Patna High Court
Khubi Mahton And Ors. vs Mahant Lachmi Das And Ors. And Musammat ... on 25 July, 1921
Equivalent citations: 63IND. CAS.704
JUDGMENT Jwala Prasad, Acting C.J. 1. The defendants are the appellants in these cases. They are aggrieved by the decision of the Court below, awarding a decree to the plaintiff for recovery of possession of the lands in dispute. The lands originally formed the bed of the river Gandak and came out of the water recently, partly, in; the year 1318 and entirely in the year 1319. The plaintiffs are the Zemindars of the village to which, the river in question adjoins on three, sides. The defendants are the tenants of the lands adjoining the river. The river having receded, the lands which have appeared from the river are contiguous to the defendants holdings. The plaintiffs claim the; lands in question as proprietors thereof, as they are the owners not only of the village but also of the river, which is a small stream as compared with the river Ganges and other rivers the proprietorship of which belongs to the State. The plaintiffs' case in short is that the lands, while covered with water, belonged to them and although they were not able to cultivate the lands when under water, they will be deemed to be in possession of the same and when the lands re appeared, they are entitled to exercise possession over them. They, therefore, claim to have title over the lands and also to have possession of the same. They claim to recover possession from the defendants, who are in possession of the lands, as mere trespassers. 2. The defendants, on the other hand, oppose their claim upon the ground that the land is a gradual accession to their holdings and under Section 4 of Regulation XI of 1825 they claim to be entitled to hold the same on the same conditions as they hold the land adjoining as tenants in the village. 3. On behalf of the plaintiffs the applicability of Section 4, Clause 1, of the Regulation has been disputed to lands of the nature in question, namely, to lands which form the bad of shallow rivers the property of individuals. The plaintiffs contend that the right of the proprietors in such lands has bean preserved by Clause 4 of Section 4 of the Regulation. There has, however, been a divergence of opinion upon this point. It is needless to decide it at this stage. Assuming that Clause 1 of Section 4 does apply to the lands which have some out in the present case of the river Gandak, the defendants can claim to hold these lands only when they have been gained "by gradual assession" within the terms of that section. The Court below held that the defendants ware not entitled to take advantage of Clause 1 of that sestion, inasmuch as it was not established that the land was gained by gradual accession to the defendants' holdings. In arriving at this finding the Court below observed as follows: "From the evidence on the record I cannot say that the disputed lands have been formed by slow and gradual accretion of the river; in fact there is satisfactory evidence that in every year the accretion has been considerable and capable of identification. Even some of the defense witnesses admit in cross-examination that the accretion was 8 or 9 luggas in 1318 and 7 or 8 luggas in 1319 in breadth. This cannot be called slow and gradual accretion, and this accretion cannot be sailed to be imperceptible or inch by inch or foot by foot." The lower Court seems to be under the impression that the accretion must be imperceptible so as to some under the per-view of Clause 1 of the section. This, no doubt, may have been the view in the case of Lopee v. Muddun Mohun Thakoor 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, but this view has been considerably varied by their Lordships of the Judicial Committee in subsequent cases, upon the ground that the law of gradual accretion obtaining in the English Law does not apply to Indian rivers, vide Srinath Roy v. Dinabandhu Sen 25 Ind Cas. 467 : 42 C. 489 : 18 C.W.N. 1217 : (1914) M.W.N. 654 : 1 L.W. 733 : 16 M.L.T. 319 : 12 A.L.J. 14193 : 20 C.L.J. 385 : 16 Bom. L.R. 901 : 41 I.A. 221 (P.C.). The view taken by the Privy Council has been adopted in this Court in the case of Lachmi Narayan Lal v. Kesho Prasad Singh 52 Ind. Cas. 147 : 5 P.L.J. 1 (1920) Pat. 102. The section itself has not the word 'imperceptible' in it. It only says that the accretion mast be 'gradual'. Now what is a gradual accretion must depend upon the circumstances of each case, the nature of the river, the manner of the accretion, and the quantity of the land thrown out each year. The Court might have had in its view the aforesaid considerations when holding, as above, that Clause 1 of the section does not apply to the present case, but we do not know what would have been the view of the Court if it had not in its mind the illusion that in order to be gradual the accretion must be imperceptible under the said clause. We, therefore, desire that the Court below should some to a finding as to whether in the present case the land in question was gained by gradual accretion, without taking into consideration that the process of accretion must be imperceptible. No doubt, as observed above, the Court will take into consideration the evidence upon the record upon the aforesaid elements in order to constitute gradual accession. We, therefore direst the Court to come to a definite finding upon the, first part of issue No. 7 in view of the, above observations and to remit the finding within a month from this date. I would make that issue more clear and explicit in the following terms: "Have the lunds in suit been gained to the holding of the defendants by gradual accession from the recess of the river Gandak as contemplated by Regulation XI of 1825." The cost of the remand will abide the result of the litigation. Das, J.
4. I agree.