1. This appeal arises in the following circumstances: The plaintiff's father and the father of defendants 1 and 2 were brothers and owned the zemindari of Vallur. The plaintiff's father who was the junior brother brought a suit for partition in 1896 and obtained a decree against the father of defendants 1 and 2, Ex. QQ in O.S. No. 15 of 1896 dated 31st March 1902. In the division made at this partition South Vallur fell to the share of the plaintiff's father and North Vallur to that of the father of defendants 1 and 2. The river Kistna had been corroding its banks and the Government started conservancy operations in 1893. The conservancy operations resulted in a gradual accretion to the mainland on the Vallur side of about 704 acres. The father of defendants 1 and 2 claimed the accretions as his own as being the owner of the foreshore. He brought a suit in 1912. The Government opposed his claim on the ground that the river was navigable. The plaintiff's claim in that suit was allowed. The case is reported in Secretary of State v. Venkatanarasimha Naidu  M.W.N. 209. The present plaintiff whose father had died was a minor at the date of this litigation and his estate was under the Court of Wards. There was no representation made by the Court of Wards during this litigation that he had any claim to any part of the accretions. The Government was ordered in that suit to pay about three lakhs mesne profits to the plaintiffs. On attaining his majority the present plaintiff has filed the present suit saying that 90 acres out of the 704 acres of accretion belonging to him were wrongly taken possession of by the father of the defendants. He bases his claim on an assertion that at the time of the division the eastern portion of the river bed which adjoins North Vallur was assigned to his father and that as these 90 acres formed part of the river bed he is entitled to them. Two questions therefore arose in the suit, one of fact and one of law. The question of fact was whether the river bed was divided at the partition so as to award its eastern half to the plaintiff's father. The question of law is whether, assuming that the river bed belonged to his father, the accretion to the mainland would belong to the plaintiff or defendants. It is not denied that it is a gradual accretion and has been caused by the planting of nannul grass during the river conservancy operations The lower Court has found that the river bed was divided in the manner alleged by the plaintiff and, on the question of law that he is entitled to the accretion which then formed part of the river bed. It has therefore given a decree for recovery of possession of the suit land against defendants 1 and 2 subject to the provisions of the Rivers Conservancy Act. It has allowed the plaintiff mesne profits to be recovered from defendants 1 and 2 for faslis 1330, 1331 and 1332; but it has disallowed his claim for mesne profits as against defendant 3, the Secretary of State for India. Against this decree defendants 1 and 2 have preferred this appeal.
2. The initial difficulty which the plaintiff has to meet is that the decree on which his whole claim rests, for it is admittedly not based on his possession, is entirely silent as to the alleged division of the river bed contended for by him. (Here His Lordship dealt with the plaintiff's case of the division of the river bed and after considering the evidence on this question proceeded as follows): Differing therefore from the view of the lower Court we hold that the plaintiff has failed to prove that the eastern portion of the river bed adjoining the North Vallur estate was granted to his father at the time of the partition; and, if he fails to prove this, it must be held that the partition was made as contended for by the defendants, that each riparian or lanka owner enjoyed up to the middle portion of the stream adjoining his share or lanka. In view of this finding it is unnecessary to discuss at length the second question, whether, assuming that the plaintiff has proved that the river bed is his, he is entitled to the accretions claimed. But we would hold against him on this point also differing from the view of the law taken by the lower Court.
