (1885) T.L.R. 675 and is contrary to the opinion of the Judicial Committee in Nagendra Chunder Ghose v. Mahomed Esof (1872) 10 B.L.R. 406 where their Lordships draw the distinction between mere physical adhesion and accretion or incrementum latens; and as far as I understand it, it does not appear to be the law even in America: Morris v. Brooke (1805) 53 Am. Rep. 215 (foot note). It is to be observed that the author Farnham himself states the law in terms of the common law rule and in a very considerable number of cases both in the Supreme Court of the United States and the States there is always a discussion as to the nature formation, namely, whether it was gradual or slow. If the only question was whether the land was identifiable as that of another no question of gradual or slow increase can possibly arise in any case of alluvial deposit: see also Secretary of State for India v. Kadiri Katti I.L.R. (1890) Mad. 369. In Sibessury Dabee v. Lukhy Dabee (l864) 1 W.R. 88, Tarini Churn Sinha v. Watson and Co. I.L.R. (1890) Calc. 963 the Calcutta High Court and in the recent case of Srinath Roy v. Dinabandhu Sen I.L.R. (1915) Calc. 489 the Privy Council had to consider the right of jalkar or fishery. Though it was not necessary for the purpose of these decisions to deal with the law of accretion as it was held that the right to jalkar did not depend on the ownership of the soil and that the grantee can follow the river, there are valuable observations in them as to the right to the soil as affected by accretion or the converse process of recession, Lord Summer delivering the judgment of the Privy Council said that questions of alluvion would depend upon the rapidity of expansion: see page 232 and referring to the change in the course of the river in Watson's case remarked that the change was a sudden one taking place in the course of a single year and not by imperceptible or slow encroachments. On reading these remarks I am inclined to think that a perceptible addition made in the course of a single year daring the annual rise of the river is a sudden increase and is not an accretion to the adjoining riparian land; and if the reason for the rule is as stated in Lopez's case, or founded on general security and convenience as said in Attorney-General of Southern Nigeria v. John Holt & Co. (Liverpool), Limited (1915) A.C. 599 I can find no reason for giving the mud and sand deposited in large quantities in the bed of a river which belongs to the Crown in trust for the public to the adjoining owner simply because the deposit is also adherent to the adjoining land so long as such deposits are distinguishable from the adjoining land. The principle of identity is, I think, applicable only to derelict lands or lands exposed by the sudden recession of the sea or change of a river's course. If the principle of identity is to be applied to alluvial land, I can find no reason for giving land belonging to one, in this case the Crown, to the neighbouring owner, simply because the river throws a large quantity of mud on it so as to show it above the surface of water.
27. However that may be, the observations of Lord Summer at pages 244, 245 of the report in Srinath Roy v. Dhinabhandhu Sen I.L.R. (1915) Calc. 489 show that in adopting the law as to alluvion in India we should be guided by local physical conditions. I think the principles laid down in the Bengal Regulations as observed by the Judicial Committee at page 469 in Sri Balasu Ramalakshmamma v. The Collector of the Godavari District I.L.R. (1899) Mad. 464 afford the best practical guide in applying the law of accretion in the case of such large rivers as the Godavari. Under that regulation all that is necessary is that the accretion should be by gradual alluvial process; it need not be imperceptible and it need not be slow. Applying this test to this case as I have said already, it is not possible to say that the accretion here was not a gradual addition to the land of the plaintiff though the extent of land added in any particular flood season may be quite perceptible and may easily be ascertainable. In Sri Balasu Ramalakshmamma v. The Collector of the Godavari District I.L.R. (1899) Mad. 464 the dispute related to a lanka formed in this very river; the extent of the lanka was about 300 acres which was formed in the course of about three years. Nobody ever suggested that the law of accretion did not apply to that case though at page 459 their Lordships made some observations showing that an accretion must be by gradual, imperceptible deposits. In H (5) which again related to a lanka formed in the Godavari, the original formation which appears to have come up above the water in a single year (1850) was 370 acres in extent. It was never suggested that the principle of the law of accretion did not apply to such a large formation. Then again it was never suggested by the Government or its officers with reference to the disputes in connexion with the suit lanka that it was not a gradual formation to which the law of accretion is applicable till after the present suit was filed. The whole dispute though it began in 1889 was a boundary dispute with reference to Larminie's line. No claim was made either by the Government or Kota ryots to any land to the west of that line although the formation was a single whole which was growing by perceptible degrees from year to year. If the formation was not an accretion in the sense of a gradual formation it is really matter for surprise that