Parkalo Kobri and Another vs Bhagwat Sahai

James, J.—These appeals arise out of two suits instituted by the proprietor of the estate bearing tauzi number 11304 on the revenue roll of Shahabad District, for the recovery of possession of certain diara land. At the partition of the estate in 1915, the land in dispute formed part of plots Nos. 718 and 719. Plot No. 218 was a sand bank which, according to the partition papers, was in possession of the landlord while plot No. 719 was recorded as a part of the estate with the description of Gangaji. According to the plaintiff the land became culturable for the first time in 1330 F.S. and the defendants, who possessed holdings adjoining the diara on the north took possession of it. The defendants claimed that the land in question was part of their ancestral holdings and in the alternative that it formed accessions to their holdings of which they were entitled to possession u/s 4, Regulation XI of 1825. The District Judge found that the land in question did not form part of the original holdings of the defendants. He found that plot No. 718 had been a sandbank so long as its history was known, and there was no evidence regarding the manner of its formation, so that the question of whether the provisions of Clause (4), Regulation XI of 1825, applied to it could not arise. Regarding plot No. 719 he found that there was no evidence to show that the land had formed by glow and gradual accretion, and that therefore, the defendants could not claim it as an accession to their uparwar holdings. The suits were accordingly decreed and the defendants have come up in second appeal from that decision.

Mr. Jayaswal on behalf of the appellants suggests in the first place that the land ought to be regarded as a re-formation in suit of the holdings of the defendants. In the batwara khatian plot No. 718 is described as unculturable land in possession of the landlord and plot No. 719 as Gangaji but in each instance there is an entry in the remarks column which is difficult to explain, of the word kaimi, with a certain amount of rent. Mr. Jayaswal suggests that this entry proves that the land before it became submerged or unculturable had formed the holdings of settled raiyats of the village, but this cannot be held to have been proved; and any claim of the present appellants that the land formerly constituted their holdings is disposed of by the findings of. fact of the lower Appellate Court.

Mr. Jayaswal argues in the second place that the land should be regarded as forming accessions to the holdings of the appellants. Immediately to the south of the land which forms the appellants'' uparwar holdings is plot No. 718, and beyond this is plot No. 719. In 1915 plot No. 718 was a sand bank and no evidence has been given to show how this bank came to be formed, whether suddenly or gradually. Mr. Jayaswal argues that it is of no importance whether the sand bank was formed suddenly or gradually, since the deposit of sand should not be regarded as formation of land within the meaning of Regulation XI of 1825. He argues that the provisions of Section 4 of the Regulation do not apply to newly formed land until it actually becomes culturable, which in plot No. 718 happened in or about 1330 F.S. when that sand bank was flooded, and silt was deposited on it.

Now it would appear that the gaining of land by accretion from the recees of a river takes place as soon as the river recedes sufficiently to leave the newly formed land completely uncovered, whether this land be covered with sand or with silt. In support of this view the learned Advocate for the respondents cites the decision of the Full Bench of the High Court of the North West Provinces in Ramjeeawun Rai v. Deep Narain Rai A.H.C.R. (1866) June-Decr. F.B. Rul. 78.

In that case the learned Judges said:

The appellants prefer a claim to the land in suit as alluvial lands outside the area of, but contiguous to, their, holding under Clause 1, Section 4, Regulation XI of 1825 but to support such a claim it must be shown that the lands are alluvial and have been gained by gradual accession. It is clear that the land in suit has not been so gained. On the contrary the land which is considerable in quantity appears to have been rendered culturable in one year by the deposit of earth by the action of the river on the surface of a tract of sand already existing. It was not gained by alluvion either gradually or suddenly as the Judges of the Division Bench seem to have regarded it but it appears rather to have been land existing as waste land subject to inundation in. certain years or at certain seasons, which has been in one year rendered culturable by the action of the river. In this view of the facts Clause 1, Section 4, Regulation XI of 1825, does not apply, and the appellants'' claim, which is based upon that clause, falls to the ground.

It is accordingly impossible to hold that the deposit of silt on that portion of the land in dispute which is contained in plot No. 718 amounted to the formation of land by a process of gradual alluvion within the meaning of Clause 1, Section 4, Regulation XI of 1825; and the appellants can have no claim to it under the Regulation. Unless the appellants could extend their holdings by the accretion of land from plot No. 718, plot No. 719 would not be immediately adjacent to their land; and they could not gain any part of it by gradual accession. This plot which has an area of 240 acres appeared for the first time in 1330, and the learned District Judge has found that its formation was not gradual, or slow; but since the appellants can base no claim to any part of it on the ground of gradual accretion under Regulation XI of 1825, it is not necessary to determine whether this formation could or could not have been, properly regarded as an instance of gradual and slow accretion within the meaning of Section 4 of the Regulation.

Mr. Jayaswal argues in the third place that the case ought not to have been remanded to the lower Court for the ascertainment of mesne profits, because mesne profits were not valued in the plaint and Court-fees were not paid on them. But it appears that in para. 7 of the plaint the plaintiffs placed a valuation on the mesne profits claimed and paid Court-fees on that amount. The decision of the lower Appellate Court is affirmed and the appeals are dismissed with costs.

Wort, J.

I agree.