3. The principle that the riparian owner owns a half of the river bed ad medium filum aquae is of course not disputed. In Venkata Lakshmi Narasimha v. Secretary of State  41 Mad. 840, which followed: Micklathwait v. Newlay Bridge Co.  33 Ch. D. 133, it was laid down that as regards a grant of land in India described as bounded by a non-navigable river the onus of showing that the grant did not cover the bed ad medium filum acquae was on the grantor. That even where the owner of the river bed is different from the riparian owner, a gradual accretion to the shore will belong to the riparian owner and not to the owner of the river bed is laid down by the Privy Council in Secretary of State v. Rajah of Vizianagaram AIR 1922 P.C. 105. There the accretion was in the Godavari river at a point where it was tidal and navigable and the bed was the property of the Government; it was nevertheless held that the accretion belonged to the riparian owner. That case is really sufficient to settle the whole matter before us. But as the learned Subordinate Judge has taken a different view of the law and there had been some discussion on it before us the matter may be pursued a little further. In Foster v. Wright  4 C.P.D. 438, it was held that the person who possessed fishery rights in a river was entitled to fish in that part of the river which had covered the riparian owner's lands by gradual encroachment. So also in Re, Hull and Selby Railway 151 E.R. 139 it was held that, where there was a gradual encroachment by the sea upon the land, the land covered by the water belonged to the Crown. In Hindson v. Ashby  2 Ch. 1 the view of Romer, J., that a strip of land formed by gradual accretion in a river belonged to the land owner and not to the person possessing fishery rights in the river was upheld. But on the facts it was found not to be a case where the accretion was gradual: Attorney General of Southern Vigeria v. John Holt and Co. (Liverpool) Ltd.  A.C. 599 is a case where the principles of gradual accretion do not apply; but there are some remarks which bear on the present case and they will be quoted later. The learned Sub-Judge has referred in para. 38 to the Bengal Regulation 11 of 1825; but that has been held to be not applicable in Madras: vide Surya Row Bahadur v. Secy. of State  36 Mad. 57. The present also is not a case of a small shallow river silting up gradually. Doss's Tagore Law Lectures on the law of Riparian Rights p.209 relied on by the learned Sub-Judge in the same paragraph is not applicable to the present case. The principles applicable to the present case will be found at p. 261 of the same book where the learned author states:
Rights to accretions by alluvion.
This right arises ex jure naturae, where-over land abuts on a river, whether the bed of the river be the property of the riparian owners as in the case of private rivers, or the property of the Crown as in the case of public rivers vide also his remarks at pp. 151 to 156.
4. The learned Sub-Judge admits that it was argued before him that the Bengal Regulation was not applicable to the Madras Presidency. But he draws an inference from the decision in Venkata Lakshmi Narasimha v. Secy. of State  41 Mad. 840 referred to above that it logically follows upon that decision that in the special cases where the ownership of the bank and the ownership of the river bed adjoining it are in different persons, all accretions formed in the river bed must go to the owner of the river bed. That this does not follow has been decided by the Privy Council, in Secy. of State v. Rajah of Vizianagaram AIR 1922 P.C. 105. There is really only one difficulty about the law on the point and that no doubt is a somewhat serious one, namely whether, when there has been a demarcation of the river bed, the results of the accretions formed go to the riparian owner of the river bed. The learned advocate for the respondents relies on 28 Hals. 362 and Attorney General v. Chambers 45 E.R. 28. This latter case was mentioned in Hindson v. Ashby  2 Ch. 1 by Lindley, L.J. who had also decided Foster v. Wright  4 C.P.D. 438 as being apparently opposed to the decision in Bex v. Lord Yarborough 3 B. & C. 91, Gifford v. Lord Yarborough 3 B & C. 91 and In Re, Hull and Selby Ry. Company 5 M & W. 327. What he say is:
Whether, apart from the Statute of Limitations, she accretions, or the land left by the water can become the property of the plaintiffs or cease to be the property of the defendant is a question of considerable difficulty, and one which, in my view of the facts, it is not now necessary to decide. Passages were cited from Bracton, Britton, Fleta, and Hela de Jura Maris, c.i. and vi., and the year book, 22 Ass. fo. 106 pl. 93, to show that the doctrine of accretion does not apply where boundaries are well defined and known. This may be if the boundary on the waterside is a wall, or something so clear and visible that it is easy to see whether the accretions, as they become perceptible are on side of the boundary or on the other. But I am not satisfied that the authorities referred to are applicable to cases of land having no boundary next flowing water except the water itself.
5. Then he quotes the cases which were opposed to the view and says:
But it is unnecessary to dwell more on this question, an) I leave it for reconsideration and decision when it shall arise.
