B.K. Mukherjea, J.
1. This appeal is on behalf of the plaintiff and it arises out of a suit commenced by him to recover khas possession of the lands in suit on establishment of his title to the same. The case of the plaintiff in substance was that three plots of land situated in village Kanehan, which were recorded as Order Section Plots Nos. 2897, 2898 and 5045 belonged to the plaintiff in raiyati right. Plot Nos. 2898 and 5045 appertain to touzi No. 379 of the Dacca Collectorate of which Babu Kishori Mohan Poddar was the sole proprietor. Kishori Mohan having been declared an insolvent his estate was in the hands of Receivers who were defendants 19 and 20 in the suit. As regards plot No. 2897 Kishori Babu was the proprietor to the extent of three annas and odd gandas share and the balance appertained to another touzi which belonged to defendants 1 and 2. At the time of the settlement, operations the river Lakhya flowed by the west of the suit lands. The river gradually receded and the disputed chars were formed in the river as accretions to the plaintiff's raiyati jote. The plaintiff possessed these chars for five or six years and grew crops in them but was dispossessed by defendants 1 and 2 which led to the institution of the present suit. Defendants 1 and 2, it was alleged, had wrongfully cut a khal or ditch on the raiyati lands of the plaintiff with a view to show that the disputed chars were separate from the asli lands and could not be regarded as accretions thereto. The suit was contested by defendants 1 and 2. Their defence was, that the lands in suit were not accretions to the plaintiff's holding, but constituted an island char formed on the bed Of the river Lakhya and as there was a non-fordable channel to the east of the lands, the char was at the disposal of the Government. It was further alleged that there was a pathway to the further east of the channel separating the disputed chars from the plaintiff's raiyati lands. The suit according to these defendants was brought at the instance of the Receivers to the estate of Kishori Mohan Poddar between whom and these defendants there were long and bitter quarrels.
2. The trial Court dismissed the suit and this decision was affirmed in appeal by the Additional District Judge of Dacca. Both the Courts below have held that the lands in suit were not gained by gradual accession from the recess of the river but were an island char thrown upon its bed. Both the Courts were of the opinion that the channel between this new formation and the shore was fordable. The trial Court held that in spite of the channel being fordable the plaintiff could not lay claim to the chars under Section 4, Clause (3), Para. 2 of Regulation 11 of 1825, as, under that clause, rights could be acquired only by the proprietor of an estate and not by any subordinate tenure holder. The lower appellate Court did not discuss this question of law, being of opinion that as the plaintiff did not make any case under Section 4, Clause (3) of the Regulation the matter did not arise for consideration at all. It is against this decision that the present second appeal has been preferred. Mr. Das who appears in support of the appeal has contended before us that on the findings of fact arrived at by both the Courts below they should have held that the plaintiff acquired a title to the disputed lands under Section 4, ol. (3) para. 2 of Regn. 11 of 1825 and that the lower appellate Court was wrong in refusing to go into the question on the ground that it was not expressly raised in the pleadings. Mr. Chakravarti who appears for the respondents has argued on the other hand that no rights could be acquired by a subordinate tenure holder under Section 4, Clause (3) para. 2 of the Alluvion and Diluvion Regulation. He has further argued that there was no foundation for a case like this either in the plaint presented by the plaintiff or in the evidence adduced by him and that at any rate there were no proper findings come to by either of the Courts below upon which relief under Clause (3) of Section 4 of the Regulation could be given.
