HARADAS ACHARJYA CHOWDHURI; LOKENATH SAHU CHOWDHURI; BIJOY GOPAL MUKERJI AND KALIKA PRASHAD MUKERJI Vs. SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) The river Ganges in its course through the district of Dacca rests so uneasily in its bed, that its boundaries can never at any moment be defined with the certainty that their limitation will be long observed. Frequently the river leaves its course, flows over large tracts of land, leaving other areas bare, and then again its waters recede, giving back the lands submerged in whole or in part to use and cultivation. It is obvious that difficulties as to ownership must arise in these circumstances, and of the extent and complication of these difficulties the present case affords an excellent illustration. The general law that is applicable is free from doubt. The bed of a public navigable river is the property of the Government, though the banks may be the subject of private ownership. If there be slow accretion to the land on either side, due, for instance, to the gradual accumulation of silt, this forms part of the estate of the riparian owner to whose bank the accretion has been made. (See Regulation 11 of 1825). If private property be submerged and subsequently again left bare by the water it belongs to the original owner : Lopez v. Muddun Mohun Thakoor (1870) 13 M.I.A. 467. It is the latter circumstance that the appellants allege has happened in the present case, but the burden of proving the facts necessary to establish the original ownership rests upon them, and it is the difficulty of this proof, rather than the difficulty of applying the law, that has caused the differences of opinion between the Subordinate Judge and the High Court, from whom this appeal is brought.

(2.) The appellants are together entitled to two estates in the district of Dacca. The first is the Zemindari of Patpasha, and is No. 115 on the revenue rolls, and the second is the Taluk of Char Madhabdia, and was formerly No. 160, and is now No. 4002, on the revenue rolls of Faridpur. These estates bound a branch of the Ganges on each side at the place material to this suit, and the appellants, who are severally interested in certain undivided shares in these estates, claim that a large tract of land formerly under water forms part of their property. This claim has throughout been disputed by the Government, and to establish their rights four suits were instituted by four sets of plaintiff s, who together own the estates, the Secretary of State for India and the three other sets of plaintiffs being defendants in each suit. The Subordinate Judge decreed in favour of the plaintiffs. From this decree the Secretary of State appealed to the High Court, who set aside the decrees of the Subordinate Judge and dismissed the suits. From the judgment of the High Court the present appeals have been brought. They have been consolidated, and in speaking of the appellants their Lordships throughout intend to refer to the parties, who together formed the original plaintiffs and their representatives, and by the respondent they mean only the Secretary of State for India in Council.

(3.) Although many witnesses were called, for the purposes of this appeal, their testimony was no real consequence; the arguments of counsel both for the appellants and the respondents being rightly confined to the true effect of evidence furnished by three sets of documents, upon which the appellants rely, and upon certain circumstances about which there is no dispute. The first of these documents is a plan referred to throughout as " Rennel s map." This was made by Major Eennel as part of a survey which was conducted by him between the years 1764 and 1773. The respondent gives reasons for suggesting that this particular map relates to a survey made in 1764, and their Lordships, for the purposes of the present appeal, are prepared to accept that date. The map itself does not purport to give the boundaries of different Mouzahs, nor indeed to define their position with any exactness. It appears that it was prepared rather for the purpose of showing the roads and the waterways than of locating villages, and consequently the description and definition of the different places is only necessary in relation to the rivers and the roads. The next class of documents consists of certain returns known as the Hakikat Chowhuddibandi Papers. The word " Chowhuddibandi " means " boundary," and the papers may, therefore, be properly described as the boundary papers. They appear from their form to have been returns which apparently were required for the year 1799. They were made by the owners of the estates in question and sent in to the Government. Whether they were made for other years is not certain. Only those for 1799 exist. Even the exact purpose for which they were prepared is not clear, but it may be accepted that they were not voluntary. They were made on a Government form in pursuance of a Government request and to afford the Government for their purpose satisfactory information upon the various questions to which they furnish answers; the first of these questions, alter a statement of the number of Mouzahs being as to their boundaries. The third document is the Government survey that was made in 1859, which, although it does purport to assign boundaries, does not contain such a description of the boundaries of the different Mouzahs in dispute as to enable these to be traced throughout. This is no doubt due to the fact that, at the time of this survey, the Ganges had overflowed a part of the Mouzahs mentioned in the returns of 1799, and boundaries had been obliterated. These three sets of documents afford the chief material upon which reliance can be placed. There is no copy of the Sunnud grant at the date of the permanent settlement, nor of the Kabulayat, nor indeed of any intermediate documents affecting the title of any kind, but this is rather the misfortune than the fault of the appellants.