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Prokash Chandra Sil and anr. Vs. Abdul Jabbar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1935Cal711,159Ind.Cas.756
AppellantProkash Chandra Sil and anr.
RespondentAbdul Jabbar and ors.
Cases ReferredSyfoolah v. Bhuttun
Excerpt:
- .....of the judicial committee observed that:when the whole words are looked at not only of that clause (clause 1) but of the whole regulation (regn. 11. of 1825) it is quite obvious that what the legislative authority was dealing with was the gain which an individual proprietor might make in this way from what was part of public territory, the public domain not usable in the ordinary sense, that is to say to the sea belonging to the state or a public river belonging to the state.3. from the principle laid down in that case it is clear that the 'gain' as contemplated by clause (1) must be gain from a public river and not a river the bed of which belongs to private individuals. the regulation therefore does not contemplate confiscation of private property. if the substantive part of.....
Judgment:

Nasim Ali, J.

1. These two appeals arise out of two suits for recovery of possession of certain lands. The plaintiffs' case is that the disputed lands are alluvial lands formed on a part of the bed of the river Haura, the proprietary right of which belongs to the Maharaja of Tippera and that they took settlement of these lands from the Maharaja. The plaintiffs further allege that they were in possession of those lands after they took settlement, but they were dispossessed from these lands in execution of decree obtained against them under Section 9, Specific Relief Act. The defence of the defendants is these lands are accretion to their tenancies which they hold under a Talukdar under the Maharajah. The trial Court held that the disputed lands were accretions to the defendants' tenancies and in that view dismissed the suits. On appeal by the plaintiffs to the lower appellate Court, the learned Judge has affirmed the finding of the trial Court that the disputed lands are accretions to the defendants' tenancies. He has however decreed the plaintiffs' suit on the ground that the defendants cannot claim these lands as accretions to the tenancies under Clause (1), Section (4), Regn. 11 of 1825, as the river Haura is a shallow river belonging to the Maharajah. Hence the present appeal by the defendants. The point for determination in these appeals is whether the defendants can claim the disputed lands as accretions to their tenancies and resist the plaintiffs' claim for possession. The decision of the question depends upon the interpretation of Clause (4), Section 4, Regn. 11 of 1825 which runs as follows:

In small and shallow rivers, the beds of which with the julkar right of fishery, may have been heretofore recognized as the property of individuals, any sandbank or chur that may be thrown up shall, as hitherto, belong to the proprietor of the bed of the river, subject to the provisions stated in the first clause of the present section,

2. The contention of the learned Advocate for the appellants is that the closing words of Clause (4) attract the operation not only of the proviso to Clause (1) of the section but also of the substantive part of it. In Lopez v. Muddun Mohan Thakur (1870) 13 MIA 467 their Lordships of the Judicial Committee observed that:

When the whole words are looked at not only of that clause (Clause 1) but of the whole Regulation (Regn. 11. of 1825) it is quite obvious that what the legislative authority was dealing with was the gain which an individual proprietor might make in this way from what was part of public territory, the public domain not usable in the ordinary sense, that is to say to the sea belonging to the State or a public river belonging to the State.

