P L D 1955 Dacca 52 (PLP)

CHOWDHURY, J,

‑This .appeal arises out of a suit for declaration of plaintiff's title to the land of Schedule ka and kha of the plaint and for khas possession of Schedule ka land after evicting the defendants Nos. 1‑10 from the same on the allegation that the temporary chandina tenancy of the defendants in the same is validily terminated by notice and for confirmation or in the alternative for recovery of possession of the land of Schedule kha which includes the land of Schedule ga claiming it to be reformation in situ. The subject matter of the suit appertains to the Diara Mahal No, 4533 comprising three Mouzas, Kutubnagar (2432), Nutan Char Jhalakati (2433) and Char Jhalakati (2432) which are' annexation to the permanently settled estate of Mouza Raimangal belonging to Bhukailas landlords now in charge of a Receiver who filed the suit. The plaintiffs case is that the land of Schedule ka con stituted the temporary chandina tenancy of the defendants which has been validly terminated by notice upon them and the rest of the suit land is reformation in situ as it has been thrown out of the adjoining khal known as Jhalakati khal in which Bhukailas landlords have absolute right as it forms a part and parcel of their Diara Mahal No. 4533 settled by the Government. The trial of the suit so far as it relates to the land of Schedule ka is stayed by the trial Court under section 3 of the Bengal Act IX of 1940, the Bengal Non‑Agricultural Tenancy (Temporary Provisions) Act of 1940. It directed a local investigation in respect of kha Schedule land to find tout if it or any part of it was an accretion to the land of defendants' tenancy in Schedule ka or a reformation in situ as claimed by the plaintiff. The question arose in the case and the matter went up to High Court in revision whether there should be extension of the provisions of section 3 of the Bengal Act IX of 1940 to the lands of Schedule kha which have annexed themselves geographically, as a result of fluvial action, to the admitted block of land forming the chandina tenancy of the defendants. Their Lordships of the Calcutta High Court passed the following order: "Both sides have agreed that the proper course would be to stay further hearing of the suit in respect of Schedule kha (viz., the blocks other than the original block forming the chandina tenancy described in the ka Schedule of the plaint) only if it is found upon the Commissioner's report and other evidence that these lands are not a part of the defendants' tenancy as constituting an accretion to the ka Schedule land or otherwise. If the lands are found to be reformation in situ as alleged by the plaintiff, the suit will no doubt proceed". Accordingly a Commission was issued and the Commis sioner submitted a report. The trial Court on the basis of this report, held by its judgment dated 7th July 1942, that of the blocks 'a', 'b', 'c' and 'd' of the Pleader Commissioner's map, block 'c' was an accretion to defendants' dag No. 5 and block 'd' was an accretion to a third party's dag No. 8 to which the plaintiff could not claim possession and the suit would proceed only in respect of blocks 'a' and 'b' of the, Pleader Commissioner's map. There is no appeal against this order. The suit, therefore, is now confined only to the land of blocks 'a' and 'b' of the Pleader Commissioner's map and the report. According to the plaintiff the land of block `a' which sprung out of the khal which was an inland khal joining the river Dhansidhi on the bank of which the small port of Jhalakati is situated, and block 'b' land is an accretion of longitudinal type to the land of block 'a' appertained to the Diara Mahal of the plaintiff who as a proprietor of the permanently settled estate of Mouza Raimangar, got the Diara settlement on the 1st of April, 1928, comprising Mouzas Kutubnagar, Nutan Char Jhalakati and Char Jhalakati, and the Cadastral Survey plot No. 1 of Nutan Char Jhalakati measuring 359 acres being the khal was included within the plaintiffs Diara Mahal and C.S. dag No. 225 of . Mouza Nutan Char Jhalakati which is admittedly the land of Schedule kha is the khas land of the plaintiff as proprietors of the Diara Mahal and the char formed out of the bed of this khal belongs to the plaintiff and the defendants are not entitled to claim it as an accretion to the lands of their chandina tenancy. The contesting defendant No. 1 on the other hand urges that these 'a' and 'b' blocks are accretions to lands of their chandina tenancy in Schedule ka by a slow and gradual process of accretion taking place for the last 15 or 16 years with a slope towards the west and they and their predecessors are possessing this char land openly and peacefully. The trial Court decreed the suit of the plaintiff holding, on the basis of the Pleader Commissioner's report, that the land of block 'a' was not reformation in situ but a new formation out of the bed of the adjoining khal appertaining to the Diara Mahal of the plaintiff and that the land of block 'b" was a longitudinal accretion to the land of block 'a' to its south as a result of the recession of the river Dhansidhi. The lower appellate Court affirmed this decision of the trial Court. Hence this second appeal by the contesting defendant No.

