P L D 1962 Dacca 41 (PLP)

CHOWDHURY, C. J.‑This appeal under clause 15 of the Letters Patent arises out of a decision of Mr. Justice Abdul Jabbar Khan, a Judge of this Court in Second Appeal No. 375 of 1956, dated 7th July 1958.

2. The only question involved in this appeal is whether the bed of a public navigable river included in a Noabad Taluk which subsequently came out of the water on account of recession of the river adjoining the land of the plaintiff on the east, can be claimed as an accretion to his land.

3. Facts of the case, shortly stated, are as follows: C. S. plot Nos. l to 4 of mouza Sanbara belonged to the plaintiff in raiyati right under different landlords, namely to the extent of 8 annas under Ananda Mohan Sen and the remaining 8 annas under Rajendra Mohan Sen and others whose interest was subsequently auction‑purchased by the Province of East Pakistan and the plaintiff was possessing that 8 annas share under Patiya Khas Mahal by virtue of settlement dated the 19th of February, 1921. The suit land, namely, R. S. plot No. 1/4653 is an accretion to the plaintiff's C. S. plot Nos. 1 and 3 and he was possessing the same as an accretion to the said C. S. plot and as such he asked for settlement from defendant No. 4, the Patiya Khas Mahal who refused to settle the land with the plaintiff and got it recorded in the R. S. khatian as belonging to Taluk Chatranarayan No. 14526. On the basis of this wrong entry in the R. S. khatian, defendant No. 1, the owner of the Taluk Chatranarayan fraudulently and collusively created a raiyati holding in respect of the suit land in favour of his nephew defendant No. 2, who filed a suit being Rent Suit No. 638 of 1946 against the plaintiff, as he was found in possession of the suit land, and also against defendant No. 3 and obtained a collusive and fraudulent decree against the plaintiff by fraudulently suppressing the summons and, in execution of the said decree, auction‑purchased the suit land on the 2nd January 1947, whereupon the plaintiff was compelled to deposit the decretal dues amounting to Rs. 111‑3‑0 to save the suit land from auction sale. The plaintiff demanded a deed of release from defendants Nos. 1 to 3 who have got no right, title and interest and as they failed to execute such a deed of release the plaintiff was obliged to the suit.

4. The suit was ultimately contested by defendants Nos. 4 and

7. They denied the claim of the plaintiff in the disputed land as an accretion to his raiyati in C. S. plots 1 to 3 which correspond to R. S. plot Nos. 1 to 3 and asserted that it is a part and parcel of taluk Chatranarayan No. 14529 as recorded in revisional survey record of rights of the year 1928‑30.

5. The trial Court found that really the disputed plot 1/4653 originally bed of a public navigable river ultimately formed an accretion to the raiyati of the plaintiff on account of the recession of the river and, therefore, the plaintiff acquired title by accretion to his raiyati land. It also found that the entry in the re cord‑of‑rights recording the disputed plot No. 1/4653 as appertaining to the Noabad taluk Chatranarayan was wrong, because, being a bed of the public navigable river even at the time of the R. S. record‑of‑right it could not have been the subject matter of a private property.

6. On appeal the judgment and decree of the trial Court were set aside by the Subordinate Judge, Second Court Chittagong, holding that the disputed plot of land which formed bed of the river even at the time of preparation of the R. S. record‑of‑rights in the year 1928 (Vide R. S. map filed in the case) appertains to Noabad taluk Chatranarayan 14529 and that if any land comes out of the river it will be the land of the owner of the taluk though it appears contiguous to the land of the riparian owner and cannot be an accretion to the land of that owner. At the same time, the learned Subordinate Judge, like the trial Court, found possession of the plaintiff in the disputed land, but as the plaintiff did not complete 12 years possession on the date of the suit he could not claim title by adverse possession. His suit was dismissed on the ground that he had not acquired any title in the disputed land by accretion.

7. It may be mentioned here that in the same suit the plaintiff also asked for setting aside the ex parte rent decree passed against him in rent No. 638 of 1946 and for refund of Rs. 111‑3‑0 deposited by the plaintiff in execution of the rent decree to save the property from sale, on the ground that the decree was obtained fraudulently against the plaintiff by fraudulent suppression of the summons. The trial Court not only decreed the suit of the plaintiff in respect of the disputed plot but also set aside the rent decree and directed refund of Rs. 111‑3‑0 deposited by the plaintiff In Court. There was an appeal by the defendant only against the declaration of the plaintiff's title to the suit land. Though there was no appeal against the decree setting aside the rent decree in rent suit No. 638 of 1946 and the decree for refund of the money to the plaintiff, the learned Subordinate Judge set aside tile entire judgment and decree of the trial Court.

8. Against this decision of the learned Sub‑ordinate Judge the aforesaid second appeal has been filed by the plaintiff and my learned brother A. J. Khan, J., who heard the appeal, affirmed the decision of the learned Subordinate Judge so far as it relates to the title of the plaintiff in respect of disputed land but set aside the decree of the lower appellate Court so far as it relates to the setting aside of the decree in the rent suit No. 638 of 1946 and the order of refund of Rs. 111‑3‑0 in respect of which there was no appeal before the lower appellate Court and affirmed the decision of the trial Court to that extent. Hence this appeal under clause 15 of the Letters Patent.