3. From the principle laid down in that case it is clear that the 'gain' as contemplated by Clause (1) must be gain from a public river and not a river the bed of which belongs to private individuals. The Regulation therefore does not contemplate confiscation of private property. If the substantive part of Clause (1) is read as incorporated in Clause (4) by operation of the closing words of Clause (4) the earlier part of Clause (4) becomes meaningless. It is however contended that when the owner of the bed of the river is also the proprietor of the adjoining land and the claimant to the accretions are his tenants' in respect of the adjoining land to which the accretions have taken place, the principle laid down in Lopez v. Muddun Mohan Thakur (1870) 13 MIA 467 cannot apply. It is argued that in such a case, there is really no confiscation of the private property as the tenants do not set their claim any higher than this: that they claim to possess the land on payment of rent. But the right of the proprietor to enjoy or to deal with the alluvial land in any way he likes, is an important and valuable right. Ownership in its full and normal compass is the ownership of a right to the entirety of the lawful uses of a corporeal thing. If by operation of the closing words of Clause (4) the tenants are entitled to claim tenancy right the proprietor simply retains the jus in re propria which on account of the incumbrance in favour of the tenants' cannot straightway expand to its normal dimensions as the universum jus of general and permanent use. There cannot be any doubt therefore that if the substantive part of Clause (1) is allowed to operate on rivers, the beds of which belong to private individuals, there is partial confiscation of private property. It is however contended by the learned advocate for the appellant that the general observations in Lopez v. Muddun Mohan Thakur (1870) 13 MIA 467 must be read along with the facts of that case and must not be extended to a state of affairs which was not under the consideration of their Lordships of the Judicial Committee.. In substance the argument is that the 'gain' in Clause (1) is not restricted to public domain but can be claimed from private property as well. I am unable to accept this contention. In view of the definite pronouncement of the Judicial Committee that the 'gain' within the meaning of Clause (1) must be a gain from a public domain, small and shallow rivers, the beds of which belong to private individuals cannot come within the operation of the substantive part of Clause (1). In order therefore to give a meaning to the closing words of Clause (4), in view of the object of the Regulation as explained in Lopez v. Muddun Mohan Thakur (1870) 13 MIA 467 they must refer to the proviso to Clause (1) which makes the accretions liable to be assessed to revenue: see Secy. of State v. Maharajah of Burdwan, 1922 PC 6. The principle founded on universal law and justice is that you cannot take away anybody's property. If the positive law intends to encroach on common law rights, such intention must be expressed in very plain words, or must be made out by very plain and necessary implication. In Lopez v. Muddun Mohan Thakur (1870) 13 MIA 467 their Lordships of the Judicial Committee observed:

There are no words which imply the confiscation of any private person's property whatever.

4. The proviso to Clause (1), when applied to accretions in small and shallow rivers mentioned in Clause (4), does not infringe the proprietary right of the private owner. Proprietary right is one thing and assessability is another. These rivers which were included in the permanent settlement were not taken into consideration at the time when the revenue was assessed and fixed at the time of the permanent settlement. The assessment of the additional revenue therefore is not really an encroachment on the proprietary rights. If it is, the positive law has sanctioned encroachment to that extent and no further. In the absence of any positive law or established local usage it is not permissible to confiscate or destroy private property either wholly or partially on general principles of equity and justice. Clause (5), Section 4 no doubt empowers the Court to apply general principles of equity and justice in cases not covered by the other clauses of the section. But such principles of equity and justice must not be inconsistent with the object of the Regulation, which declares that confiscation or destruction of private property is not sanctioned by universal law and justice. The learned Judge was therefore right in decreeing the suit. The appeals therefore fail and are dismissed with costs.

Henderson, J.

5. I agree. This interpretation of Clause (4), Section 4 of the Regulation is in conformity with a long series of decisions of this Court. It is true that the case reported in Gobinda Hota v. Kristapada Singha, 1918 Cal 205 supports the appellants. That decision was founded upon the decision of the Full Bench in the case reported in Gour Hari v. Bhola Kaiburto (1894) 21 Cal 233 (F B). But with great respect to the learned Judges, they appear to have overlooked the fact that the Full Bench case does not deal with Clause (4) but with Clause (1). On the other hand I should like to refer to two old decisions of this Court on the point. In the case reported in Chunder Monee v. Sreemuttee Chowdhrani (1865) 4 WR 34 Trevor and Campbell, JJ., observed as follows:

In small and shallow rivers, the beds of which are private property, churs thrown up belong to the proprietor of the bed of the river. This is opposed to the doctrine laid down in Clause (1), Section 4.... In the one case, the ownership of the bed of the river carries the right to the accretion with it; in the other, riparian ownership does the same.

6. Then again in the case reported in Syfoolah v. Bhuttun (1868) 10 WR 68 Glover, J., said:

The appellant's vakil wishes to construe the last words of this clause (subject to the provisions, etc ) as meaning that such lands belong to the estate to which they join; but it is clear from reading the latter part of the section in question in conjunction with Clause (4) that these words do not apply to the formation or position of the newly accreted lands, but to the owner's right in them, in relation to the Government after they are formed in fact; any other explanation would result in the contradiction that Clause (4), Section 4 would in one and the same sentence declare that the owner of the bed of a shallow river had a right to all churs thrown up in it... and that the same churs belonged not to him, but to the riparian proprietor to whose estate they were joined.

7. In my opinion the law has been correctly explained in those decisions. There is no reason why a different law should apply when the dispute is between the zamindar and a subordinate talukdar.


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