1. Mr. Gopal Chandra Das, the learned Advocate for the appellant, raised the following points in support of the appeal:

1. That the suit filed by the Receiver without the sanction of the appointing Court is not maintainable.

2. That in view of the order of the High Court in revision and in view of the finding of the Courts below that the lands of blocks `a' and 'b' are not reformation in situ, the trial of the suit cannot proceed and the plaintiff's case of reformation in situ having failed they are not entitled to any decree on any other basis.

3. That the land of block 'b' is an accretion not to land of block 'a' but to the land of block `c'.

4. That the lands of blocks 'a' and 'b' are accretions to the appellant's chandina tenancy within the meaning of the first clause of section 4 of the Regulation XI of 1825 known as the Bengal Alluvian and Diluvian Regulation of 1825. As to the first point of Mr. Das, in view of the finding of both the Courts below that the Receiver obtained the sanction of the appointing Court before the suit was filed, it has got no substance. As to his third point, the learned Subordinate judge, at pago 33 of the paper‑book, held that it was clear from the juxtaposition of all, the contiguous blocks `b', 'c' and 'd' to the corresponding contiguous land just to the north that they were gradual extension of the respective parcels of land to the north as a result of the recession of the river Dhansidhi gradually to the south and that being the case it could easily be said that blocks `b' and 'd' were accretions to the just contiguous northern parcels of land and accordingly block `b' must be clothed with the same incident as 'a' block and that even if it was held that block 'b' was an annexation to the block 'c' to the west such annexation must be treated to be out of khal to the west and as such annexation to the plaintiffs property on the same principle on which block 'a' was treated. I agree with this finding of the learned Sub ordinate judge and hold that block `b' is an accretion not to block 'c' but to block 'a'. As to his second point, both the Courts below found and I agree with the finding that the lands of blocks `a' and `b' were not reformation in situ, true to the sense of the term, as these lands were never in existence as an assali land and at the time of Diara settlement formed the bell of the khal, which is according to both the parties a navigable khal, but a new formation out of the bed of that khal. If it is a new formation out of the bed of a navigable khal included in the Diara settlement of the plaintiff and if the defendants cannot claim it as an accretion to the land of their chandina tenancy, the suit can proceed and the plaintiff can get a decree in the suit. Therefore, the decision as to the rights of the parties in the land of block `a' and its accretion, the land of block `b', as well as the question whether the trial of the suit should proceed and the plaintiff is entitled to get a decree, depends upon the determination of Mr. Das's fourth point, namely, whether the defendants can claim these blocks of land coming out of the navigable khal, the bed of which is the propert of private individual the plaintiff, under clause (1) of section 4 of the Regulation XI of 1825, as an accretion to their adjoining land of chandina tenancy under the plaintiff. Section 4 of the Regulation consists of five clauses of which the clauses (1), (4) and (5) run as follows: "First‑When land may be gained by gradual accession, whether from the recess of a river or of the sea, 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 be held immediately from the Crown by a Zamindar or other superior land‑holder, or as a subordinate tenure, by any description of under‑tenure whatever: (There is a proviso providing for payment of revenue or rent for such increment by the superior land‑holder to be Crown or by the tenure‑holder to the Zamindar as the Crown case may be.) "Fourth‑In small and shallow rivers, the beds of which, with the jalkar right of fishery, may have been heretofore recognised as the property of individuals, any sand-bank or at char that may be thrown up shall, as hitherto belong to the proprietor of the bed of the river, subject to the provisions a stated in the first clause of the present section. "Fifth‑In all other cases, namely, in all cases of claims and disputes respecting land gained by alluvion or by dereliction of a river or the sea, which are not specifically provided for by the rules contained in this regulation, the Courts of justice, in deciding upon such claims and disputes, shall be guided by the best evidence they may be able to obtain of established local usage, if there be any applicable to the case, or, if not, by general principles of equity and justice." Mr. Das, the learned Advocate for the appellant, contends that the defendants who are tenants of the plaintiff in respect of Schedule ka land come under the first clause of section 4 of the Regulation and as such are entitled to claim the land as accretion to their tenancy subject to payment of rent to the plaintiff. He relied on the decision of the Full Bench of the Patna High Court in the case of Khubi Mahton v. Mahanth Lachmi Das (I L R 2 Pat. 18) in support of his contention. On the other hand Mr. Upendra Kumar Roy, the learned