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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.