1. This is an appeal by the defendant No. 1 against the decision of the learned District Judge of Bankura, reversing the decision of the Munsif of Khatra. The plaintiff sued for possession of certain chur lands. The defence of the tenant, the defendant No. 1, was that these lands were gradual accretions to his holding and, therefore, although he might be liable to pay additional rent, the plaintiff was not entitled to ejeot him. The case in the lower Appellate Court quite clearly proceeded on the footing that the defendant No. 1 had got a Mukarrari holding. That is quite clear from the judgment of the learned District Judge. It is much too late now for the plaintiff to raise the case that the holding is not a Mukarrari one. He ought to have raised it when the case was decided in the Courts below. The real point is this: The learned Judge of the lower Appellate Court has found that these lands are gradual accretions to the lands of the defendant No. 1 forming a chur in a small and shallow river and, therefore, according to the learned Judge's view on the words of Section 4, Sub-section (4) of the Bengal Alluvion and Diluvion Regulation Regulation XI of 1825), the defendant No. 1 was not entitled to the accreted lands, but the same formed a portion of the khas patit of the Zemindar. In support of that view the learned Judge relied on the decision of the Court of Holmwood and Chapman, JJ., in the case of Rumjan Ali v. Maharam Ali Khondkar 25 C. 90 : 13 Ind. Dec. (N.S.) 61. That case, in my opinion, is clearly opposed to the decision of the Full Bench of this Court in the case of Gourhari Kailurto v. Bhola Eaiburto 18 Ind. Cas. 143 : 17 C.L.J. 462 : 17 C.W.N. 779. We notice in the case decided by Holmwood and Chapman, JJ., that the Full Bench decision was not cited to them. It seems to be quite clear that the view that the learned Judges took of Sub-section (4) of Section 4 of Regulation XI of 1825, where it mentions that the chur thrown up in a small and shallow river should belong to the proprietor of the bed of the river subject to the provisions stated in the first Clause of Section 4, was that what was intended was not a protection only of the Government revenue, but that the Zemindar or the proprietor acquired the chur subject to the rights of the tenure-holders and the subordinate tenure-holders as mentioned in the first sub-section to Section 4. I am unable to agree with the conolubion arrived at by the learned District Judge in this case. The appeal must, therefore, be allowed, the decree of the learned District Judge set aside and the decree passed by the Munsif restored with costs both here and in the Court of Appeal below.
2. Shamsul Huda, J.--I agree.