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Judgment
Das, J.—On the main question that has been urged before us, the appeal is concluded by the decision of this Court in the case of Lachmi Narayan Lal v. Maharaja Seiko Prasad Singh 52 Ind. Cas. 117 : 5 P.L.J. 1 : 1 P.L.T. 193 : (1920) Pat. 102.
The plaintiffs claim the land in dispute as land reformed on its old site. They say that the land in dispute formed part of their Mauza Mahindwara at the time of the preparation of the Revenue Survey map and as such was assessed to Govern-meet revenue as part of their Mouza Mahindwara, and that, in the year 1318, the river Chota Bagwati swallowed up the land in dispute but has now restored it again on the other side of the river. To adopt the words of Lord Justice James in the case of Lopez v. Muddun Mohun Thakcor 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, the plaintiffs say: "This was my property. The river, which swallowed it, has again jyielded it up and I claim my property, which, having been buried and lost to sight, has again re-appeared,"
The learned Subordinate Judge has found that the land, having reformed on its old site, belongs to the plaintiffs. This finding has not been challenged before up, but Mr. C. C, Dass on behalf of the appellants very strongly and forcibly contends that the land having gradually accreted to his Mauza must in law belong to him.
Precisely the same argument was put forward in Lopez''s case 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. With referenda to that argument, Lord Justice James said as follows: "It is to be observed, however, that that clause," referring to the fourth clause of the Regulation, " refers simply to oases of gain, of acquisition by means of gradual accession. There are no words which imply the confiscation or destruction of any private person''s property whatever. If a Regulation is to be construed as taking away anybody''s property, that intention to take away ought to be expressed in very plain words, or be made out by very plain and necessary implication. The plaintiff here says: ''I bad the property. It was my property before it was covered by the Ganges. It remained my property after it was submerged by the Ganges. There was nothing in that state of things that took it from me and gave it to the Government. When it emerged there Was nothing that took it from me and gave it to any other person, '' and in answer to such a claim it would certainly seem that something more than mere reference to the acquisition of land by increment, by alluvion or by what other term may be used, would be required in order to enable the owner of one property to take property which had been legally vested in another." Stopping here for a moment, the passage cited seems to me to be a definite pronouncement on the question whether there is any room for a gain by accretion, when the land is clearly identifiable as land belonging to another owner as a reformation in situ, Lord Justice James proceeded to say as follows: "In truth, when the whole 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, a gift to him of that which, by accretion, became, valuable and usable out of that which was in a state of nature neither valuable nor usable.".
Mr. Das contends that there is no justification for this view on a plain reading of the Regulation itself. If there is not, still we would have to adopt, with all humility, the construction which the Judicial Committee has placed on the Regulation. But, in my view, it can bear no other construction. According to the Regulation accretion is land gained from the recess of a river or of the sea. It is difficult to understated how land confiscated from another proprietor can be said to be land gained from the recess of the river. But it is said that there is a decision of this Court in which the construction put upon the Regulation by Lord Justice James has not been accepted. In the case of Puri Dass v. Kanhu Behera 38 Ind. Cas. 135 : 1 P.L.J. 536 Mullick, J,, is reported to have said: "The only thing that he can show us is the case of Lopez v. Muddun Mohun Thakoor 52 Ind. Cas. 117 : 5 P.L.J. 1 : 1 P.L.T. 193 : (1920) Pat. 102 and he relies upon certain observations of their Lordships of the Privy Council as a foundation for the proposition that their Lordships intended to make a distinction between a river which is private property and a river of which the bed belongs to the Crown. In my opinion the'' judgment of their Lordships does not in clear terms make any such distinction. The section itself is perfectly intelligible without any such distinction, and [ see no reason why any words of limitation should be inserted into it when no such limitation is necessary on the face of the enactment itself. On the contrary if the contention of the learned Vakil for the appellants is to be accepted, and rivers which are the property of the