1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Digambar Chatterjee in a suit for recovery of possession of land upon declaration of title. The plaintiff-appellant held a tenancy under the Government in respect of a tract of 38 bighas of land, which abutted on a river. In 1906, 17 bighas were diluviated by the action of the river. The tenant, thereupon, approached the Government with an application for reduction of rent, and prayed that he might be required to pay at the rate of Re 1 instead of Rs. 3 per bight in respect of the lands washed away. The Collector de clined to accept the suggestion and intimated to the plaintiff that if he desired to retain his title to the area submerged, he must continue to pay the full rent therefor. The plaintiff thereupon offered to surrender the diluviated area. This was accepted by the Collector, with the result that the rent was abated accordingly. The lands diluviated, however, re-appeared the very next year, and on re-appearance were immediately settled by the Government with a number of tenants. The plaintiff next instituted this suit for recovery of possession of the lands upon declaration of title. The Court of first instance dismissed the suit. Upon appeal that decision was reversed by the Subordinate Judge. Mr. Justice Digambar Chatterjee has reversed the decree of the Subordinate Judge and restored the decree of dismissal made by the trial Court. In our opinion, it is clear that the plaintiff cannot possibly succeed.
2.The fundamental point for consideration in the appeal is the legal effect of the action taken by the plaintiff with the concurrence of the Collector, in respect of the submerged lands. It may be conceded, as was pointed out by the Judicial Committee in the case of Arun Chandra Singh v. Kamini Kumar 22 Ind. Cas 317 : 41 C. W. 683 : 18 C. W. N. 369 : (1914) M. W. 175 : 15 M. L. T. 132 : 26 M. L. J. 251 : 12 A. L. J. 243 : 19 C. L. J. 272 : 6 Bom. L. R. 323 (P.C.) that the mere fact of claiming and accepting remission of rent in respect of lands washed away from time to time by the action of a river does not conclusively prove that the owner abandoned or agreed to abandon his right to such lands on their re formation in situ. In this case, however, there can be no doubt as to the true effect of the action taken by the plaintiff in respect of the submerged lands. The question in controversy between him and the Collector was whether he should be allowed to retain his title in the submerged lands upon payment of rent at the reduced rate of Re. 1 per bigha. The Collector rightly or wrongly refused to accept his proposal; he thereupon surrendered the diluviated area and agreed to pay a reduced rent for the remainder of the lands, which thenceforth constituted his new holding. The true position consequently is that what constituted the original holding was, by the action of the plaintiff, divided into two holdings; one of these continued to be his tenancy while the other vested in the Government freed from his subordinate right as a tenant. This latter portion was at the time of the agreement between the parties under water. When the lands re-formed, they clearly re-appeared as the property of the Government, to which the plaintiff had no right whatsoever. This view is supported by the principles explained by the Judicial Committee in the case of Felix Lopez v. Muddun Mchun Thakoor 13 M. I. A. 467 : 14 W. R. (P. C.) 11 : 5 B. L. R. 521. 20 E. R. 625. namely, that a person whose lands have been sob-merged may, as between him and the State, take most effectual means in his power, by continuing to pay rent for it, to prevent the possibility of any question of abandonment being raised as against him. The plaintiff here deliberately decided not to pay rent for the lands submerged and the proceedings between him and the Collector show conclusively that the effect of the agreement between the parties was to reduce the area of the original holding. In these circumstances, no question of accretion arises.
3. The result is that the decree' of Mr. Justice Digambar Chatterjee is affirmed and this appeal dismissed with costs.
4. It is conceded that this judgment will govern the other Appeals Nos. 145, 146, 147 and 148 of 19l5, in each of which a similar order will be drawn up.