SAMSUDDIN RAHMAN AND ORS.

BIHARI DAS AND ORS.

JULY 9, 1996

[MM. PUNCHHI AND SUJATA V. MANOHAR, JJ.]

Land Laws:

Assam Land and Revenue Regulations, 1866: Regulations 3(b) Expln.

C and 34(c).

Accretion-Land-Gain of-By alluvion or dereliction of 1iver-Tlial court and first appellate cowt concu1Tent/y found gradual and imperceptible accretion to land since it had taken 15-16 years for accretion to be visible and D demonstrable-High Cowt in second appeal upset such a finding Oil the ground of deficiency in evidenc~Held : cause of accretion whether gradual or imperceptible or sudden ill single season by alluvion or dereliction of rive,..-Question of fact and not mixed question of fact and law-High Cowt e1Ted in inte1fering with a finding of fact ill second appeal on ground of deficiency in evidence-Code of Civil Procedure, 1908, S. 100.

The appellants-plaintiffs were the owners of a parcel of land covered by a Patta. Alongside that parcel of land, a river used to flow on the Southern and Eastern sides. It was claimed that gradually the river receded, making slow and imperceptible gains as accretions to the F landholding of the appellants, which gain was solidified in the form of the suit land. The appellants on that basis claimed that the suit land had become part ancl parcel of their original holding and that they had been in possession thereof till the Deputy Commissioner on grant of annual Patta to the contesting respondents, has cast a shadow on their title. This G necessitated the appellantsplaintiffs to tile a suit before the Assisant

District Judge praying for declaration of title in respect of the suit land.

The trial court found the title in favour of the appellants-plaintiffs but dismissed the suit on the basis that no specific claim had been raised. by the appellantsplaintiffs to get quashed the grant of the annual patta, given by the Deputy Commissioner in favour of the respondents-defen- H dants. 258

SAMSUDDIN RAHMAN v. BIHARI DAS 259

The District Judge, on appeal, decreed the suit on the basis that once A title stood proved in favour of the appellants-plaintiffs, the factual grant of annual patta in favour of the respondentsdefendants had no value or sanctity. The High Court, on a1ipeal, dismissed the suit of the appellantsplaintitl's altogether, taking the view that the evidence led by the appellants plaintiffs was deficient to the point of being no evidence at all in the eye of law. Being aggrieved the ap1iellant-plaintiffs preferred the present appeal.

Allowing the appeal, this Court

HELD : l. It is the conceded position between the contestants that C the Assam Land and Revenue Regulations 1886, as amended upto date, is attracted to provide solution to the dispute. However, no statutory law \\'as applicable in the State of Assam with regard to the right to any land gained by alluvion or dereliction of a river to any estate. A Division Bench of the Assam High Court in Boroji A1uniproini had obsen'ed "it is an universal law, recognised by all that a land which has gradually and imperceptibly D come out of the river bed and added to the land of a riparian owner becomes part of the land belonging to him and is to be considered as his property." The High Court took the view that in the State the principles of English Law on the subject were applicable as principles of justice, equity and good conscience and those principles by themselves had the force of E law governing the rights between the parties. The state of law thus evolved in the State of Assam is acceptable. [261-G, 262-F]

Boroji Munipwini v. State of Assam and Ors., AIR (1958) Assam 34, approved.

2. The whole doctrine of accretion is based upon the theory that from day to day, \\'eek to \\'eek and month to month, a man cannot see where his

old line of boundary was, and that \\ 1hich cannot be perceived in its progress is taken to be as if it never existed at all. Such being the ordinary human perception, the High Court erred in expecting of the plaintill"s witnesses to say about their means of knowledge, or to their objectivity, or G demonstration of facts, or any document on this aspect being available, and on that basis ternting such evidence merely as an expression of opinion and strangely no legal evidence. The reasoning of the High Court appears entirely erroneous in the presence of the bar erected under Section 100 of the Code of Criminal Procedure, 1908 forbidding the High Court to H

A interfere in a finding of fact in second appeal. The question whether the accretion was caused gradually and. imperceptibly by alluvion or by dereliction of the river or the addition ha•l come suddenly and in a single season, is one of fact and not a mixed question of fact and law as termed by the High Court. The trial court as well as the first appellate court had B recorded a clear finding of fact that the plaintiffs-appellants had proved on the basis of the oral evidence that it had taken 15-16 years for the accretion to be visible and demonstrable, requiring steps to be taken by the State, one of the defendants-respondents, to straighten matters under the provisions of Section 34( c) of the Regulations. The High Court was thus in grave error in upsetting the judgment and decree of the lower C appellate court and in this manner denying relief to plaintiffs-appellants, as granted by that court. [263-G-H, 264-A-C] .

