Asutosh Mookerjee, Acting C.J.
1. This is an appeal on behalf of the defendants in a suit for recovery of possession of land on declaration of title. The subject-matter of the litigation is a chur thrown up in the river Pasar in the District of Khulna. The case for the plaintiff was that he had obtained settlement from the superior landlord and had been wrongfully dispossessed by the defendants, The defendants pleaded that they had a good title by accretion. The Courts below have decreed the suit and overruled the defence on the ground that although when the chur began to form, the defendants had a right by accretion, they lost it, because they never claimed it, and allowed the plaintiff to occupy the land. In our opinion, this view is erroneous in law and the decree made by the District Judge cannot be supported.
2. Section 4 of Regulation XI of 1825 shows that when land is gained by gradual accession, whether from the recess of a river or of the sea, it forthwith becomes an increment to the tenure of the person to whose land or estate it is annexed; and if it is annexed to a subordinate tenure held under a superior landholder, the under-tenant becomes liable for the payment of any increase of rent to which he may be justly liable. Consequently as soon as the lands accreted and became attached to the holdings of the defendants, their title accrued, and it was not necessary for them to make an assertion of such statutory title by accretion. The remedy of the landlord was to assess rent on the accreted lands. Consequently the superior landlord was not competent to create a valid title in the plaintiff by the lease granted on the 11th April 1905 It has not been found that the landlord had at that time acquired a title by adverse possession against the defendants to whose holdings the lands bad accreted. It follows that in respect of such portion of the lands as had accreted to the holdings of the defendants, it was not competent to the landlord to make settlement with the plaintiff. There is thus no escape from the conclusion that the decree made by the District Judge for the ejectment of the defendants, who were in possession at the date of the suit, cannot be supported and the case must be remitted to the Court of first instance for the trial of one question only. The Court will determine whether all or any portion of the disputed lands accreted to the holdings of the defendants. The plaintiff will not be entitled to succeed in respect of such portion of the lands as had accreted to the holdings of the defendants, but he will have a decree for such portion, if any, as may not have accreted to the holdings of the defendants. Cost will abide the result.
Ernest Fletcher, J.
3. I agree.