SECY OF STATE Vs. FOUCAR AND CO LTD

JUDGEMENT

(1.) The question in this appeal is as to the respondents' title to certain partly-submerged lands in the Pegu river, which is tidal and navigable, and the alveus of which is admitted to be in the Crown. Somewhere about 1892 an island began to form in the bed of the river, and parts of it having become from time to time fit for the cultivation of dhani palms, which, it is said, grow best below the high-water mark, were granted out by the Government to different persons for that purpose. In the year 1922 the whole of the island as it then existed was acquired by the respondents. In the subsequent years further accretions occurred at the south- east end of the island, and a portion which had been lost some years before by erosion reappeared. These lands were taken possession of by squatters, one of them apparently having the permission of the Collector, who claimed both the accretions and the re-formed land for Government. The respondents thereupon instituted a suit against the appellant in the District Court of Insein, claiming a declaration of their rights, possession and other relief. The squatters were joined as co-defendants, but took no part in the proceedings, the only contesting defendant being the appellant as representing the Government. The trial Judge dismissed the suit, holding that the Court had no jurisdiction to entertain it. He was also of opinion that the respondents had no title to either the accretions or the reformed land. On appeal to the High Court at Rangoon the question of jurisdiction was decided against the appellant, and the correctness of this decision has not been contested before the Board.

(2.) The learned Judges of the High Court also differed from the trial Judge as to the re-formed land, which they held to belong to the respondents. This finding also has not been seriously disputed before their Lordships. It is, they think, clear that there was no abandonment by the predecessors in title of the respondents, and the ordinary rule would apply under which the title of the grantees attaches upon the re- formation. It was suggested that the respondents' conveyance did not cover the re-formed land, but there is no trace of any such contention having been raised in the Burma Courts, where counsel for the appellant formally admitted the respondents' title to all the land the subject of the original grants. Under these circumstances their Lordships must hold that this point is not open on the present appeal. It was also contended in the lower Courts that the respondents by their user of the island for purposes other than dhani cultivation had for- feited their rights. This contention had commended itself to the trial Judge, but found no favour with the High Court, and it has been abandoned before their Lordships. The question to which the main argument on the appeal has been addressed is as to the accretions. The appellant contends that the well- recognised doctrine as to gradual accretions owing to the action of tidal waters, has no application in Burma, and, alternatively, that it is excluded by the terms of the particular grants under which the respondents hold.

(3.) On this aspect of the case the two learned Judges before whom the appeal came in the High Court, differed. Brown J., while not prepared to accept the first branch of the appellant's argument, thought, that what was granted in each case was a specific area between high and low-water limits, demarcated by posts, which were, he thought, clearly intended to be a rigid boundary. In his opinion, therefore, no claim to additional land by accretion was open to the grantees or to persons claiming through them. He was confirmed in this view by the fact (upon which much reliance has been placed by the appellant) that no claim on the ground of accretion had been made by the predecessors in title of the respondents, who, when additions to their original grants emerged, acquiesced in several cases, in these being granted by Government to other persons.