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Rahimaddhi Matabbar Vs. Naimaddi Howladar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal565
AppellantRahimaddhi Matabbar
RespondentNaimaddi Howladar and ors.
Cases ReferredSurendra Narain Sinha v. Hari Mohun Misser
Excerpt:
- graham, j.1. this is an appeal by the plaintiff and arises out of a suit for ejectment. the facts appear to be shortly as follows : the plaintiff-appellant is owner of a 13 annas odd share in estate no. 6592 of the faridpur collectorate, the remaining 2 annas odd belonging to defendants nos. 1 to 7. on the 22nd chaitra 1300, b.s. corresponding to the 15th march 1894 a tenure was created in respect of the lands comprised in schedule ka of the plaint in favour of the defendants nos. 1 to 4. at that time it appears that the lands of this schedule only were in existence, and that the lands of schs. kha and ga came into existence at a subsequent date. the present suit was instituted on the 11th august 1920 and the case set up by the plaintiff was that he was entitled to get khas possession of.....
Judgment:

Graham, J.

1. This is an appeal by the plaintiff and arises out of a suit for ejectment. The facts appear to be shortly as follows : The plaintiff-appellant is owner of a 13 annas odd share in Estate No. 6592 of the Faridpur Collectorate, the remaining 2 annas odd belonging to Defendants Nos. 1 to 7. On the 22nd Chaitra 1300, B.S. corresponding to the 15th March 1894 a tenure was created in respect of the lands comprised in Schedule ka of the plaint in favour of the Defendants Nos. 1 to 4. At that time it appears that the lands of this schedule only were in existence, and that the lands of Schs. kha and ga came into existence at a subsequent date. The present suit was instituted on the 11th August 1920 and the case set up by the plaintiff was that he was entitled to get khas possession of the lands of plots kha and ga inasmuch as they are not covered by the tenancy created in 1894, and further that, as the lands in question are re-formations in situ of his estate, and are not accretions within the meaning of Clause (4) of Reg. 11 of 1825, the tenants-defendants are not entitled to treat them as an addition to their tenancy.

2. Both the Courts below found that the lands of Schedules kha and ga were re-formations in situ. The tenants defendants, however, took up the position that notwithstanding this fact they are entitled to hold the lands as accretions to their tenure upon payment of rent.

3. The trial Court held that the lands were an accretion to the defendants' tenure, and that upon this ground as well as under the terms of the kabuliyat, the plaintiff was not entitled to khas possession, but was entitled to receive rent. It was further held that the tenants-defendants had acquired a limited tenancy interest in the lands of Schedule kha by adverse possession and that they had been recognized as tenants of these lands. A fair rent was accordingly decreed.

4. On an appeal being preferred by the plaintiff the learned Additional District Judge of Paridpur affirmed that decision. The plaintiff has now preferred this second appeal.

5. In so far as the lands of Schedule kha of the plaint are concerned we are confronted at the outset by the concurrent findings of fact arrived at in the Courts below both on the question of limitation and recognition, and there is no substance in the appeal and it must be dismissed so far as that plot is concerned.

6. In regard to plot ga, however, no question of limitation arises, as the land of this plot was not in existence at the time when the record-of-rights was prepared, and the tenants-defendants have not been in possession of these lands for over 12 years.

7. It becomes necessary, therefore, to consider the arguments that have been advanced on behalf of the appellant in. regard to plot ga. These relate to the question of accretion and construction of the kabuliyat. The first point urged by the learned advocate for the appellant was that on a true construction of the terms of the kabuliyat of 1894 it ought to have been held that the defendants were not entitled to possess the-lands at all without obtaining a fresh settlement from the plaintiff.

8. Secondly, it was contended that the lands in question having been found to be re-formations in situ cannot be held to be 'gained' within the meaning of that word in Section 4 of Reg. 11 of 1825, and that that being so that section has no application and the tenants-defendants cannot claim thereunder to hold the lands as an addition to their tenancy.

