NAKU SHEIK Vs. HARISH CHANDRA CHAKRAVARTY

JUDGEMENT

(1.) This appeal has arisen out of a suit for declaration of plaintiffs title to land which had accreted to their holding, for ejectment of the defendants from the same, and for recovery of mesne profits and damages. The plaintiffs obtained settlement of C. Section Dag No. 471 and a portion of Dag No. 465, and later on a bigha of land accreted to this land and they were in possession of this accretion when (they alleged) the defendants dispossessed them from the land of Sen. (kha) of the plaint. The contesting defendants maintain that they obtained settlement of the land of this schedule of the plaint from the Zemindars. The plaintiffs claim settlement from the Dar-patnidar under the same zamindar. The trial Court decreed the suit in part dismissing the plaintiffs claim to the accreted land and also the claim for mesne profits and damages. The lower appellate Court decreed the suit in its entirety. Hence this second appeal by the defendants.

(2.) The land in suit was originally in the bed of the river Ichamati and accreted therefrom to the holding of the plaintiff. The question at issue in this appeal is whether the plaintiffs have a right to the accretion under Regn. 11 of 1825. The findings of the lower appellate Court are somewhat confusing in that the learned Subordinate Judge found that the river Ichamati was a big navigable river at the time of the Permanent Settlement. At the same time he finds that the land in suit accreted from its bed was included within Mauza Gangkul, the estate of the defendants landlord, although no revenue was assessed upon it. Subsequently after the formation of the land, Dearah settlement took place by which a separate estate was created and settled with the defendants landlord. The question of right to the accretion depends upon the interpretation of Clause 4, Section 4, Regulation 11 of 1825.

(3.) The appellants rely upon two recent rulings of this Court, viz , Rahimaddhi Mattabbar v. Naimaddi Howladar and Badulla Howladar V/s. Aminaddi Choukidar , in which it has been held that Clause 1, Section 4, Regn. 11 of 1825 applies to accretions to public domain only. Therefore in the present case on the finding of the Court below that the bed of the river belonged to the estate of the landlord the plaintiffs would not be entitled to jote right in the land under the provisions of Regn. 11 of 1825. This view results from the interpretation of the regulation made by their Lordships of the Privy Council in the case of Felix Lopez V/s. Muddun Mohan Thakoor (1869) 13 M I A 467. Clause 4, Section 4 is as follows: In small and shallow rivers, the beds of which, with the Jalkar right of fishery, may have been heretofore recognized as the property of individuals, any sand-bank or chur, that may be thrown up, shall, as hitherto, belong to the proprietor of the bed of the river, subject to the provision stated in the first clause of the present section.