Bishundeo Narain Singh and Others vs Hemnarain Singh and Others

Ray, J.—The plaintiffs are the appellants. They commenced the action giving rise to this appeal for declaration of title and confirmation of possession, or, in the alternative, for recovery of possession of the disputed char lands of three bighas that formed by gradual accretion from recess of the river Gandak adjoining survey Plots Nos. 2419 to 2421 and 2428 lying adjacent and west to the bed of the river which is private property of the plaintiffs bearing Survey Plot No. 2168 recorded in the record of rights as gairmazrua khas. The above survey plots lying adjacent west of the river constitute raiyati holdings of the defendants first party (defendants 1 to 8). The defendants second party are cosharer-landlords of the plaintiffs who own 11 annas 6 pies proprietary share in Tauzi No. 5108 of village Patailia through which the river Gandak flows.

With regard to the formation of the chars, the plaintiffs'' case was that, at the time of the earthquake in January 1984, the river bed suddenly got elevated on its west side, and the course of the river suddenly shifted leaving bare an area of 20 bighas adjacent to the lands of the defendants first party, and of other tenants, and that the disputed land of three bighas is a part of this area and was particularly attached to the aforesaid tenancy plots of the defendants first party. The lands thus formed were at first sandy and swamy but became culturable in 1936 since when the plaintiffs, and other landlords of the village have been in possession thereof, that the defendant first party during the last Kisan movement laid claim to the disputed land with the result that a dispute having arisen between the parties, a proceeding u/s 144, Criminal P.C., was started. The said proceeding terminated in favour of the defendants first party. Hence, the plaintiffs had to file the present suit for the reliefs aforesaid.

The plaintiffs'' claim was resisted by defendants 1 and 2 on the ground that two bighas out of the disputed lands emerged as a result of gradual recession of the river towards the east in course of a period of 15 years, gradually accreting to the adjacent east of the defendants'' tenancy lands comprised in the survey plots mentioned above. By the year 1835, an area over two bighas was brought into cultivation by then. In course of another three or four years about a bigha more char land accreted to the aforesaid two bighas. They further asserted that neither the plaintiffs, nor any other landlord were ever in possession of the disputed lands, and that the story of sudden upheaval of the bed of the Gandak, and the shifting of its course during the earthquake was flatly denied.

The Court of first instance recorded his finding in the following words:

The real position is that the shifting of the course of river began before the earthquake and continued during the years of the earthquake as well as after the year of the earthquake and the land was formed by gradual alluvion during all this period and the plaintiffs'' case about sudden shifting of the river in the earthquake in 1934...is false. So far as the plaintiffs'' case of possession also is concerned, I find that the plaintiffs'' version is wholly inconsistent...Further as it is a case of gradual alluvion as already discussed above, I hold, in view of the principles of law already discussed above, that the defendants first party have acquired the same interest in the suit land which they hold in the tenancy lands to which suit land is an accretion and that they are entitled to hold the same. Subject of course to payment of such rent as they may be liable under the law. Plaintiffs are, therefore, only entitled to realise rent for the lands as proprietors but are not entitled to possession of the lands or to any other title therein.

The learned lower appellate Court found in terms hereinafter following:

On a consideration of the evidence on the record, I find that there is ample evidence to support the findings of the lower Court and the view he has taken cannot be said to be perverse. Hence, I do not find sufficient reason to differ from the view he has taken nor have I sufficient reason to discard the estimate of the evidence of the witnesses recorded by him. Hence relying upon the evidence for the defendants I in agreement with the learned lower Court hold that the suit land was gained by gradual accession from the recess of the river.

The plaintiffs'' story of possession ever since their formation by sudden upheaval of the bed of the Gandak has been disbelieved by the lower appellate Court who in concurrence with the Court of first instance held that the defendants were all along in possession of the disputed land, and that neither the plaintiffs nor their cosharers were ever in possession of the same.

With regard to the contention of law that Regulation 11 [XI] of 1825 does not govern the case of a river, which is the private property of an individual and not of the Crown, the lower appellate Court as well as the trial Court held that the decision in Khubi Mahto v. Lachmi Das AIR 1922 Pat. 588 which laid down that Clause (1) of Section 4 of the Regulation deals with rivers of all classes and is subject to no words of limitation or restriction is conclusive on the point. Coming to the conclusion, as above, both the learned Courts below dismissed the plaintiffs'' suit. Hence this second appeal.

