Sadasiva Aiyar, J.
1. The pleadings are sufficiently set out in the judgment to be pronounced by my learned brother and I shall not, therefore, repeat them in detail. Numerous questions were argued in this appeal, but I think it necessary to consider' and decide only the following as the other questions would fall to be considered only if I had decided the questions 2 to 4 against the plaintiffs. The questions I propose to consider are,--
(1) Is the river Krishna a public navigable river at the place where the plaintiffs' five villages abut on the river?
(2) Are the plaintiffs, as riparian proprietors, entitled to the bed of the river Krishna up to the mid stream so far as it runs along side the villages of Pedapulipaka, Chodavaram, Madduru, Royyuru and Vallur?
(3) Apart from their right as riparian proprietors, did the plaintiffs' predecessors-in title acquire the ownership of the river-bed by reason of the grant made by the Government at the time of the Permanent Settlement?
(4) Have the plaintiffs acquired title to the river bed in question by reason of exclusive possession or enjoyment?
(5) Are the plaintiffs entitled to mesne profits, as claimed in paragraph 28(c) of the plaint, and, if so, what is the amount to be awarded?
2. The river Krishna is tidal and navigable for a distance of eight miles from above the place where it falls into the sea. Beyond the said eight miles it ceases to be tidal but it is navigable for about five months in the year between June and November for a length of about fifty eight miles up to the Bezwada anicut. The lands in dispute lie in a portion of this length commencing from about three and a-half miles below the anicut and have been raised from the river-bed by the deliberate reclamation operations carried on by the Government (acting under the powers given to the Government by the Rivers Conservancy, Madras, Act, No. VI of 1884), the reclamations having taken place between 1897 and 1912.
3. The plaintiff's contention is that the breadth of the river-bed has always been apportioned between the villages on both banks as portions of the areas of the villages themselves and that the 700 odd acres in dispute raised from the river-bed formed part of the plaintiffs' five Zemindary villages even before the levels of the lands were so raised up. The suit was laid in ejectment of the Government who, having entered upon the lands for the purpose of doing Conservancy operations under the Statute (which does not allow of interference with the plaintiffs' enjoyment as owners except to the extent necessary to carry on the Conservancy operations), illegally dispossessed them from the lands in 1911.
4. The literal meaning of the word 'navigable' seems to be, 'affording facilities for steering ships through.' Facilities for passage of large river crafts which may not be capable of rising to the dignity of ships seem to be generally considered sufficient to call a river, affording such facilities, a 'navigable!' river. The legal presumption governing the ownership in the beds of the navigable portions of rivers have been elaborately argued before us. As regards the portion of a riverbed where a river is both tidal and navigable, there is of course, a very strong presumption that it belongs to the Grown. The river bed portion we have to deal with in this ease lies in the length of the river which is non tidal and hence the difficulty. As I said already, the river is not navigable during at least half the year. Lankas and keelankas (miniature peninsulas bounded by the river bank) are formed after each flood and changes in the formation and area of old lankas take place almost every year in the length under dispute. Can the river portion be called ' navigable ' in the legal sense under the circumstances? If it is non-navigable in the legal sense, the Full Bench decision in Vasireddi Venkata Lakshmi Narasamma v. Secretary of State for India 47 Ind. Cas. 606 : 41 M.P 840 : 35 M.L.J. 159 : (1918) M.W.N. 662 applies, and the bed of the river, up to the middle line of the water-breadth from the left bank, belongs to the plaintiffs. In England, the term 'navigable' seems to be used in its legal sense to connote the meaning tidal and navigable.' In America, the legal meaning seems to differ in different States. In Srinath Roy v. Dinabandhu Sen 25 Ind. Cas. 467 : 42 C.P 489 : 18 C.W.N. 1217 : 20 C.L.J. 385 : 27 M.L.J. 419 : 16 M.L.T. 319 : 1 L.W. 733 : (1914) M.W.N. 654 : 16 Bom. L.R. 901 : 12 A.L.J. 1193 : 41 I.A.. 221 the following observations of the Privy Council occur at pages 529 to 531 Pages of 42 C.--Ed. 'The question how far a rule established in this country (that is, England) can be usefully applied in another, whose circumstances, historical, geographical, and social are widely different, is well illustrated by the case of navigability, as understood in the law of the different States of the United States of America.... The Courts of the different States, minded alike to follow the Common Law where they could, found themselves in the latter part of the eighteenth and the early part of the nineteenth centuries constrained by physical and geographical conditions to treat it differently.... The reasoning has been put pointedly in Pennsylvania. Chief justice Tilghrnan says in 1810 in Carson v. Biazer (1810) 2 Binney 475 : 4 Am. Dec. 463 the Common Law principle concerning rivers', (viz., that rivers, where the tide does not ebb and flow, belong to the owners of adjoining lands on either side), 'even if extended to America, would not apply to such, a river as the Susquehanna, which is a mile wide and runs several hundred miles through a rich country, and which is navigable and is actually navigated by large boats, If such a river had existed in England no such law would ever have been applied to it.' Thirty years later is Zimmerman v. Union Canal Co. (1856) 1 Wat & Sergea 351 President Porter observes, the rules of the Common Law of England in regard to the rivers and the rights of riparian owners do not extend to this Commonwealth, far the plain reason that rules applicable to such streams as they have in England above the flow of the tide, secretly one of which approximate to the size of the Swatara, would be inapplicable to such streams as the Susquehanna, the Allegheny, the Monongahela,' and sundry other 'rivers of Damascus.' A similar deviation, equally grounded in good sense, from the strict pattern of the English Law of waters lies at the bottom of the current of Indian cases previously referred to, and forms its justification.
5. 'In proposing to apply the juristic rules of a distant time or country to the conditions of a particular place at the prevent day, regard must be had to the physical social and historical conditions to which that rule is to be adapted.' Having regard then to the historical, geographical, social and physical conditions of India, is there any presumption which could be safely made as to the ownership of the bed of a river like the Krishna in that portion of its length which has the characteristics and is affected by the seasonable fluctuations already referred to? The river in the hot season during six months in the year dwindles away into an insignificant stream fordable everywhere opposite to the disputed length and of the depth of a foot or one and-a-half fact. In Sri Balusu Ramalakshmamma v. Collector of Godavari District 22 M.P 464 : 1 Bom. L.R. 696 : 3 C.W.N. 777 : 8 Ind. Dec. (N.S.) 332 their Lordships of the Privy Council say that they 'required to know mash more about the river in question' (the river in question in that suit being the Godaveri) 'and the mode in which it his been dealt with, before deciding as to the presumption' (that is, the presumption whether the bed up to the medium line belongs to the owner of the bank) 'or its rebuttal'. In Chunder Jaleah v. Ram Churn Mookerjee 15 W.R. 212 it was held, having regard to the conditions in India that even if a river is navigable throughout the year, though it may nob ba tidal, the Government may grant exclusive fishing rights therein to individuals against the claims of the general public. But where the river portion in dispute is not navigable throughout the year, the river is not in Bangal considered 'navigible' in the Jagil Sense. (The reason put forward in some English decisions, namely, that where the river portion in dispute is covered by fresh water there is a presumption that riparian owners have been exercising the usual riparian rights, but where, owing to the action of the tide, the water is or ten is to become selfish the presumption is the other way does not, in my opinion, apply to Indian conditions just as it has been held not to apply to conditions in America.)