9. In connexion with the first ground reliance has been placed upon a passage which occurs, towards the end of the kabuliyat (Ex. 1). The material portion, of this passage has been given in the vernacular in the judgment of the trial Court, and in the translation, which has been placed before us, is translated as follows:

I shall not be entitled to keep in my possession any land in excess of the land settled without fresh settlement from you.

10. The word used for settlement is 'bandobust,' a term commonly used whets a fresh settlement is taken. The Courts below notwithstanding this passage have held that the intention was that the defendants would be entitled to hold excess lands, i.e., over and above the land originally let out to them, subject to payment of rent. Speaking for myself I do not think this interpretation of the passage in question is warranted. It seams the intention was, as stated in plain words, that, if any land should be possessed in excess of the area originally let out, a fresh settlement would be required. This is made the more clear when the passage earlier in the document, is taken into account where it is stipulated that, so far as the land originally let out is concerned, if the lands were found on measurement to be in excess, additional rent would be paid, while, if they proved to be less, there would be a proportionate abatement of rent. Obviously the latter passage refers to a different contingency. If the intention had been that the defendants were to be entitled to possess excess lands over and above the lands comprised in the kabuliyat on payment of rent for the same, that intention could easily have been expressed.

11. On a fair construction of the kabuliyat it appears to me that in the event of any land being occupied by the tenants over and above the area covered by the kabuliyat the plaintiff reserved his right to a fresh settlement. Admittedly, however, the defendants never applied for fresh settlement.

12. With regard to the second point the question involved is whether the tenants-defendants are entitled to hold the lands of Schedule ga (the plaintiff having lost his right to the land of Schedule kha) as an increment to their tenure. The answer depends upon the construction to be put upon Section 4 of Reg. 11 of 1825 known as the Bengal Alluvion and Diluvion Regulation. It is conceded that this is the only statute under which the defendants can claim the right asserted by them. Section 4 of that Regulation has five clauses. The material part of the first clause reads as follows:

IV. First. - When land may be gained by gradual accession, whether from the recess of the river or of the sea, it shall be considered an increment to the tenure of the parson to whose land or estate it is thus annexed, whether such land or estate be held immediately from Government by a zamindar or other superior landlord or as a subordinate tenure, by any description of under-tenant whatever.

13. The second and third clauses have no application in the circumstances of the present case.

14. The fourth and fifth clauses may, how ever, be quoted:

Fourth. - In small and shallow rivers, the beds of which with the jalkar right of fishery may hive 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 bad of the river, subject to the provisions stated in the first clause of the present section.

Fifth. - In all other cases, viz., in all cases of claims and disputes respecting land gained by alluvion, or by dereliction of a river, or the sea, which are not specifically provided for by the rules contained in this Regulation the Courts of Justice, in deciding upon such claims and disputes, shall be guided by the best evidence they may be able to obtain of established local usage, if there be any applicable to the case, or, if not, by general principles of equity and justice.

15. On behalf of the appellant stress has been laid upon the word 'gained' in the first clause, and it was contended that, unless it can be shown that the land has been 'gained' the defendants cannot have the benefit of the statute. It is an admitted fact in the present case that the lands in question are re-formation in situ, or in other words, that they form part of the estate of the appellant, who, as a consequence of the lands becoming submerged was temporarily deprived of their enjoyment. In these circumstances it is argued there has neither been any gain nor accretion, and the effect of the emergence of the land was simply that it was restored to the possession of the appellant. In support of this contention reference was made to the case of Felix Lopez v. Muddun Mohun Thakore [1870] 13 M.I.A. 467, where their Lordships of the Privy Council held that land washed away and afterwards re-formed on the old ascertained site, is not land gained by increment within the meaning of Section 4 of Bengal Regulation 11 of 1825.

