Harington and Pratt, JJ.
1. These appeals arise out of suits, which were brought by the appellant in her character as landlady against 26 of her tenants, claiming as against them possess of certain land on a declaration of her title there to as her khast land and in the alternative, should the Court be of opinion that she was not entitled to khas possession, rent might be assessed on the land in question.
2. It appears that the laud In respect of which these suits were brought was land, which had accreted in consequence of a river retreating from the village, which forms part of the plaintiff's estate.. It has been proved in the evidence that in the year 1887 the river was some 3 or 4 russis distant from the village and that at the time the suit was brought it was some miles distant from the village, the land having grown up between the year 1887 and the time the suit was brought. In respect of a certain portion of the land in question there is no dispute as to possession, because it is the plaintiff's case that that land was settled with the tenant defendants and that they have paid rent in respect of their occupation thereof; and that part of the land, which has been settled with the tenant defendants and which had been cultivated by them, has been described in the case as the lagan land. The portion of the land, to which the dispute relates, is what has been called the wasilat land, which had accreted later to the lagan land. 'With respect to that the tenant defendants claimed that it was a reformation on some older land of their own and that they were entitled to it, while the plaintiff alleges that she is entitled to it as her zirat land.
3. The learned Judge, who heard the cases in the Lower Court, came to the conclusion that there was a presumption under Section 20 of the Bengal Tenancy Act that the tenants had acquired occupancy rights in the lagan land by having held it for a period of twelve years or more. He then thought that they were entitled to occupy the wasilat land, which had accreted to the lagan land and he fixed a rent in respect of that wanlal land.
4. Now the learned Judge's finding has been impugned on several grounds. First, the appellant says that there is no presumption under Section 20 of the Bengal Tenancy Act that the tenants had been in occupation of the lagan land for a period of twelve-years. It is conceded on all hands that the lagan land is land, which has accreted owing to the retreat of the river, and that it is land, which is correctly described as dearah land, as the learned Judge has found that it is so, and as to that his finding has not been disputed. Section 20 of the Bengal Tenancy Act provides in Clause (1) that--' Every person, who for a period of twelve years, whether wholly or partly before or after the commencement of this Act, has continuously held as a raiyat land situate in any village, whether under a lease or otherwise, shall be deemed to have become on the expiration of that period a settled raiyat of that village.' Then in Clause (7) of that section it provides that 'If in any proceeding under this Act it is proved or admitted that a person holds any land as a raiyat, it shall, as between him and the landlord, under whom he holds the land, be presumed for the purposes of this section until the contrary is proved or admitted that he has for twelve years continuously held that land or some part of it as a raiyat.' Then comes Section 180; and Section 180 with respect to the acquiring of an occupancy right grafts an exception to the other provisions of the Act. It states that--'Notwithstanding anything in this Act, a raiyat shall not acquire a right of occupancy......in the char or dearah land, until he has held the land in question for twelve continuous years; and until he acquires a right of occupancy in the land, he shall be liable to pay such rent for his holding as may be agreed on between him and his landlord.' Now, the learned Judge thought that the presumption under Section 20 applied in the case of dearah land under Section 180. We are unable to agree with that view. The presumption in Section 20 is stated to be for the purposes of that section, and in our opinion it cannot be extended for the purpose of Section 180, and that being so the ordinary rule of law would obtain, namely, that the person, who alleged that he had been 'for twelve continuous years' in possession, would have to prove that allegation. That being so, we think that the learned Judge was wrong when he came to the conclusion that the presumption which is created by Section 20 in respect of that section could be applied to Section 180.
5. Now, if the presumption is eliminated, then it appears to us that the tenants failed to show that they held the lagan land for twelve years. There is some evidence that some portion of the land came into existence in the year 1296, and it is argued that the tenants must have been admitted into occupation then, and, therefore, there is evidence that they have occupied for the statutory period. But it appears upon the record that all the lands, which came out in the year 1296, were settled with other persons tinder registered kabuliyats, and there appears to be no evidence that the lands coming into existence in that year were at that time settled with any of the present tenants. There is evidence that the other accretions did not take p]ace till some years later, and, the balance of evidence is strongly to show that, as a matter of fact, the dearah land in question has not been occupied by the tenants for a continuous period of twelve years. The result, therefore, is that the tenants have not acquired occupancy rights under Section 180 in the dearah land and, therefore, the first point, which the appellant takes by way of objection to the judgment, must be held to have been made good.
6. Granting then that the tenants have not acquired occupancy rights in the lagan land in question, we have next to consider what their position is with regard to the later accretion, which has been referred to as the wasilat land.
7. It is argued for the respondent that under the provisions of Section 4 of Regulation XI of 1825 these tenants are entitled to the wasilat land, as having accreted to the dearah land, of which they were tenants. Now Section 4 runs in these terms: 'When land may be gained by gradual accession, whether from the recess of a river or of the sea, it shall be considered an increment to the tenure of the person, to whose land or estate it is thus annexed, whether such land or estate be held immediately from Government by a zamindar or other superior landholder or as a subordinate tenure, by any description of under-tenant whatever. Provided that the increment of land thus obtained shall not entitle the person in possession of the estate or tenure, to which the land may be annexed, to a right of property or permanent interest therein beyond that possessed by him in the estate or tenure to which the land may be annexed'.....Now to see whether that section can be applied, we have to look at the evidence and consider what the arrangement was between the landlord and the tenants in the present case. There is evidence upon the record that each year the lands in this lagan land were surveyed in order that it might be ascertained in respect of what land the tenant was to pay rent. The position, therefore, appears to have been that the tenants and the landlord made a fresh arrangement each year, and on the basis of that arrangement it was settled what lands the tenants were to occupy as culturable land and to pay rent in respect thereof and what lands were unculturable, as to which no rent was to be charged. That being so, and it appearing that in this case there was a fresh arrangement each year, it is impossible to say how on those facts the section, which we have just read, could be applied to the present case. There does not appear to have been any preexisting right in the land to which this accretion could have been regarded as attaching. In our view of the evidence, the tenant's right in the particular land came into existence each year by virtue of the arrangement made for that year by the landlord, and that being so, we think that Section 4 does not apply. Our attention has been drawn to some cases on the point, one of which was decided by the Pull Bench of this Court in the case of Gourhari Kaihurto v. Bhola Kaiburto (1894) I.L.R. 21 Calc. 233. That was a case in which the question was as to whether Section 4 of Regulation XI of 1825 applies to the case of a raiyat, who had a right of occupancy in the land, and it was held that it did so apply. But that case does not assist us in the present case, because in that case there was a pre-existing right in the land to which the later land accreted and to which the right to this accretion could be annexed, whereas in the present case there is no pre-existing right to the land in the tenants to which any right to the later accretion can be said to be annexed. The earlier cases are quoted and referred to in the Full Bench Ruling, but our attention has been drawn to no case, which is an authority for the application of this section of Regulation XI of 1825 to a case in which the facts are like those of the present case, and reading the section, we do not think that it is applicable.
8. The result, therefore, is that with respect to these appeals, we are unable to agree with the conclusion, which has been come to by the learned Judge in the Lower Court, and in our opinion the appeals must be allowed with costs and judgment entered for the plaintiff for possession of the wasilat land in question, with mesne profits to be ascertained in the execution proceedings.