6. In Secretary of State for India v. Bijoy Chand Mahatap; Maharaja of Burdwan v. Secretary of State for India : 46 Ind. Cas. 305 : 46 C.P 390 : 22 C.W.N. 872 it is said; 'Now in this country the test as to whether a river is navigable, is whether it allows of the postage of boats at all times of the pear'.
7. I think that, having regard to the nature of the river portion in dispute (the bed being yearly replenished with fresh fertile soil, the Lankas formed in the bed having been cultivated as a matter of course as a hamlets and appurtenance of the villages on both banks and the Zemindars having allowed sand and silt to be removed from the bed of the river only on payment of license fees) and the entire evidence in this case on both sides which conclusively establishes that proprietorship in the entire bed area was treated as distributed from time immemorial among the villages on both banks, no legal presumption arises that the portion of the river in question which is not navigable during at least half the year, belongs to the State such a presumption has, no doubt, been raised in some American eases, namely, that the bed of a navigable river, though not tidal, and though it is not navigable throughout the year, belongs to the State provided it is navigable during well established seasons; but, as their Lordships of the Privy Council point out, its justifiability depended probably on special geographical, social and other conditions. I would, therefore, answer the first question thus: The river Krishna is a river navigable for about six months in the year in the portion now in dispute according to the ordinary sense of the term 'navigable' but it is not a navigable river according to the meanings of the term navigable' as used in Indian Courts, because it is not navigable throughout the year and biases to be so during several months in the year.
8. Coming to the Second question, the legal presumption as to the ownership of the bed of a non-navigable river applies, I think, to the Krishna river in the portion in dispute. The plaintiffs, as owners of the villages on the left bank, would, therefore, be entitled to the bed of the river up to the mid-stream.
9. I shall now shortly deal with the third question. The Sanad granted to the plaintiffs' ancestors for the Vallur estate is Exhibit D, dated February 1803. In paragraph 3 of the Sanad or grant, ten Villages of the Yallar Zemindari are mentioned, including the plaint five villages of Peddapulipaka, Chodavaram, Madduru, Royurru and Vallur. When the Government granted these villages, did they or did they not intend to include that portion of the river bed of the Krishna river bordering on these five villages up to the middle of the river bed or up to any other line which included definite areas of the river-bed Ayaeut in those villages? Does the evidence show that these villages were, at the time of the grant, understood to include portions of the river bed, portions of (what is called in the old documents) the river Layout? It was conceded by the learned Government Pleader (and it could not but be conceded on the evidence) that the Lankas and Keelanhas which had been raised out of the bed of the river in the portion of the breadth of the river bed adjacent to the dry Ayacut of the villages were treated as parts of the villages from before the date of the Sanad. Exhibit A is a report of Mr. John Beads, Collector, dated November 1800, to the Board of Revenue, submitting statement of the details of the Vallur Samut in connection with the proposed sale of the above Samut by the East India Company. It was in pursuance of this report that the villages, which were Havelly villages, were afterwards sold as Zeamindari estate in 1802 and granted to the plaintiffs' ancestor as the highest bidder at the sale and the Sanad, Exhibit D, was issued to him. In Exhibit A, the yield from the cultivable lands of these villages is noted and one of the items of produce (on the value of which the Government assessment was roughly estimated) is mentioned as ' mustard seed to be sown on the islands left by the subsiding of the Krishna river.' Cultivation of mustard is admittedly done only in the clayey soil formed in the river bed after a flood. In Exhibit K9 reference is made to a dispute as to boundary between Peddapulipaka (one of the plaint five villages) and Prattur, a village on the opposite bank of the Krishna. It mentions a settlement made in 1802 and to a Mahazar prepared then, fixing the boundaries of several villages. In fact, the whole of Exhibit K9, part of Mr. Nawill's report, indicates conclusively that boundary disputes between the villages on both banks of the river had been occurring every few years from, at least, the middle of the 18th century. Reference is made (See page 370 of the printed papers, Volume II) to a proposal made in May 1848 to tread the boundary line between a village and a 'Lanka and to the Collector having given orders for the boundary to be trodden accordingly, it being admitted that the Lanka had formerly belonged to Devarakota village which became a separate village about the year 1753. Some explanation is necessary as to what the 'treading' of the boundary means. An island has formed in the river bad. It is claimed either partly or wholly by a village on the left bank as included within the limits of that village and it is also claimed by a village on the opposite bank as included within the limits of that village, it being always assumed without question that the breadth of the riverbed is part of the total area of the villages on the opposite banks (Of course, it sometimes happens, when the island is a comparatively long one, that the dispute is also inter to between two contiguous villages on the same side of the river, the question then being which portion of the length of the island belongs to each village. The dispute however is more often between villages on the opposite banks.) Whenever such disputes arose, the procedure laid down in some of the old Hindu Srarities seems to have been followed. I shall now quote some verses from Brahaspati. (See Saored Books of the East, Volume 33, page 352.) 'in default of witnesses and signs, even a single man, agreeable to both parties, may fix the boundary, wearing a red garland of flowers and a red cloak, putting earth on his head, adhering to truth and having kept a fact,' The old practice seems to have been for such r man to 'tread' the boundary line and thereby fix it. He first keeps a fact, wears a red garland of flowers and a red clock, keeps also a vow of ailenee till he finishes his work and fixes the boundary by walking along the line which in his opinion forms the boundary. Almost always, the man selected for doing it is an old man trusted by the villagers on both sides. After he finishes the treading of the boundary, he bathes, breaks the vow of silence and breaks his fact. This seems to have been done several times, according to the documentary evidence in this case, wherever disputes arose. The earliest date of such treading to which reference is made in the evidence is, as I said before about 1700.