The learned Counsel for the appellants, Dr. Mitter, has raised two salient points before us. One is that in order to attract the provisions of the Regulation the accretion must be by slow and imperceptible means and that in this view of the law, the findings of the Courts below that the lands were formed by gradual accretion are inadequate in law to justify the conclusions arrived at. He urged therefore, that the case must be remanded for a finding as to whether the disputed lands accreted to the defendants'' tenancy lands slowly and imperceptibly. The next point urged by Dr. Mitter was that the principles of Section 4(1) of the Regulation were not attracted to cases of gains of lands from the bed of a river which was subject of private property. They in their operation are confined to cases of increase of lands gained from the sea or river the beds of which vested in the Crown or else, according to him, it would amount to confiscation of one individual''s property to the benefit of another as pointed out in Lopez v. Muddun Mohan Thakur (69) 13 M.I.A. 467.

It is not contended before us that the facts on which the decision in Khubi Mahto v. Lachmi Das AIR 1922 Pat. 588 are founded are in any way distinguishable from the facts of the present ease. In other words, what is Contended before us is that in view of subsequent decisions of their Lordships of the Privy Council, the law as laid down in Khubi Mahto v. Lachmi Das AIR 1922 Pat. 588 is no longer good law. It is therefore, urged that the case should be referred to a larger Bench for decision in view of the decisions of their Lordships of the Privy Council.

It goes without saying, that unless we are satisfied that the decision of the Privy Council has laid down any principle inconsistent with or contrary to the decision of the Full Bench case in Khubi Mahto v. Lachmi Das AIR 1922 Pat. 588, we are bound by it. I shall, therefore, at once proceed to examine the dicta of the Privy Council case relied upon by the learned Counsel.

The case most relied upon is the case in AIR 1927 89 (Privy Council) . The material facts of this case were as follows: The mahal Turk Ballia was the property of certain proprietors, and was situate on the northern bank of the Ganges while the estate of the Maharaja of Dumraon in the district of Shahabad was to the adjacent south. Between 1871 and 1884 the land of village Ballia was washed away by the Ganges, which was gradually moving northwards, until in 1884 the whole of the village had disappeared. As the river altered its position to the northward, accretions took place on the opposite bank in the Shahabad district and Turk Ballia by the year 1909 had re-formed on the south side of the river. On the re-appearance of Turk Ballia on the south side of the Ganges, the mahal was placed on the rent roll of the Collector of Shahabad and notices were given to the original proprietor to pay the arrears of revenue due in respect thereof. No revenue having been paid, the estate was put up to sale and in the absence of bidders, it was duly purchased by the Collector on behalf of the Government. The Collector of Shahabad thereupon began relaying the boundaries of the mahal under the Survey Act. To this the Maharaja who was in possession of the lands objected claiming them as an accretion to his own estate. On his refusal to give up possession, the suit was instituted by the Secretary of State.