9. The point argued by Mr. Matilal Acharyya, the learned Advocate for the plaintiff appellant, is that even at the time of revisional survey of the years 1928‑30 the disputed plot of land, namely, No. 1 /4653 was recorded as river and it is admittedly a public navigable river and as such whatever land that comes out of it adjoining the land of the plaintiff on account of recession of the river towards the west would be an accretion and the plaintiff is entitled to claim the same as an accretion to his raiyati.

10. We are unable to accept this contention of Mr. Acharyya on account of the decision of the Supreme Court in the case of Surendra Lal Depal v. Satya Tamaj Ghoshal and others (P L D 1960 S C (Pak.) 179) where their Lordships held that for the purpose of accretion to the riparian owner the bed of the river must be a public domain and not a private property and if it was a private property it would remain a private property and could not be treated as an accretion to the riparian owner.

11. Next contention of Mr. Acharyya is that the R. S. record of rights regarding the disputed plot as appertaining to Noabad Taluk Chatranarayan is wrong as found by the trial Court as it would not have been a private property in view of the decision in the case of Nobin Kishore Roy v. Jogesh Parshad. Gangooly and others (14 W R 352) and in support of his contention Mr. Acharyya strongly relied on the observation of Markby, J., at page 354 of the report which runs as follows: - "Now, I feel bound to express my entire dissent from the doctrine which has been put forward in this case, and which seems to have received some countenance from the revenue authorities, that the bed of a navigable river in this state can be the subject of the private property. So long as it is washed by the ordinary flow of the tide pt a season when the river is not flooded, I think that it remains public juris, or, if vested in any one, that it is vested in the Crown: not under Regulation XI of 1825 and for mere fiscal purposes, but as representing, and as it were a trustee for, the public. That land in this condition is not subject to private rights of ownership is universally recog nized and it might be most detrimental to the interests of navigation if it were otherwise." On the basis of this observation Mr. Acharyya advanced his argu ment that if it cannot be the subject matter of a private property or cannot be "subject to private rights of ownership" it ought not to have been recorded as appertaining to the private tenure, namely, Noabad Taluk Chatranarayan 14529. The argument is very ingenious, no doubt, but if one reads the facts of that case will be convinced that the words "in this state" in the sentence "the bed of a navigable river in this state can be the subject of private property" and the words "in this condition" in the sentence "that land in this condition is not subject to private rights of ownership is universally recognised" refer to the state of things and the condition of the river mentioned in the statement of facts of that case. In that case a chur was formed in the bed of the navigable river Meghna and it was found in that case on evidence that at the time when the chur was thrown up the channel between the chur and the estate of the plaintiff of that suit known was Ababil was about more than a mile broad and the main land was not visible from the chur and that in the beginning the channel was not fordable either at high tide or ebb tide but subsequently it came to be fordable when the water was at its lowest level. Therefore, Markby, J., stated that in that state of things and in that condition it could not be the subject matter of a private ownership under clause (3) of section 4 of Regula tion XI of 1825. Nowhere in that case the sovereign right of the Crown to let out even the bed of a navigable river to a private individual was negatived, nor anything was shown to us either in the shape of a decision or a provision of any law that the Government has got no right to let out such a land to a private individual. The Collector of the district has created the touzi Chatranarayan No. 14529 comprising the disputed land as part of that touzi. When this touzi was sold for arrears of rent it was purchased by defendant No. 7 and he let out the same to defendant No.

2. There is, therefore, no doubt that the disputed land was a private property or appertained to the Noabad tenure and if the bed of the river comes out on account of movement of the walking rivet it cannot be said that it will form an accretion to the land of the riparian owner.

12. Mr. Acharyya, in his attempt to support the claim of the plaintiff, tried to make a distinction between permanent settle ment and periodical settlement by the Government in respect of the khas mahal land and in support of his attempt he relied on the case of Prafulla Nath Tagore and others v. The Secretary of State for India in Council (24 C W N 639), where it has been held that a person, who claim to be the owner of the bed of a public navigable river, must show that it has been taken into account at the time of assessment of revenue at the time of quinquennial and decennial settlement in the year 1989 and 1793. But as for ourselves, we do not find any bar in the power of letting out the land forming the bed of the river, by the Government to a private individual. If the Government can settle it permanently, we do not see where is the bar in settling it periodically. In the circumstances, we find no substance in the point raised by Mr. Acharayya in this appeal.

13. The result, therefore, is that this appeal is dismissed and the judgment and decree passed by the High Court in Second Appeal No. 375 of 1956 are armed, but we must make it clear that this decision in this suit must not be taken to have disturbed the possession of the plaintiff in the suit land found by both the Courts below. He may retain it, if he is otherwise entitled to, particularly in view of the rent suit filed by defendant No. 2 against him.

14. In the circumstances of this case, we direct that the parties will bear their own costs in this appeal. M. R. KHAN, J.‑I agree with my Lord the Chief Justice. K. M. A. Appeal dismissed.