Advocate for the respondent, contends that the first clause of section 4 is limited to gain or increment from public domain, that is, accretion from the river or the sea the bed of which is the property of the Crown and not property of a private individual. He relied on the oft‑quoted passage from the judgment of their Lordships of the Privy Council in the case of Felix Lopez v. Muddun Mohan Thakoor and others (13 Moore's I A 467) which runs as follows: "It is to be observed, however, that that clause refers simply to cases of gain, of acquisition by means of gradual accession. There are no words which imply the confiscation or destruction of any private person's property whatever. If a Regulation is to be construed as taking away anybody's property, that intention to take away ought to be expressed in very plain words, or be made out by very plain and necessary implication. The plaintiff here says‑--'I had the property. It was my property before it was covered by the Ganges. It remained my property after it was submerged by the Ganges. There was nothing in that state of things that took it from me and gave it to the Government. When it emerged there was nothing that took it from me and gave it to any other person'. And in answer to such a claim it would certainly seem that something more than mere reference to the acquisition of land by increment, by alluvion, or by what other term may be used, would be required in order to enable the owner of the property to take property which had been legally vested in another.' "In truth, when the whole words are looked at, not merely of that clause, but of the whole Regulation, it is quite obvious that what the then legislative authority was dealing with, was the gain which an individual proprietor might make in this way 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 ; this was 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 state of nature neither valuable nor usable." It is a case between the two neighbouring proprietors holding their respective estate under the Crown‑one claiming the land as reformation in situ and the other claiming it as an accretion to his estate. But Mr. Roy contends that the principle laid down is of general nature and applicable to a case between the proprietors of the bed of a river and his tenant having his tenancy on the river‑side. He relies on the Calcutta decision in. 'the case of Rahimaddhai Matabbar v. Naimaddi Howladar and others (31 C W N 750). This Calcutta case also is a case of reformation in situ, but the the tenant of the estate to which the reformed land originally belonged, claimed the land as an accretion to his tenancy. Mr. Roy also relied on the Privy Council case of Keshava Prasad Singh v. The Secretary of State for India in Council (31 C W N 717). It is also a case of reformation in situ on the other side of a wandering river and the decision is based on the observation of their Lordships in the case of Lopez v. Muddun Mohan Thakoor. Besides these cases Mr. Roy also relied on the case of Badulla Howladar and others v. Amniuddin Choukidar and others (36 C W N 484), Naku Sheikh alias Laku Sardar and others v. Harish Chandra Chakravorty and others (38 C W N 130) and Prokash Chandra Sil and others v. Abdul dabbar and others (40 C W N 345). Before I deal with these cases I think it is necessary to consider the provisions of the relevant clauses in section 4 of the Regulation in the light of the observations of their Lordships of the Judicial Committee in Lopez's case, quoted above, as the decisions in all these cases are based on those observations. One of the arguments advanced in all these cases was that if the tenants were allowed to claim the land that came out of the bed of the river which was the property of private individuals, as an accretion, it would mean a confiscation of the interest of the holder of the proprietary right to the land as observed by their Lordships of the Privy Council in Lopez's case. This contention is not tenable both in view of the provisions of clause (1) of section 4 and in view of the observations of their Lordships in that Privy Council case. Firstly because clause (1) of section 4 itself contemplates a limited confiscation. Under tenant of any description is allowed to claim increment by way of accretion to his tenancy subject to payment of rent. The superior landlord holding under the Crown is also allowed to claim the gain or increment on account of the recess of the river or the sea. If the proprietor of an estate is allowed to claim the land as an increment to his estate, subject to the payment of revenue, it is his absolute property. At the same time if the tenant of the estate is also allowed to claim the self‑same land as an accretion to his tenancy subject to the payment of rent to the landlord then certainly it is an encroachment on the full properietary right of the holder of the estate to which it is accreted. It is no doubt true that their Lordships speak of con fiscation as one of the grounds in disallowing the claim of the neighbouring proprietor to the land as an accretion to his estate but it was a case of an absolute confiscation and not a case of one holding under the other. Therefore, when their Lordships were speaking of confiscation they were speaking of absolute confiscation and not a confiscation of