The contention of the appellant (Maharaja) before their Lordships was that if he acquired a good title to the lands in suit by reason of their gradual accession to his other lands, it would be necessary for the authorities to assess the accreted land under Act 9 [IX] of 1857 before revenue could be levied in respect thereof, and that as this was not done, the Maharaja could not be said to be in default of payment of revenue, and consequently the sale was without jurisdiction and was invalid. The principal question, therefore, before their Lordships was whether the Maharaja had obtained a good title to the lands in suit by reason of their gradual accession to his estate to the south of the Ganges by reason of the recess of the river to the northward. This contention was sought to be baaed upon the provisions of Regn. 11 [XI] of 1825, Section 4, Clause (1). The findings of fact in that case were, (1) that the erosion was slow and gradual but not imperceptible; (2) that the process of alluvion by which the land in suit was formed on the south side of the river was slow, gradual and imperceptible and (3) that the lands in suit stood on the site formerly occupied by the mauza Turk Ballia. On these findings their Lordships held, following the principles laid down in Lopez v. Muddun Mohan Thakur (69) 13 M.I.A. 467, that the land washed away and afterwards re-formed on the old ascertained site was not land gained by increment within the meaning of Section 4(2) of Bengal Regulation 11 [XI] of 1825. In coming to this conclusion, their Lordships observed at one place: "The terms of the first clause of Section 4, taken literally and by themselves, may be said to be sufficiently wide and general to include the facts of this case, but the clause has been the subject of judicial decisions, some of them by the Judicial Committee, which appear to their Lordships to place a limitation upon the application of the first clause." For this limitation, referred to above, their Lordships relied upon the case in Lopez v. Muddun Mohan Thakur (69) 13 M.I.A. 467 mainly and certain other cases decided by the Board in subsequent years which according to their Lordships, simply reiterated and thus followed the principle of the case of Lopez (69) 13 M.I.A. 467. They are Nogender Chunder Ghose v. Mahomed Eusoff (72) 10 Beng. L.R. 406, Hursuhai Singh v. Syud Lootf Ali Khan (94) 2 I.A. 28, Radha Prasad Singh v. Ram Coomar Singh (77) 3 Cal. 796 and Jagjot Singh v. Rani Brij Nath Kunwar (1900) 27 I.A. 81. Their Lordships have taken pains to show that in all these cases the principle that where the land after being washed away reappears and reforms on the old ascertained site, there is nothing in the Regulation from which it could be contended that the right of the original owner should be confiscated. This principle has no doubt been differently expressed in different cases and, in deducing the principle, their Lordships of the Judicial Committee have laid stress upon the word ''gained'' to imply the negation of confiscation of the property of the original owner to enure to the benefit of another proprietor to whose lands the reformation is an accession. The words that have given rise to the contention that Section 4(1) of the Regulation is confined, in its operation, to increment of lands gained from sea or public river can be profitably quoted here. They are:

It is to be observed, however, that the Clause (cl. 1 of Section 4 of Reg. 11 of 1825) 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. 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.

The fallacy in the appellant''s argument is that the aforesaid observations are taken to be an exposition of the whole law on the subject. But this contention overlooks the fact that the observations in the decision must be taken to go so far as they are relevant to the facts of the case; or in other words, they must be qualified and governed by the particular facts on which their Lordships had to decide. The case of Lopez (69) 13 M.I.A. 467 was a case in which two riparian proprietors advanced competing claims to lands reformed on its old site, but at the same time, accreted to the lands of another proprietor. One of them was claiming on his original title and the other claiming as an acquisition by gradual accession. In such a case their Lordships held that to apply Clause 1 of Section 4 of the Regulation literally would amount to gain by one proprietor from the lands of his neighbour, while, on the other hand, the word "gain" in the clause meant gain of land which was in the state of nature and a part of the public domain. This, at any rate, does not amount to holding that Clause 1 is not applicable to oases of acquisition by gradual accession from private rivers, when it can be employed without confiscating an already existing title. The clause is worded in terms wide enough to include: all classes of river. The import of ''gain'' occurring in the clause can be well illustrated from the following quotations some of which are approved by the Judicial Committee while others are relied on by the Judicial Committee by way of expressing the same principle as is pronounced in the case of Lopez (69) 13 M.I.A. 467.

13 In Romanath Thakore v. Chunder Narain Chaudhury (1863) 1 Marsh. 136 a case approved by the Judicial Committee in Lopez v. Muddun Mohan Thakur (69) 13 M.I.A. 467, Sir Barnes Peacock said:

We are of opinion that the word "gained" in Section 4 of Reg. 11 [XI] of 1825 does not extend to cases of land washed away and afterwards reformed upon the old site, which can be clearly recognised....

The principle is that where the accretion can be clearly recognised as having been reformed on that which formerly belonged to a known proprietor, it shall remain the property of the original owner. In Nogender Chunder Ghose v. Mahomed Eusoff (72) 10 Beng. L.R. 406 it was said:

No express provision is made of the case of land which has been lost to the original proprietor by the encroachment of the sea or a river, and which after diluviation reappears on the recession of the sea or river...which must, therefore, be determined by "the general principle of equity or justice" under the 5th Rule.

It was also said in the same case:

It is not easy to see upon what principle a title to alluvion by gradual accretion should prevail against the original ownership established by identification of site, unless it be that where the accretion is so gradual as to be latent and imperceptible during its progress, the law, on grounds of convenience, presumes incontrovertibly that no other ownership can be shown to exist and so bars enquiry.

In Jagjot Singh v. Rani Brij Nath Kunwar (1900) 27 I.A. 81 Lord Robertson, in giving judgment said:

It is perfectly plain that neither the specific provision of the first Sub-section nor the general principles of equity and justice lend the slightest support to the pretension of the appellant, which is to land that would be gained not from the river but from a neighbour.

