Ghose and Banerjee, JJ.
1. The plaintiff is the talukdar of mouzah chur Rampore, the defendant is the dur-talukdar of that property. Certain lands accreted to chur Rampore, and the Government, having taken proceedings, as we understand it, under Act XXXI of 1858 and Act IX of 1847, settled the accretion, treating it as a separate estate, with the talukdar, the plaintiff in the present case. Subsequently, this suit was brought claiming certain reliefs as against the defendant, the dur-talukdar, in respect of the said increment.
2. There are two or three contradictory statements in the plaint as to the position of the defendant, but ultimately it treats him as one entitled to hold the increment as tenant, and asks that it be declared that the plaintiff is entitled to obtain annually Rs. 39-14-11 as rent from the defendant in respect of such lands, and that a decree for rent in respect of the years from 1299 to 1302 at the said rate be awarded. And as an alternative relief it asks for compensation for the use and occupation of the lands in question by the defendant.
3. Both the Courts below have dismissed the suit, being of opinion, as we understand their judgments, that neither under the Bengal Tenancy Act, nor under the provisions of Regulation XI of 1825, is the plaintiff entitled to any of the reliefs claimed by him in his plaint.
4. Referring to Regulation XI of 1825, Section 4, Clause 1, we find it enacted that when land is gained by gradual accretion, whether from the recess of the 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 zemindar or other superior landholder, or is a subordinate tenure held by any description of under-tenant whatsoever. 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,' and so on. That is to say, the land thus formed by the gradual recess, of a river or of the sea shall be considered an increment to the parent estate or tenure, or, in other words, it shall be regarded as a part of that estate or tenure the land having been gained by gradual accession.
5. Referring in the next place, to Act XXXI of 1858, under which the Government proceeded in settling the accretion with the landlord, we find that, though under Section 1 of that Act, it is competent to the Government to settle the increment as a separate estate, yet under Section 2 it is provided that: 'Nothing contained in the preceding section shall affect the rights of under tenants in alluvial land under the provisions of Clause 1, Section 4 of Regulation XI of 1825. It shall be the duty of all officers making settlement of such land, whether the land be settled separately or incorporated with the original estate, to ascertain and record all such rights according to the rules prescribed in Regulation VII of 1822, and determine whether any and what additional rent shall be payable in respect of the alluvial land by the person or persons entitled to any under-tenure in the original sum,' and so on; that is to say, whatever may be the mode adopted by Government in settling the increment, it would not affect the rights of any under-tenant in the same property--rights which he may possess under the provisions of the Regulation just cited.
6. Now what are the rights conferred by Clause 1, Section 4, of Regulation XI of 1825 upon an under-tenant to whose property land may accrete by gradual accession? As we understand the matter, the tenure-holder is entitled to possess the increment in the same right and upon the same footing as that upon which he holds the parent estate, see the cases of Gobind Monee Debia v. Dino Bundhoo Shaha (1871) 15 W.R., 87, and Golam All v. Kali Krishna Thakur (1881) I.L.R., 7 Cal, 479: 8 C.L.R., 517. What may be the limit of the demand which the landlord is entitled to make as against the tenure-holder, is not clearly prescribed by the section.
7. In this connection we may refer to Section 52 of the Bengal Tenancy Act, but before doing so it would be just as well to notice the last portion of Clause 1, Section 4 of Regulation XI of 1825, as it existed before it was repealed by the Bengal Tenancy Act. That portion ran as follows: 'Nor if annexed to a subordinate tenure held under a superior landholder shall the under-tenant, whether a khudkasht raiyat holding a mourasi istemrari tenure at a fixed rate of rent per bigha or any other description of under-tenant liable by his engagement or by established usage to an increase of rent for the land annexed to his tenure by alluvion, be considered exempt from the payment of any increase of rent to which he may be justly liable.' The substance of this portion seems to have been embodied with modifications in Section 52 of the Tenancy Act. That section runs thus: 'Every tenant shall be liable to pay additional rent for all land proved by measurement to be in excess of the area for which the rent has been previously paid by him, unless it is proved that the excess is due to the addition, to the tenure or holding of land which, having previously belonged to the tenure or holding, was lost by diluvion or otherwise, without any reduction of the rent being made,' Sub-clause (b) speaks of abatement of rent which we need not consider. Then in Clause 2 it is provided that in 'determining the area for which rent has been previously paid, the Court shall, if so required by any party to the suit, have regard to the origin and conditions of the tenancy, for instance, whether the rent was a consolidated rent,' and so on, and then Clause 3 provides: 'In determining the amount added to the rent the Court shall have regard to the rates payable by tenants of the same class for lands of a similar description and similar advantages in the vicinity, and in the case of a tenure-holder to the profits to which he is entitled in respect of the rent of his tenure, and shall not, in any case, fix any rent which under the circumstances is unfair and inequitable,' and so forth.
