Lord Phillimore :-

This action was brought in the year 1912 by the plaintiff, who is a zamindar for a declaration of his proprietary right to certain land in the district of Nadia, and for a declaration that be had been twice assessed for revenue in respect of it, and for a return of the over, paid revenue in past years. He succeeded in the Court of the Subordinate Judge, but that judgment was reversed on appeal, and now he has appeal to his Majesty in Council.

The case made by the plaintiff was that the tract of land in question was within the collection or block or taraf of villages known after the name of its principal vil lage as the Taraf Jotashai in the parganah of Laskarpur; his case being that the parganah consists of seven mouzahs or vil lages described as Jotashai Ramkristopur, Nowera Ramkrishnapur, Kadirpur, Sada sibpur, Biharajpur (also known as Bahir madi) and Mallikpur. He did no profess in his pleadings to say in which village the tract was situate, but generally averred that it was within this block or taraf, and that the whole had been settled with his ancestor at the permanent settlement in the year 1793. He said that the tract some time afterwards had become diluviated and now was re-formed in situ.

The written statement of the Secretary of State traverses the allegations that the lands were re-formed in situ, or that they were in the block Jotash ai, or had been settled with the plaintiff's ancestor, and raised certain other defences which will be dealt with later.

Upon this contention being raised, a local investigation was ordered to ascertain whether the disputed lands are reformations in situ of Taraf Jotashai in parganah Laskarpur of the Rajshahi Collectorate, and the Commissioner was directed to make a map of the disputed land and to show there in the lines of Block Jotashai, as depicted in the maps of Mukanda Narayan Chow dhuri and Purna Chandra Chatterji. He was directed also to ascertain, with the help of Major Rennell's map of the Ganges pre pared in 1780, the Revenue Survey map, the Diara Survey map and the Thak Survey map of Jotashai, whether the disputed land formed part and parcel of parganah Laskar pur at the time of the decennial settle ment; to plot those maps in his map; to plot the lines of the khas mahal map of chur Marichar Diar as prepared by Babu Bijoy Krishna Bose, Deputy Collector in 1883-84, to which, according to the defence, the disputed land appertained.

The Commissioner found that the land in question was in block Jotashai and was a re-formation in situ of land formerly belonging to that block or taraf. He arrived at this finding after a very careful enquiry, making a personal visit to the site and taking much evidence. He also produced a map on which he had plotted the lines of the other maps according to the direc tions given him. His report having been filed, it was at one time intimated on behalf of the Secretary of State that objec tions would be raised to it, but no objec tions were raised, and no application was made to have the report referred back to the Commissioner.

The case then came on for hearing upon this report, some oral evidence on behalf of the plaintiff, which did not carry the matter any further and a good deal of documentary evidence, including the pro ceedings and decrees in former litigation, the relevancy and probative force of which latter have undergone much discussion at their Lordships bar.

The general nature and character of the plaintiff's case was as follows : The River Ganges called in this part of its course the Padma, has changed its channels frequently and considerably since the date of the Decennial Settlement in 1783, which was made permanent ten years later, in 1793. In these circumstances the principles upon which a tribunal should act in a claim of this kind are to be found in a judgment delivered in 1917 in the unreported case of Haradas Acharjya Chowdhuri v. The Secretary of State for India (1918) 20 Bom LR 49 : 43 IC 361 (PC) where it was said by their Lordships :-

"The River Gangas rests so uneasily in its bed that its boundaries can never at any moment be defined with the certainty that their limitation will be long observed. Frequently the river leaves its course, flows over large tracts of land, leaving other areas bare, and then again its waters recede, giving back the lands submerged in whole or in part do use and cultivation. It is obvious that difficulties as to ownership must arise in these circumstances, and of the extent and complication of these diffi culties the present case affords an excellent illustration. The general law that is ap plicable is free from doubt. The bed of a public navigable river is the property of the Government though the banks may be the subject of private ownership. If there be slow accretion to the land on either side, due, for instance to the gradual ac cumulation of silt, this forms part of the estate of the riparian owner to whose bank the accretion has been made. (See Regu lation 11 of 1825.) If private property be submerged and subsequently again left bare by the water, it belongs to the original owner. Lopez v. Muddun Mohun Tha koor (1870) 13 MIA 467 : 5 BLR 521 : 14 WR 11 : 2 Suther 336 : 9 Sar 594 (PC).