In my judgment the ratio decidendi of the decisions above referred to was not based upon the character of the river (whether public or private) but upon the equitable principle that the previous ownership, if ascertainable, of the lands newly formed after diluviation should not be allowed to be destroyed merely on account of the fact that those very lands reappearing on their old ascertained site become accretions by slow and gradual process of the river to another man''s land. This principle, however, leaves untouched the cases in which without involving confiscation of the old proprietor''s or owner''s property the lands can be said to be gained by another by the process of gradual accretion. Such a case is the case between a landlord and his tenant. The lands are gained to the tenancy by process of gradual accretion but not lost to the proprietor on whose bed they are formed, because his proprietary right of receiving rent is recognised under the law. The case where the river is small and shallow, is governed by Clause 4 of Section 4 which clause very clearly enacts that while maintaining the proprietorship of the owner of the bed, the accretion may well form an increment to the tenancy of the subordinate tenure holder. This is enacted by the words "subject to the provisions stated in the 1st clause of the present section." Where, however, the rivers are neither small nor shallow but the beds belong to a private proprietor, they can either be governed by Clause 1 of Section 4 subject to the limitation that it does not work out a confiscation of one''s property in favour of another in any particular case, or by Clause 5 of the section.

In the Full Bench case in Khubi Mahto v. Lachmi Das AIR 1922 Pat. 588 the learned Chief Justice brings such a case within the purview of E. 1 of Section 4, while their Lordships Mullick and Jwala Prasad, JJ. say that such a case, if not provided for in E. 1 of Section 4 is governed by Rule 5, that is, by the general principles of equity and justice and relying upon this principle, they agreed with the decision of the learned Chief Justice that when the lands gradually accreted to the lands held in tenancy on the bank of the river, the tenant gains it for the purpose of his tenancy, while the proprietor''s proprietary right is retained by reservation of his right to realise rent from the lands thus gained by the tenant. All the three learned Judges agree that it involves no confiscation of the proprietary right of the owner of the bed.

A very short answer to the contention of the learned Counsel for the appellant is that the Full Bench decision in Khubi Mahto v. Lachmi Das AIR 1922 Pat. 588 considered the effect of the decision of their Lordships of the Judicial Committee in the case of Lopez v. Muddun Mohan Thakur (69) 13 M.I.A. 467 and the case now cited by him, namely, AIR 1927 89 (Privy Council) lays down nothing more and nothing less than that. On the contrary the later decision is based on the earlier one and reaffirms the same principle. There is, therefore, no reason to hold that the Full Bench case is no longer good law.

It has been further contended, as noticed above, that until it is found that the lands were gained by slow and imperceptible means it cannot in law be sufficient to hold that the lands have been gained by gradual accretion within the meaning of the Regulation. The learned Counsel conceded that if it is found that the accretion was imperceptible in its process, the plaintiff''s title to the lands even though formed on the bed of the river, which is his private property, will be lost to him. Under the circumstances, it is not necessary to remand the case for a finding because the defendant does not claim any proprietary right to the disputed lands. It may also be noted that in the case cited by him, AIR 1927 89 (Privy Council) it has been found as a fact that the lands in suit had been formed adjacent to the Dumraon Maharaja''s estate on the south side of the river by slow, gradual and imperceptible means and still, their Lordships hold, that the ownership of the previous proprietor whose lands had been reformed on its old site was not lost. In my judgment, therefore, there is no substance in this argument. On this point too there is a decision of this Court that is binding upon us. In Lachmi Narayan v. Kesho Prasad AIR 1920 Pat. 330 it was said:

The word ''gradual'' in Section 4, Bengal Alluvion and Diluvion Regulation, 1825, does not mean that the accretion must necessarily be slow and imperceptible, in the sense, in which that expression is used in English case law on Alluvion and Diluvion.

This observation was based upon a decision of the Privy Council in Raja Srinath Ray v. Dinabandhu Sen AIR 1914 P.C. 48.

A large number of other cases were referred to us during the course of the argument and these have been fully considered by us. I do not, however, think it necessary to refer to all of them, and I am of opinion that they do not elucidate the proposition contended for by the learned Counsel for the appellant any further than the cases already dealt with.

In my judgment, therefore, the appeal has no merit and must be dismissed with costs.

Fazl Ali C.J.

I agree.