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PETITIONER: SAMSUDDIN RAHMAN & ORS.

       Vs.

RESPONDENT: BIHARI DAS & ORS.

DATE OF JUDGMENT:       09/07/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  JT 1996 (6)   517        1996 SCALE  (5)299

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Punchhi.J,      Special leave granted.      The appellants  herein were  the plaintiffs  in a  suit filed in  the Court of the Assistant District Judge, Cachar, Silchar against  the defendants-respondents  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 possession, if not found in  possession. On  the other  hand, the suit land was claimed by  the defendants-respondents  to be  theirs and in their possession,  affirmed by  the grant of an 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, buf 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 defendants-respondents.  On   appeal  by   the   plaintiffs- appellants to  the  District  Judge,  Cachar,  Silchur,  the hurdle put  by the  trial court  was cast aside and the suit was decreed  on the  basis that  once title  stood proved in favour of  the plaintiffs-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 the plaintiffs-appellants altogethers 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  of

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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  land-holding  of  the  appellants,  which  gain  is solidified in  the form  of the suit land. The appellants on that basis  claimed that  the suit  land had become 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  titles  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  parties  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  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 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 tme      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.      ......"The law  in force"  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."      And more  than once  has this principle been reiterated in the  report while  taking stock of the English Law culled

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out from  the reported  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 the State  and, by  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  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 from the date it is entered. Exception is kept in the case  of gain  by alluvion or by dereliction of a river, or loss  by diluvion, during the currency of the 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  plaintiffs- appellants 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 laws  whereas it  could be  nothing else than a question  of   fact.  The  High  Court  commented  that  the pleadings in  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 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 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 Cr.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 theory that from day to day, week to week and month to  months a  man cannot  see where  his old  line  of boundary was,  and that  which cannot  be perceived  in  its

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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  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 any  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 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 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-appellants,   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.