16. In two other cases decided by the Judicial Committee, viz., Secretary of State v. Fahamidannessa Begum [1889] 17 Cal. 590 and Arun Chandra Singh v. Kamini Kumar [1913] 41 Cal. 683, the word 'gained' was similarly interpreted, the former of these cases relating, however, to Act 9 of 1847, which also deals with ' lands gained from the sea and from rivers by alluvion or dereliction.' Since we heard the arguments in this case a quite recent decision of their Lordships of the Privy Council, dated the 25th February last, in the case of Keshava Prasad Singh v. Secretary of State , has reached this country. That was a case of dispute between two riparian proprietors regarding certain land which emerged from a river not on the side where it had originally existed, but upon the opposite side as a result of fluvial action, and it was held that, as the land in question had re-formed on its old site and was identifiable as forming part of the plaintiff's estate, it was immaterial upon which side of the river it emerged, and that the plaintiff was entitled to the land.

17. In the course of their judgment in this case their Lordships referred to a number of cases bearing on the subject including the case of Felix Lopez v. Muddun Mohun Thakore [1870] 13 M.I.A. 467 referred to above. One of those cases was the case of Nagendra Chundra Ghose v. Mahomed Esof [1872] 12 M.I.A. 107 where their Lordships said:

Two observations arias on this statute:

(1) That there is nothing to show that the first rule contemplates laud other than that which commonly falls within the definition of 'alluvion,' viz., land gained by gradual and imperceptible accretion, the incrementum latens of the civil law.

(2) No express provision is made for the case of land which has been lost to the original proprietor by the encroachment of the sea, or a river, and which after diluviation, re-appears on the recession of the sea or river. Bat on the other hand, there is nothing to take away or destroy the right of the original proprietor in such a case, which must therefore be determined by the general principles of equity or justice under the fifth rule. That the right of the proprietors in the case last put exists and is recognized by law in India, is established by at least two oases decided at this Board.

18. These authorities support the view that where land is re-formed upon the old site, which can be identified, Reg. 11 of 1825 has no application, for, to quote the words of their Lordships in the case of Felix Lopez v. Muddum Mohun Thakore [1870] 13 M.I.A. 467,

Such lands remain the property of the original owner. The site is the property, and the law knows no distinction between a site covered by water and a site covered by crops, provided the ownership of the site be ascertained.

19. On behalf of the respondents reliance has bean placed upon the case of Khubi Mahton v. Mohant Luchmi Das A.I.R. 1922 Pat. 588. That was a case of accretion to a raiyati holding from a river the bed of which belonged to the zemindar, and it was held inter alia that in the case of a claim by a subordinate holder the section applies even when the accreted lands belong to the superior landlord.

20. With great respect it seems to me to be difficult to reconcile this view with the Privy Council decisions referred to above. If land is 'gained,' that is to say, if it is in the true sense of the word an accretion - something that is added whether from the river or the sea which had no previous existence - it can readily be understood that such an accretion would be for the benefit not only of the landlord but also of the subordinate tenure-holder. But where lane merely re-forms on its old site, and there is no addition to that which already existed, no increase of the property by gradual natural additions, then the position is different. In that case, to again quote their Lordships of the Privy Council in Lopez's case [1870] 13 M.I.A. 467, the owner of the land says:

I had the property. It was my property before it was covered by the Ganges. It remained my property after it was submerged by the ranges. When it emerged there was nothing that took it from ma and gave it to any other person.

