Arun Chandra Singh vs Kamini Kumar Bardhan and others

Ameer Ali, J. 1. The sole question involved in this appeal, which is from a judgment and decree of the High Court in Bengal, relates to the title to certain lands that had been washed away some years ago by the river Siddhi in the Noakhali district and have since reformed in consequence of a change in the course of the stream. 2. The plaintiffs, appellants, are the owners of a zamindari called pergunnah Bhulua, situated in that district. Within this zamindari lies a patni tenure called Talu Ram Saran Pal, created so long ago as 1837 by one of the predecessors in title of the present zamindars. The taluq is now owned by the first and second defendants, respondents in this appeal. The remaining numerous defendants are raiyats placed on the land, by the patnidars, since its reformation. 3. The daul kabuliyat executed by the patnidar in respect of the tenure shews that it comprises parts of two kismats or subdivisions of villages named respectively kismat Paniar Tek and kismat Algi; and the area included in the taluq was evidently given approximately, for the lease contains the following covenant: " If the land be found to be more on measurement by nal prevalent according to the custom of the pergunnah, I shall separately pay the rent thereof at this rate; if it be found to be less, I shall get remission therefor." Their Lordships have little doubt that the reason for the approximate statement of the area and the particular provision regarding the variation of the rent in certain probable contingencies was due to the fact, which has not been seriously controverted, that a strong tidal river flowed close to the boundaries of the taluq in question. 4. It is in evidence that in 1848 the plaintiffs obtained a decree in the Revenue Courts for increased rent on the ground that additional land was found upon measurement to be in the patnidar''s possession. Later, considerable parts of the Algi lands having been washed away by the action of the river, the defendants obtained, under the provisions of Section 19 of the Bengal Council Act VIII. of 1869, a proportionate remission of rent. The last proceeding in this respect was in 1889. 5. Since then the diluviated lands have reappeared and admittedly reformed in situ. With their reappearance disputes arose between the parties; the plaintiffs claimed that the lands in question formed part of their zamindari, whilst the defendants contended that they were accretions to the taluq. Each party attempted to exercise rights of ownership in order to create evidence of adverse possession against the other side. Their Lordships agree with the High Court that the evidence on this point is wholly inconclusive. 6. The suit was brought by the plaintiffs, the zamindars, in June, 1906, to obtain khas or direct and exclusive possession of the lands in question by a declaration of their title, the usual form of relief asked for in the Indian Courts in these cases. In the alternative they urged that if their claim to khas possession failed, it might be declared that the defendants were entitled to hold the land subject to the payment of proper rent for the same. The defendants, besides pleading that the lands in suit were accretions to their taluq, urged that the zamindars were only entitled to rent, but not to khas possession. 7. The District Judge made a decree in the plaintiffs'' favour, substantially on the ground that as the defendants had obtained abatement of rent in respect of the lands that had been washed away by the river, they had lost all title to the reformed lands. On appeal the High Court has taken a different view. It has held in substance that, having regard to the terms of the contract and the conduct of the parties, the plaintiffs had no right to eject the defendants from lands which originally formed part of kismat Algi and had been washed away by the river. They accordingly dismissed the plaintiffs'' suit. In their Lordships'' opinion the learned judges were right in holding that the lands do not come within the provisions of Section 4 of Regulation XI. of 1825, and cannot be claimed by either party as accretions to their respective property. The learned judges of the High Court appear, however, to have laid too much stress on the terms of the kabuliyat and the evidence of intention deducible from the various proceedings in respect of additional rent and abatement of rent. They evidently felt pressed by an older ruling of the Calcutta High Court in Henmath Dutt v. Ashgur Sindar I.L.R. 4 Calc. 894. Their Lordships, however, do not find themselves in accord with the rule of law expressed in that case. They think that the principle applicable to this class of cases is correctly enunciated in Mazhar Rai v. Ramgat Singh I.L.R. 18 Allah. 290. 8. In the present case there is nothing to shew that, by claiming or accepting remission of rent in respect of lands washed away from time to time by the action of the river, the defendant abandoned, or agreed to abandon, his rights to such lands on their reformation in situ, as is admittedly the case here. The diluviated lands formed part of a permanent, heritable, and transferable tenure; until it can be established that the holder of the tenure has abandoned his right to the submerged lands, it remains'' intact. 9. In the result their Lordships are of opinion that this appeal should be dismissed with costs, and they will humbly advise His Majesty accordingly. 10. This decree, however, will be no bar to any proceeding on the part of the plaintiffs authorized by law to recover proper rent in respect of the reformed lands.