SAMSUDDIN RAHMAN AND ORS.versusBIHARI DAS AND ORS.

A                     SAMSUDDIN RAHMAN AND ORS.
                                           v.
                             BIHARI DAS AND ORS.

                                    JULY 9, 1996
B
              [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~H·eld : 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.
E
        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 appellants·plaintiffs to tile a suit before the Assis~ant
  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 appellants- plaintiffs 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 respondents- defendants had no value or
sanctity. The High Court, on a1ipeal, dismissed the suit of the appellants-
plaintitl's altogether, taking the view that the evidence led by the appel-
lants· plaintiffs was deficient to the point of being no evidence at all in the
                                                                                  B
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.
                                                                                  F
      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 \\ hich cannot be perceived in its
                                          1




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
    260                    SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A interfere in a finding of fact in second appeal. The question whether the
  accretion was caused gradually and. imperceptibly by alluvion or by derelic-
  tion 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 defendants-
  respondents 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 defendants- respon-
  dents 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 plaintiffs- appellants 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    c
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 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      E
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.                                                                            F

      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
    262                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

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
B
            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,
c           and in some cases on the principles of justice, equity and good
                             11
            conscience . ...... The 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
D
            of justice, equity and good conscience, the land becomes an incre-
            ment by accretion to the tenure to which it has accreted11 •


           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 judg-
    ment with copious references therefrom. We would rather content oursel-
    ves 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,
                                                                                 B
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 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 men-
tioned 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.                                                  F
      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
    264                   SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A   knowledge, or to their objectivity, or demonstration of facts, or any docu-
    ment 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.