CHALATAN NARAYANI Vs. PONMALARI KOROTH KRISHNAN NAMBIAR

JUDGEMENT

(1.) The subject matter of this appeal is a plot of land measuring 3.38 acres granted by Government to the plaintiff in 1920, plaintiff's ease being that after he had enjoyed the land for a year or two it was trespassed upon by the tenants of defendant l2 the karnavan of the Chirakkal Kovilagam. The land according to plaintiff and the Government (impleaded as defendant 10) was originally part of the bed of the Varom river in North Malabar, and came into existence as land as the result of an exceptionally high flood season in 1907. When plaintiff filed his suit to recover possession of the land in 1925 it was contested by defendant 12 mainly on the ground that it never formed part of the river bed, but was a part of defendant 12's property on the bank of the river. The District Munsif of Cannanore found against this plea and decreed plaintiff's suit. On appeal the Subordinate Judge of Tellicherry remanded the suit for fresh disposal, after framing five additional issues relating to the nature of the river and of the land in the matter of its formation. The District Munsif of Cannanore then held on remand that the river was tidal and navigable, that the land was formed in 1907 adjoining the land of defendant 12, but that defendant 12 could not claim it as an accretion. The suit was therefore again decreed in plaintiff's favour. On appeal a further remand was ordered. "The learned District Judge of North -Malabar confirmed the two findings of fact (1) that the land was originally part of the river bed and (2) that the river was tidal and navigable, but held nevertheless, on the authority of the Privy Council ruling reported in Secretary of State V/s. Rajah of Vizianagaram 1922 45 Mad 207, that the Government had no title to it after it became land, as it was an accretion to the land of defendant 12. He then remanded the suit for a decision on the issue whether defendant 12's rights had become barred by adverse possession. Against this order of remand the present appeal has been filed. The only point for me to decide is whether this finding in favour of defendant 12's title is sound or not. If it is not, plain-"tiff's suit must succeed.

(2.) The main argument in appeal is that there are vital features which distinguish Secretary of State V/s. Rajah of Vizianagaram 1922 45 Mad 207 from the present case, and it is therefore necessary to examine the former decision closely. That case related to the ownership of a lanka in the river Godavari which was first formed in 1850 and after undergoing various vicissitudes in area had attained an extent of about 1,000 acres by 1912. In 1884 there had been an accretion to the extent of 610 acres, and it was argued for Government that this accretion could not be deemed to be "gradual, slow and imperceptible" so as to give title to the Rajah of Vizianagaram whose title to the original "nucleus" of the lanka had been upheld in previous litigation. This contention was repelled in the High Court : see Secretary of State v. Rajah of Vizianagaram 1918 40 Mad 1083 and it was pointed out that in applying the rule of English law which required accretions to be of that particular kind due allowance must be made for the different physical characteristics of Indian rivers. Ayling. J., put the matter thus: It seems to me the recognition of title by alluvial accretion is largely governed by the fact that the latter is due to the normal action of physical forces; and the different conditions of Indian and English rivers is such that what would be abnormal and almost miraculous in the latter is normal and common place in the former.

(3.) The High Court's decision in favour of the Rajah of Vizianagaram was upheld by the Privy Council. In stating the facts in para. 1 of his judgment Lord Carson says: The extent of the river and the operation of its currents in forming alluvial tracts during the flood season must be borne in mind with reference to questions arising in this case, and then refers to Sri Balasu Ramalakshmamma V/s. The Collector of Godavari District (1899) 22 Mad 464, for a description of the river. That description stresses the breadth of the Godavari, and the annual changes which take place in its bed as the result of the flood season. Later in the judgment Lord Carson quotes with approval the passage from Ayling, J.'s judgment given above; and finally he refers to the absence of all evidence in rebuttal of statements that the formation of the disputed part of the lanka was gradual.