Crown are the only rivers to which the Regulation refers, then it is difficult to see what necessity there was for importing clause 4 into the Regulation. That clause makes special reference to island chars, thrown up in small and shallow rivers. There would have been no necessity whatsoever for legislating for this class of rivers, if by Lypothesis the whole Regulation was intended to be inapplicable to it. " With great respect, I am wholly unable to take this view. It was the defendant''s contention in Lopez''s case 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 that the recession of the river caused a gradual accession to his land, and an increment by annexation to his estate, notwithstanding that the land had been reformed on the ascertainable and ascertained site of the plaintiff''s Mauza. To this contention, Lord Justice James replied that there are no words in the Regulation which imply the confiscation or destruction of any private person''s property whatever and that it is "quite obvious that what the then legislative authority was dealing with, was the gain which an individual proprietor might make in the 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." In my view, it is impossible to misunderstand the clear and unequivocal words employed by Lord Justice Jamer, and I do not think that it is open to this Court or to any Court to the Regulation differently. The same view was taken by Sir Barnes Peacock in the case of Ramanath Thakoor v. Chundernarain Chowdhry Marsh 136 : 1 Ind. Jur. (O.S.) 44, and identically the same view has been taken in certainly three subsequent oases that I have been able to trace, cases reported as Mohini Mohun Dass V. Juggobundoo Pose 9 W.R. 312, Dunrkinifh Boy Chowdhry v. Dinbundho Singh 15 W.R. 461 and Jugdish Chunder Biswas v, Chowdhry Zuhoor-ul Huq 24 W.R. 317] In my view, the word ''trained" in clause 1, Section 4 of the Regulation, dons not mean land washed away and afterwards identified as having reformed on its old site. But although this is my view, I cannot differ from the view taken in the decision of this Court without referring the question to the decision of the Fall Bench. It is unnecessary in this case to rest ray decision on the meaning of the word " gained." It is sufficient to say that a case under clause I of Section 4 of the Reputation is not made out when the lard in dispute is shown to have reformed on its old identifiable site.
It was, however, argued by Mr. Das that the rule enunciated by Lord Justice James was based on the Common Law as it was then understood, and as the Common Law, as now understood, embodies a different principle, the old principle should no longer guide us. It may be conceded that it has been definitely laid down in England that gradual accretion of land from water belongs to the owner of the land gradually added to, and that the qualification suggested by Britton, namely, that the rule should not apply " if certain boundaries are found," has been finally rejected. But it may be remembered that the Common Law of England has no application to the Mofassil towns of India except as rules of justice, equity and good conscience. Now on what principle is the Common Law of England based? It is based upon the impossibility of determining year by year, to whom an inch or a foot or a yard belongs. In other words, the rule laid down in England is a rule of necessity. But, in India, the conditions are different. As was pointed out by Lord Summer in the case of Srinath Roy v, Dinabnndhu Sen 25 Ind. Cas. 437 : 42 C. 489 : 18(sic) 1217 : (1914) M.W.N. 654 : 1 L.W. 733 : 319 : 12 A.L.J. 1193 : 20 C.L.J. 385 : 16 Bom. R. 901 : 41 I.A. 221 , what would be almost miraculous in the case of English rivers is normal and common-place in the case of Indian rivers. For instance, an addition of over 600 acres in the course of a single flood season could not be described as a low and gradual according to the standard of additions by alluvion in English. river", but there is nothing abnormal in such a phenomenon in Indian rivers. It seems to me, therefore, that the rule of English Common Law, based on conditions which are entirely different, should not he extended to the Mofassil towns of India. But, if it is at all extended, it must be extended for the first time by the Judicial Committee, and, until that is done, we must be guided by the decision of the Judicial Committee in Lopez''s case 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.
The identical point was, however, decided by this Court in the case of Lachmi Narayan Lal v. Maharaia Kesho Prasad Singh 52 Ind. Cas. 117 : 5 P.L.J. 1 : 1 P.L.T. 193 : (1920) Pat. 102. That decision is binding onus and in accordance therewith, I must hold that the plaintiffs having shown the land as a reformation on its old site, they are entitled to succeed in the action, unless their claim is barred by limitation.
