Chatterjea and Cuming, JJ.
1. This appeal arises out of a suit for rent. The lands in respect of which the rent was claimed were accretions to a howla tenure held by the defendants under the plaintiff. The accreted lands were constituted a separate estate by the deara authorities, and also recorded as separate tenures of the defendants in the settlement khewats.
2. The defence inter alia was that no suit for rent was maintainable in respect of the accreted lands separately from that of the howla tenure. The Court of appeal below has held that it can be maintained and the defendants have appealed to this Court.
3. The appellants relied upon the cases of Golam Ali v. Kali Krishna Thakur (1881) I.L.R. 7 Calc. 479, and Assanullah Bahadur v. Mohini Mohan Das (1889) I.L.R. 26 Calc. 739. But in the first case all that was held was that the accreted land should be governed by the terms and the conditions applicable to the parent tenure, and that the same rent was payable for it as the land included in the kabuliat. The Government had not assessed the revenue of the accreted land in that case and there was no question whether the accreted lands formed a separate tenure. In the second case however the question was raised and it was held that the rent of the additional lands cannot be recovered separately from the original part of the tenure.
4. Now Section 4, Clause (1) of the Regulation XI of 1825 provides that in the case of a gradual accretion it shall be considered as an increment to the tenure of the person to whose land it is accreted but shall not exempt such person from the payment of any increase of rent to which he may be justly liable. Land accreted to a rent free tenure is therefore liable to payment of rent though the tenure to which it is accreted may be rent free. The rate of rent of land accreted to a rent paying tenure may not be the same as that of the original tenure having regard to the quality of land. Then again, where the proprietor of an estate declines to take settlement from the Government, the accreted portion must be settled with some other person, and such other person must necessarily bring a separate suit for rent for the accreted land held by the tenant. Again when the proprietor takes a settlement from the Government of the accreted portion as a separate estate, which he is entitled to do under Section 2 of Act XXXI of 1858, and such estate is sold away to a third person such person would certainly be entitled to maintain a separate suit for rent for the accreted portion. These considerations are sufficient to show the difficulty of affirming a general proposition that in no case can a separate suit for rent be maintained for the accreted lands.
5. In the case of Muktakeshi Dasi v. Srinath Das (1914) 19 C.L.J. 614, certain lands formed by gradual accretion by recession of a river was resumed by the Government and settled with the plaintiff. The land was held by the defendant under a lease granted to him by the plaintiff, who, was a co-sharer to the extent of two-thirds share, and her co-sharers. It was held that in respect of the two-thirds share, the plaintiff was bound by the terms of the contract, that is, she was entitled to realize rent at the rate mentioned in the lease, and in respect of the remaining one-third she was in the position of a stranger and was entitled to realize rent at the rate assessed by the settlement authorities as payable by the under-tenure holder of the original estate. The cases of Assanullah v. Mohini Mohan Das (1889) I.L.R. 26 Calc. 739 and Pria Nath Das v. Ramtaran Chatterjee (1903) I.L.R. 30 Calc. 811, were distinguished on the ground that in these cases the settlement was with the original proprietors. A contention was raised that the co-sharers of the plaintiff were necessary parties to the litigation. But the learned Judges overruled it on the ground that the land in respect of which settlement was made by the Government formed a separate tenure.
6. In all the cases cited above, the accreted land already formed part of the tenure held by the tenant under the landlord. In the present case the accreted lands were formed subsequent to the creation of the parent howla tenure. They ware not only constituted a separate estate between the Government and the proprietor, but the Court of appeal below finds that the deara lands were separated and formed into new tenancies' recorded in the settlement khewats. The plaintiff had previously sued for and obtained a decree for rent in respect of the parent howla tenure separately. The parties therefore treated the accreted lauds as separate tenures. In these circumstances we think that the Court below was right in holding that a separate suit for rent for the accreted lands is maintainable.
7. The appeal is accordingly dismissed with costs.