This being so, the plaintiff's case was developed as follows :-

The Ganges in this part of its course divides two districts known as Rajashahi on the north and Nadia on the south. Laskarpur was a parganah in Rajashahi; and therefore, to the north of the river; and anything in Laskarpur must be taken to have been north of the river at the time of the permanent settlement. The river, flowing in a general direction from west to east, but with many deviations and curves to the north and south, has now altered its course some miles to the northward, leaving a bed which can still be traced, where it probably flowed about 1850. In the course of its shift from south to north it diluviated and again set free large por tions of the parganah of Laskarpur. The tract in dispute, which was in the southern portion of the parganah, was, as the plain tiff contended, in existence as dry land at the time of the permanent settlement, and was included in it. If so, it must have been diluviated shortly after, first re-appear ed as an island, and now has become, as indeed land further north of it has also be come, a permanent portion of the land on the southern side of the river.

The case for the Secretary of State was that the burden of proof of this aver ment lay upon the plaintiff, and that he had not made it out, and that for all that could be now traced this land may well have been part of the bed of the river at the time of the permanent settlement, and therefore not part of Laskarpur and never settled for.

The land in dispute, which is roughly of a hatchet shape, and is coloured violet on the Commissioner's map, formed part of an irregular area of considerably larger size coloured yellow, and came to the plaintiff for some estate or interest, the exact nature of which must be hereafter considered, by virtue of a deed of partition on the 13th December, 1909, between the Secretary of State, the widow of a co-sharer, and the Court of Wards acting for the plaintiff who was then an infant.

The oldest map known to be in existence is Major Rannell's survey prepared in 1780, which the Commissioner or Amin was directed to plot upon the map which he prepared. With regard to this map, in the case already cited, Haradas Acharjya Chowdhuri v. Secretary of State (1918) 20 Bom LR 49 : 43 IC 361 (PC) their Lordships made the following observa tions :-

"Rennell's map is undoubtedly, both owing to its difference in scale, to the diffe rent purpose of its preparation, and to the difficulty of assigning fixed points from which the survey was made, a map which it is hard to incorporate into the survey of 1859. And, again, the variability of the river renders reliance upon it difficult. As has been already said, their Lordships are not, however, prepared to dispossess the appellants because of this difficulty. It may be that any assumption that can now be made cannot be exact but some assump tion is necessary."

The Commissioner, as directed, plotted Rennell's map upon the one which he prepared. There was one fixed point which could be relied upon. A factory called Harishankara on the south bank was in existence in Rennell's map, and has re mained ever since. Taking this point, and reducing the scale as best he could, the Amin plotted the river with a curve sweeping over two-fifths of the south eastern part of the land in dispute, leav ing the rest dry land to the north, which would be so far according to the plaintiff's contention, but putting the two-fifths in the bed of the river. In so doing, however, he put the site of two of the seven villages which constituted the block Jotashai, Sadashibpur and Mallik pur under the bed of the river, and, inas much as they must have been at the time of the settlement to the northward of the river, it followed that at some portion of its course over the map, the river must have been more to the southward than it was shown by this plotting, and if the curve retained its outline but was shifted bodily to the southward all except, per haps, a very small part of the land in dis pute would have been dry laud on the north bank. It would have been just possi ble to shift the river bodily to the south ward for this purpose and yet leave the factory standing. If for some reason the course of the river was a little narrower, it could have been done more easily. But there was apparently no physical reason why the curve should have retained the same outline, and if the north turn began a little more to the westward and nearer the factory the land in dispute would have been under the bed of the river.

The next map which the Commissioner had to deal with was what was called the Diara map, prepared about the year 1850, at which time the Mahalwar register of Laskarpur showed the plaintiff's ancestor and predecessor-in-title as a proprietor of a great number of mouzahs still in existence, with a number of others noted as missing villages. Some of the seven villages to which the plaintiff referred in his plaint appear in one column, some in the other, and some as to part in both.

The river bed, according to its course at that time, is still traceable, and flowed apparently through the middle of the land in dispute. About this time appeared a onur called Marichar Diar - Diar meaning land emerging from water - which is said on behalf of the Secretary of State to comprehend the land in dispute. As the time when the Commissioner made his survey the river was two miles to the north and the factory a mile to the south of the land in dispute. He reckoned the area of the tract marked yellow as 20,004 bighas. The tract coloured violet is roughly about one-quarter of the tract coloured yellow.