3. The first and the main point for our consideration is whether under Section 4, Clause (3), para. 2 of Regn. 11 of 1825 a char thrown up on the bed of a large and navigable river the channel between which and the main land, is fordable at any season of the year can be claimed as an accretion to his tenure by a subordinate tenant who holds the adjoining estate or tenure not directly under the Crown bat under some zemindar or other superior landholder. Now, under Section 4, Clause (1) of the Regulation what is gained by gradual accession becomes the property of him to whose lands the recess of the river or the sea has annexed it. It is immaterial whether the adjoining owner is a zemindar or a superior landholder or a subordinate tenant. Every person from the zamindar or other actual proprietor of the soil down to every description of tenant is entitled to the increment by gradual accession. This has been made clear by the express words of the clause which says that '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 he held immediately from Government by a zamindar or other superior landholder or as a subordinate tenure of any description of under tenant whatever.' The proviso added to this clause further lays down that the terms and conditions of the original tenure would apply to the increment. If the original tenure was a proprietary estate the holder of it will possess the accreted lands as proprietor liable to be assessed with fresh revenue for the same. On the other hand, if the new formation adheres to the tenure or holding of a subordinate tenant he will not be exempted from payment of additional rent for the additional area. Clause (3) of Section 4 deals with island chars thrown up in a big navigable river the bed of which is not the property of an individual. Under the English law an island rising up in a tidal and navigable river prima facie belongs to the Crown. A subject may acquire title to the island arising in tidal waters where the bed and the soil of the tidal river were in the subject before the island arose. Thus under the law of England the title to such an island is regarded as an incident of the ownership of the bid. The Indian Law, it seems, follows the same principle subject to the doctrine of fordable channel which is peculiar to it. Where an island is formed on the bed of a navigable river which is a part of the public territory, Clause (3) of Section 4 of the Regulation lays down that it would be at the disposal of the Government provided the channel between the island and the shore is not fordable. If, on the other hand, the intervening channel is fordable at any season of the year, it shall be considered an accession to the land tenure or tenures, of the person or persons whose estate or estates may be most contiguous to it subject to the special provisions specified in the Clause 1 of the section. The question before us is whether the words 'whose estate or estates may be most contiguous' indicate that the right to such island can be claimed only by the zamindar or the actual proprietor of an estate and not by any species of subordinate tenant who holds lands under such zamindar. It will be seen that the wording of the operative portion of Clause (3), para. 2 follows closely that of Clause (1) except that the explanatory provision beginning with the words 'where such land or estate be held immediately from Government etc.,' which occurs in Clause (1) does not find a place in this part of Clause (3).
4. Mr. Chakravarti argues that this is a deliberate omission and shows conclusively that the Legislature did not intend that the word 'estate' as used in Clause (3) should have the same wide interpretation as it bears in Clause (1). I do not think that this contention is right. It is an established rule of construction that the same word should not be interpreted in two different ways in the same section. The words occurring in Clause (1) referred to above are in the nature of an explanatory gloss which is inserted to remove any doubt that may arise as regards the proper meaning to be attached to the word estate or tenure. It appears from the language of Clause (1) of Section 4 itself that the words 'tenure' and 'estate' have been used not merely as connoting different modes of holding property but as referring to the land or the property itself which is held by a proprietor or the different classes of tenants. In fact, the words 'estate' 'tenure' and 'land' have been used as synonymous expressions. In my opinion, having once explained in Clause (1) of the section as to how the word estate should be interpreted it was not necessary for the Legislature to put in the same explanation in another part of the same section and the obvious inference is that the word was intended to bear the same meaning in both the two clauses. This view is fortified by the fact that I in Clause (3), para. 2 of Section 4 an island with a fordable channel has to be regarded as an 'accession' to the land or tenure of the person whose estate is most contiguous to it.
5. The word 'accession' suggests the idea of adherence to some particular land which may be termed the nucleus of accretion. If the nucleus itself is held in the right of a tenant, it stands to reason that the land added to it must also be held in the same right. Moreover, an island that is formed on the bed of a large and navigable river as contemplated by Clause (3) is a gain from public domain and there is absolutely no reason why the proprietor of an adjoining estate who has no rights of ownership in the river bed should be given the sole right to such newly formed lands. Different considerations undoubtedly arise when the ownership of the river bed is in the adjacent proprietor and such cases are dealt with not by Clause (3) but by Clause (4) of Section 4.
6. Mr. Chakravarti may be right in his contention that the words 'subject to the special provisions specified in Clause (1) of this section,' upon which Mr. Das lays so much stress do not by themselves attract the operation of the substantive part of Clause (1). A similar expression occurs in Clause (4) and it has been held in such oases that the word 'provisions' refers not to the substantive part but to the provisos attached to Clause (1) : Prokash Chandra Sil v. Abdul Jabbar : AIR1935Cal711 and Naku Sheik v. Harish Chandra : AIR1934Cal411 . But as I have already pointed out there is nothing in Clause (3). para. 2 which would go to show that the right to such an island char vests on the proprietor alone. Mr. Chakravarti has in this connection drawn our attention to the provisions of Section 2 of Bengal Act 31 of 1858 (the Bengal Alluvion Land Settlement Act). Section 1 of the Act provides that in case of land added by alluvial accession to an estate paying revenue to Government, the revenue assessed upon the alluvial lands may be added to the jama of the original estate by an agreement between the proprietor and the Revenue authorities; and if there is no such agreement or if the Revenue authorities decide otherwise it may be settled as a separate estate with a separate jama. Section 2 then lays down that nothing in the preceding section shall affect the rights of an under tenant in any alluvial land under the provisions of Clause (1), Section 4, Regulation 11 of 1825. Mr. Chakravarti argues that this section protects the rights of undertenants under Clause (1) of Section 4 of Regulation 11 of 1825 and if under-tenants had any rights under Clause (3) they would certainly have been mentioned in the section. This argument does not impress me much. A mere omission in a later Act cannot take away a right created by an earlier statute. I think further that it was not necessary to refer to Clause (3), Section 4 of Regulation 11 of 1825 in Section 2, Bengal Alluvion Land Settlement Act. Section 1 of this Act contemplates only alluvial accessions which are dealt with under Clause (1) of Section 4 of Regulation 11 of 1825 and it does not speak of any island char formed on the bed of a river. It is true that island chars with fordable channels are assessed to revenue in the same way as alluvial accretions but that is because they are regarded as accessions by reason of the express words used in Clause (3), Para. 2 of Section 4. My conclusion, therefore, is that the plaintiff who is an occupancy raiyat is entitled to the disputed lands if they are found to be island chars most contiguous to his holding and if the intervening channel between the new formation and the main land is fordable.