10. At page 360, second volume, a document of 1768 is referred to where a dispute arose about a Lanka or island in the bed of the river between two or three villages. Then in Volume I, page 128, a Mahazar of 1790 is mentioned which related to the settlement of a dispute about Buraga, Lanka between Kollpara. Iyeloor and Moolakalapully by ' treading the boundary under order of the Guntur Circuit Committee,' and it states that the boundary was 'trodden with all due ceremonies in the presence of the Decmooks and Curnams, and others of 22 villages of Guntur and Masulipatam as particularized and signed by all parties'. Then the running of the boundary lines' is described showing that the boundary lines went sometimes across and along the bed of the river, and that stones were fixed some in the bed and some in the islands.) In fact, every village on the banks (it is dear from the evidence) had as a matter of course, besides its dry Ayacut area, its river-bed--Ayacut area, and the river bed Ayacut area is treated as situated in and as part of the village itself. Again, in Volume II, page 838, there is a Mahazar, dated 10th February 1799, referred to as given by Desapondees, head farmer Karnams and others of several villages, and it records the treading of the boundary between Rayoor and Vallur (two villages on the same side of the river) by Ooppooloor Narasayya of Rayoor in the presence of both parties and of Thanadars after the usual ceremonies. Then it says: 'Descend into the river in the direction of the opposite boundary between Moonanghy and Vallabhapuram giving the part on the west to Royyur and on the east to Valloor.' So, on page 115 of Volume I, we find river bed (including island) described as a certain area and as part of a village on the bank, Koodalies, or boundary erections, are stated to have been found in the river bed itself. This was in 1800 before the year of the Sanad (1803). Mr. Newill when fixing boundaries between 1843 and 1:50 of all the villages on both banks of the river was undoubtedly of opinion that from time immemorial the whole of the river breadth had belonged in definite portions to the villages on both banks (the villagers making such claims as a matter of right before him). The references to the treading of boundaries along and across the river-bed and on the Lankas and the erection of Koodalies from about 1750 fully support Mr. Newill's opinion. The relative frequency of these boundary disputes is explained by the following extracts from Mr. Elliot's report:-- 'The changes of form produced in the banks of a great river-- always considerable and increasing in importance as it approaches the alluvial tracts adjacent to its delta-- become still more conspicuous in the case of a tropical stream. For six months, its bed is nearly dry; during the remaing six, it is filled by a Succession of floods, or freshes as they are called, rushing down with sudden violence and as rapidly subsiding. At its greatest height, the water (unrestrained as regards the Kistna by artificial embankments) overtops its ordinary limits, which, parched and cracked by the previous drought, are easily crumbled and washed away. The comminuted particles of earth suspended in the water, are deposited as the velocity of the current decreases, in the shape of new formations. The work of alternate abrasion and accumulation continually proceeds. Islands already thrown up are modified in shape and extent by succeeding floods. Sometimes they are swept away bodily and new deposits make their appearance in some more favoured locality.'
5. Under the operation of such causes, the bed of the Kistna is found to have undergone considerable vicissitudes in the lapse of time, some of the most remarkable of which ascertained from a comparison of his own survey with that of 1816-- 9, Mr. Newill has noticed. They do not seem, however, materially to effect the general direction of the river's course, or to increase the area of its bed. Nor do the new formations of land exercise an important influence on the value of particular villages, the gain in one place or at one period being compensated by corresponding losses at others. After considerable aberrations, the river often returns exactly to its former bounds, but where other forces are brought into play, as occurs within the range of the tide, the deviations are more prominent.
73, I may here venture to offer a few remarks upon the native mode usually adopted for the settlement of disputes by 'treading the boundary,' which, although popular, seems very seldom to produce any very fair or satisfactory results. I may instance among others the Boyyur, Walloor, and Valabhapooram case, and that of Sreekakulam and Lunkapulli even more recent, and in looking through the old records connected with the Krishna' disputes it may be remarked that such modes of settlement have in most case s been attended with violent assaults, or at least otherwise have called forth the dissatisfaction of one party or the other.
11. Paragraph 75 of Mr. Newill's report also shows that the decision as to whether a particular island belongs to one village or the other depended upon whether it had been raised above that portion of the riverbed Ayacut which was included within the boundary line of the particular village. I think that what I have stated is sufficient to establish that, from long before the Settlement of 1803, a village on the river Krishna in the disputed length was always held to include the portion of the river-bed opposite to it and, generally, up to the central line of the river bed and hence to include all the Lankas and Keelankas within that river-bed area. That the boundaries were fixed so as to include river-beds even in places where no Lankas had been formed or where the areas of the islands were wholly insignificant is clear from pages 252 to 255 of Volume II of the printed records. For instance, in the village of Poppur the river Ayaaut is said to be 303 acres in extent in which is included a small island near the river bank. That the centre of the stream was the idea in fixing the river-bed is shown from both-Mr. Newill's report and the plans prepared by him (see especially Exhibit L also K12 and L1) fixing the boundary lines which followed as far as possible the old lines of the 1816 gurvay and from the following passage in page 255:-- (Ayacut of river to the above limit, 235 acres, above this point there are not likely to be any disputes as the river is deep and rooky and the centre of the stream as laid down in the old survey of 1816, maybe taken as the boundary between the, Masulipatam and Guntur Districts.'
12. The learned Subordinate Judge in his able and careful judgment seems to have appreciated the strength of the plaintiffs' case on this point, and yet, in paragraph 20 of his judgment, comes to the conclusion that the grant of the villages in 1803 by the Grown (following the sale to the highest bidder in 1802) cannot be considered as necessarily including the transfer of the river-bed Ayacut as part of the Wallur Samut villages. His main reason is, that grants by the Grown must be construed strictly in favour of the Grown; but I think, even giving fall weight to that principle, the facts and circumstances already referred to almost, conclusively establish that the grant of the ten villages (on which peishkush was fixed with reference to the income derivable from the villages, such income including what was obtained by the cultivation of mustard in the Lankas in the river-bed) included the river Ayacut area which had alwaya been considered as portions of the village areas called by definite names and indicated by definite boundaries the fact that under the English Law relating to the title of riparian owners, no claim to the bed of a non tidal river was made by the Grown and the fact that the East India Company was probably more under the influence of legal notions derived from the English Law than the local Governments of these days must also be given some weight in considering what was intended to be granted under the Sannad of 1803 and what was intended to be sold at the auctions of 1802.
13. Further, even assuming for argument's Bake that there is reasonable doubt or ambiguity as to what the Sanad of 1803 intended to include, it has been held that, in such case s of doubt, the nature of the subsequent possession by the grantee and the conduct and declaration of the parties from and after the grant can be legitimately referred to as evidence of the nature and extent of the grant. See Secretary of State for India v. Nellakutti Siva Subramania Tevar 15 M.P 101 : 18 I.A. 149 : 15 Ind. Jur. 748 6 Sar. P.C.J. 74 : 5 Ind. Dec. (N.S.) 419 where it was observed that Act s of enjoyment and assertions of ownership should be ascribed to title if that is the reasonable inference; Lord Advocate v. Lord Blantyre (1879) 4 A.C. 770 : 6 Rettie 72 : 16 Sc. L.R. 661; Attorney General for Ireland v. Vandeleur (1907) A.C. 369 : 76 L.J.P.C. 89 : 97 L.T. 221, Construing the grant in the light of such enjoyment, conduct, assertions and declarations, there can be no reasonable difficulty in finding that it must have also included the river Ayacuts adjoining the dry Ayacuts of the villages.