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9077 of 1996.

D From the Judgment and Order dated 20.4.89 of the Assam High Court in S.A. No. 133 of 1979.

K.M. Lahiri, S.K. Nandy for the Appellants.

N.R. Choudhary for the Respondents.

E The Judgment of the Court was delivered by

PUNCHHI, J. Special leave granted.

The appellants herein were the plaintiffs in a suit filed in the Court F of the Assistant District Judge, Cachar, Silchar against the defendantsrespondents herein praying for a decree for declaration of title in respect of the suit land measuring about 60 Bighas, on the basis that it was in their possession and, in the alternative, for possessioni if not found in possession.

On the other hand, the suit land was claimed by the defendantsrespondents to be theirs and in their possession, affirmed by the grant of an G annual Patta in their favour by the Deputy Commissioner of the area concerned. The trial court, while concluding the matter, was about to decree the suit, but refrained from doing so, as in the plaint, no specific claim had been raised by the plaintiffs-appellants to get quashed the grant of the annual Patta, given by the Deputy Commissioner in favour of the H defendants-respondents. On appeal by the plaintiffs-appellants to the Dis-

SAMSUDDIN RAHMAN v. BIHARI DAS [PUNCHHI, J.] 261

trict Judge, Cachar, Silchur, the hurdle put by the trial court was cast aside A and the suit was decreed on the basis that once title stood proved in iavour of the plaintiff-appellants, the factual grant of annual Patta in favour of the defendants-respondents had no value or sanctity and hence the same could be ignored. The High Court, however, upset the decision of the District Judge, at the instance of the defendants-respondents, dismissing the suit of B the plaintiffsappellants altogether, taking the view that the evidence led by the plaintiffs-appellants was deficient to the point of being no evidence at all in the eye of law. It is within this narrow compass that the controversy in the instant appeal stands focused.

The case of the plaintiffs-appellants, in brief, was that they were the owners of a parcel of land covered by a Patta, particulars of which stand fully described in the judgments of the courts below. Alongside that parcel c

of land, a river named Barak used to flow on the Southern and Eastern sides. It was claimed that gradually the river receded, making slow and imperceptible gains as accretions to the ]and-holding of the appellants, D which gain is solidified in the form of the suit land. The appellants on that basis claimed that the suit land had bi::come part and parcel of their original holding and that they had been in possession thereof till the Deputy Commissioner on grant of annual Patta to the contesting respondents, has cast a shadow on their title, which led to proceedings under Section 145 Cr.P.C., necessitating the plaintiffs-appellants to approach the Civil Court for appropriate relief. Besides what has been said before, the contesting defendants-respondents had also countered that the land originally belonged to them and as it had re-emerged on the other side of the river, since it changed its course, it was theirs, and with them under an annual Patta.

It is the conceded position between the contestants that The Assam land and Revenue- Regulation, 1886, as amended up to date, is attracted

to provide solution to the dispute. Such was the positive stands of the varties before the District Judge. It was also the admitted position that no statutory law was applicable in the State of Assam with regard the right to G any land gained by alluvion or dereliction of a river to any estate. A Division Bench of the Assam High Court in Boroji Munipurini v. The State of Assam and Ors., AIR (1958) Assam 34 had elaborately to go into the question as to whether any such law was available in the context and working of the aforementioned Regulation, and came to the view that in H

A the State of Assam the principles of English Law on the subject were applicable as principles of justice, equity and good conscience and those principles by themselves had the force of law. Some of the observations made therein which brought the aforesaid result are as follows :

"It is therefore clear that it is an universal law, recognised by all that a land which has gradually and imperceptibly come out of the river bed and added to the land of a riparian owner becomes part of the land belonging to him and is to be considered as his property. This, in some cases, is based on the specific provisions of the Bengal Regulation or other enactments, in some on custom, and in some cases on the principles of justice, equity and good conscience . ......