Government should not have laid claim to the whole of the land and not merely to the eastern portion as they did till the institution of this suit in 1909. It must be remembered that Mr. Morris who decided the suit of 1867 referred to the decisions of the Privy Council in Doe. v. The Hast India Co. (1863) 6 M.I.A. 267 and said that land formed by gradual accretion belongs to the owner of the adjacent soil. There was a survey of the Kotapalli village and the land to the west at Larminie's line although it formed part of the present suit land was measured and surveyed as belonging to the plaintiff. That was in 1895. It was said that this was only a river conservancy survey and even if it was so its value as evidence is not affected. The dispute again was the subject of a settlement by Mr. (now the Honourable Mr. Justice; Spencer in 1896. Then too no question was raised with regard to the right of the plaintiff to this land as an accretion to las original lanka but the only claim made and allowed in favour of the Kota ryots was to the northern portion of the land on the eastern side of Larminie's line. Even this was objected to by the plaintiff when some attempt was made to settle the question under the Boundaries Marks Act. While that matter was pending there was a survey made of the whole of the zamindari at the request of the zamindar by the Government in 1904. Prior to that date in connexion with the dispute proposed to be settled under the Boundaries Marks Act Mr. Lakshmana Rao, agent of the plaintiff, had already filed plan (Exhibit V) which showed clearly that the disputed lanka was a very large formation and that the major portion of the lanka which had belonged, to the plaintiff had been washed away. Although there was then this dispute between the parties in the survey of 1904 (Exhibit G) a considerable portion of the disputed lanka was measured as belonging to the plaintiff. There again nobody ever suggested that this was not an accretion. Further the immediate cause of this suit was the levy of a so-called penal assessment by the Government and that assessment was with regard to lands east of Larminie's line. There again the Government never suggested that this was not an accretion in the sense of gradual formation. It is only after the suit was filed with reference to the eastern portion that Government in their written statement for the first time stated that this was not an accretion and it was neither slow nor imperceptible. I am not certain that the Government pleader argued that the formation was not even gradual, though he no doubt strongly pressed upon us that the whole or at least a largo portion of the original formation was in one year and was not therefore slow or imperceptible. In these circumstances more especially as it is possible for the plaintiff to contend, the learned Advocate-General did in fact raise that contention that owing to the attitude of the Government he had lost evidence which he could have preserved, and in the doubtful state in which the matter is left, namely, whether the present suit land or lanka was originally formed in one particular year though, it was subject to rapid changes by erosions and large additions in subsequent years and if it was, whether it did not begin at the site of the plaintiff's Vuta Chiguru lanka, I am not prepared to say that the law of accretion does not apply to this formation. I therefore hold though not without hesitation, that the second point also should be decided in favour of the plaintiff.
28. It only remains to notice two other points raised by the Government pleader for the first time in appeal. He contended that as the extent and boundaries of the plaintiff's lankas in the river were accurately ascertainable from the map or plan H 5 any lands subsequently formed even by gradual, slow and imperceptible alluvium in what was the bed of the river in 1870 belonged to the Crown; and relied chiefly on the observations of the LORD Chanecilor in Attorney-General v. Chambers (1850) 4 De G. & J. 55. This question was elaborately considered in Attorney-General v. M'Carthy (1911) 2 Ir. R. 260 already referred to and the conclusion reached that there was no such principle and the fact that the original boundary was known or ascertainable did not render the law of accretion inapplicable, and the observations of the Privy Council at page 612 in (1915) A.C. are to the same effect. The surveys in this case were not within the category of the agri limitati of the Civil Law: St. Clair Co. v. Lovingston (1874) 23 Wall. 46; s.c. 90 U.S., 59 Hunter's Roman Law, page 276 and Law Quarterly Review, volume 12, at page 353. This contention must therefore be disallowed.
29. The other point relates to a claim made now for the first time that the (Government is in any event entitled to that portion of the land which is a re-formation in the site of the Kotaseri lanka. No evidence was directed to the question and the Government pleader relies entirely on his plan (Exhibit XXII) prepared and tiled for the purpose of this litigation to prove that there has been any re-formation at all on the site of the defendant's lanka. We cannot assume that Exhibit XXII is accurate for this purpose and if we allow this contention it would be necessary to remand an issue for trial to the Lower Court. This we must decline to do more especially as the land which the defendant can establish a title to on this basis, was said to be very small.
30. The appeal must be dismissed with costs.