Samsuddin
Rahman & Ors Vs. Bihari Das & Ors [1996] INSC 777 (9 July 1996)
Punchhi,
M.M.Punchhi, M.M.Manohar Sujata V. (J) Punchhi.J,
CITATION:
JT 1996 (6) 517 1996 SCALE (5)299
ACT:
HEAD NOTE:
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 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 time 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 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 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.
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