MONOHAR KAIBARTA Vs. JAGADISH CHANDRA BANERJEE

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and it arises out of a suit commenced by him to recover khas possession of the lands in suit on establishment of his title to the same. The case of the plaintiff in substance was that three plots of land situated in village Kanehan, which were recorded as Order Section Plots Nos. 2897, 2898 and 5045 belonged to the plaintiff in raiyati right. Plot Nos. 2898 and 5045 appertain to touzi No. 379 of the Dacca Collectorate of which Babu Kishori Mohan Poddar was the sole proprietor. Kishori Mohan having been declared an insolvent his estate was in the hands of Receivers who were defendants 19 and 20 in the suit. As regards plot No. 2897 Kishori Babu was the proprietor to the extent of three annas and odd gandas share and the balance appertained to another touzi which belonged to defendants 1 and 2. At the time of the settlement, operations the river Lakhya flowed by the west of the suit lands. The river gradually receded and the disputed chars were formed in the river as accretions to the plaintiff's raiyati jote. The plaintiff possessed these chars for five or six years and grew crops in them but was dispossessed by defendants 1 and 2 which led to the institution of the present suit. Defendants 1 and 2, it was alleged, had wrongfully cut a khal or ditch on the raiyati lands of the plaintiff with a view to show that the disputed chars were separate from the asli lands and could not be regarded as accretions thereto. The suit was contested by defendants 1 and 2. Their defence was, that the lands in suit were not accretions to the plaintiff's holding, but constituted an island char formed on the bed Of the river Lakhya and as there was a non-fordable channel to the east of the lands, the char was at the disposal of the Government. It was further alleged that there was a pathway to the further east of the channel separating the disputed chars from the plaintiff's raiyati lands. The suit according to these defendants was brought at the instance of the Receivers to the estate of Kishori Mohan Poddar between whom and these defendants there were long and bitter quarrels.

(2.) The trial Court dismissed the suit and this decision was affirmed in appeal by the Additional District Judge of Dacca. Both the Courts below have held that the lands in suit were not gained by gradual accession from the recess of the river but were an island char thrown upon its bed. Both the Courts were of the opinion that the channel between this new formation and the shore was fordable. The trial Court held that in spite of the channel being fordable the plaintiff could not lay claim to the chars under Section 4, Clause (3), Para. 2 of Regulation 11 of 1825, as, under that clause, rights could be acquired only by the proprietor of an estate and not by any subordinate tenure holder. The lower appellate Court did not discuss this question of law, being of opinion that as the plaintiff did not make any case under Section 4, Clause (3) of the Regulation the matter did not arise for consideration at all. It is against this decision that the present second appeal has been preferred. Mr. Das who appears in support of the appeal has contended before us that on the findings of fact arrived at by both the Courts below they should have held that the plaintiff acquired a title to the disputed lands under Section 4, ol. (3) para. 2 of Regn. 11 of 1825 and that the lower appellate Court was wrong in refusing to go into the question on the ground that it was not expressly raised in the pleadings. Mr. Chakravarti who appears for the respondents has argued on the other hand that no rights could be acquired by a subordinate tenure holder under Section 4, Clause (3) para. 2 of the Alluvion and Diluvion Regulation. He has further argued that there was no foundation for a case like this either in the plaint presented by the plaintiff or in the evidence adduced by him and that at any rate there were no proper findings come to by either of the Courts below upon which relief under Clause (3) of Section 4 of the Regulation could be given.

(3.) The first and the main point for our consideration is whether under Section 4, Clause (3), para. 2 of Regn. 11 of 1825 a char thrown up on the bed of a large and navigable river the channel between which and the main land, is fordable at any season of the year can be claimed as an accretion to his tenure by a subordinate tenant who holds the adjoining estate or tenure not directly under the Crown bat under some zemindar or other superior landholder. Now, under Section 4, Clause (1) of the Regulation what is gained by gradual accession becomes the property of him to whose lands the recess of the river or the sea has annexed it. It is immaterial whether the adjoining owner is a zemindar or a superior landholder or a subordinate tenant. Every person from the zamindar or other actual proprietor of the soil down to every description of tenant is entitled to the increment by gradual accession. This has been made clear by the express words of the clause which says that "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 he held immediately from Government by a zamindar or other superior landholder or as a subordinate tenure of any description of under tenant whatever." The proviso added to this clause further lays down that the terms and conditions of the original tenure would apply to the increment. If the original tenure was a proprietary estate the holder of it will possess the accreted lands as proprietor liable to be assessed with fresh revenue for the same. On the other hand, if the new formation adheres to the tenure or holding of a subordinate tenant he will not be exempted from payment of additional rent for the additional area. Clause (3) of Section 4 deals with island chars thrown up in a big navigable river the bed of which is not the property of an individual. Under the English law an island rising up in a tidal and navigable river prima facie belongs to the Crown. A subject may acquire title to the island arising in tidal waters where the bed and the soil of the tidal river were in the subject before the island arose. Thus under the law of England the title to such an island is regarded as an incident of the ownership of the bid. The Indian Law, it seems, follows the same principle subject to the doctrine of fordable channel which is peculiar to it. Where an island is formed on the bed of a navigable river which is a part of the public territory, Clause (3) of Section 4 of the Regulation lays down that it would be at the disposal of the Government provided the channel between the island and the shore is not fordable. If, on the other hand, the intervening channel is fordable at any season of the year, it shall be considered an accession to the land tenure or tenures, of the person or persons whose estate or estates may be most contiguous to it subject to the special provisions specified in the Clause 1 of the section. The question before us is whether the words "whose estate or estates may be most contiguous" indicate that the right to such island can be claimed only by the zamindar or the actual proprietor of an estate and not by any species of subordinate tenant who holds lands under such zamindar. It will be seen that the wording of the operative portion of Clause (3), para. 2 follows closely that of Clause (1) except that the explanatory provision beginning with the words "where such land or estate be held immediately from Government etc.," which occurs in Clause (1) does not find a place in this part of Clause (3).