14. I shall now deal with the fourth question relating to prescription and limitation. The learned Subordinate Judge has dealt with this question in paragraphs 27 and 23 of his judgment. I fully concur in his-conclusions on the facts. The entire evidence in the case supports his conclusions, and I shall state them in his own wards.' The plaintiffs had been enjoying the river bed as forming part and parcel of the respective adjoining villages since the date of Mr. Newill's statement, that is, from January 1853, when it was sanctioned by the Local Government up to date of disputes raised in the matter in November 1911. The plaintiffs alone have been exclusively enjoying the fishery in their portion of the river leasing out the same to others latterly (vide Exhibits RR33, Y39, KK3, SS84, KK1, KK5, KK2, 4, 7, 6 and 8 and Exhibits LLL series); they alone have been exercising control over the taking of sand from the river-bed, levying some fees for permitting others to take it and obstructing others from taking it without their permission; and they alone have been from the earliest times enjoying all the Lanka formations in the river bed in question both old and new, and in the surveys made by the Government after Mr. Newill's Settlement, which were made once in the sixties and a second time in the nineties ; 'the river-bed opposite to each village of the Samuth was demarcated as part of the area of that village according to the limits fixed by Mr. Nenrill. In fact, all this was practically admitted' by the appellant 'during the arguments of the case. Exhibits EE, etc, and some of the documents in Exhibits Y series relate to the period preceding the date of Mr. Newill's commission (commission being in 1848) and subsequent to the date of the Permament Sattlamant (1303) and these show that the plaintiffs' predecessor alone had been enjoying the Lankas in the river-bed claimed by plaintiffs both the old ones that existed at the date of the Permanent Settlement and those that appeared since. ' It seems to me clear that on these facts the possession of the plaintiffs' and their ancestors as owners of the river-bed Ayacut dated at least from 1803. The learned Subordinate Judge, by a process of reasoning which I cannot follow, tame to the conclusion that their possession as owners began only in 1853 when the Government adopted and confirmed Mr. Newill's report., and that the plaintiffs' ancestors' possession prior to 1853 must be confined to the areas of the Lankas formed on the plaintiffs' side of the river-bed Ayacut area and should not be extended to the area periodically covered by floods. For arriving at this opinion he has pushed to an undue and inadmissible length the doctrine that a trespasser should be held to be in possession of only those portions of the area trespassed upon which he was able to bring under his Actual and effective occupation. In the first place, the Zemindars were not trespassers as the Government made no claim to the river-bed Ayacut after 1803 till 1911. In the next place, the Lankas, the fisheries and the sand in the river-bed have always been claimed by the plaintiffs as owners of the river-Ayacut though effective occupation of the sand was intermittent owing to the sanded area being periodically covered by floods. Having regard to the nature of the disputed lands, the possession of the important areas throughout, the possession of fishery right whenever they could be exercised, and the control over the sands whenever they were exposed, I think that the possession of the plaintiffs constituted an indivisible possession of the whole river Ayacut. Further, I have been unable to understand why 1853 should be taken as the date when the plaintiffs had effective possession of the whole river Ayacut area which is included in their villages when their possession of 1153 was exactly similar to their possession before 1853 and from 1803. Again, if we take it that the Government's admission as to ownership of the river Ayacut must be taken as the date when plaintiffs' possession of the river Ayacut began to be adverse to the Government, the Government, when they appointed Mr. Newill in 1848 directing him to define the boundaries of the villages on both banks of the river knew that the owners of the villages claimed the river-bed as included in the area of their villages, though they were disputing as to the exact boundary lines in the river beds and Lankas. It was on the footing that the whole river-bed area in the river length in question belonged to the owners of the villages on both banks and not to the Government that the Government asked Mr. Newill to demarcate the boundaries. The plaintiffs' possession of the river Ayacut just opposite to his village as owner to the knowledge of and adversely to the Government must, therefore, have commenced at least in 1843, that is, more than sixty years before suit.
15. The learned Government Pleader in the course of his arguments, remarked that even if the Government knew more than sixty years before 1911 that the plaintiffs' ancestors were in enjoyment of the river bed area claiming it as owners, the Government were then probably under the influence of (according to the learned Vakil) the erroneous view as to the law governing the ownerships of the bed of non tidal, but navigable rivers, that is, that the Government were ignorant of their own rights and that in 1911 they first became aware of their legal rights. I am not sure that he based any serious argument on the above statement. If the true owner A having the opportunity to acquaint himself with all the facts and the law and not being led into any error by the fraud of the opposite party B sees B enjoying A's land openly, claiming it as owner, limitation against A cannot cease to run till the ignorance of law on the part of A which led him into thinking that the land really belonged to B is removed. (The Limitation Act relieves against ignorance only in case s under sections 5, 14 and 18). It has been held that even ignorance of his dispossession will not save the true owner, (See case s quoted in footnote 4 in page 6 of Rustomjee's Law of Limitation) much less ignorance of law which made him unaware of his right to possession. In the result, I would decide the fourth question also in the plaintiff's favour.
16. The last and fifth question formulated by me relates to the question of mesne profits. I agree with the finding of the Subordinate Judge that the first five years' fresh Lanka formations yield about Rs. 30 an acre and the next five years about Rs. 50 an ace and afterwards about Rs. 15 an acre per annum. See P. W. No. 23. The extent of the land in dispute is 704 acres. The plaintiffs lost possession in November 1911 Fasli 1321. The Subordinate Judge assessed the profits only at Rs. 20 an acre for Fasli 1321 instead of Rs. 30 which the defendant could have got from the land in that Fasli if the defendant had cultivated them. The reasons given by the Subordinate Judge for not allowing Rs. 30 an acre for Fasli 1321, cannot be supported, the reasons being that defendant did not actually cultivate the lands and left them lie waste in Fasli 1321, and that their normal income after they lose their special fertility should be taken as the standard of the damages to be awarded for Fasli 1321, The standard is laid down in Order XX, Rule 20, Clause 2, Code of Civil Procedure, namely, the profits which the person in wrongful possession might, with ordinary diligence, have received from the property together with interest. Applying this correct standard the plaintiffs should be allowed Rs. 30 an acre with interest thereon at 6 per cent.from the end of the Fasli. The award of the lower Court will be modified accordingly.
17. Further, though the plaintiffs prayed in paragraph 28, Clause (c), for future profits up to the date of the delivery of possession, that prayer has not been considered in drawing up the decree. I would, therefore, grant future profits also at the varying rates mentioned in the above finding till delivery of possession or till date of expiry of three years from the date of the final decree whichever event first occurs. A supplemental decree for mesne profits till 1st July 1919 will be at once drawn up, and another similar decree or other similar decrees afterwards on plaintiffs' application or applications. The appeal will be dismissed with costs. (Vakil's fee Rs. 2,000). The appellant will also pay the respondents' costs of the memorandum of objections proportionate on Rs. 7,040. Three months will be allowed to Government for payment of moneys awarded to the plaintiffs.
18. The first plaintiff in this action is the Zemindar of North Vallur and Second and third plaintiffs are his sons. The first plaintiff died in the course of the proceedings. The estate of Vallur was granted to an ancestor of the plaintiffs under a permanent Sanad (Exhibit D) in 1803. Prior to that the estate had formed portion of the Haveli lands of the East India Company. These were sold in auction and the Sanad was granted to the purchaser. In 1905 the northern portion of the property was allotted to the first plaintiff in a partition. The Zemindari is situate a few miles below Bezwada on the left of the Krishna, and the five villages of Pedapulipaka, Chipadavarm, Madduru, Royyur and Vallur abut on the bank of that river for a total distance of ten miles. At the time of the Permanent Settlement the river formed at this point the boundary between the districts of Masulipatam and Gtuntur, and this state of things continued till 1859 when the two districts were amalgamated into the Kistna District, As a result of re-arrangements effected in 1905 the river is once more a boundary, the Quntur District lying to the south and the Kistna District on the north of the river, bed. The villages on the right bank opposite to the Vallur Estate were also permanently settled in 1802 and the grant was made in favour of a member of the Vasireddi family. This property was brought to sale in 1846 for arrears of peshkush and purchased by Government. Since that year, the villages have been held on ordinary ryotwary, tenure.