11The law in forcen has not been defined anywhere in the regulation (The Assam Land and Revenue Regulation) and we see no reason to confine it to the statutory law. If the law in force is that the accreted land becomes part of the land to which it has accreted, even though that may be based on the principles of justice, equity and good conscience, the land becomes an increment by accretion to the tenure to which it has accreted 11 •

And more than once has this principle been reiterated in the report while taking stock of the English Law culled out from the reported E decisions of English Courts on the subject. We would not load this judgment with copious references therefrom. We would rather content ourselves by stating that we agree with the state of law as thus evolved in the State of Assam that the English principles on the subject as principles of justice, equity and good conscience are applicable in the State and, by F themselves, are the law governing the rights between the parties on such principles of alluvion and diluvion.

The High Court does not dispute either the state of law as such or its applicability to the controversy. It has taken note of the Explanation to Regulation 3(b) defining the word "estate", explaining that any land gained G by alluvion or by dereliction of a river to any estate as here defined, which under the laws in force is considered an increment to the tenure to which the land has accreted, shall be deemed to be part of that estate. In Regulation 34( c) it stands provided that when a settlement has been accepted and the revenue payable fixed, nothing more shall be payable H from the date it is entered. Exception is kep.t in the case of gain by alluvion

SAMSUDDIN RAHMAN v. BIHARI DAS [PUNCHHI, J.] 263

or by dereliction of a river, or Joss by diluvion, during the currency of the A settlement, in which case increments shall be assessed and reduction granted by the Deputy Commissioner according to such limitations as to the extent of gain or loss and such other conditions as may be prescribed.

The High Court, taking stock of the case-law available on the subject, paid attention to the fact that if the accretion was caused gradually and imperceptibly by alluvion or by dereliction of the river then the plaintiffsappellants were entitled to succeed. But, if the addition had come suddenly and in a single season, it would not be so. It strangely termed such question to be a mixed question of fact and law; whereas it could be nothing else than a question of fact. The High Court commended that the pleaJings in

c the plaint were deficient inasmuch as definite period had not been mentioned during which alluvion had taken place but, in the same breath, observed that oral evidence had been led by the plaintiffs-appellants, to the effect that there had been gradual and imperceptible accretion within a time-span of 15/16 years. Then again the High Court commented that no D specific issue on the aspect of gradual and imperceptible accretion had been framed and, in the next breath, said that the parties all the same knew their respective cases and had led their evidence. The High Court then went on to find fault in the plaintiffs-appellants' oral evidence regarding gradual and imperceptible accretion as, according to it, it had not been disclosed by the witnesses as by what means of knowledge or with the aid E of which demonstrable facts or by the aid of which material-on-record could they vouch safe that the gain was gradual and imperceptible. On that basis, the plaintiffs-appellants were blamed to have failed to prove that the suit land was an accretion, gradual and imperceptible. On this basis alone the appellants were non suited.

To us the reasoning of the High Court appears entirely erroneous in the presence of the bar erected under Section 100 of the C.P.C. forbidding

the High Court to interfere in a finding of fact in second appeal. In Boroji's case (supra), there appears a quotation from the Halsbury's Laws of England to say that the whole doctrine of accretion is based upon the G theory that from day to day, week to week and month to month, a man cannot see where his old line of boundary was, and that which cannot be perceived in its progress is taken to be as if it never existed at all. Such being the ordinary human perception, we fail to appreciate what did the High Court expect of the plaintiffs' witnesses to say about their means of H

A knowledge, or to their objectivity, or demonstration of facts, or any document on this aspect being available, and on that basis terming such evidence merely as an expression of opinion and strangely no legal evidence. Significantly, the trial court as well as the first appellate court had recorded a clear finding of fact that the plaintiffs-appellants had B proved on the basis of the oral evidence that it had taken 15-16 years for the accretion to be visible and demonstrable, requiring steps to be taken by the Stale of Assam, one of the defendants-respondents to straighten matters under the provisions of Section 34(c) of the Regulation. The High Court was thus in grave error in upsetting the judgment and decree of the lower appellate court and in this manner denying relief to the plaintiffs-ap- C pellants, as granted by that court. Therefore, without hesitation, we upturn the orders of the High Court, restoring the judgment and decree of the District Judge, Cachar, dated 19.2.1979, with costs.

v.s.s.

Appeal allowed.