There has been much previous litiga tion with regard to the tract coloured yellow and the lands adjacent to it. Their Lordships deem it unnecessary to refer to the earlier cases as they were summarised in a judgment delivered by this Board on the 21st March, 1906, in a case to which reference will now be made.

This was a suit brought by Rani He manta Kumari Debi in 1895 against the Secretary of State and Maharaja Jaga dindra Nath Bahadur, the Rani claimingPC4 to be the proprietor of a zemindari right in a 2 annas 15 gundahs share of a permanent ly settled estate in Laskarpur, and alleging that the lands claimed by her within the area of block Jotashai had been permanent ly settled by the Government with her predecessor-in-title. The lands in which she was claiming her right were the larger block marked yellow in the plan annexed to the present suit, of which the part coloured violet is that for which the present appellant is suing. The Rani succeeded in the Court of first instance; that decision was reversed by the High Court, but res tored by the judgment of this Board. The result was to decide that the lands in which she claimed a fractional share being com prised in block Jotashai lying between the village Jotashai on the north and the southern boundary of the chur area re formation in situ of lands which before diluviation were comprised in parganah Laskarpur.

This was a recovery by a co-sharer as against the Secretary of State of her right in the lands for which the plaintiff is suing in the present suit. It is not in itself conclusive, because the plaintiff was not a party to that suit. Objection, in deed, was made in that suit by the Secre tary of State that the Rani could not sue without making other co-sharers parties; and the answer made by the Court was that it was unnecessary as the judgment would only decide her right, and would not be binding either in favour of or against other co-sharers. It was rejected by the High Court even as evidence; and this rejection might have been right, if it stood alone. But it was followed by a deed of partition, dated the 13th Decem ber, 1909, between the Rani, an officer of the Court of Wards acting for the present plaintiff, then an infant, and a representative of the Secretary of State, whereby the tract marked yellow was divided between the three parties according to their several shares or supposed shares. The Rani took a portion, the Secretary of State two other portions, and the plaintiff the portion coloured violet. There is no reference in the deed to the Rani's success ful suit, but it is clear that the partition was made in consequence of the decree in that suit and with the view to work it out, and in their Lordships' opinion this intro duces the decree in the Rani's suit. More over the deed describes the lands as being

"in block Jotashai," which is in itself an important admission.

Mr. Justice Beachcroft, in his judgment in the High Court, after commenting upon the error into which the Subordinate Judge had fallen in treating the judgment in the Rani's case as conclusive proceeded as follows :

"The error would not be of much significance if we had in this case the evi dence which was given in Rani Hemanta Kumari's case, for it would then be suffi cient to adopt the reasoning used in that case. But we have not."

And he proceeded to refer to certain additional materials mentioned in the judgment in that case. It is satisfactory to their Lordships to think, that there was that additional evidence; for in the present case, the evidence, apart from the inference to be drawn from this decision, and from a statement to be here after referred to on the map of Ramkristo pur, is not very conclusive.

Careful and detailed as is the report of the Commissioner, and careful and detailed as is the judgment of the Subordinate Judge, very little positive evidence to sup port the case of the plaintiff can be extract ed from the report or the judgment, if the Rani's case and the conclusion arrived at in it be excluded. The comment of the judges in the High Court than the Com missioner's conclusion appears to depend upon the curve of the river in this part having retained the same outline is a forci ble one, as is the argument submitted by counsel for the respondents at their Lord ships' bar to the effect that plaintiff cannot show in which one of the seven villages, which formed the taraf of Jotashai, the lands in question were situate at the time of the settlement, accompanied by his analysis of the facts which are known with regard to the boundaries of many of these villages, leaving only a resi duum of uncertain area in which this tract could be put if it was dry land at the time of the settlement.

Their Lordships, however, cannot accept his contention that there is a distinc tion between the "taraf" and the block. Certainly there was no such distinction in the minds of those who gave judgment in the Rani's case. A perusal of that judg ment would show that the words "taraf" and "block" are used interchangeably

At the same time, their Lordships feel that it is possible to be oner critical of the Commissioner's report, and that among the many physical features which he saw and upon which he reported, there may have been some which pointed be traces of old channels of the river which would have supported his conclusion in a manner not directly apparent upon the face of his report; and they are much impressed by the fact that he was not cross-examined or given any opportunity to meet criticisms upon it.