19. In 1894 operations were begun under the Rivers Conservancy Act (Mad. Act VI of 1884) with the object of confining the course of the river Kistna within defined bounds in the centre of its bed. A survey of the river was made and training works were started on both banks but it is asserted that little progress was made with these until 1897. The measures were directed towards aiding the deposit of alluvial matter brought down in time of floods by lessening the velocity of the current. The nature of the works will be referred to later. At this point it will be enough to say that, between the commencement of the Conservancy operations and up to ) 912, when this suit was instituted, considerable additions had been made to the left bank of the river. These formed a strip of solid ground of varying width along, practically, the whole ten miles of the river frontage of the plaintiffs' estate and occupying what previously had been part of the river bed. In August 1911 the first plaintiff applied under Section 11 of Act VI of 1884 for permission to cultivate this land and in November of that year he was informed that the Government claimed ownership of the land. This suit was, therefore, instituted to obtain a declaration of the plaintiffs' rights and possession from the defendants. The plaintiffs claim the new formations, (1) as riparian proprietors entitled to half the bed of the river, (2) under a grant at the Permanent Settlement, (3) by prescription, (4) by recognition of their rights by Government in 1853 and (5) as accretions. The Subordinate Judge found in favour of the plaintiffs on points (1) and (5) and against them on the other content ions. This appeal is by the first defendant, the Secretary of State for India in Council,
20. The first question is whether the plaintiffs are entitled to the river-bed usque ad medium filum aquae on the ground that they are admittedly riparian proprietors. The whole of the land in question falls within these limits. It is not disputed that the beds of tidal and navigable rivers in this Presidency are presumed to belong to Government. As regards non-navigable rivers the law has been settled by the Full Bench decision of this Court in Vasireddi Venkata Lakshmi Narasamma v. Secretary of State for India 47 Ind. Cas. 606 : 41 M.P 840 : 35 M.L.J. 159 : (1918) M.W.N. 662 The beds of such rivers are presumed to belong to the riparian owners. It is admitted that the Kistna is not a tidal river where it flows by the plaintiffs' Zemindari and, according to the Law of England, the plaintiffs would be presumed to own half the river-bed adjacent to their estate whether the river be navigable or not. The contention for the appellant is that the Krishna is navigable in this portion of its coerce, that the rule of English Law is unsuited to Indian conditions and is not the law of this country. The proposition of the learned Government Pleader is that the beds of all rivers should be presumed to be vested in Government when Each rivers are navigable in a wide signification of that term and even when navigation can be carried on for a portion only of the year. The plaintiffs contend that the rule of English Law should be applied and that, in any event, the Kistna is not a navigable river in the legal sense of the term.
21. In Sri Balusu Ramalakshmamma v. Collector of Godavari District 22 M.P 464 : 1 Bom. L.R. 696 : 3 C.W.N. 777 : 26 I.A. 107 : 7 Sar. P.C.J. 534 : 8 Ind. Dec. (N.S.) 332 their Lordships of the Privy Council, referring to presumptions as to ownership of the had of the Godaveri where it had been found to be not tidal and navigable, express grave doubts whether the presumption applicable to little English rivers applies to great rivers such as the Godaveri. The description of part of the Godaveri given in the District Judge's finding in that case applies equally to the Kistna. In the portion of its course with which we are concerned, it is from three to four miles wide at the time of highest flood the discharge at Bezwada is 'a quantity one hundred times as great as the maximum discharge of the Thames at Staines'-- Walsh, Volume I, page 3-- the flood season is from June to October. Thereafter, the water falls rapidly and after January the river has dwindled to a petty stream meandering through a wide expanse of sand.' In Srinath Roy v. Dinabandhu Sen 25 Ind. Cas. 467 : 42 C.P 489 : 18 C.W.N. 1217 : 20 C.L.J. 385 : 27 M.L.J. 419 : 16 M.L.T. 319 : 1 L.W. 733 : (1914) M.W.N. 654 : 16 Bom. L.R. 901 : 12 A.L.J. 1193 : 41 I.A.. 221 the following passage occurs:-- ''in proposing to apply the juristic rules of a distant time or country to the conditions of a particular place at the present day, regard must be had to the physical, social, and historical conditions to which that rule is to be adapted.' AT, in the case of the river, then under consideration of their Lordships of the Privy Council, so also in the ease of the Kistna the contract of physical, conditions with those of English streams is capital. At page 529, Pages of 42 C.-- Ed. their Lordships refer to the manner in: which Courts in the United States of America have dealt with the question of navigability as an illustration of the need for adapting the rules of the English Common Law to local requirements. The reasons given in some of the Courts for rejecting the Common Law principle as to the rights of riparian owners in navigable rivers above the ebb and flow of the tide are stated. Then follows the following passage page 530 Pages of 42 C.-Ed.:-- 'A similar deviation, equally grounded on good sense, from the strict pattern of the English Law of waters lies at the bottom of the current of Indian case s previously referred to, and forms its justification.' The Indian deviation refers to the grant of fishery rights by Government which was the subject directly under consideration. The peculiar historical and geo-graphical reasons which led to the evolution of the English rule that 'totality decided the point at which ownership of the bed should be public on one side and private on the other' have no counter-part in this country. On the other hand, certain of the considerations which led to the modification of the English rule by some American Courts, referred to in the judgment of the Privy Council cited above, are applicable to the great navigable rivers of India. Regulation XI of 1825 (Bengal) Section 4, Clauses 3 and 5, support the view that the bed of large navigable rivers is, as a rule, vested in the Government. This Regulation is declaratory of the Hindu and Mubammadan Law as ascertained from the law officers and the decision of the Sudder Dewani Adalat. Most of the cases coming from Bengal now referred to were cited before the learned Subordinate Judge and have been considered by him. He has tightly pointed out that in some case s the river actually referred to in the judgment was in fact tidal as well as navigable and that in some other cases the question of the ownership of the river, bed was not directly in issue. Several decisions of the Privy Council have been referred to but it was conceded that in none of them is ' the question now to be determined definitely decided. In Doe d. Rajah Seebkristo v. East India Co. 6 M.I.A. 267 : 10 Moo. P.C. 140 : 1 Sar. P.C.J. 540 : 19 E.R. 100 : 110 R.R. 21 : 14 E.R. 445 the river referred to is the Hooghly which is both tidal and navigable. In Jagadindra Nath Roy v. Secretary of State for India 30 I.A. 44: 7 C.W.N. 193 : 5 Bom. L.R. 1 and Haradas v. Secretary of State for India 43 Ind. Cas. 361 : 26 C.L.J. 590 : 22 M.L.T. 438 : (1918) M.W.N. 28 : 20 Bom. L.R. 49 the references in the judgments are to a 'public navigable river.' This term is defined (Coulson and Forbes Law of Waters, page 81) as a river which is actually navigable and in which the tide ebbs and flows. It is not clear from the reports whether the rivers in question were in fact tidal or not. In the former case the judgments of the lower Courts refer to the river as a large navigable river' which is the language of the Bengal Regulations XI of 1825. In Srinath Roy v. Dinabandhu Sen 25 Ind. Cas. 467 : 18 C.W.N. 1217 : 20 C.L.J. 385 : 27 M.L.J. 419 : 16 M.L.T. 319 : 1 L.W. 733 : (1914) M.W.N. 654 : 16 Bom. L.R. 901 : 12 A.L.J. 1193 : 41 I.A.. 221 the following passage occurs:-- 'the freehold of the bed of navigable waters was deemed to be in the East India Company as representing the Crown and now is vested in the Government of India in right of the Crown.' Two case s are referred to. The first is that reported in Doe d. Seebkristo v. East India Co. 6 