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Ashgar Ali and ors. Vs. Secy. of State and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1930Cal764,129Ind.Cas.416
AppellantAshgar Ali and ors.
RespondentSecy. of State and ors.
Cases ReferredAhmadi Begum v. Tarak Nath Ghose
Excerpt:
- .....commissioner, who was deputed for local investigation and the munsif have found that the disputed lands are accretions, and no objection having been taken before the munsif to the commissioner's report, the court of appeal'below erred in law in allowing defendant 1 to raise a point which had been conceded in the court of first instance. secondly it was contended that, whatever view may be taken upon the first point, the court of appeal below ought upon the merits to have held that at the date of the first settlement made by government with the plaintiffs, the latter had a subsisting right of tenancy in respect of all lands that were, or would, in future be formed up to the edge of the water.7. two other points relating to costs and to the competency of the appeals preferred by defendant.....
Judgment:

Graham, J.

1. These twenty-two, appeals, in which the plaintiffs are the appellants, are from decisions of the First Additional Subordinate Judge off Noakhali reversing decisions of the Munsif of Hatiya, and arise out of as many suits brought by the plaintiffs-appellants, who are khas mehal tenants, claiming title to certain lands as re-formations and accretions to the lands of their respective jotes held under Government in Chur Jagabandhu a Government Khas Mehal bearing Touzi No. 1943 of the Noakhali Collectorate. The lands, in dispute are on the west side of the admitted jote holdings of the plaintiffs under defendant 1, the Secretary of State for India, and the plaintiffs claimed them as appertaining to their settled jotes under defendant 1 by right of accretion, or by right of re-formation in situ.

2. The suits were contested by defendant-1 and by some of the defendants with whom the disputed lands have been settled by defendant 1, in breach, as the plaintiffs alleged, of the right conferred Upon them (plaintiffs) by Section 4, Bengal Alluvion and Diluvion Regulation of 1825 (Regn. 11 of 1825).

3. Defendant 1, now respondent in these> appeals, denied that the plaintiffs hah any right of accretion or re-formation in situ, and pleaded limitation under the general and special laws of limitation. Certain other points were also raised to which reference is not necessary for present purposes.

4. The trial Court partially decreed the suits holding that the plaintiffs' claim had become barred by special limitation in respect of certain portions of the disputed land.

5. Against that decision both sides appealed to the District Court with the result that the learned Additional Subordinate Judge, who heard the appeals, reversed the decisions of the Munsif, allowed the appeals preferred by defendant 1 and dismissed the appeals of the plaintiffs. The plaintiffs have now preferred these second appeals.

6. On their behalf two main points have been urged. Firstly it has been argued that, inasmuch as the commissioner, who was deputed for local investigation and the Munsif have found that the disputed lands are accretions, and no objection having been taken before the Munsif to the Commissioner's report, the Court of appeal'below erred in law in allowing defendant 1 to raise a point which had been conceded in the Court of first instance. Secondly it was contended that, whatever view may be taken upon the first point, the Court of appeal below ought upon the merits to have held that at the date of the first settlement made by Government with the plaintiffs, the latter had a subsisting right of tenancy in respect of all lands that were, or would, in future be formed up to the edge of the water.

7. Two other points relating to costs and to the competency of the appeals preferred by defendant 1 before the Court of appeal below were also mentioned, but these were ultimately not pressed.

8. With regard to the first point taken on behalf of the appellants it appears that this was also raised before the Additional Subordinate Judge. The learned Judge took the view that it was not proper to ask the commissioner to find whether the land adjoining the plaintiffs' jote lands on the west were accretions within the meaning of the law, and that his function was merely to report on the facts as observed by him at the time of his investigation, as for example, whether the disputed lands are actually adjacent to the plaintiff's jote lands, leaving it be the Court to decide whether they are accretions within the meaning of the law or not. As a matter of fact I find on reference to the Munsif's order for local enquiry that the point which required to he elucidated and ascertained by local investigation was stated to be.

whether the lands in suit are re-formed lands of Jote No. 72 or accretions thereto.

