Arnold White, C.J.
1. In this case I am unable to adopt the view which has been taken by the District Judge, f turn first to the order made by the Collector under Section 12 of the Surveys and Boundaries Act IV of 1897. There I find this passage: 'Unfortunately absolute certainty is not possible in this case owing to the shifting character of the river bed and the disappearance of landmarks referred to.' Then, later, the order goes on: I accordingly record my decision that the line indicated in that plan as the line indicated and intended by the panchayatdars be accepted as the true dividing line between the two villages and that it be demarcated, the excess area of 109 acres odd referred to by the renter falling beyond the line being clearly an accretion to the land appertaining to the Gopalpur zemindar.
2. Then I find in the written statement put in by the defendant these allegations in paragraph No. 4: 'The plaintiff is entitled only to that land which was theretofore enjoyed as part of Sidhantam Lanka subject to the changes due to the shifting character of the. river bed incidental to all lankas. He is put to the proof of his allegation that the suit land was leased to hint.' Paragraph No. 5. The defendant submits that it is a well-known fact that the lankas in the bed of the river Godavari are subject to frequent changes both in shape, extent and surface soil by the action of the river.' Paragraph No. 6. The lanka land measuring acres 109 odd alleged to have been encroached upon by the Gopalpur proprietor is a gradual accretion to his land, In the pattah which was granted to the plaintiff by the Collector the land leased to him is described in paragraph No. 1 as lanka called Sidhantam lanka of Sidhantam village. The name of the lanka is given as Sidhantam Lanka. The extent of the lanka given under the heading boundaries is acres 777, cents 64. Then the boundaries are set out and the northern boundary is Gopalpuram Badana Lanka (Exhibit A). In the muchilika which was given by the plaintiff (Exhibit IV) the name Sidhantam Lanka is given and the area is given as 777 odd acres under the heading approximate extent.'
3. It has been argued on behalf of the respondent that, having regard to the shifting character of these boundaries as found by the Collector in his proceedings under the Surveys and Boundaries Act and as alleged by the defendant in his written statement, the extent stated in the pattah may be disregarded and it must be taken that when the plaintiff took the lease of Sidhantam Lanka he knew he was taking a lease of Lanka, the boundaries of which were for physical reasons liable to shift from time to time. I cannot draw from the fact that the boundaries were of a shifting character the inference which the Government pleader invited me to draw. I think the fact that the boundaries are of a shifting character and the property leased is liable either to diminish or increase by a process of accretion entitles the man who is contemplating taking the lease to rely upon the area stated in the lease; and it seems to me in drawing that inference I am only proceeding in accordance with a well-known canon of law which is laid down in the case of Raja Durga Prasad Singh v. Rajendra Narain Bagchi 10 CRI.L.J. 570 : 4 Ind. Cas. 713 : 37 C. 293. The passage to which I refer is on pages 583 and 584 and runs as follows: Consequently the result is that the quantity specifically stated in the lease is 400 bighas whereas the area contained within the boundaries mentioned therein is 275 bighas odd only. Returning now to the question of the true construction of the subject-matter of this lease, the primary canon of this interpretation of a deed or grant where there is a conflict between the description of the boundaries of the land conveyed and the description of the quantity unquestionably is that the description of the boundaries if it is precise and accurate, dominates the description of the quantity. See Llewellyn v. Earl of Jersey (1843) 11 M. & W. 183 : 63 R.R. 569 : 12 L.J. Ex. 243, Jack v. Mc'Intyre (1845) 12 Cl. & F. 151, Cowen v. Truefitt Ld. (1898) 2 Ch. 551 : 67 L.J. Ch. 695 : 47 W.R. 29 : 79 L.T. 348 : (1899) 2 Ch. 309 : 68 L.J. Ch. 563 : 61 L.T. 104 : 47 W.R. 661, M.C. Juer v. Walker (1819) 4 W U.S. 414. On the other hand there is a supplementary canon equally well-established though instances of its application are much less frequent than those of the other, that if the description of the boundaries is vague and uncertain it yields to the description of the quantity; see Harrick v. Siaby (1867) L.R. 1 P.C. 436, Davis v. Sheperd (1866) L.R. 1 Ch. App. 410 : 35 L.J. Ch. 581 : 15 L.T. 122, Millor v. Walmesley (1905) 2 Ch. 164 : 74 L.J. Ch. 757 : 53 W.R. 581 : 93 L.T. 574 : 21 T.L.R. 591, Home v. Struben (1902) A.C. 454 : 71 L.J.P.C. 88 : 87 L.T. 1, Mewson v. Prigars Lessee (1822) 161 U.S. 229 : 7 W U.S. 7. I do not mean to suggest that he is entitled to say I claim the physical possession of the precise area mentioned. He does not put his case higher than this; these boundaries being admittedly of a shifting character and the area being stated, I am entitled to be put in possession of an area which approximates to the area which is mentioned in the lease.'
4. Then it was suggested on behalf of the respondent that the case made here is not the case which was made in the plaint which was presented before the learned Judge in the Court below. Mr. Seshagir Aiyar on behalf of the appellant puts his case alternatively. He said if the Collector was wrong in his order in the proceedings tinder the Surveys and Boundaries Act and this land belongs to Government, I am entitled to be put in possession of the 109 acres odd. If, on the other hand, he is right and Government are not in a position to put me in possession of the 109 acres odd because it belongs to somebody else; then I am entitled to damages for breach of the covenant to put me in possession of the land which was leased. I think he is entitled to put his case in that manner. Mr. Napier suggested that taking leases of this character partakes of the nature of gambling and that the lessee takes his chance whether by accretion or washing away during the currency of his lease he gets more or less than the extent provided for in the lease. I can quite understand that but the gambling seems to me to be with reference to what happens after he has got possession of the land under the lease, not with reference to the area stated in the lease being approximately correct or otherwise.
5. Then Mr. Napier took the point of limitation and said that assuming the time to run from the date of the muchilika which is, of course, later in date than the pattah, the plaintiff's claim was time-barred under Article li.6 of the second Schedule to the Limitation Act. No question of limitation was raised before the District Judge. However, Mr. Napier is, of course, within his rights in taking it here and the law requires that we should deal with it. But as I have come to the conclusion that the case must go back to the District Court, I think the proper order with regard to the plea of limitation now raised is that the defendant will be at liberty to amend his written statement by raising the plea of limitation.
6. It seems to me that subject to this plea of limitation, if when the suit was brought, the Government was not able to put the plaintiff into possession of 777 acres or thereabouts which is the extent given of the lanka, they are liable to compensate the plaintiff by way of damages, A party who lets premises agrees to give possession and if he fails to do so the lessee may recover damages against him. See Coe v. Clay 5 Bing. 440 : 30 R.R. 699. I say nothing as to the measure of damages. I leave that to be dealt with by the Court below.
10. For the reasons which I have stated I hold that the decree of the District Court must be set aside and the case must go back to that Court to be dealt with in accordance with those observations. Costs will abide the event.
Abdur Rahim, J.
11. I agree in the order proposed by the learned Chief Justice.