a limited character which, I think, is allowed under clause (1) of section 4 of the Regulation XI of 1825. We cannot read their Lordships' judgment divorced from the facts of that case which may result into a decision contrary to the express provisions of clause (1) of section 4 of the Regulation. A case is authority for only what it actually decides and cannot be quoted to support a proposition that would seem to follow logically from it. Secondly, another ground of their Lordships in refusing the claim of the neighbouring proprietor to the disputed land as an accretion to his estate is that the land was a reformation in situ. Their Lordships of the Judicial Committee observed that before the lands were submerged under water it belonged to the proprietor and the neighbouring proprietor could not claim any portion of that land on any ground but simply because misfortune fell on the proprietor and his lands submerged under water, did not give the neighbouring proprietor any right to claim them, after reappearance, as an accretion to his estate which legally vested in another. In such circumstances whether he be a tenant under the proprietor or not cannot claim as an accretion because the terms of the section do not entitle him to claim that land by way of accretion to his land. Further, clause (1) of section 4 does not qualify the river by saying either navigable non-navigable, or private or public or small or shallow. Their Lordship of the Privy Counsil in Lopez s case no doubt observed: "In truth, when the whole words are looked at not merely of that clause, but of the whole Regulation, it is quite obvious that what the then Legislative authority was dealing with, was the gain which an individual proprietor might make in this way 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." This observation is applicable to the facts of that case and their Lordships were not dealing with the claim of a tenant under the proprietor of the bed of a river. This general observation should not be taken independently of the facts of that case to counteract the specific provisions of clauses (1) and (4) of section 4 of the Regulation. In support of this view reference may be made to the decision of the Full Bench of the Patna High Court in the case of Khubi Mahton v. Mohanth Lachmi Das. In that case the reference was a follows "Does clause (1), section 4 of Regulation XI of 1825 apply to a case where the river out of the bed of which the accretions have formed is the private property of an individual and not the property of the Crown ?" The reference was answered in the afirmative. The learned Chief Justice Dawson Miller in that Full Bench case while considering the observations of their Lordships of the Judicial Committee in the case of Lopez v. Muddin Mohan Thakoor, observed as follows: "On a perusal of the first clause of the fourth section of the Regulation it appears to me to apply clearly both to the case of a superior landlord who holds from the Crown, and to the case of the holder of a subordinate estate or tenure‑holding from a landlord intermediate between himself and the Crown, and to be limited in each case to accretions from the lands of the person from whom he holds and to whom revenue in the one case and rent in the other is payable. In the case of a superior landlord the person from whom he holds is the Crown and no one else. In such a case it is only where the Crown is the proprietor of the accreted lands that the section comes into operation. To hold otherwise and permit a landlord to acquire in this manner a proprietary right in the land of his neighbour, with whom he has no relationship such as that of a tenant to his landlord, would be going outside the scope and intention of the section and permitting what, in effect, would be confiscation of another man's land. This consideration, however, does not apply where the claim is by a tenant against the land of his landlord, a claim which by the proviso to the first clause of the section is limited to a right of property similar to that possessed by the tenant in the tenure to which the land may become annexed, and which, by the same proviso, carries with it the liability to pay an increase of rent. In Lopez v. Muddpn Mohan Thakoor as already indicated, the claim was by a superior landlord holding immediately under the Crown and claiming as an increment to his estate a portion of the former bed of the river which belonged not to the Government from whom he held, but to a neighbouring Zamindar from whom he held nothing. We, therefore, find in the judgment, in that case, an emphatic repudiation of the suggestion that the Regulation authorised the confiscation or destruction of any private person's property and a declaration that the gain which an individual proprietor might acquire under the Regulation could only occur in 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'. It must be borne in mind that in thus limiting the operation of the Regulation, their Lordships were considering only the claim of a superior landlord to the lands of his neighbour through whom his title was not derived, and not the case of a subordinate tenure‑holder claiming against his immediate landlord. "It is contended, however, on behalf of the respondents that the interpretation placed upon the Regulation in Lopez's