7. The next question for our consideration is whether having regard to the case made by the plaintiff and the findings arrived at by the Courts below he should be given a decree for possession of the disputed chars under the provisions of Section 4, Clause (3) para. 2 of Regulation, 11 of 1825. The plaintiff undoubtedly did not make a case under Clause (3), Section 4 of the Regulation. His case expressly was that the disputed lands were gradual accretions to his holding and he acquired a right to them under Clause (1) of Section 4. Defendants 1 and 2, however, expressly pleaded in their written statement that the land in suit was an island char thrown up on the bed of the river Lakhya and that it was the property of the Government. These defendants, it was said, had taken possession of the lands in anticipation of taking settlement from the Government. On these pleadings issue 5 was framed which was worded as follows : 'Is the newly formed char accretion to C.S. Dags Nos. 2897, 2898, 5045 as alleged in the plaint or an 'Island char' as alleged by the defendants.?' Thus, it would appear that though the plaintiff did not make a case under Section 4, Clause (3) of the Regulation, the defendants attempted to show that the case was governed by para. 1 of Clause (3) of Section 4 and evidence was adduced by both sides at the time of the trial not only on the point as to whether the land was an island char but also whether the intervening channel was fordable or not. The evidence adduced by the parties has been referred to in the judgments of both the Courts below and the trial Court discussed at some lengths the question of law as to whether taking the channel to be fordable the plaintiff could claim a right to the char under Section 4, Clause (3) para. 2. In these circumstances it seems to us that the variation between proof and pleading is not material in this case and it cannot be said that the defendants were in any way taken by surprise. The appellate Court, in my opinion, was not right in refusing to go into the question simply because this was not the specific case raised by the plaintiff in his plaint. Mr. Chakravarty has further attacked the finding arrived at by the Courts below that the intervening channel between the disputed char and the main land was fordable and his contention is that in coming to this finding the Courts below did not advert to or consider the essential elements necessary to constitute fordability. Under Clause (3) of Section 4 it is enough if the channel is fordable at any season of the year and the word 'year' presumably refers to the year in which the formation of the island took place; vide the observations of Jackson J. in Budurunnisa v. Prosanna Coomar ('70) 14 W.R. 25. The trial Court found that the channel was fordable at the dry season of the year in which it was formed. The Court relied upon the evidence of D.W. 3 Hafijuddi Dafadar who said that he saw men going from plaintiff's asli lands to the char on foot since the time of its formation. Kailash Chakravarty, another witness of the defendants, also said that in Magh or Falgoon every year the water in the Kolegang dried up. The channel, therefore, could be crossed on foot during the dry season of the very year in which the char was formed and there is nothing in the evidence to suggest that the men who crossed the channel were not men of average height or that the channel was crossed only in a zigzag manner. The Additional District Judge sums up his conclusion on this question in the following manner:
On considering the long and voluminous evidence on behalf of the defendants the impression presses itself upon my mind that the char was separated from the main land by a channel which was fordable.
8. We do not think that the Courts below misdirected themselves on any point of law in coming to the finding that the channel was fordable. A further point was taken by Mr. Chakravarty that there was a tow path between the channel and the plaintiff's land and consequently the holding could not be said to be most contiguous to the disputed char. But the finding is that it was neither a regular nor a public pathway. It may be that it was a part of the plaintiff's raiyati land and was used by boatmen during rainy season for the purpose of towing boats. In our opinion, on the facts found by the Courts below the plaintiff is entitled to a decree for possession of the disputed lands. The result is that the appeal is allowed. The judgments and decrees of the Courts below are set aside and the plaintiff's prayer for recovery of possession of the lands in suit is allowed. As the Government is not made a party to the present proceeding its right would not in any way be affected by this decision and we also do not decide any thing as to the relative rights of the rival zemindars who have superior interest over plaintiff's raiyati lands. As the plaintiff did not make a clear case in his plaint we do not allow him any costs. Each party will bear his own costs in all the three Courts.
9. I agree.