It is just as well to record my finding on the question whether the land in dispute can be said to have accreted to the defendants'' Monza within the meaning of clause 1, Section 4 of the Regulation. The defendants, in ray view, have adduced no evidence on this point. It is necessary to remember in this connection that the defendants have deliberately withheld the measurement khasras which are admittedly in existence, and which would throw a great deal of light on the question. We are entitled to draw the presumption that the measurement khasras, if produced, would support the case of the plaintiffs and not that of the defendants. The defendants rely on two leaser, one granted on 15th July 1901 in respect of 15 bighas of accreted lands, and the other granted on 31st October 1905 in respect of 20 bighas inclusive of 15 bighas covered by the lease of 15th July 1901. The argument is that if 15 bighas accreted by the 15th July 1901, and 5 bighas accreted between that date and 31st October 1905, the accretion must have been gradual. On referring to Exhibit E2, the lease of 31st October 1905, it will appear that 15 bighas covered by the lease of the 15th July 1901 were formed on the old bed of the river. It is clear, therefore, that the lease of 15th July 1901 was not in respect of any portion of the disputed land. If the lease of 15th July 1901 goes out, then the only other document with which we are concerned is the lease of 31st October 1905, which shows that the defendants settled 5 bighas of Bharan lands with some of the tenants. There is nothing to show that the remaining portion of the disputed land did not come out of the river at the same time. I hold, therefore, that the defendants have failed to show that they have a title to the land in dispute by gradual accretion.
I now come to the question of limitation. I agree with the learned Vakil that it lies on the plaintiff a to prove possession and dispossession within twelve years of suit, but it roust be remembered that possession is not the same thing as actual user. The "true rule" was stated by Wilson, J., in the following words: "That where land has been shown to have been in a condition unfitting it for actual enjoyment in the usual modes at snob a time, and under such circumstances that that state naturally would, and probably did, continue till within twelve years before suit, it may properly be presumed that it did so continue and that the plaintiff''s possession continued also, until the contrary is shown. This presumption seems to us to be reasonable in itself, and in accordance with the legal principles now embodied in Section 114 of the Evidence Act." See Mahomed Ali Khan V. Khoja Ablul Gunny 9 C. 744 F.B. 12 C.L.R. 267 : 4 Ind. Dec. (N.S.) 1145.
The cadastral survey map published in 1897 shows that the plaintiffs were in possession of the land in dispute in that year. The defendants'' case is that the land began to go under water after 1897. It may, therefore, properly be presumed that the plaintiffs'' possession over the land in dispute remained so long as the land was under water and continued until the contrary is shown. The only document that bears on the point is Exhibit E ''2, the lease of 31st October l�05. That is the only document which shows the contrary, but the lease was within twelve years of the suit and cannot, therefore, defeat the plaintiffs'' claim. On the other band, Exhibits 10 A, 11 A, 10 B, 11 B, 10 C, 11 0 show that the plaintiffs were recovering decrees for rent in respect of portions of the disputed land in 1910. I hold, therefore, that the suit is within time and is not barred by limitation.
It was further argued on behalf of the appellants that defendants Nos. 8, 9 and 12, having been inducted into the land by a de facto owner, cannot be ejected from the land in dispute, 1 am not in sympathy with this argument. I cannot look upon the defendants, the owners of Mauza Sreedib, as de facto owners of the lands in dispute. It was also argued that as the defendant 3rd party, who owns a 15 ganda share in the Mauza has not joined the plaintiffs in bringing the suit, the plaintiffs cannot recover a decree for joint possession. The point is entirely without merit. That objection must come from the defendant 3rd party and not from the contesting defendants.
I am of opinion that the decision of the Subordinate Judge is right and must be affirmed. There are, however, two errors in the decree which must be corrected. In Suit No. 99 of 19 4 out of which First Appeal No. 19 of 1919 arises, the plaintiff claimed to recover joint possession of 49 bighas 9 kuttas 12 dhurs. The Commissioner found 44 bighas to be the land in dispute. In Suit No. I CO of 1914 out of which First Appeal No. 196 of 1916 arises the plaintiffs claimed to recover joint possession of 73 bighas 2 Kuttas 2 dhurs. The Commissioner found 61 bighas 3 kuttas to be the land in dispute. It has not been shown that the Commissioner''s report is wrong, The plaintiffs, therefore, are entitled to a decree according to the Commissioner''s report. On the question of mesne profits too there is an error. The Court made a distinction between tenanted lands and lands in direct possession of the Mal ks. So far as tenanted lands are concerned, the Court gave the plaintiffs a decree for mesne profits at the rate of Rs. 4 per bigha. So far as Zerait lands are concerned, the Court adopted another principle. The decree as drawn up makes no distinction between the two. This is wrong. The Commissioner''s report shows the area held by the tenants and the area in the Ma possession of the Maliks. The decree must be modified accordingly in accordance with the Commissioner''s report. Subject to this modification, the appeals fail and are dismissed with costs.
Adami, J.
I agree.