8. Now reading this section with Regulation XI of 1825 and Act XXXI of 1858, to which we have already referred, it seems to us that, if the increment is to be regarded, as we think it ought to be regarded, as part of the parent tenure, the landlord cannot treat the increment as a separate tenure altogether, but that treating it as a part and parcel of the parent tenure he can claim such relief as under the law he is entitled to obtain as against the tenure-holder.
9. Having made these observations which we think arise upon a consideration of the law upon the subject, let us see what are the reliefs to which the plaintiff in the present case is entitled. It seems to us in the first place that the plaintiff is not entitled to any back rent, and that for two reasons: first, there has been no contract between the parties as regards the separate payment of any rent in respect of the additional lands; and, secondly because under the law the plaintiff cannot recover the rent of such additional lands separately from the original part of the tenure. It has, however, been contended by the learned Vakil for the appellant, and at one time we were impressed by this contention, that, though the plaintiff may not be allowed to recover back rent in the present suit, he may yet be allowed to obtain compensation for the use and occupation of the land by the defendant. But it seems to us that if we were to give effect to this contention, we should have to hold that the landlord is entitled to treat the additional lands as a separate property, for which he is entitled to receive from the defendant compensation for the use and occupation. We think that the landlord is not entitled to any such relief in the present case. Indeed, there can be no claim for compensation for use and occupation, seeing that the law makes the defendant a tenant of the accreted land from the time of accretion, and the claim, if any, must be one for rent. But then the plaintiff asks for the assessment of rent upon the land in question. We are of opinion that there is no reason why he should not be entitled to this relief. The lands have formed as an accretion to the defendant's tenure; rent must be assessed upon such lands, and the plaintiff cannot recover any rent from the defendants until it be in the first instance determined what is the additional rent he ought to pay for it, though, no doubt, if he had taken proceedings under Section 52 of the Bengal Tenancy Act, for the purpose of recovering rent in respect of the entire tenure, including the lands which have formed by way of accretion to the defendant's tenure, relief might have been given to him after such investigation as the provisions of that section require. But the fact, that he has not taken that course does not, we think, disentitle him to a declaration how much additional rent should be paid for the land in question. In determining what is the additional rent which ought to be assessed upon the land the Court will have to be guided by the provisions of Section 52 of the Bengal Tenancy Act, indicating the principle upon which such additional rent may be claimed for any excess area in the occupation of a tenure-holder or a raiyat. We think it right and proper to remand the case to the Court of First Instance with the view of determining what is the additional rent which the plaintiff, the landlord, is entitled to obtain from the defendant, the tenure-holder, on account of the lands which have accreted to his tenure. It will be open to both parties to adduce such further evidence as they may be advised, to adduce. As regards the costs we are of opinion, having regard to the conflicting statements made in the plaint as to the position of the defendant, and to the somewhat conflicting reliefs which the plaintiff asked for, that the ends of justice require that the respondent should have all the costs of this litigation up to the present stage. The costs which may be incurred in future will abide the result of the trial we now direct.
10. We desire to add that, though this order of remand is expressly with the view of trying the question of assessment of rent upon the additional area in the occupation of the defendant, yet it would not debar the Courts below from trying any other questions which legitimately arise between the parties in the case.