M.I.A. 267 : 10 Moo. P.C. 140 : 1 Sar. P.C.J. 540 : 19 E.R. 100 : 110 R.R. 21 : 14 E.R. 445 which deals with a tidal river. The Second is Nogender Chunder Ghose v. Mahomed Esof 10 B.L.R. 406 : 18 W.R. 113 : 3 Sar. P.C.J. 151. In this judgment their Inrdahips of the Privy Council observe, incidentally, in meeting an argument, that Counsel had drawn no distinction between a tidal river and a river which had ceased to be tidal, that their Lordships have no reason to suppose that in India there is any such distinction as regards the proprietorship of the bed of the river.' This cannot be taken as a definite pronouncement on the point and neither in this case nor in that reported as Srinath Roy v. Dinabandhu Sen 25 Ind. Cas. 467 : 18 C.W.N. 1217 : 20 C.L.J. 385 : 27 M.L.J. 419 : 16 M.L.T. 319 : 1 L.W. 733 : (1914) M.W.N. 654 : 16 Bom. L.R. 901 : 12 A.L.J. 1193 : 41 I.A.. 221 did the question arise for decision. It is, however, significant that in none of these case s is any reference made to 'tidality' as a condition necessary for a presumption in favour of the Crown in India. On the other hand, some of the dicta suggest that navigability alone is the test of whether the bed of a river is presumed to vest in the Government of India. There are decision s of the Calcutta Courts which indicate that, in determining in Bengal whether the bed of a river is public or private property, regard is had to the fact of navigability only and that the question of whether the river is tidal or not need not be considered. Navigable has always been interpreted to mean 'navigable throughout the year'. Bagram v. Collector of Bhullooa (1864) W.B. 243; Chunder Jaleah v. Ram Churn Mookerjee 15 W.R. 212 ; Mohinee Mohun Doss v. Khajah Assanoollah 17 W.R. 73 Secretary of State for India v. Bijoy Chand Mahatap 46 Ind. Cas. 305 : 46 C.P 390 : 22 C.W.N. 872 The learned Subordinate Judge came to the conclusion that the Kistna is navigable although it is admitted that no navigation can be carried on for a considerable part of the year. He relied upon a passage in Farnham on Waters, Volume 1, page 100, which has also been cited at the hearing of this appeal. The quotation is taken from a discussion of the meaning of 'navigability' in relation to public easements over waterways and is as follows:
The fact that the water is not continuously navigable does not destroy its character but the times of navigability must be incident to the natural condition of the stream, and be of such regular occurrence and duration that persons wishing to use the stream may place dependence on them'. This is laid down on the strength of a number of American decisions some of which have been cited before us. As far as ownership of the river bed is concerned, many States have adhered to the rule of the English Common Law. Other States have adopted 'navigability in fact' as the test of public ownership. There if), however, no uniformity in the definition of navigability and local conditions seem to have influenced the Courts in their interpretation of the term. The Subordinate Judge has given no reasons for accepting the wide definition of some American Courts as appropriate to Madras in preferences to the meaning which has been adopted in Bengal. No argument has been advanced which establishes any justification for such a preference. The Bengal rule bas the merit of being definite and comparatively easy of applications. It has been argued that the Calcutta decisions are based on the wording of the Regulation of 1825. Assuming this to be so, there seams to me to be no reason to suppose that the public rights in river beds are greater in Madras than in Bengal, at any rate where the barks form portion of permanently settled estates. No Madras authority has been cited which supports the claim now pat forward. On the facts of the present case, the Subordinate Judge has found, and rightly in my opinion, that until resent times the English Bale was understood both by Government and the people to be applicable to the rights of the riparian owners to the river-bed now in question. Conditions in Madras are so dissimilar from those in Great Britain that it may well be that the English Common Law rule should not be applied without modification and that public rights should be recognised in the beds of rivers which are navigable but not tidal. There seems to me, however, no ground for attaching to the word 'navigable' a meaning different from that which bas throughout been followed in all the Indian Courts in which the question has arisen. In the: present case the river is not navigable in this sense. The evidence establishes that cargoes of tobaooo, fire-wood and fish are carried at times, that boats are used by officers of the Engineering department on inspection duty, and that lime and stone required for bank protection works have been transported on the river to the site of operations The user seems to be infrequent and unimportant for commercial purposes. It might, perhaps, be sufficient to justify, the river being treated as navigable in the legal sense provided the traffic could be carried on throughout the year. The last condition is not fulfilled. As to the period during which boats can pass, there has been a good deal of exaggeration in the statements of the witnesses on either side. I think the evidence establishes that draft of shallow draught can be used on the river for about 4 months between June to October. This estimates derives support from some of the defendants' own witnesses (D. W. Nos. 3, 4 and 5), In the result, I am of opinion that the Kistna where it flows past the plaintiffs' estate is not a navigable river and that the plaintiffs have been rightly held to be owners of the bed to midstream. This view of the enjoyment of the river bed in the present case supports the conclusion arrived at above. It is also relied upon for the respondents as strong evidence in flavour of their contention that the river bed must be held to have been included in the grant made under the Sanad of 1803. The chief importance of the ownership of the bed lies in the fact that a number of islands or Lankas exist in it. These are created by the deposit of the alluvial matter brought down by the floods and are exceptionally fertile. New islands are frequently formed and the old formations are constantly changing in extent and position owing to accretions or to portions being washed away. These circumstances led to frequent disputes between the ryots both of adjoining villages on the same bank and of villages on opposite banks of the river. In 1848 the left and right banks belonged to different districts, Masulipatam and Guntur. The left bank of the part of the river with which we are concerned was part of the plaintiffs' Zemin dari and on the right bank were Government (ryotwari) villages. Owing to the frequency of disputes about the islands and uncertainty about the jurisdiction of magisterial authorities, a re-survey of the boundary was ordered. (Exhibit K4). Mr. Newill was charged with this task. His reports and the correspondence and orders connected with them are on the record and afford valuable evidence of the enjoyment and of 'the attitude of the public authorities. The proposal in the first instance war, that a line should be laid down for the sole purpose of determining jurisdiction of the two districts. The Government suggested an arbitrary method of dealing with the question by treating all islands above a certain point on the river as within the jurisdiction of Guntur and all below that point as belonging to Masulipatam. Mr. Newill, however, pointed out the objections to the settlement of the jurisdiction in a manner not coinciding with the proprietary rights of the parties. He added that the course suggested could lead to Government property in one district being mixed up with that belonging to Zemindars in the other. (Vide Exhibit K2). He proposed to take the survey of 1816-- 19 as the basis for his work and to modify the line, where necessary, to make it coincide with the proprietary or occupation limits of the different parties; The conduct of the survey on these lines was approved by Government (Exhibit K6). The procedure adopted by Mr. Newill was to call upon the Earnams and ryots of each village to point out for survey ' the limits claimed by them in the river. ' They were required to substantiate their claims by all documentary evidence in their possession. An exhaustive enquiry was made. In the result,' the river boundaries of all the riparian villages were fixed. Plans were prepared showing the exact