6. A full discussion of the law on the point is found in Coulson and Forbes' Law of Waters, Edn. 4, pp. 82 and 91 and Hunt's Boundaries and Fences, Edn. 6. pp. 35 to 48. There is no evidence at all in the present case that the boundary of the river was demarcated at any time. The learned advocate for the respondents sought to establish such a state of things from the following statement of D.W. 2:
There are survey stones between the metta lands and the plaint lands. There are only the big stones planted at a distance of one furlong each by the River Conservancy Department.
7. The witness admits that he never inspected the plaint lands subsequent to the suit to see whether there were any survey stones. But in any case there is no evidence at all that the Conservancy Department planted any stones to demarcate the boundary of the river. Then it is attempted to be argued that because the defendant's riparian lands were surveyed the western boundary of those lands must be taken to be the limits of the estate and also to be the eastern boundary of the river. Apart from the fact that it is not shown that defendants had any notice of such survey, this argument is clearly illusory because as remarked before if land on the bank of a river which is gradually silting up is surveyed at any particular time, though this will of course show the then limits of the riparian owner's property, it does not mean that it is the demarcated and fixed limit of the river bed, and in the present case it is not even clear from the evidence that survey stones were planted along this western boundary of the defendant's land. In Attorney General of Southern Nigeria v. John Holt and Co. (Liverpool) Limited at p. 612 it is observed:
It need no longer be matter of doubt that the operation of the rule of adding to the ownership of riparian lands the property of soil ad medium filum is not interfered with on account of a specific or scheduled measurement of the land a delineation or colouring on a plan which measurement, delineation or colouring does not in fact include any part of the bed of the river or of the street.
8. Hint's Law of Boundaries., Walls and Fences, Edn. 6, p. 48, deals with this question of a marked boundary where the author says:
Finally, it is submitted that the true solution of this troublesome question of accretion is to be found in the question. Yes or nay, was the boundary according to the intendment of the parties interested in its delamination fixed by reference to a physical feature, subject to the incident of alteration through natural causes which is necessarily inherent in such a feature; or was it fixed by reference to the position of that physical feature as it then subsisted.
9. Now, taking the plaintiff's case as he puts it, there cannot, we think, be the smallest doubt that if the proposal of the Special Deputy Collector, which the plaintiff says was carried into effect, was to give the river bed to the plaintiff's father irrespective of any fixed boundary of such river bed, there is not the smallest mention in any of his proposals of any fixed boundaries he proposed to give as those of the river bed. Even in the plaint this is clearly the attitude taken up. In para 5 the plaintiff states that at the time of the partition the Special Deputy Collector drew a line bisecting the Kistna paya between certain lankas in such a manner that the river portion on the eastern side thereof and the lankas therein might fall to the share of South Vallur (i, e., the plaintiff's estate). In para. 6 he says that in accordance with the aforesaid partition the plaintiff's estate alone was entitled to the river portion on the eastern side and the lankas; and he further states in that paragraph that all the accretions newly formed such as lankas etc., springing up in this plot passed only to the plaintiff's estate. It is not asserted in the plaint that the western limit of the defendants' metta lands was to be considered as the eastern boundary of the river. On the point of law, therefore,, even assuming that the plaintiff's father was assigned the river bed east of the line drawn by the Special Deputy Collector the accretions will still belong to the defendants who are riparian owners and the suit must fail and the appeal must be allowed.
10. The memorandum of cross objections put in by the respondent must therefore also be dismissed. They relate to mesne profits paid by the Government to the defendants 1 and 2 as a result of the decree in the previous litigation. It becomes unnecessary to consider the question whether such money can be pursued by the plaintiff and recovered from the hands of defendants 1 and 2. But we may say as regards the alternative claim for its recovery from the Government that it is clearly untenable for the reasons stated by the learned Subordinate Judge in para. 47 of his judgment: vide also Secy. of State v. Varaprasada : AIR1929Mad520 . The appeal will therefore be allowed throughout with costs in both the Courts and the plaintiff's suit dismissed. The memorandum of cross objections is also dismissed with costs.
Kumaraswami Sastri, J.
11. I agree and have nothing to add as my learned brother has dealt fully with all the points raised.