9. The commissioner therefore in submitting his report in the form he did was merely complying with the instructions given to him. But whether such matters come within the province of a commissioner deputed for local investigation seems to be open to doubt. Such commissions are issued for the purpose of elucidating any matter in dispute, that is to say, presumably for the purpose of throwing light upon that matter and assisting the Court to form a decision thereon. The Court will not however be justified in delegating to a commissioner the trial of any material issue which the Court itself is bound to try: Sangili v. Mookan [1893] 16 Mad. 350. The main question to. be decided was, as the learned Additional Subordinate Judge has observed, whether the lands in dispute were accretions or re-formations in situ, and that was for the Court and not the commissioner to decide.

10. In my judgment the learned Judge was right upon this point and therefore it follows that there was no substance in the view taken in the trial Court that because no objection had been taken by any of the parties to the commissioner's report, it must necessarily prevail and be given effect to. The matter was one which was not properly within the competence of the commissioner, but was one for the decision of the Court with the aid of such materials as a commissioner was able to place before the Court.

11. The second question then arises for consideration whether upon the materials before him the learned Additional Subordinate Judge was justified in his conclusion that the disputed lands (or the greater part of them) are not accretions to the plaintiff's jotes. At firs sight it might seem that this is a question of fact which it is not open to us to disturb in second appeal. It really turns however upon the construction of certain documents and the inference to be drawn from them in particular the khatians in which the western boundary of the jotes originally leased to the plaintiff have been variously described as 'Degi Chur,' 'Doba Chur' or 'Nutan Chur.' The question is what is the precise signification of these terms. They all apparently mean much the same thing, namely a chur which emerges only at ebb-tide and remains under water at How tide. The argument advanced on behalf of the appellants is that such a chur forms part of the bed of the river because the extent of a river is the space covered by it when it is in Ifnll tide at flow or high tide. There is ample authority for this view. What is meant by the bed of a river is defined in Houck on Rivers, p. 6.

The bed is covered by the river and is the space subjacent to the river over which it flows between the banks. It is the space between the banks occupied by the river at its fullest flow.

12. There was an elaborate discussion of the subject in the case of Ahmadi Begum v. Tarak Nath Ghose [1918] 21 I.C. 233, it being held that the bed of a river is that portion of it which is in the ordinary and regular course covered by the waters of a river, and that it need not be constantly covered, if in the ordinary course of things it is habitually covered. Now in this instance, as already stated, the western boundary was described at the time of the original settlement with plaintiffs as Degi Chur, or Doba Chur, or Nutan Chur. Each of those expressions means apparently a chur which emerges only at ebb tide but is covered at full tide. That being so they are synonymous with river, and the effect of so describing the western boundary would be to give the plaintiffs a subsisting right of tenancy in all lands which would in future be formed up to the edge of the river. This seems to be in accord with what might be expected to be done in the circumstances, and that in point of fact it is what was intended, and was subsequently recognized by Government, is borne out by the recitals contained in certain notices which were served on the plaintiffs by Government in 1901 (Exs. 1 to 22) wherein the lands in dispute have been described as 'patit' and lapta paystha' outside and at the extremity of the plaintiff's holding. The word 'patit' means fallow or uncultivated, and the words 'lapta paystha' mean contiguously formed land or accretions, as opposed to 'sasthal paystha' land re-formed in situ. It is difficult to reconcile this admission by Government in 1901 with the case which it has now been sought to make on its behalf that the disputed land is in fact a re-formation in situ of its khas mehal estate which was diluviated and subsequently re-formed. That case was never made in the Courts below and cannot be allowed to be now put forward in second appeal. In my judgment the plaintiffs succeeded in establishing the claim to the lands in dispute save and except those lands in respect of which their claim has been found to be barred by limitation, and which are in the possession of some of the other defendants. The appeals must therefore be allowed, the judgments and decrees of the Additional Subordinate Judge set aside, and the judgments and decrees of the Munsif restored with costs in this Court and in the lower appellate Court.

Mitter, J.

