Shadi Lal, J. -
(1.) THE dispute in this consolidated appeal relates to the ownership of large tracts of land formed by the recession of the river Padma, which Is the name given to the branch of the Ganges flowing between the Dacca arid the Faridpur districts of Bengal. THE plaintiff-appellants are admittedly co-sharers in estate No.4002 of the Faridpur Collectorate, other-wise known as Taluk Kunwar Bishvanath, which comprises, 'inter alia, three villages, namely, Mauza Harirampur, Mai Parchar and Bhati Bishvanathpur (the villages to be described hereinafter shortly as Mauza Harirampur ). It is common ground that in 1793 the estate was permanently settled with the predecessors-in-title of the appellants, and the question, which their Lordships have to determine, is whether the lands in dispute formed part of Mauza Harirampur at the time of the permanent settlement.
(2.) THE river Ganges, in its course through the district of Dacca and the neigh- bouring districts, frequently changes its channel, and throws up large plots of land which give rise to conflicting claims. In order to provide for the assessment of such lands to land revenue, the Government of Bengal is empowered by Act IX of 1847 to direct the local revenue authorities to make a revenue survey of the alluvial lands, and to determine the revenue which they are liable to pay to Government. If any land is thrown up by a large and navigable river and appears to be the property of Government, the revenue officers are required to take immediate possession of the same on behalf of Government, and to assess and settle it according to the rules in force in that behalf. It is, however, open to the person, who claims to be the proprietor thereof, to establish his right by bringing a suit in a competent Court of law.
It appears that large areas of land emerged from the river between 1870 and 1878, and the Collector of the district found that they did not form part of any permanently settled estate and settled them temporarily with certain persons. The plaintiffs, who admittedly got no land at that time, did not challenge the propriety of the action taken by the Collector until 1918, when they commenced the present suits to recover possession of the property as owners. They founded their title on the allegation that the lands were included in Mauza Harirampur in 1793, and that though they were subsequently submerged by the river, they appeared again and became part of the dry land of their estate. This allegation was denied by the Secretary of State for India, who claimed that, at the date of the settlement in 1793, the lands formed part of the bed of the river and were the property of the State. The main issue arising upon the pleadings was whether the lands were included in Mauza Harirampur in 1793, and the Subordinate Judge answered the question in the affirmative. On appeal by the Secretary of State, the High Court dissented from that conclusion, and dismissed the suits. From the judgment and decrees of the High Court the plaintiffs have brought appeals, which, depending, as they do, on the determination of a common issue, have been consolidated.
It is not suggested that this is a case of the acquisition of land from the river by means of gradual accession, where the accretion is held to belong to the owner of the adjoining land. The case for the appellants is that the lands in dispute were their property before they were submerged, and that the title, which was dormant when they remained under water, revived on their appearance. There can be no doubt that if they were the owners before submersion, they would, on the re-appearance of the lands, be entitled to resume possession thereof. The onus is, however, on them to prove their original title, and the question is whether they have discharged that onus. The-appellants sought to maintain that the only defence open to the respondent,.
(3.) ON the pleadings, was that the lands in suit formed part of the bed of the river at the time of the settlement, but their Lordships, in view particularly of paragraphs 5 and 6 of the respondent's written statement and issues Nos. 5 and 6, agree with the High Court that the appellants, as plaintiffs in a suit for ejectment, have been put to the proof of their title.
It may be stated at the outset that neither party has produced any documents containing particulars of the estate as it existed at the time of the permanent settlement. On behalf of the appellants it is contended that the documents in question should be in the custody of Government, and have been deliberately withheld in order to prevent them from showing that the property was part of their permanently settled estate in 1793. There is, however, no justification for this charge. As observed by the High Court, all the documents required by them from the record office of the collectorate were mentioned in their application of November 30, 1925, and were duly produced by the person in charge of that office. They did not subsequently ask for the production of any other document, nor is there any warrant for the assumption that the documents relating to the permanent settlement of the estate were still in existence after the lapse of more than a century and a quarter and were suppressed in order to injure the appellants.;