extent of the river-bed comprised within the limits of each village (including the five villages with which we are concerned) and the area of the river Ayacut belonging to each village was calculated and entered in the accounts. The area of the existing islands was calculated separately, Thus, for the Vallur Estate the total river Ayacut is given as 15,455 acres of which 4,402 acres were islands (pages 136 and 187 of printed papers), The survey, as completed, received the approval of Government and copies of the plans and survey extracts were ordered to be supplied to the Zemindars and other persons interested, (.vide minutes of consultation of January 21st, 1853). Throughout the whole of these proceedings there is no suggestion of any claim by Government to the whole or any part of the river-bed adjacent to plaintiffs' Zamindari. River-bed including Lankas was entered in the Ayacut accounts of the plaintiffs' villages without any reservation. The Subordinate Judge has found (paragraph 27 of the judgment) that from the date of the G. O. just referred to up to the end of 1911 the plaintiffs enjoyed the river-bed as demarcated as part of their estate. This is conceded by Mr. Ramesam and it if, therefore, unnecessary to refer to the evidence. The Lankas were in possession of the estate through its tenants; the removal of sand was controlled and fishery rights were leased. The res-pondent has not pointed out any evidence of fishery leases or of interference with the removal of and prior to 1853, There is, however, no doubt to my mind that Lankas were always enjoyed as part of the estate prior to that date. This is clear from the proceedings connected with Mr. New ill's survey and, indeed, as already pointed out it was the disputes between the villages as to the possession of new Lankas which led to the demarcation of 1848-- 53 being undertaken. Reference has been made to the survey of 1816 to 19 as the foundation of Mr. Newill's operations. He accepted these records as accurate after inquiry (vide Exhibit K2 paragraphs 13 to 15). No satisfactory plan showing the boundaries then fixed is on the record, but the report Exhibit K2 paragraph 16 shows that the whole river bed was included within the village boundaries, portion being allotted to villages on the left bank and portion to those on the right Mr. Newill's report shows that this old boundary formed the basis of the settlement finally arrived at by him except in special cases. The only thing of substantial value connected with the ownership of the river bed was the enjoyment of the Lankas. There is nothing to show that Government ever made claim to any of these, whether old islands or new formations. The survey of 1848-53 processed on the basis on the Lankas being integral portions of the villages within the boundaries of which they were situate and such documentary evidence as is available points to the enjoyment of Lanka old and new by the riparian proprietors from the time of the Permanent Settlement and to recognition of these rights by the local officers of Government (a. g Exhibit QQ, Exhibit SS-- 31, Exhibit F and G (page 39), Exhibit H4, Exhibit J, Exhibit H-7, Exhibit H). In addition to the evidence provided by these exhibits, Mr. Newill's reports contain other illustrations of the claims of the riparian land-holders and of the attitude of the public authorities. The following are instance s (page 339). in 1815 the people of two villages of plaintiffs' Zemmdari petitioned the Collector stating that they were willing to abide by a settlement of a boundary dispute made by the Zemindar's manager and involving the river-bed. The Collector confirmed the decision and directed boundary marks to be fixed.
22. At page 343, et seq, a dispute between the villagers of Walur and Vallabhapuram (of Guntur) is detailed. Disturbances had taken plane and an attempt at settlement was made by the intervention of the Collecotor. This failed, and the matter was referred to Government, with the result that it was ordered in 1844 that the islands in dispute should be treated as being within the jurisdiction of Masulipatam and the disputants (the Walur Zamindar and the Vallabhapuram people) were referred to the Civil Courts for the settlement of their claims.
23. In Exhibit K8 an account is given of a long dispute about islands between Poolipaka of the Walur Zamin and a village on the opposite bank. In 1802 the Zamin boundary was settled in accordance with instructions sent to the Collectors of the two districts by the Revenue Board. Disputes were renewed in 1823 and eventually, in 1826, Government ordered neither party to interfere with the island till the dispute was settled by the Civil Courts. Litigation followed between the Walur and Vasireddy Zemindars and was finally deter-mined in favour of the former in 1846 shortly before Government acquired the Vasireddy estate, Mr. Newill was of opinion that the Court has been misled as to the village boundaries and that the decision was erroneous. He suggested that steps should be taken to have the decree reviewed in order to recover from the Walur Zemindar this valuable portion of the river belonging properly to the Vasireddy entate of Guntur lately purchased by the Government. 'The Government, however, decided not to interfere as no strong grounds could be assigned for disturbing the decree.
24. From 1853 to 1911 it is admitted that the river-bed was treated as part of the property of the owner of the villages on the banks. The evidence, in my opinion, shows conclusively that the same view of these rights was entertained by Government from the time of the Permanent Settlement. The matter does not rest here for, as pointed out. by my learned brother in his judgment, the records show that even prior to 1802 the river-bed was regarded as an integral part of the villages on the banks. The estate which was created in 1802-03 which was acquired by the plaintiffs' ancestor and for which he was granted a Sanad comprised a number of such villages. There is absolutely nothing to suggest that the limits of the villages as granted differed from those recognised prior to that date.
25. The attitude of the Government from 1853 to 1911 is ascribed to a mistaken view of the law applicable. There is nothing to indicate that other views were entertained at any previous time. The evidence points to the plaintiffs' rights having been recognised throughout. The record does not disclose that Government exercised any rights of ownership over the river-bad adjoining plaintiffs' estates from the time of the Permanent Settlement. On the other hand, the plaintiffs were in possession and enjoyment of the only property of value in the bed, i.e., the Lankas. The idea of claiming the bed on the ground that the Kistna is a navigable river does not seem to have been conceived till quite recently. In this view of the case, there can, I think, be no reason able doubt that the grant in 1802 was understood, as including rights over the river bed. Those are not specifically referred to but this was unnecessary as the rights were believed to pass with the ownership of the villages on the banks. It bag been found above that the view of the law taken by Government till recently was not wrong. Even if it were wrong the extent of the grant would hays to be judged by the views entertained in 1802 as these would indicate the intentions of Government at the time the grant was made. Abdul Aziz Khan v. Appayasami Naicker. 27 M.P 131 : 8 C.W.N. 186 : 31. I.A. 1 : 6 Bom L.R. 7 : 8 Sar. P.C.J. 568 The whole history of the enjoyment after 1802 to the knowledge of the officers of Government is cogent evidence of the inclusion of the river-bed in the grant. Lord Advocate v. Lord Blantyre (1879) 4 A.C. 770 : 6 Rettie 72 : 16 Sc. L.R. 661
26. The villages on the left bank were Haveli lands and it is common ground that in 1802 the river-bed adjacent to them was at the disposal of Government and it must be held that, in the absence of special reservation, the river-bed was included as part of the villages for which a Sanad was granted. There seems to me to be no force in the argument that the enjoyment was limited to definite Lankas and cannot be held to have included other portions of the bed. The Lankas are constantly changing formations and the evidence indicates that they were appropriated and enjoyed wherever, within the village bounds they happened to arise. The plaintiffs are entitled to the portion of the river-bed where the land in dispute has been formed on the ground that it was included in the grant of 1805.