13. It is not necessary to recapitulate all the facts of the cases to which these 22 appeals relate. It will be sufficient if I state a few salient ones. In these 22 suits the plaintiffs now appellants claim certain lands as either re-formations on their original site of or accretions to the lands of their original holdings which they hold under the Government in a certain khas mehal known as Char Jagabandhu. The plaintiffs allege that the original holdings were settled with them in 1899 or 1900; that after the settlement the original holdings were diluviated and the river having receded since the diluvion the lands in these suits have re-formed and accreted to the lands of the original holding; that after the lands had emerged the Secretary of State (defendant 1) has wrongly settled these lands with the other defendants who dispossessed the plaintiffs on the strength of the settlement in 1326 B.S. Hence the suits.

14. The defence of defendant 1 and other defendants so far as is material fall under two heads; (i) that the lands are not re-formations in situ of the plaintiff's original holdings or accretions thereto; (ii) that the defendants have acquired a right by adverse possession for more than the statutory period in some of the disputed lands.

15. A commissioner was appointed to determine whether the lands in the suits are reformations in situ of or accretions to the original holdings of the plaintiffs. The pleader commissioner found that the disputed lands are accretions to the original holdings. No objection was taken to the commissioner's report by any of the parties. The Munsif who tried these suits gave decrees to the plaintiffs declaring their title to so much of the lands as has been found by the commissioner in his chittas of the disputed lands of these suits to be included in the rest as Nalaek Chapra, i.e., to so much of the lands as will be left after deducting the lands found in actual possession of the defendants.

16. Against the decrees in these 22 suits appeals were taken by the defendants to the Court of the Additional Subordinate Judge of Noakhali and the suits were all dismissed.

17. These appeals are brought against the decrees of the appellate Court dismissing plaintiff's suits and it is argued for the appellants that the Subordinate Judge has fallen into an error of law in coming to the conclusion that the lands in suit are not accretions to plaintiff's original holdings, and that on the facts found by him he should have declared the lands to be accretions. I think the appellant's contention is well founded and must prevail.

18. It has been found by the lower appellate Court that the western boundaries of the disputed lands are Doba Chur and Degi Chur and consequently as the boundaries of the disputed lands are not the river, no question of accretion arises. It is argued for the appellants that Degi Chur and Doba Chur being lands between the high water and low water mark of the river, they are parts of the river bed and therefore the boundaries of the lands are parts of the river bed and certain authorities are cited to support the contention. It is found in this case that these lands were submerged during the fullest flow of the river. It is not necessary to decide whether where one of the boundaries is given as the Doba Chur and Degi Chur, the river should always be considered to be boundary for the purpose of Section 4 of Regn. 11 of 1825. The case in Ahmadi Begum v, Tarak Nath [1913] 21 I.C. 233 to which my learned brother has referred' was a case of jalkar, and Mookerjee, J.,. guards himself against laying down that for the purposes of the regulation the chur should be regarded as the riverbed. It is sufficient for the purposes of the present appeals to say that in 1901 Government issued notices Exs. (L to 22) in which they described the lands in dispute as patit and contiguously formed land ('lapta payasthi') of the plaintiff's holdings. The words 'lapta payasthi' are significant. They denote that these lands are accretions to the original holdings of the plaintiffs and was so regarded by the officers of the Government. Besides no exception was taken by the Government to the commissioner's reports on these suits. The commissioner's report is valuable, only as showing that these lands are contiguous to the disputed lands. As to their being accretions in law is for the Court to decide and in this the lower appellate Court is right. In these circumstances we think that the lower appellate Court should1 have held that the lands were accretions to plaintiff's original holdings. We set aside the judgment and decrees of the Subordinate Judge and restore those of the Munsif.

19. The learned Senior Government Pleader has tried to support the judgment of the lower appellate Court on the ground that these lands were re-formations in situ of lands of the khas mehal and cannot possibly be regarded as accretions. This case was not raised in the pleadings nor in the Courts below, and as it is a question which depends on facts it would not be right to allow the objection to be raised for the first time in second appeal.


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