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Sheikh Abdul Huq and ors. Vs. Sheikh Subajan and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.855
AppellantSheikh Abdul Huq and ors.
RespondentSheikh Subajan and ors.
Cases ReferredLopez v. Muddun Mohun Thakoor
Excerpt:
alluvion and diluvion regulation (beng. reg. xi of 1825), section 4, clauses (1) and (2) - gradual accession--gradual accretion--whether accession gradual if not sudden--'gradual accession,' how to be formed--vertical accretion--sudden change in course of river. - .....suit has been decreed, both the courts below finding that they were entitled to the land as a gradual accretion by virtue of the provisions of section 4, sub-section (1) of the bengal alluvion and diluvion regulation 1825 (xi of 1825). the defendants have now appealed to this court.3. for the appellants, dr. ghosh has contended, in the first place, that the plaintiff's case was not one of gradual accretion, but rather a case of reformation in situ to which, as ruled by the judicial committee in lopez v. muddun mohun thakoor 13 m.i.a. 467 : 14 w.r. (p.c.) 11; 5 b.l.r. 521 and ritraj kunwar v. sarfaraz kunwar 32 i.a. 165; 27 a. 655; 15 m.l.j. 349; 2 a.l.j. 623; 7 bom. l.r. 872, 9 c.w.n. 889 2 c.l.j. 185 : 8 o.c. 293 the provisions referred to could have no application. as to this, it.....
Judgment:

Richard Harington, J.

1. I have read the judgment about to be delivered by my learned brother and I agree in it.

Herbert Carnduff, J.

2. In this case, the plaintiffs sued for the recovery of possession of some 4 bighas of land, which they declared had gradually reformed in the derelict beds of the Baghmati in contiguity to their holding on the bank of that river. Their suit has been decreed, both the Courts below finding that they were entitled to the land as a gradual accretion by virtue of the provisions of Section 4, Sub-section (1) of the Bengal Alluvion and Diluvion Regulation 1825 (XI of 1825). The defendants have now appealed to this Court.

3. For the appellants, Dr. Ghosh has contended, in the first place, that the plaintiff's case was not one of gradual accretion, but rather a case of reformation in situ to which, as ruled by the Judicial Committee in Lopez v. Muddun Mohun Thakoor 13 M.I.A. 467 : 14 W.R. (P.C.) 11; 5 B.L.R. 521 and Ritraj Kunwar v. Sarfaraz Kunwar 32 I.A. 165; 27 A. 655; 15 M.L.J. 349; 2 A.L.J. 623; 7 Bom. L.R. 872, 9 C.W.N. 889 2 C.L.J. 185 : 8 O.C. 293 the provisions referred to could have no application. As to this, it is no doubt, true that the word 'reformed' occurs again and again in the plaint with reference to the land in suit; but it is there used, not in conjunction with the phrase in situ or any equivalent thereof, but as indicated above, in connection with the allegation that the laud had 'gradually reformed in contiguity to' the land already held by the plaintiffs. I think, then, that this contention must fail.

4. It seems to me, however, to be otherwise with the remaining contention put forward by the learned Vakil, who argues that, even if the land be held to have been claimed by way of accretion, the accretion established was, on the facts found by the lower Appellate Court, not an acquisition by gradual accession from the recess of the river, such as is contemplated by the first sub-section of Section 4 of the Regulation. On the contrary, Dr. Ghosh submits, the finding is that; there was a sudden change in the course of the river, which brings the case within the scope of the second sub-section and altogether excludes the operation of the first.

5. The first sub-section in question provides that land gained by gradual accession from the recess of a river shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed; while the second sub-section is as follows:

Second. The above rule shall not be considered applicable to cases in which a river, by a sudden change of its course, may break through and intersect an estate, without any gradual encroachment, or may by the violence of its stream, separate a considerable piece of land from one estate, and join it to another estate, without destroying the identity, and preventing the recognition, of the land so removed. In such cases, the land, on being clearly recognised, shall remain the property of its original owner.

6. Now the judgment of the learned District Judge in the Court of Appeal below is, perhaps, not as clear as it might be; but I think there can be no doubt as to the facts found by him. They are these.

7. Formerly, the Baghmati flowed in a single stream past the plaintiff's holding but, during the floods of 1900 it bifurcated into two streams, of which the smaller continued to run in the old channel, while the larger and main stream followed a new line farther west. The whole of the original river-bed, therefore, did not suddenly become dry, and was not at once abandoned entirely by the river. The stream in it, however, was, in one season, reduced to less than half its former volume, and during the next three seasons, it became smaller and smaller, the water receding more and more, with the result that, by the end of that period, the 4 bighas in suit were added to the plaintiff's holding.

8. This addition the learned District Judge has, it is true, described and held to be 'gradual,' and the respondent's contention is that there is here a finding of fact which is conclusive on second appeal. But both the District Judge and the Munsif in the first Court seem to me to have proceeded on the erroneous assumption that whatever was not sudden was gradual, and to have failed to. appreciate the point that, as was explained by Stanley, C.J., and Knox, J., in Narendra Bahadur Singh v. Achhaibar Shukul 28 A. 647; 3 A.L.J. 453; A.W.N. (1906) 169 an accretion, to be 'gradual' within the meaning of the law, must be by gradual, slow and imperceptible means so as to render identification practically impossible. The only imperceptible accretion found by the learned District Judge to have occurred in this instance is the deposit of silt during the season of flood, which, no doubt, could not be perceived because it took place under water but it is obvious that what may be called a vertical accretion such as this does not fall within the scope of the Regulation. And it appears to me that the substantial addition which, on the facts found, must have accrued by the sudden change in the course of the river in the year 1900, falls within the purview, not of the first but of the second sub-section of Section 4 of the Regulation. Nor to my mind, does the fact that this substantial and sudden addition was more or less gradually increased during the three succeeding years, bring the case under the first sub-section. There can, indeed, be no doubt, on the facts found, but that the accession occurred in the main in 1900, that the added area is readily identifiable as being part of the original bed of the river, and that the difficulty did not here arise of determining, as James, L.J. put it in Lopez v. Muddun Mohun Thakoor 13 M.I.A. 467 : 14 W.R. (P.C.) 11; 5 B.L.R. 521 'Year by year to whom an inch, or a foot, or a yard belonged.'

9. In the view, then, which I take of the case, this appeal should be allowed and the respondents' suit dismissed with costs throughout.


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