There is one passage in the report of the Commissioner to which their Lordships' attention was specially directed. He has dealt with the boundaries of four of the seven villages in the block, and pointed out that, in his view the remaining three could not be traced, and he proceeds to say that it would be not impossible that the sites of these three missing villages had been encroached upon by the river at the time of the Revenue Survey - that is, about 1850-54, and consequently could not be then survey ed and mapped. His report then proceeds as follows :-

"There is no clear and positive evidence before me to show that the river site at the time of the Revenue Survey was pre viously the site of those three villages. But the fact that the site belonged to parganah Laskarpur is amply proved by the statement contained in the Revenue Survey map of Ramkristopur."

For some unexplained reason this map does not form part of the record. It is, therefore, impossible to say with certainty that this statement was of such a kind as to be receivable in the present suit under section 36 of the Indian Evidence Act. But no objections having been taken to the report and the Commissioner not having been examined or cross-exa mined, their Lordships think that they ought to treat it as admissible evidence, and if so, it adds, considerable weight to the material upon which the Commissioner formed his conclusion.

Upon the whole, their Lordships think that the Commissioner's report, coupled with the decree in the Rani's case, was sufficient to turn the scale in favour of the plaintiff. Their Lordships are glad in dealing with a case in which the public interest is involved to be able to reach this conclusion. It would be unfortunate if, with regard to the same land, a decree could be made in favour of one co-sharer and another decree made against another co-sharer upon the same title.

There remain one or two points to be dealt with. In the partition deed which has been much relied upon, and which is indeed the only link by which it is pos sible to connect the Rani's judgment with the present case, and in which this land is described as being in block Jotashai, it is stated, when the plaintiff's share comes to be set out in the schedule that its was "settled for periods." This, it is contend ed, is an admission that there was no permanent settlement, and an admission upon which the Secretary of State can rely as against the plaintiff. The plaintiff, it is true, repudiated this partition deed, which was effected on his behalf by the Court of Wards during his minority, but only a few days before he attained his majority, and contended that the partition proceedings were not binding upon him; but the Subordinate Judge held the contrary, and gave him a de claratory decree on the footing of the partition proceedings, and in the High Court his counsel accepted this position. But the words in the schedule "settled for periods" may be accepted as a correct description, but not as an admission that the settlement was de jure. This ques tion leads their Lordships to consider the points raised in India and by the respondents' case before their Lordships, but not so much insisted upon at the bar, that the plaintiff was bound by a compromise entered into by his mother who was his predecessor-in-title, and a decree passed in pursuance of that com promise in 1881, or by a settlement which he took with the Government in 1910. The first of these contentions was not accepted by the Subordinate Judge or by the High Court. The Government were not parties to the compromise, or to the decree and as Mr. Justice Greaves in the High Court observed, there is on the record a letter from the Collector of Rajshahi expressly stating that the Govern ment was not a party to that suit

As regards the second, the Subordinate Judge held that the plaintiff need not bring a suit for the purpose of having the settle ment, which was said to have been forced upon him in 1910, set aside, as his purpose would be equally served by his obtaining a declaration that he was not liable to double assessment for the disputed land.

This objection does not seem to have been deemed by the High Court worthy of further notice. It appears, however, in the ease for the respondents before the Board, but was not much insisted upon in argu ment, and being rather a point of procedure than of substance, is therefore not one on which the Government would be desir ous of relying, and their Lordships do not think it should prevail.

The defence of the Limitation Act was dealt with by the High Court, and their Lordships see no reason to differ from the view there taken.

The ground upon which the High Court differed from the Subordinate Judge was not that the evidence showed that this disputed tract had been under the bed of the river, but that the burden of proof lay upon the plaintiff, and that he had not proved with sufficient conclusiveness that it was dry land to the north of the river at the time of the permanent settlement, and the High Court put aside the judgment of this Board in the Rani's suit, as not being evidence.

The grounds upon which their Lordships differ from the High Court are that the decree in the Rani's suit, followed by the partition deed, must, in their Lordships' view, be regarded as material, and that the High Court have not attached sufficient weight to the conclusions of the Commis sioner, derived from examination on the spot, and his reference to the map of Ramkristopur, unchallenged as his conclusions were by examination and cross-examina tion.

Upon the whole, their Lordships will humbly recommend His Majesty that the decree of the High Court be set aside, and the decree of the Subordinate Judge be restored, and that the plaintiff do have his costs in the Court below and of this appeal, these costs to be paid by the Secre tary of State.

Appeal allowed.