1. This appeal has arisen out of a suit for declaration of plaintiffs' title to land which had accreted to their holding, for ejectment of the defendants from the same, and for recovery of mesne profits and damages. The plaintiffs obtained settlement of C. Section Dag No. 471 and a portion of Dag No. 465, and later on a bigha of land accreted to this land and they were in possession of this accretion when (they alleged) the defendants dispossessed them from the land of Sen. (kha) of the plaint. The contesting defendants maintain that they obtained settlement of the land of this schedule of the plaint from the Zemindars. The plaintiffs claim settlement from the Dar-patnidar under the same zamindar. The trial Court decreed the suit in part dismissing the plaintiffs' claim to the accreted land and also the claim for mesne profits and damages. The lower appellate Court decreed the suit in its entirety. Hence this second appeal by the defendants.
2. The land in suit was originally in the bed of the river Ichamati and accreted therefrom to the holding of the plaintiff. The question at issue in this appeal is whether the plaintiffs have a right to the accretion under Regn. 11 of 1825. The findings of the lower appellate Court are somewhat confusing in that the learned Subordinate Judge found that the river Ichamati was a big navigable river at the time of the Permanent Settlement. At the same time he finds that the land in suit accreted from its bed was included within Mauza Gangkul, the estate of the defendants' landlord, although no revenue was assessed upon it. Subsequently after the formation of the land, Dearah settlement took place by which a separate estate was created and settled with the defendants' landlord. The question of right to the accretion depends upon the interpretation of Clause 4, Section 4, Regulation 11 of 1825.
3. The appellants rely upon two recent rulings of this Court, viz , Rahimaddhi Mattabbar v. Naimaddi Howladar : AIR1927Cal565 and Badulla Howladar v. Aminaddi Choukidar : AIR1932Cal507 , in which it has been held that Clause 1, Section 4, Regn. 11 of 1825 applies to accretions to public domain only. Therefore in the present case on the finding of the Court below that the bed of the river belonged to the estate of the landlord the plaintiffs would not be entitled to jote right in the land under the provisions of Regn. 11 of 1825. This view results from the interpretation of the regulation made by their Lordships of the Privy Council in the case of Felix Lopez v. Muddun Mohan Thakoor (1869) 13 M I A 467. Clause 4, Section 4 is as follows:
In small and shallow rivers, the beds of which, with the Jalkar right of fishery, may have been heretofore recognized as the property of individuals, any sand-bank or chur, that may be thrown up, shall, as hitherto, belong to the proprietor of the bed of the river, subject to the provision stated in the first clause of the present section.
4. Clause 1, Section 4 runs thus:
When land may be gained by gradual acoes-sion, whether from the recess of a river or of the sea, 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 be held immediately from Government by a zamindar or other superior land-holder, or as a subordinate tenure, by any description of undertenant whatever.
5. Their Lordships' opinion was that:
When the words are looked at, not merely of that clause, but of the whole Regulation, it is quite obvious that what the then legislative authority was dealing with, was the gain which an individual proprietor might make in this way from that which was part of the public territory, the public domain not usable in the ordinary sense, that is to say the sea belonging to the State, a public river belonging to the State; this was a gift to an individual whose estate lay upon the river or lay upon the sea.
6. Adopting that interpretation, it is clear that in the present case where it has been found that the land already belonged to the estate of the zamindar the regulation would have no application. The zamindar has the proprietary right in the land. He was entitled to khas possession of the land as soon as it formed from the river and therefore was entitled to settle it with the defendants. The lower appellate Court followed the view of a Full Bench of the Patna High Court in Khubi Mahton v. Lachmi Das A I R 1922 Pat 588. In that case the learned Judges of the Patna High Court distinguished the Privy Council case on the ground that it was one between neighbouring landlords and not between tenants of the same landlord or a case like the present one, where the tenants on one side hold under the Darpatnidar and on the other under the zamindar direct. Although in my opinion, the view adopted by their Lordships of the Patna High Court appears to be in accordance with the term a of Clause (1), Section (4) of the Regulation, that view cannot be reconciled with the interpretation given to the Regulation by their lordships of the Privy Council, in the case already referred to. The-fact that that case was between neighbouring zamindars and the present case-is between the tenants under the same-landlord, does not alter the effect of their Lordships' decision that Regn. 11 of 1825 only applies when the land is under the public domain. In the Patna case some rulings of this Court were referred to which appeared to support their view. But in the most important of these it is not clear that the bed of the river was private land. We prefer to follow the view adopted in the recent decisions of this Court, viz., Bahimad-dhi Matabbar v. Naimaddi Howladar : AIR1927Cal565 and Badulla Howladar v. Aminaddi-Chaukidar : AIR1932Cal507 .
7. It is not necessary to go into this matter in detail as in these cases the matter has been discussed at length. It has been suggested on behalf of the respondents that on the finding that the-river was a big navigable river at the time of the Permanent Settlement, we-should assume that the land did not belong to the zamindar's estate. But the finding that it actually did belong to the zamindar's estate is a finding of fact which we are bound to accept in second appeal. The trial Court points cut that if it was not included within the zamindar's permanently settled estate his co-sharers would not have got Malikana at the time of the Dearah settlement from the Government.
8. The learned Subordinate Judge in appeal seems to think that there is no con-flict between the opinion of the learned Judges of this Court in the case of Bahimaddhi v. Naimaddi : AIR1927Cal565 and that of the learned Judges of the Patna High Court in Khubi Mahton v. Lachmi Das (1869) 13 M I A 467. But it is quite clear that the view taken in the Patna case is quite contrary to that adopted in the recent rulings of this Court.
9. The evidence seems to show that the-river was not a navigable river inasmuch as it was fordable, at any rate, during certain parts of the year (as-shown in Hunter's Report)' as long ago as 1880 and has been gradually silting up. It is clear therefore that the plaintiffs are not entitled to the accreted land under the provisions of Regn. 11 of 1825. This appeal is therefore allowed, the decree of the lower appellate Court is set aside and that of the trial Court restored and affirmed. We make no order as to costs in this appeal.
10. I agree.