21. In like manner the appellant here while he cannot and does not dispute the defendants right to hold the lands of Schedule Ka leased out by the kabuliyat of 1894, claims that they are restricted to the possession of those lands only and that they have no right to possession of the accreted lands merely by reason of the fact that they happen to be adjacent to the land previously leaded out by him. Nor does such a claim by the tenure holder seem to be founded upon any good ground either of law or equity. By the kabuliyat of 1894 the appellant settled a definite area of land ascertained by measurement with the defendants. Presumably it was neither his desire, nor intention that that area should be extended under any circumstances. At all events the kabuliyat contains no clause to the effect that the tenants should be entitled to possess accretions upon payment of extra rent. In the absence of any such stipulation the position taken up by the landlord, and it seems to me that it is a justifiable position, is that he and he, alone, is entitled to the land, which was always his property and has been restored to his possession as a result of the recess of the water. There is moreover force in his contention that, if the tenant be allowed the benefit of accretion, he will thereby in effect be confiscating what is the property of the appellant. It is true that the tenant does not set his claim any higher than this : that he claims to possess the land on payment of rent. But even so there would be a confiscation, though only partial, of the rights of the owner, since the owner may prefer to keep the newly accreted land in his khas possession instead of letting it out. He has the right, which every owner has, of dealing with that which belongs to him in any manner that he pleases, and it is difficult to see why because merely by accident the land which has emerged happens to be adjacent to the land formerly leased out to him, the tenant should be deemed to be entitled to hold it as an accretion to his tenure. It follows moreover that, if he be held to be so entitled, he will keep the owner permanently out of possession of his land.

22. The only doubt which suggests itself to my mind as to the applicability of Section 4 of Reg. 11 of 1825 on the facts of this particular case arises from the language of the fourth clause of that section. It seems to me to be arguable that this covers the case of reformations in situ, and that the effect of this clause is that in small and shallow rivers, the beds of which may hitherto have been recognized as the property of individuals, any sand bank or chur thrown up shall as hitherto belong to the proprietor subject to the right of the subordinate tenure-holder to claim the land as an increment to his holding as laid down in the first clause of the section. It seems to me however, that the succeeding clauses must be read subject to the first clause, and that the section as a whole applies only in the case of accretions in the strict sense of the word. I am further of opinion that, although the Privy Council cases referred to above are almost all cases between rival proprietors and not as between proprietor and tenure-holder, the principle laid down in those decisions applies with equal force. That principle, as I understand it, is that where it can be demonstrated that a particular bit of land is the property of a particular person, if it should be submerged and then again re-appear, it is restored to the owner, or, to be more precise, it continues to remain his property. To allow a tenure-holder, where land happens to adjoin the land thus accreted, to claim the land thus formed as an accretion to his tenure would in my judgment be an infringement of the full proprietary right of the owner, and would go against the principle repeatedly laid down by the Privy Council. In my judgment therefore the appeal, so far as the land of Schedule ga is concerned, succeeds upon this ground also as well, as upon the construction of the kabuliyat.

23. One other point which was argued requires notice. The learned Additional District Judge found that, as the defendants are also co-proprietors of the estate with the plaintiff, the plaintiff was not entitled to obtain khas possession without bringing a suit for partition. I do not think this view is tenable. It is clear that the act of the defendants in grabbing the land was an infringement of the proprietary right of their co-sharers. The right of the plaintiff has in fact been denied in this suit. In these circumstances the plaintiff must be held to be entitled to ask the Court to grant him joint possession along with his co-sharers.

24. In the result the appeal must be allowed in part, the decree of the Court of appeal below being affirmed with respect to the land comprised in Schedule kha of the plaint, while so far as the land of Schedule ga is concerned it must be reversed, and there will be a decree in favour of the plaintiff-appellant for khas possession jointly along with his co-sharers to the extent of his share therein. The appellant has been only partially successful in this appeal, and I think therefore the proper order as to costs will be that costs will be in proportion half and half.

Mitter J.

25. (After setting out the facts of the case his Lordship proceeded.) As already stated Mr. Sen raises three points in support of his appeal with regard to the lands of 'ga.' Schedule. It is argued in the first place that upon a true construction of the terms of the kabuliyat, dated 15th March 1894, the defendants ought to have been held as not entitled to 'ga' Schedule lands at all without a fresh settlement from the plain tiff. In the second place it is argued that Section 4 of Reg. 11 of 1825 has no application to the present case as the lands of 'ga' Schedule have been found to be re-formations in situ of the original lands of the estate which had been diluviated, and in support of this contention reliance has been placed on the case of Lopez v. Muddun Mohun Thakore [1870] 13 M.I.A. 467 and Secretary of State v. Fahamidannessa Begum [1889] 17 Cal. 590. It is argued in the third place that as there has been a denial of plaintiff's title to the reformed lands plaintiff is entitled to recover joint possession to the extent of his share with the Defendants Nos. 1 to 7 and that it is not necessary that plaintiff should bring a suit for partition before he can recover possession.