case clearly lays down the broad proposition that it applies only to the sea or public rivers belonging to the State. I agree that this is so in cases where the claimant is a superior landlord holding under the Crown, but I cannot believe that it was the intention of their Lordships in that case to lay down a broad general pro position applying to a state of affairs which was not then under consideration nor can I*find anything in the section itself which would limit the rights of subordinate tenure holders, or under‑tenants, to cases in which the accreted lands formed part of the public domain." In my opinion the reading of the Privy Council case with reference to the facts of that case by the learned Chief Justice Dawson Miller is the correct reading of the case. It will not be proper to read the observations of their Lordships of the Privy Council, quoted in the earlier part of my judgment, independently of the fact of that case. Mr. Roy, as I have stated, relied on the case of Rahim'addi Matbar v. Naimaddi Howladar and others. It is a case of reformation in situ claimed by the tenants of the estate as an accretion‑ to their tenancy and, therefore, comes within the principle laid down by their Lordships of the Judicial Committee in Lopez's case. The decision in that case can be supported on the ground of reformation in situ. But I find myself unable to agree with the view taken therein, on the aforesaid observation of the Judicial Committee in Lopez's case that accretion cannot be claimed by a tenant out of the land from the bed of the river which is a property of his landlord. The Full Bench case of the Patna High Court was referred to in that case and his Lordship Graham, J., was unable to accept the correctness of the proposition laid down in that Full Bench case not because it was contrary to the provisions of the Regulation but because it seemed to his Lordship to be difficult to reconcile the view with the Privy Council decision in the case of Felix Lopez v. Muddun Mohun Thakoor and others. If we read the Privy Council decision, as read by the Full Bench of the Patna High Court, there will be no difficulty in reconciling the view with the decision of the Privy Council and it would be in consonance with the terms of‑clause (1), section 4 of the Regulation, In that case Mitter, J., distinguished the Patna case from the case before them and observed as follows: "To me it seems that the decision of the Patna High Court is contrary to what their Lordships of the Judicial Committee laid down in Lopez's case. The Full Bench of the Patna High Court seems to have put a wider interpretation on section 4 of the Regulation than was intended. But it is not necessary in this case to express a final opinion as to whether the view taken by the Patna High Court is right or wrong. For the present case is not a case where the accretion was an accretion from a river bed which was the property of the landlord. In the present case the lands are reformations of lands which were formerly in the direct possession of the landlord. This is a circumstance which distinguishes the present case from the case which was decided by the Full Bench at Patna and Mr. Justice Mullick who was one of the members of the Full Bench recognises the distinction." Therefore, the case reported in 31 C W N 750, the facts of which are distinguishable from the facts of the present case, as both the Courts below have found that it is not a case of reformation in situ, the contention of Mr. Roy on the basis of that case cannot be accepted as correct. Three other cases, namely, the cases reported in 36 C W N 484, 38 C W N 130 and 40 C W N 345 have been cited and relied on by Mr. Roy. Of these three cases, the first mentioned two cases are directly on the points under consideration in this case. In the case of Badulla Howaldar and others v: Aminaddin Choukidar and others, the dispute was between the tenant of the landlord who claimed the land to be an accretion to his tenancy and a person holding settlement of the accreted lands from the same landlord under whom the plaintiffs held the tenancy. The decision in that case was also based on the observations of their Lordships of the Privy Council in Lopez's case. If those observations are read with reference to the facts of the case and not independently of them, then the decision, in view of the provisions of the first clause of the section, cannot be supported. So is the case of Naku Sheikh alias Laku Sardar and others v. Harish Chandra Chakravorty and others where the defendant claimed the disputed land on the basis of settlement from the landlord to whose estate the land originally belonged but not assessed to revenue and after reformation Diara settlement was made with that land lord. The plaintiff in that case claimed the accreted land by settlement from the Darpatnidar under the same landlord. In that case also it was held that clause (1), section 4, was only applicable to the case of an accretion from public domain not from the river, the bed of which belonged to the private proprietor. There, his Lordship Jack, J. observed that the view taken by the Patna High Court appeared to be in accordance with the terms of section 4, clause (1). till his Lordship could not accept the view of the Patna High Court because that view could not be reconciled