1. This second appeal arises out of a suit brought by the plaintiff for recovery of a plot of land on the allegation that he had bought it from the Dacca Municipality in the year 1903, and that he had been dispossessed by the defendants.
2. It is found as a fact that it was part of the bed of a channel known as Dholai Khal, which vested in the Municipality under Section 6 of Act VII B.C. of 1870,
3. The only point of law, therefore, which can be argued and which has been argued before us, is that the vesting of the channel in the Municipality does not include the bed of the channel and that when the bed dries up, it belongs to no body and that the plaintiff cannot succeed because he cannot establish the title of his vendor. Now it seems to us that there is no force in this contention. The khals and drains and water-courses within the town vest in the Municipality because, firstly, it is necessary for them to collect revenue from tolls and ferries thereof, and, secondly, it is necessary for sanitary purposes that the flow of the water should be under Municipal control. For unless the Municipality have control of the bed, in other words, unless the bed of the Khal is vested in the Municipality, it would be impossible for them to preserve the existence of the khal or drain. It is perfectly clear in the case of pucca drain that the bed becomes the permanent property of the Municipality, and it does not seem to us that because an open khal is liable to vary its bed to a certain extent, that the right of the Municipality in the bed can be got rid of otherwise than by holding, as the Act says, that it is private property. On the findings of fact of the Subordinate Judge, it is clear, that the Municipality have acquired, a title to this land and that the plaintiff has derived a good title.
4. As regards the second point of limitation, we think that the learned Subordinate Judge has dealt with the matter correctly. The piece of land was vacant. It was unfit for use for the purposes of the Municipality although the adjoining land, which would be equally according to the appellant outside the Municipal property, has been used by them for a septic tank and other purposes, and we agree with the Subordinate Judge that the mere throwing of rubbish or refuse on the land by the defendants would not operate as adverse possession either against the plaintiff or his vendors.
5. The result is that the appeal is dismissed with costs.