26. With regard to the first ground the view I take is that the terms of the kabuliyat make it clear that defendants shall not be entitled to keep possession of any land which is in excess of the lands settled without fresh settlement from the plaintiff, The construction put on the kabuliyat by the Courts below to the effect, viz., that the defendants are entitled to hold possession of additional lands subject only to the payment of rent is not right. The words in Bengali are 'dharijya jamir atirikta jami bina swatantra bandobast rakhite yariba na' which transtated means

I shall not be entitled to keep in my possession any land which is in excess of land settled without fresh settlement from you,

27. These words to my mind leave no room for doubt that the (defendants) appellants will not be entitled to retain possession of any land in excess of that settled without a fresh settlement. It is said that if this construction is accepted defendants will not be able to retain possession of lands which may be accretion to the tenure and this could never have been intended as it would be contrary to the express provisions of Reg. 11 of 1825 which declare such accretion to belong to the tenure-holder subject only to his liability to pay rent to the proprietor. It is argued on the other hand that the parties intended to contract themselves out of the statute and as this was a permanent tenure there was nothing to prevent the parties from entering into such a contract having regard to the provisions of Section 179 of the Bengal Tenancy Act. It is not necessary to determine in this case whether more express words were not needed if the parties intended to contract themselves out of the provisions of Regulation of 1825, for in this case no question of accretion arises. It is plain that by the kabuliyat in question parties clearly intended that if the defendants took possession of other lands which originally belonged to the estate and which had not been settled under the kabuliyat the defendants will not he able to take possession of those lands without a fresh settlement. The first ground taken before us therefore seems to be well founded and must prevail.

28. The second ground urged before us is equally well founded. The lands of the 'ga' Schedule having been found to be re-formations in situ of the original lands of the estate cannot be said to be lands 'gained' from the recess of the river within the meaning of Clause (1), Section 4 of Reg. 11 of 1825. see the case of Ramanath Tagore v. Chundernarain Chowdhury [1864] W.R. Supp. 45. In that case Sir Barnes Peacock observed:

We are of opinion that the word 'gained' its Section 4, Reg, 11 of 1825, does not extend to cases of land washed away and afterwards re-formed upon the old site which can be dearly recognised.

29. The learned Chief Justice further observed, in the same judgment

that Clause (1), Section 4 applies only to cases of la ad gained, that is to say formed upon a site which cannot be recognised as that of any former proprietor.

30. In the case of Lopez v. Muddun Mohun Thakore [1870] 13 M.I.A. 467, their Lordships of the Judicial Committee of the Privy Council cited with approbation this decision of Sir Barnes Peacock and observed as follows:

The very point came for consideration in India before a Court comprising Sir Barnes Peacock, Mr. Justice Bailey, and Mr. Justice Kemp; and after full consideration, it was decided that lands washed away and afterwards re-formed on an old site, which could be dearly reoognised, are not lands 'gained' within the meaning of Section 4, Reg. 11 of 1825.

31. In the case of Secretary of State for India v. Srimati Fahamidannessa Begum [1889] 17 Cal. 590, their Lordships were dealing with Clause 3 of Reg. 2 of 1819 which applied to all lands gained by alluvion since the period of the settlement and their Lordships of the Judicial Committee observed as follows:

Their Lordships cannot think that it was intended by such a provision as this to deal with the case of lands in permanent settlement which had become derelict of the Sea or a river. They cannot be said to have been 'added' to the estate to which they already belonged. Considering the solemn assurance given by the Government to the owner a of permanently settled estates that they should not be liable to further assessment in respect thereof, their Lordships find it impossible to hold that it was ever intended by this enactment to subject than to an added assessment in respect of land for which they were already assessed because they had had the misfortune to be practically deprived of it for a time by an incursion of the sea or river.