with the view of the Judicial Committee in Lopez's case. This decision also in my opinion, with due respect to their Lordships, does not seem to be correct. It is based on the observations of their Lordships of the Privy Council, quoted in the earlier part of my judgment, without any reference to the facts of that case. The last case cited by Mr. Roy reported in 40 C W N 345 was a case of a char thrown up in a small and shallow river and the dispute was between the plaintiff who took settlement of the char from the Maharaja of Tipperah to whose estate the river belonged and the tenants under the Talukdar of the Maharaja in that estate who claimed it as an accretion to their tenancy. In that case though the attention of their Lordships was not drawn to the Full Bench decision of the Patna High Court, the argument advanced was on the same line, but his Lordship Nasim Ali, J., who could not find his way to accept the contention as correct as it was against the observation of their Lordships of the Judicial Committee in Lopez's case held that clause (1). was restricted to public domain. This decision is also based on the reading of their Lordships' observations in Lopez's case independently of the facts of that case. In this case it was held that the confiscation spoken of by their Lordships of the Privy Council was not only an absolute confiscation but confiscation of any kind including partial confiscation. I have already pointed out that the section itself authorises partial confiscation by the tenant claiming the land as an accretion to his tenancy subject to payment of rent to the landlord to whose estate the land was accreted. In this view of the matter, I think the contention of Mr. Das is of substance and the Courts below are wrong in holding that the defendants are not entitled to claim these lands as an accretion to their tenancy because the bed of the khal formed the property of the plaintiff. Mr. Das also tried to support his contention with reference to the provisions of clause (4), section 4, which deals with char in small and shallow river, the bed of which belongs to private proprietor. He referred to this fourth clause for two purposes. Firstly to support his contention that acquisition of title by accretion from the bed of a river which belongs to private proprietor is allowed to a tenant subject to payment of rent as the fourth clause of section 4 is subject to the provisions of the first clause of section 4 which according to him has reference to acquisition of such title. His second purpose is that even if the case does not come under the first clause it will come under clause (4) and ‑his client is entitled to claim it as an accretion. As to this, Mr. Roy urged that the closing words "subject to the provisions stated in the first clause of the present section" in clause (4) was limited to the proviso to clause (1), section 4, which deals with the liability of payment of revenue. He relied on the observations of Nasim Ali, J., in the case of Prokash Chandra Sil and others v. Abdul Jabbar and others which runs as follows: "If the sabstantive part of clause (1) is read as incor porated in clause (4) by operation of the closing words of clause (4) the earlier part of clause (4) becomes meaningless." If we consider clause (4) as dealing with small and shallow rivers separately, subject to the provisions of the first clause, namely, the right of the tenure‑holders under the proprietor to claim accretion in the land coming out of the bed of those small and shallow rivers, I do not find why the earlier part of clause (4) becomes meaningless. Clause (1), section 4, gives the proprietor the right of accretion but subject to the right of the tenants to acquire similar right in such' accretion out of a river other than small and shallow river, whereas clause (4), section 4, deals with char thrown up in small and shallow river the bed of which belongs to the private proprietors. I do not find any reason w y the words "subject to the provisions stated in the first clause of the present section" should be read as "subject to the proviso stated in the first clause of the present section". If we read the Privy Council case reported in 13 Moore's I A 467 in the way we have read it I do not find it necessary to read "subject to proviso" in clause (4) which is not there. This also lends support to the contention of Mr. Das that the legislature intended a right of accretion to the tenants C of the proprietor not only out of the bed of a river which is a public domain but also the river, the bed of which is the property of private individual. In this view of the matter I allow this appeal and the judgments and decrees of the Courts below to the extent of giving khas possession to the plaintiff are set aside and declare that the lands of blocks 'a' and 'b' are accretions to the defendants' tenancy described in Schedule ka of the plaint and they are entitled to retain possession of the same but subject to payment of rent to the plaintiff to whose estate the lands belong and the trial of the suit should be stayed as directed by the High Court. In view of the conflicting decisions on the point I direct that the parties will bear their own costs throughout. Leave to appeal under section 15 of the Letters Patent prayed for is granted. A. H. Appeal allowed.