Bharath Mahton and Others vs Mod Narayan Singh and Others

Courtney-Terrell, C.J.—This is an appeal from Khaja Mohammad Noor, J., rejecting the appeal of the defendants from the Subordinate Judge who in turn had rejected their appeal from the Munsif. The plaintiffs are the proprietors of a 15 annas 10 gandas odd share in village Bahuara and the defendants are the raiyats of the village. The defendants are also the proprietors of the remaining 9 gandas odd share. The river Gandak flowing from west to east at one time formed the northern boundary of the dry land of the village and the property in the bed of the river was vested in the proprietors thereof. On the north bank of the river was village Tetri.

Many years ago the river began to shift its course north-wards until it was flowing north of Tetri with the result that the original bed between the two villages became uncovered. The finding is that it was the property of the maliks of Bahuara but it seems to have been cultivated by the people of Tetri as an accretion to their holdings in Tetri and it was so recorded in the cadastral survey in 1902. The river then began to move south-wards again until it passed once again over its old bed submerging these lands which had accreted to Tetri. In 1924 the river again began to move north and once again to uncover these lands and also uncovered more which had always until then been the bed of the river.

Of the total are a of 15 bighas 19 kathas and 13 dhurs thus uncovered, 13 bighas 18 kathas and 5 dhurs are identifiable as having previously been uncovered and 2 bighas 1 katha and 8 dhurs, had not previously been uncovered. The defendants in their capacity as tenants say that the whole land is an accretion to their holdings which they are entitled to hold as raiyats paying rent therefor. Alternatively they say that such lands are identifiable as formerly in the cultivation of the people of Tetri and belong to those people who alone have any title thereto.

The view of all the Courts hitherto has, in my opinion, rightly been that the mere fact that the river has uncovered land belonging to the landlord and adjacent to the defendants holding does not necessarily imply that it is to be treated as an accretion to their holding under Regulation 11 of 1825, although in general the law of the Regulation is applicable to the alluvion of land belonging to the landlord as much as it is applicable to the law of alluvion of land belonging to the Crown as was laid down in Khubi Mahton v. Lachmi Das 1922 Pat 588.

Mr. Sushil Madhav Mullick has argued strenuously that it was the intention of the Legislature that if land belonging to the landlord, under water, become uncovered adjacent to the land of that landlord''s tenant that it was to be the tenant''s accretion no matter what might have been the previous history of such uncovered land, and that such previous history was irrelevant.

But in a regular series of cases of which Felin Lopez v. Muddun Mohan Thakur (1870) 13 MIA 467 (PC) is best known, it has been laid down that when land emerges from water and it can be identified as the property of one who had previously occupied it, the former owner has not lost his rights in the sub-merged land and can exercise them again when the land is once more uncovered. This is what is known in legal language as reformation "in situ." The term is unfortunately misleading, for the law of diluvion and alluvion is concerned solely with the results of covering and uncovering by water of sites and not at all with the removal of soil from one site and its deposit on another site or re-deposit on the same site.

It is the site which is important and reformation "in situ" only means the uncovering of an identifiable site whether or not the site has been denuded of a portion of the soil or has received a deposit of fresh soil brought by the water from some other place. Regulation 11 of 1825; Section 4(1) is as follows:

When land may be gained by gradual accession, whether from the recess of a river or of the sea, it shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed whether such land or estate be held immediately from Government by a zamindar or other superior landholder, or as a subordinate tenure by any description of under tenant whatever....

In my opinion it is clear that as regards the 2 bighas odd which have newly been uncovered and have hitherto been under water are an accretion to the raiyati holding of the defendants and the defendants are entitled to cultivate them subject to the payment of the rent to the whole body of proprietors.

The 13 bighas odd which were formerly uncovered and recorded as in the raiyati holding of the tenants of Tetri are in a different category. The often quoted words of Sir Barnes Peacock in Ramanath Thakur v. Chundernarain Chowdhry, (1862) 1 Marsh 136 are clearly applicable and show that in such circumstances the Regulation is not applicable:

We are of opinion that the word "gained" in Section 4, Regn. 11 of 1825, does not extend to cases of land washed away and afterwards reformed upon the old site, which can be clearly recognized.... In such a case we think the land formed by accretion on the old recognized site remains the property of the owner of the original site.... The principle is that where the accretion can be clearly recognized as having been reformed on that which formerly belonged to a known proprietor it shall remain the property of the original owner.

Mr. Mullick however argued that this and similar cases were of disputes between rival proprietors and have no application to cases in which a dispute has arisen between a landlord and a tenant over land belonging to the landlord which has alleviated to the tenant''s holding. He has also contended that the plaintiff''s title to this land had been extinguished by the adverse possession from 1902 till 1924 by the people of Tetri. As to the first argument it may be said that the claim of the tenant rests solely on the rights given by the Regulation and if the Regulation is not applicable to lands reformed ''in situ'' the tenants have no right as tenants at all.

The 13 bighas odd has been found identifiable with that previously uncovered and that when previously uncovered it was part of Bahuara though cultivated by the people of Tetri.

In 104 IC 547(4), at p. 551, Graham, J., said:

I am further of opinion that, although the Privy Council cases referred to above are almost all cases between rival proprietors, and not as between proprietor and tenure-holder the principle laid down in those decisions applies with equal force. That principle as I understand it, is that where it can be demonstrated that a particular bit of land is the property of a particular person, if it should be submerged and then again re-appear, it is restored to the owner, or to be more precise, it continues to remain his property. To allow a tenure-holder, whose land happens to adjoin the land thus accreted to claim the land thus formed as an accretion to his tenure would in my judgment be an infringement of the full proprietary right of the owner, and would go against the principle repeatedly laid down by the Privy Council.

As to the second argument the defendants in their written statement originally themselves claimed by adverse possession and the adverse possession by the people of Tetri which is relied on before us in appeal is not even mentioned.

Moreover, in my opinion, the defendant is not entitled to rely on adverse possession by a third party as having extinguished the plaintiff''s title and there is no finding that the possession by the people of Tetri was in fact adverse to that of the plaintiff''s and there was no issue framed thereon. In my opinion the decisions of the lower Courts and that of the learned Judge of: this Court were right. As to the two bighas odd of the uncovered land it has accreted to the defendant''s holding and as to the 13 bighas odd the plaintiffs as co-sharers are entitled to the decree for compensation for use and occupation. I would dismiss this appeal with costs.

Varma, J.

I agree.