1. (After stating the facts his Lordship proceeded.) The substance of: the plaintiffs' claim was that Ali Hossain or Abdul Karitn Choudhuri did not take the settlement of the lands of Soh. 1 or possess or pay rent for the same, but that Gholam Ali took it in their names; that if this benami nature of the transaction was not proved, then the Government had no right to settle the said lands with Ali Hossain or Abdul Karim Choudhuri as the lands were accretion to the lands of Schedules 2 and 3 of which Gholarn Ali had already obtained settlement in 1901-02 and 1904-05 respectively; and that the plaintiff having acquired Gholam Ali's interest in the original holding as wall as the Schedules 2 and 3 lands, his title to the lands of Schedule 1 should also be declared and his possession therein confirmed.
2. The plaintiff and defendant 12, Abdul Karim Choudhuri, settled the dispute between them on compromise. The defence of the heirs of Ali Hossain was, besides a denial of the plaintiff's title under his purchase, that; Gholam Ali did not take the settlement of the disputed lands in the name of Ali Hossain, that Ali Hossain had taken settlement from Government on his own account and had been in possession for upwards of 20 years. The position taken up by the Secretary of State was that the lands of Schedule 1 were accretion to those of Schedule 3 which again were accretions to the lands of Schedule 2, but that, when the lands of Schedules 2 and 3 were settled, the settlements were not made of all the lands that had accreted, but because an intervening strip of land between the lands settled and the river was left unsettled, Gholam Ali was not entitled to have the settlement of the land of Schedule 1, and consequently the plaintiffs had no title to the same.
3. The Munsif decreed the suit. Prom this decision appeals were preferred by some of the heirs of Ali Hossain and by the Secretary of State for India in Council. The Subordinate Judge who lealt with the appeals, allowed the same, and reversing the Munsif's decision dismissed the suit. The plaintiffs have thereupon appealed to this Court.
4. The Subordinate Judge, has, in effect, upheld the contention of the Government, and held that because in the settlements of 1901-02 and 1904-05 all the lands up to the river had not been settled with Gholam Ali, but a strip of land by the side of the river was left unsettled, Gholam Ali was not entitled to claim the lands of Schedule 1 as accretions 2 and 3. He has also held that the suit is barred as being governed by Article 45, Limitation Act. Both these grounds have been challenged before us as unsound.
5. So far as the question of limitation is concerned, it appears from the written statement filed on behalf of the heirs of Ali Hossain that the limitation pleaded therein was 12 years from the date of the auction-sale, or three years from the date of the settlement with Ali Hossain or two years from Ali Hossain's taking possession. The only case as to limitation that appears to have been sought to be made out in the trial Court was Article 142 or Article 144 of the Limitation Act, and the finding of that Court on this question was:
the statement of the defendant 4 and those of his witnesses regarding the alleged possession of the disputed land for 20 or 25 years is absolutely unreliable...It is sufficiently clear from the evidence that the plaintiffs are in possession of the land for five or six years, From all these facts and circumstances of the case I hold that the suit is not barred by limitation
6. These findings do not appear to have been challenged before the appellate Court. At any rate they have not been reversed by that Court. The foundation of a case as to limitation tinder Article 45 was laid in the written statement, but it is conceded that there are absolutely no materials on which such a case may be supported. It is well settled that the 'award' contemplate, by Article 45 Limitation Act, presupposes a contest, between the parties and a decision after proper investigation into the points at issue: see Nubo Kishen Roy v. Gobind Chunder Sein 6 W.R. 817; Radha Pershad Singh v. Ram Jeewan Singh 11 W.R. 389; and Kristo Moni Gupta v. Secretary of State (1899) 3 C.W.N. 99. There is nothing to indicate in the present case that there was any contest or a decision on any investigation. Moreover, as pointed out in the case of Midnapur Zamindari Co. Ltd. v. Naresh Narain Roy A.I.R. 1922 Cal. 345, there was no necessity for the-plaintiff in a case like this to sue to set aside the award, if any, by the revenue authorities. The object of the present suit being that the plaintiffs may be confirmed in their possession of the lands, if they succeed in it the settlement made by the revenue authorities, in so far as it determines the amount of the revenue payable in respect of the disputed property, will in no way be affected, the only result being that the plaintiffs will, in that case, obtain the benefit of the settlement which Ali Hossain obtained from the Government. The decision of the Subordinate Judge on the question of limitation cannot be upheld.
7. On the question of Gholam Ali's title to the lands of Schedule 1 also, the view taken by the learned Judge, in my opinion, is erroneous. The true view of the law of alluvion (Section 4 of Regulation 11, 1825) is that
physically laud is added to land; in point of right, the right to the new land is accretio to the right to the old; per Rankin. J., in Saudamini Dassya v. Secretary of State : AIR1924Cal197 .
8. The fact that no settlement of revenue is made of a portion such as there was in the present case, cannot affect this accretio to the rights, unless any question of limitation or adverse possession arises. In the present case there was no refusal to take settlement on the part of Gholam Ali or of the plaintiff or his vendor or an abandonment of proprietary rights in lieu of malikhana such as arose in the case of Saudamini Dassya v. Secretary of State : AIR1924Cal197 . Gholam Ali was, therefore, entitled to the lands of Schedule. 1 as soon as they accreted and the plaintiff too was similarly entitled. In my judgment the Subordinate Judge's decision cannot be supported. The appeal must, therefore, be allowed, the judgment of the Subordinate Judge set aside and that of the trial Court restored with costs of this Court as well as of the lower appellate Court.
9. I agree.