32. In the case of Arun Chandra Singh v. Kamini Kumar Bardhan [1913] 41 Cal. 683, where lands forming part of the putni taluk had been washed away and had again re-appeared and the putnidar had obtained abatement of rent in respect of lands submerged, it was hold that the putnidar, by obtaining remissions of rent in respect of land washed away, had not abandoned his right to the land when it was re-formed in situ, and that the ohur formed part of the tenure created by the kabuliyat. The suit was brought by the zamindar to eject the putnidar from certain chur lands which formed part of the putni taluk but which had been washed away by the river and had subsequently re-appeared and re-formed in situ. The defendants who were putnidars had obtained abatement of rent in respect of lands which had been washed away by the river and that the plaintiff zamindar contended that these lands were accretions to his zamindari within the meaning of Reg. 11 of 1825.

33. Their Lordships of the Judicial Committee held that the lands do not come within the provisions of Section 4 of Reg. 11 of 1825 and cannot be claimed by either party as accretions to their respective property. The reasons underlying the decision seam to be that the lands could not be regarded as accretions to the zemindar's property as the lands were already his in proprietary right before diluviation and could not be said to have gained from the river within the meaning of the section. It could not be said to have bean gained by the putnidar from the recess of a river as before diluviation the lands belonged to the putnidar in his putni right. This decision supports the contention of the appellant. The learned vakil for the respondents conceded that the decision on Lopez's case [1870] 13 M.I.A. 467 would have governed the present case if the question arose between two rival proprietors. In other words, as I understand the argument of Mr. Jogesh Chandra Roy, he contends that the application of Lopez's case [1870] 13 M.I.A. 467 must be confined to those where 1 and 3 of one estate become annexed to lands of another estate, but it has no application to a case where the lands of one estate become annexed after emergence from the river to the lands of a tenure subordinate to the same estate. I can, however, see no distinction in principle between the two cases. It is the merest accident that the lands of the plaintiff's estate have become annexed to a tenure under the estate. The lands after emergence have legally vested in the plaintiff and I can see no principle which can entitle the tenant to retain lands which have b9come annexed to his tenure after re-formation and which justly belong to his landlord, It is said that the landlord will get rent and he ought to be content with that. There is nothing in law or equity which can prevent the landlord from exercising his full proprietary right over land which legally belongs to him. Neither a stranger nor a tenant of his can diminish in any way his right as full proprietor. In this connexion the following observations of the Judicial Committee of the Privy Council in Lopez's case [1870] 13 M.I.A. 467 are instructive and may be usefully cited:

It is to be observed, however, that that clause refers simply to oases of gain, of acquisition by means of gradual accession. There are no words which imply the confiscation or destruction of any private parson's property whatever. If a regulation is to be construed as taking away anybody's property, that intention to take away ought to be expressed in very plain words, or be made out by very plain and necessary implication, The plaintiff here says; I had the property. It was my property before it was covered by the Ganges. It remained my property after it was submerged by the Ganges. There was nothing in that site of things that took it from me and gave it to the Government. When it emerged there was nothing that took it from me and gave it to any other person' And in answer to such a claim it would certainly seem that something more than mere reference to the acquisition of land by increment by alluvion or by what other term may be used would be required in order to enable the owner of one property to take property which had been legally vested, in another.

34. The learned vakil for the respondents has, however, cited the decision of a Full Bench of the Patna High Court in the case of Khubir Mahton v. Mohunt Luchmi Das A.I.R. 1922 Pat. 588 as supporting his contention. The question which was referred to the Pull Bench of the Patna High Court was:

Does Clause (1), Section 4 of Reg. 11 of 1825 apply to a case where the river out of the bed of which the accretions have formed is the private property of an individual and not the property of the Crown.

