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Badulla Howladar and ors. Vs. Aminaddi Chaukidar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal507
AppellantBadulla Howladar and ors.
RespondentAminaddi Chaukidar and ors.
Cases ReferredRahimaddhi Matabbar v. Naimaddi Howladar
Excerpt:
- .....provided by bengal regn. 11 of 1825. the plaintiffs and the defendants are raiyats under the same landlord. the defendants' case is, and it is not denied, that they have taken settlement of these areas from the landlord. the substantial question between the parties is whether that settlement can confer a title upon the defendants or whether the plaintiffs are correct in their contention that the title to these lands is with them by reason of the gradual accretion and the provisions of the regulation above mentioned.2. it has bean found by both courts that the river whence the accretions have come is a shallow navigable river and the bed of it belongs to the proprietors as their private property. in those circumstances, both the lower courts have found in favour of the defendants. the.....
Judgment:

1. These appeals arise out of suits for ejectment, the plaintiffs suing the defendants on the ground alleged that the lands in suit are accretions to their raiyati holding as provided by Bengal Regn. 11 of 1825. The plaintiffs and the defendants are raiyats under the same landlord. The defendants' case is, and it is not denied, that they have taken settlement of these areas from the landlord. The substantial question between the parties is whether that settlement can confer a title upon the defendants or whether the plaintiffs are correct in their contention that the title to these lands is with them by reason of the gradual accretion and the provisions of the regulation above mentioned.

2. It has bean found by both Courts that the river whence the accretions have come is a shallow navigable river and the bed of it belongs to the proprietors as their private property. In those circumstances, both the lower Courts have found in favour of the defendants. The learned Subordinate Judge has gone into the matter at considerable length and, substantially, the result of his conclusions is that the construction of the regulation as laid down in the case of Lopez v. Muddun Mohun Thakore [1869] 13 M.I.A. 467 and that application of the decision in the case of Rahimaddi Matabbar v. Naimaddi Howladar : AIR1927Cal665 by a Bench of this Court, show that the regulation is not to be construed in the manner contended for by the present appellants. Clauses 1 and 4, Section 4 of the Regulation are those which are in question.

3. Clause 1 of that section is as follows:

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 la thus annexed, whether such laud or estate be hold immediately from Government by a Kamindar or other superior landholder, or as a subordinate tenure by any description of under-tenant whatever.

4. And Clause 4 is as follows:

In small and shallow rivers, the beds of which, with the jalkar right of fishery, may have been. heretofore recognized as the property of individuals, any sand-bank or char that may be thrown up shall, an hitherto, belong to the proprietor of the bed of the river, subject to the provisions stated in Clause 1 of the present section.

5. The contention of the appellants has been with particular reference to the closing words of Clause 4, that the same right of accretion would apply to the case of property of private individuals (as the present case) as applies under Clause 1 in the case of land which has been gained by gradual accession from a largo river or from the sea and that in the same way such land must be regarded as an increment to the holding or tenure of the person to whose land or estate it is thus annexed, Mitter, J., in the case of Rahimaddhi Matabbar v. Naimaddi Howladar : AIR1927Cal665 above mentioned, had occasion to consider the following passage from the case of Lopez v. Muddun Mohan Thakore [1869] 13 M.I.A. 467:

In truth, when the whole words are looked at, not merely of that clause, but of the whole regulation it is quite obvious that what the then legislative authority ware dealing with was the gain which an individual proprietor might make in this way from that which was the public territory, the public domain not usable in the ordinary sense, that is to say, the sea belonging to State, a public river belonging to State; this was a gift to an individual whose estate lay upon the river or lay upon the sea, a gift to him of that which by accretion became valuable and usable out of that which was in a state of nature neither valuable nor usabie.

6. From a consideration of that passage Mitter, J. says that

these words evidently seem to imply that the bank which adjoins the bed of a navigable river, which belongs to a private individual will not attract the operation of Clause (1).

7. We have been referred by the appellant to a Patna Full Bench case Khubi Mahton v. Luchmi Das A.I.R. 1922 Pat. 588 in which the decision of the Court goes the other way. Mitter, J., however was of the opinion that that decision was contrary to what was laid by the Privy Council in Lopez's case [1869] 13 M.I.A. 467 in the passage above set out and that the Full Bench of the Patna High Court seems to have put a wider interpretation on Section 4 of the Regulation than was intended. The passage above cited from the case of Lopez appears to us to show sufficiently clearly and broadly that Clause 1, Section 4, of the Regulation does not apply to private land. It seems to us to follow that if it were to be held that Clause (4), Section 4 did come under Clause 1, Section 4, then the observations of the Privy Council in Lopez's case would be inconsistent with that construction. There is much force in the contention that when Section 4, Clause (4) says ''subject to the provisions stated in Clause 1 of the present section' it refers not to the first part of Clause 1, Section 4 but to the proviso to that clause. This view also found favour in the judgment of a Division Bench of this Court in S. A. No. 124 of 1912, decided on 28th May 191.4 where it was argued that Clause 4, Section 4 was 'governed by Clause (1) in all respects which,' it was pointed out:

would mean that the law of accretion in small and shallow rivers is exactly the same as it is in great and navigable rivers. But it is perfectly clear,

the Judges go on to say:

what Clause 4 says is that the provisions of the provisos of Clause (1) also apply to Clause (i) and those provisions are merely with regard to the payment of revenue.

8. We are not satisfied that anything in the relationship between the parties in the present appeals, as compared with such relationship in the case of Rahimaddhi Matabbar v. Naimaddi Howladar : AIR1927Cal565 can form any substantial ground for differentiating the effect of the decision in that case with which we agree.

9. The result is that the appeals must fail and they are dismissed with costs.


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