1. The only question for decision in these second appeals is whether the first part of Section 1 of Regulation XI of 1825 applies to land forming from the bed of a small and shallow river where bed is recognized as the property of an individual. The learned Munsif found that it did; in appeal the learned Subordinate Judge has expressed the contrary opinion.
2. The form in which the question presents itself in the present case is that the appellants are the owners of occupancy holdings to which holdings the disputed land has accreted: the respondents are lessees of the zemindar to whom the bed of the river belongs. It is important to notice that the appellants do not pretend that the land in dispute was at any time part of their holdings before its recent emergence. The principle, then which applies to the case is the same as that which would apply in a contest between the 'recognized proprietor' of the bed of the river on the one hand and a different riparian proprietor.
3. For the answer to the present question it is not really necessary to go further than to the judgment of their Lordships of 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 : 2 Suth. P.C.J. 336 : 2 Sar. P.C.J. 594 : 20 E.R. 625. Bearing in mind what was then said, it is hard to see why a zemindar who holds the bed of a river embordered by any Subordinate tenure should be deprived of the full enjoyment of his property when the land in question emerges from the river.
4. The distinction in respect to the application of Regulation XI of 1825 between small and shallow rivers, such as are dealt with in Section 4 and rivers not small and shallow where the ownership of individuals in the beds has not been recognized was pointed out in Chunder Monee Chawdhrani v. Sreemuttee Chowdhurani 4 W.R. 54. In Jugdish Chunder Biswas v. Chowdhury Zuhoorul Huq 24 W.R. 317, Mark by, J., observed: 'If it be decided that it 'the bed of a river' was the property of a private individual.... then there is an end of the matter, because in that case the Regulation XI of 1825 has no application at all.' The same view was expressed by Holmwood and Chapman, JJ., in Ramjan Ali v. Maharam Ali Khondkar 26 Ind. Cas. 406.
5. But the latter decision was dissented from by Fletcher, J., (Huda, J., concurring) in Gobinda Hota v. Kristapada Singha Babu 45 Ind. Cas. 929. With all respect to the learned Judges we are not, however, pressed by this decision. The earlier cases I have mentioned were not referred to and it proceeded upon the footing that the decision in Ramjan Ali v. Maharam Ali Khondkar 26 Ind. Cas. 406 was opposed to the view taken by a Full Bench of this Court in Gourhari Kaibuto v. Bhola Kaiburto 21 C. 233 : 10 Ind. Dec. (N.S.) 787. But there is nothing in the report to indicate that the latter case related to land formed in a 'small and shallow river', nor does this condition appear to have been present in any of the earlier decisions the correctness of which was affirmed. The judgment proceeds upon the assumption that Regulation XI of 1825 applied to the land in suit and on that assumption decided that an occupancy raiyat was entitled to share in the benefits which Section (1) provides. It does not purport to decide to what land the Regulation does or does not apply.
6. In my opinion the decision of the learned Subordinate Judge is correct and these appeals must be dismissed with costs.
7. I agree.