35. This question was answered in the affirmative and the learned Chief Justice, Sir Dawson-Miller held that in the case of a claim by a superior landlord it is only where the Crown is the proprietor of the accreted land that the section applies, but in the case of a claim by a subordinate holder the section applies even when the accreted lands belong to the superior landlord. The learned Chief Justice held that the Judicial Committee in Lopez's case [1870] 13 M.I.A. 467 in restricting the 'gain' which an individual proprietor might make under the regulation to a 'gain' from that which was part of 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, was considering the claim of a proprietor of an estate against the proprietor of a neighbouring estate and not the case of subordinate tenure-holder claiming against his immediate landlord. It is true that in Clause (1), Section 4, there is nothing to indicate that that clause is not applicable to rivers which are private property, that is to say, in cases where the bed of a navigable river belongs to a private individual and the riparian bank belongs to a different proprietor. But the subject which the legistature intended to deal with while enacting the Regulation, would clearly indicate that Clause (1), was not meant to be applicable to private rivers of the above kind. This is apparent from what their Lordships of the Judicial Committee said in the following passage:

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 was 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 usable; See Lopez's case [1870] 13 M.I.A. 467.

36. 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).

37. To me it seems that the decision of the Patna High Court is contrary to what their Lordships of the Judicial Committee laid down in Lopez's case [1870] 13 M.I.A. 467. The Full Bench of the Patna High Court seems to have put a wide interpretation on Section 4 of the Regulation than was intended. But it is not necessary in this case to express a final opinion as to whether the view taken by the Patna High Court is right or wrong. For the present case is not a case where the accretion was an accretion from a river bed which was the property of the landlord. In the present case the lands are re-formations of lands which were formerly in the direct possession of the landlord. This is a circumstance which distinguishes the present case from the case which was decided by the Full Bench at Patna and Mr. Justice Mullick who was one of the members of the Full Bench recognizes the distinction for he says at page 30:

In the present case it is not known whether the land is re-formation of land which was formerly in the direct possession of the landlord All that is known is that the bed was the property of the landlord before it emerged and the question is whether the appellant can claim a right of tenancy in the accretions either under Clause (1) or under some general principle of equity and good conscience.

38. The Patna Full Bench, therefore, is not a direct authority in support of the contention raised by the respondents and the facts of that case are, as we have shown, distinguishable from the facts of the present case. But it is argued for the respondents that although the Patna case does not directly lend support to the contention of the respondents, the proposition for which the respondents contend logically follows from the decision of the Patna High Court. The answer to this is to be found in the following observations of Lord Chancellor (Earl of Halsbury) in the case of Quinn v. Leathem [1901] A.C. 506:

A case is only an authority for what it actually decides and it cannot be quoted for a proposition that would seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.

39. In 1874 in the case of Hursahai Singh v. Lootf Ali Khan [1874] 2 I.A. 28, the Judicial Committee re-affirmed the principle laid down in Lopez's case [1870] 13 M.I.A. 467, in the following words:

The question of law involved in these decisions, which is a very important one, was brought before this Committee, in a case of Lopez v. Muddun Mohun Thakore [1870] 13 M.I.A. 467 in which the principles which should govern cases of this description were very fully discussed and elucidated, with the result that it was laid down by the authority of this Committee that where land which has been submerged re-forms, and can be identified as having formed part of a particular estate, the owner of that estate is entitled to it.

40. In 1876 in the case of Ranee Sarat Sundari Debya v. Soorjya Kant Acharjya [1876] 25 W.R. 242, the Judicial Committee laid down that where land re-forms by alluvion of a site capable of identification, the right of the owner of the original site to the chur is indisputable and that such owner would be entitled to recover the land from a party in possession.