27. As to the effect of the admissions by Government in 1853 (4th ground of claim) I do not think they can, by their own face, be treated as treating title in the plaintiffs. Taking that year as a starting point, no prescriptive title had been acquired at the time of suit. In this view, it is not necessary to Consider the arguments advanced for the appellant to show that the East India Company had no power to make grants except under the enactment relating to Permanent Settlements. Issue 5(c) and (d) relate to the last ground of claim put forward by the plaintiffs, namely, that they are entitled to the new formulations as accretions to the river-bank even if the ownership of the bed be in, Government. On the findings already come to, this question does not arise, but as the point has been argued at length I shall deal briefly with the subject. There is no doubt that the land in dispute has been formed by the deposit of alluvial matter in suspension in the flood water. Deposit is constantly going on and considerable additions were at times made to the bank in this manner before Conservancy operations were begun. Such formations are known as Kilanaks but they had no permanency and the creation of one year might be washed away in the next. The process is the same as leads to formation of the islands or Lankas and these are constantly changing in size and shape and sometimes disappearing. The facts are dearly brought out in Mr. Newill'a Reports. The changes in the set of the currents which varies from year to year are the chief cause of these alterations. The greater the velocity of the stream the smaller is the quantity of the deposit it leaves behind. The main object of the Conservancy operations was to lessen the strength of the current thereby to increase the deposit and by this means to steadily narrow the width of the river-bed. One means to this end is the planting of nanal, the ground gained in one year was made the starting point of further plantation in the next, Cross-section measurements were taken after every flood season at each far long where work was in progress to furnish a record of the result of the operations (Exhibit Z). The figures show that, although progress was not continuous, for in some years there was a set back at certain points yet, except in a single section, the net gain was considerable along the whole river frontage of the plaintiffs' estate. The total extent re-claimed from the river-bed was 704 acres over a length of ten miles and daring a period of about 15 years.
28. Two objections are taken by the appellant to the findings in favout of the plaintiff. Firstly, it is alleged that the accretions cannot be regarded as imperceptible, and, Secondly, it is said that the plaintiffs are not entitled to them as they were not due to natural causes. As to the first paint: additions due to the deposit of alluvial matter during floods in rivers like the Kistna have been treated as accretions belonging to the owner of the adjacent land Sri Balusu Ramalakshmamma v. Collector of Godavari District 22 M.P 464 : 1 Bom. L.R. 696 : 3 C.W.N. 777 : 26 I.A. 107 : 7 Sar. P.C.J. 534 : 8 Ind. Dec. (N.S.) 332the question of what is meant by 'imperceptible' in this connection has been elaborately dealt with in Secretary of State v. Rajah of Viziana garam 40 Ind. Cas. 896 : 40 M.L.T. 57 The conclusion is against the contention of the appellant and this is a much stronger case in favour of the adjacent land-holder than that was, as the accretions were formed in a far longer period of time. There is no doubt to my mind that the accretion in the present instance was so slow and gradual as to be in a practical sense imperceptible in its course and pro-cress as it occurs'. Attorney-General of Southern Nigeria v. John Holt & Co. (Liverpool) Limited (1915) A.C. 599 : 84 L.J.P.C. 98 : 112 L.T. 955. I think the learned Subordinate Judge's conclusion on this point was right.
29. As to the Second objection: The case of the appellant is that the new formations were caused by artificial mean?, i.e., by the work done by the Conservancy staff. The scheme of the operation is detailed in Exhibit XII where a description is given of the various means which may be employed for arresting the velocity of the current. The method most commonly resorted to was the planting of nanal but the other and more elaborate devices referred to in Exhibit XII were also made use of (vide Exhibit VIII and D.W. 5). The evidence seems to me to leave no room for doubt that these operations played an important part in the creation of the new formation now in question.' The effect is admitted by some of the plaintiffs' witnesses (viz., P. Ws. 4, 6 and 3) The outstanding fact is that, although the Kilankas of considerable extent have been formed in the past at particular points along the banks there is no record of such regular and permanent formations as have been brought into existence since the commencement of the Conservancy operation.. Exhibit X shows the gradual growth of the solid ground adjacent to the bank n the years from 1894 onwards. The question is. whether the fact that natural processes have been aided and, to some extent, controlled, by artificial means disentitles the adjacent land holders from claiming the accretions as theirs I am not satisfied the there is any authority for this view. The operations in the present instance were carried out by Government under its statutory powers which authorised entry on the plaintiffs' lands for special and limited purposes. It may be noted incidentally that the declared intention of the Government Officers was to hand over the new formations to the riparian-owner (Exhibit S16). Another consideration which is not immaterial is, that the rights of the riparian owners might be prejudicially affected by the interposition of a strip of land owned by Government between their property and the river. Reference has been made to the case of Attorney-General of Southern Nigeria v. John Holt & Co. (Liverpool) Limited (1915) A.C. 599 : 84 L.J.P.C. 98 : 112 L.T. 955 in support of the appellants' contention. In that case, however, there appears to have been a deliberate reclamation by the building of a wall on the foreshore and levelling up by direct human agency of the space behind it. The remarks in the judgment, at page 615, also indicate that, if the silting up had been aided by simple artificial means employed by the respondents, the new formation would still be an aerator for the benefit of the adjoining land-holder. The dictum of the Judicial Committee quoted by the Subordinate Judge from Doe d. Seebkristo v. East India Co. 6 M.I.A. 267 : 10 Moo. P.C. 140 : 1 Sar. P.C.J. 540 : 19 E.R. 100 : 110 R.R. 21 : 14 E.R. 445 is also in support of this view and so also are the remarks in Attorney General v. Chambers (1859) 4 De G & J. 55 : 5 Jur. (N.S.) 745 : 7 W.R. 404 : 45 E.R. 2 : 124 R.R. 149 and Secretary of State v. Kadirikutti 13 M.P 369 : 4 Ind. Dec. (N.S.) 969 These cases are authority for the position that, even where the accretion is contributed to by acts done by the adjacent land holder, he is not debarred from his right to them provided his acts were lawful. No case has been cited in which a claim to accretions has been disallowed on the ground that they were aided by the independent acts of a Stranger. It is not suggested that the Government has any statutory privileges in this matter. I think that the conclusions of the learned Subordinate Judge are right.
30. In the result, I agree with my learned brother that the appeal should be dismissed with costs. The plaintiffs have preferred a cross appeal with regard to the amount of the award of mesne profits--the omission of provision for future profits. I agree with the order proposed by my learned brother in his judgment.