P L D 1960 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.

This is a certificated appeal from a decree of a Division Bench of the High Court of East Pakistan at Dacca reversing a decree of a Single Judge of that Court who himself had reversed concurrent' decrees of the Trial Court and the first Appellate Court by which plaintiff-respondent's suit for two strips of land along a river bank had been decreed. The appeal arises out of a 20-years old litigation and, scandalous as it may appear, the preparation and completion of the record in the High Court took almost six years. The facts are perfectly simple, and so is the question of law involved. There is a navigable channel, described as a khal which leaves or joins a public river called Dhansiddha, at a bend. Along the bank of the channel a strip of land is held by the appellant in Chandina tenancy under the respondent who is the representative-in-interest of the person who owned the channel as appertaining to his Diara Mahel. Some time back there sprung out of the channel a strip of land contiguous to the land held by the newly-formed land shown by the letter `b' which is not contiguous to appellant's Chandina land. The respondent brought against the appellant a suit for the recovery of possession, was resisted on the ground that the lands in question were an accretion by gradual process to the appellant's land and that as such he had the right to hold them as a part of his tenancy. The High Court has remarked; "A scrutiny of the record discloses that to the west of the Ka Schedule Chandina there is a navigable Khal having connection with the river Dhansidha to its south. Both the Courts below, as already pointed out, concurrently found that the block `a' formed out of the beo of the navigable khal to the immediate west of the Chandina plot, appertaining to Diara Mahal, and the block `b' accreted longitudinally to block `a' as a result of the gradual recession of the river Dhansiddha. This being a finding upon a, question of fact could not be assailed in second appeal and in fact it was not assailed." In a subsequent part of the judgment the learned Judges again make the following observation; "The principle of the public domain cannot certainly apply to a channel which is recognised to be the property of a private individual. The entry in the cadastral survey khatian whose correctness is not challenged at any stage of the proce eding precludes all speculation about the khal being anything but the khan property of the plaintiff as an integral part of the diara estate. If we turn to Bengal Act IX of 1.847 and the Bengal Survey and Settlement Manual, 1935 there also we do not find anything which disclaims the proprietorship of private owners of Char land thrown out of a water channel the bed of which is admitted and recognised to be the private proper ties of such owners." It has been mentioned that no part of the appellant's Chandina land touches plot `b'. He cannot therefore claim it on the ground of accretion unless he first establishes his right to plot 'a' which has sprung out of the bed of the channel held by the respondent in proprietorship. Following the Privy Council judgment in Felix Lopez v. Muddun Mohun Thakoor and 2 others (18 Moors I A 467), the High Court has held clause (1) section 4 of the Bengal Regulation XI of 1825, is not applicable to the situation so as to entitle the appellant to claim the land newly-formed in the bed of a privately-owned channel as an accretion to his Chandina tenancy, the reason being that that clause applies only where the gain is, to use the words of James L. J., "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", such gain being "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." In that case the Board accepted as correct and as being applicable to India the rule stated by Hale that "if it (diluviated land) be freely left again by the refiux and recess of the sea, the owner may have his land as before, if he can make out where and what it was for he cannot lose his property of the soil, although it for a time becomes part of the sea, and within the Admiral's jurisdiction while it so continues." "This principle", the Board proceeded to state, "is one not merely of English law, not a principle peculiar to any system of municipal law, but it is a principle founded in universal law and justice, 'that is to say that whoever has land, wherever it is, whatever may be the accident to which it has been exposed, whether it be a vineyard which is covered by lava or ashes from a volcano, or a field covered by the sea or by a river, the ground, the site, the property remains in the original owner." The rule thus stated has remained unshaken during the last century and has been repeatedly re-affirmed by the Board, the only qualification, which was hinted even in Felix Lopez's case, added to the rule being that the owner may lose his title to such land by abandonment, dereliction or prescription. Mr. Pakrasi, learned counsel for the appellant, endeavoured to get out of this rule by attempting to show that the finding, accepted by the appellant throughout, that the bed of the channel was the private property of the respondent was not correct. This he is not entitled to do at the present stage, because the finding of fact recorded by the lower Appellate Court were binding on the High Court in Second Appeal. He then argued that the Privy C6uncil decision in Felix Lopez's case does .not cover a situation where the land contiguous to the newly-formed land is held by a person in tenancy from the owner of the bed of the river. This was the argument which found favour with a Full Bench of the Patna High Court in Khubimahton v. Mahant Lachmidas (ILR2Pat. 18), but which has been repeatedly repudiated by the Calcutta High Court. We have little doubt that the Patna Full Bench took an erroneous view of the law when they held that there is a distinction between a case where the newly-formed land is contiguous to the land of riparian owner who is different from the person who owns the bed of the river and that where a tenant whose land has been added to by accretion holds the tenancy under the owner of the bed of the river. The result follows quite plainly and logically from the rule laid down by the Privy Council in Felix Lopez's case that where a tenant bolds under a stranger land to which there has been imperceptible accretion by the recession of a privately-owned river neither he nor his landlord can lay any claim to the accretion as against the owner of the bed of the river, and we do not see why where the tenant holds under the owner of the bed of the river his position, in the absence of an express statutory provision, should be different and he should be able to claim a sort of statutory tenancy against his own landlord. If in one case, there is confiscation of another man's property, it is equally so in the other, though only of an interest in property. Mr. Pakrasi lastly relied on clause (4) of section 4 of the Regulation, but that clause merely re-affirms the principle stated above inasmuch as it provides that in small and shallow rivers the beds of which have hitherto been recognised as the property of individuals, any sand-bed or char that may be thrown up shall, as hitherto, belong to the proprietor of the bed of the river, and the words in that section "subject to the provisions stated in the 1st clause of the present section," merely refer to that part of the first clause which makes the newly-formed land liable to assessment and payment of the public revenue to which it may be liable under the provisions of the Bengal Regulation 2, 1819. For these reasons, we consider that this appeal is without any force and we dismiss it with costs. A. H. Appeal dismissed.