41. In 1877 their Lordships of the Judicial Committee held that the doctrine in Lopez's case [1870] 13 M.I.A. 467 cannot be taken to apply to land in which, by long adverse possession or otherwise, another party has acquired an indefeasible title. See Radha Prosad Singh v. Ram Coomar Singh [1877] 3 Cal. 796. The finding of the lower appellate Court is that with regard to 'ga' Schedule 1 and 3 defendants have not acquired title by reverse possession and as the suit had been instituted within 12 years from the date when the land re-formed, the decision in Radha Prosad Singh v. Ram Coomar Singh [1877] 3 Cal. 796, therefore, does not govern the present case.

42. In the year 1900 their Lordships of the Judicial Committee held that land submerged by the wanderings of a river from its course and afterwards re-emerging in a form capable of being identified does not cease to belong to its original owner. The following observations of Lord Bobertson who delivered the judgment of the Judicial Committee in the case of Sardar Jagjot Singh v. Rani Brijnath Kunwar [1900] 27 Cal. 768, are very significant:

It is perfectly plain that neither the specific provision of the first sub-section nor the general principles of equity and justice lend the slightest support to the pretension of the appellant which is to land that would be gained not from the river but from a neighbour.

43. Applying the observations to the present case it may be said that neither the specific provision of the first Sub-section (1) of Section 4 of the Regulation nor the general principle of equity and justice lends the slightest support to the pretension of the respondent, which is to land that would be gained not from the river but from one's landlord.

44. I am, therefore, clearly of opinion that the second ground urged by the appellant is well founded and should be given effect to. To hold otherwise, i.e., to allow the tenant to retain possession of lands which belong to his landlord would be to allow the tenant to be unjustly enriched.

45. Since we heard this case their Lordships of the Judicial Committee have in the case of Keshava Prasad Singh v. Secretary of State after reviewing all the authorities re-affirmed the principles laid down in Lopez's case [1870] 13 M.I.A. 467. This recent decision of the Judicial Committee lends support, as my learned brother has pointed out, to the view which we take in this case.

46. The third ground urged before us on behalf of the appellant is also well founded and must prevail. It is true that the defendants are also co-proprietors of the estate with the plaintiff. But they have denied plaintiff's title to; the 'ga' Schedule lands as full proprietor. Consequently the plaintiff is entitled to sue for joint possession with the defendants in respect of his share. Mr. Roy for the respondents has argued that there has been no denial of title inasmuch as the defendants are willing to pay rent in acknowledgment of the plaintiff's proprietary title. This really means that plaintiff's title to receive rent is admitted and that his title to receive possession is denied. The ease therefore, does not fall within the principles of the decision of the Judicial Committee in Watson & Co. v. Ram Chund Dutt [1891] 18 Cal. 10. The essential elements of the. decision in Watson's case [1891] 18 Cal. 10 are absent in the present case. The seizure of possession in the present case amounted to an act of reprisal and was committed in defiance of plaintiff's right. The plaintiff was entitled to cultivate the lands if he liked but he was told that he had no right to take possession as his right was only to receive rent. To that extent: there has been a denial of plaintiff's full proprietary right. The defendants have excluded the plaintiff from possession of the disputed lands from the time they re-formed and that they have done in denial of plaintiff's right. There has been exclusive possession coupled with an assertion of hostile title. It would indeed be subversive of the rights of joint owners to held that it is open to-any co-sharer who may appear first on the field to seize possession of any land newly formed by accretion to the joint-estate and hold it to the permanent, exclusion of other co-sharers. This view seems to be in accordance with the decision of this Court in Surendra Narain Sinha v. Hari Mohun Misser [1906] 33 Cal. 1201.

47. For the reasons given above I agree with my learned brother in allowing the appeal with regard to the 'ga' Schedule lands and in holding that plaintiff is entitled to get joint possession with the Defendants Nos. 1 to 4, 6 and 7 to the extent of their share and in dismissing She appeal with regard to the 'kha' Schedule lands.


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