JUDGMENT 1. The Plaintiff in the suit out of which this appeal arises is the purchaser of a Noabad taluk at a sale for arrears of revenue on the 17th September 1894 and he sued for a declaration of his title to and for recovery of possession of 6 drones 3 kanis 19 gundas of land from Defendant No. 2 who was in possession of them as ijardar under an ijara granted to him by Government in 1873. He accordingly brought his suit against Defendant No. 2 and the Secretary of State as Defendant No. 1. He claimed on the basis of his title by purchase at the sale to be entitled to possession of all the lands which were included in the taluk at the time of its settlement in 1200 M. S. and of all lands which had subsequently accreted thereto by alluvion. He accordingly claimed the lands in suit partly as land originally included in the taluk (see of Sch. 2) and partly as accretions to and reformations on the site contiguous to the taluk (see and of Sch. II). The defence made on behalf of the Secretary of State (Defendant No. 1) was, in the first place, a denial that the lands claimed were either reformations of the original taluk or accretions to it. It was further pleaded that as the period for which the taluk had been granted had expired in 1894, the Plaintiff was not entitled to land which was then lying khila or waste. It seems that the taluk was originally settled in 1844 for 30 years and that the term was subsequently extended to 50 years. It was next alleged that the land claimed by the Plaintiff was not an accretion to the taluk at all, but that it was the bed of the Sankha river which had been raised up and had become dry in consequence of the diversion of the water of the river by reason of the fact that Government had at great expense excavated the Brumchora khal. The land thus formed was the property of the public, and had been settled in 1873 by the Government with Defendant No. 2, and had since been in his possession. It was denied that Plaintiff by virtue of his taluka right had any title to it. 2. A similar defence was set up by the Defendant No. 2. The land thus formed was the property of the public, and had been settled in 1873 by the Government with Defendant No. 2, and had since been in his possession. It was denied that Plaintiff by virtue of his taluka right had any title to it. 2. A similar defence was set up by the Defendant No. 2. He further contended that as the former proprietor of the taluk had in suit No. 134 of 1857 sued him and others to recover possession of the same land on the basis of the title set up in the present suit, and as that suit had been dismissed, the present suit was barred by the provisions of sec. 13 of the Code of Civil Procedure. 3. In the Court of first instance the Plaintiff's suit was decreed in full with costs and interest against both Defendants, and it was further decreed that the Plaintiff would recover mesne profits against both Defendants. 4. In appeal the decree was slightly modified and the suit was dismissed as regards dags 3237, 3314, 3329 and 3318 included in cl. of Sch. II of the plaint on the ground that the lands in the first three dags were waste lands which Government had a right to take possession of on the expiry of the lease in 1894, and the last had been settled as a taluk with Ramkant Sahay who had not been made a party to the suit. Mesne profits were decreed against Defendant No. 2 only. Defendant No. 2 has appealed. 5. The present appeal is pressed only with regard to the lands claimed by the Plaintiff as accretion to the taluk. It is not disputed that the Plaintiff on the basis of his title by purchase at the sale for arrears of Government revenue is entitled to recover ail lands included in the taluk at the time of its settlement as well as all lands which had subsequently accreted thereto by alluvion. But it is argued that the question whether the lands claimed as accretions really fell within that description or not was one of law as well as of fact and that the lower Courts had erred in law in not coming to distinct conclusions on that point and on the question which was raised in the defence to the suit. But it is argued that the question whether the lands claimed as accretions really fell within that description or not was one of law as well as of fact and that the lower Courts had erred in law in not coming to distinct conclusions on that point and on the question which was raised in the defence to the suit. The case for the defence was that the lands claimed as accretions were not accretions at all and were not formed by natural alluvion. They were in fact the bed of the river Sankha and they had become fit for cultivation not by any natural causes but by artificial means, that is to say, in consequence of the excavation of the Brumchora khal by Government and the resulting diversion of the water from the river Sankha. 6. The land had in fact become dry not naturally by accretion through gradual alluvion but by the dereliction of the river by reason of the diversion of its water through the artificial channel. 7. It is contended that the lower Appellate Court by grouping all the accretions and reformations together has in fact lost sight of the real question in issue in respect of the lands claimed as accretion and has not arrived at distinct findings on the point. 8. In dealing with the point the lower Appellate Court in its judgment says:--"It has been proved by the evidence of both sides that the accretions and reformations commenced from before the time of the excavation of the Brumchora khal by the Government. The cutting of the khal helped only in raising their level. Under the circumstances the Plaintiff is entitled to the accretions and reformations." The Court of first instance dealt with the questions similarly. 9. The contention appears to us to be well founded. The Courts appear to have lost sight of the distinction between lands formed by accretion and those formed by the dereliction of the river and the mere fact that an accretion of some lands had commenced before the excavation of the channel would not give the Plaintiffs a title to the rest of the lands, if it were found that they were not formed by alluvion. 10. 10. We have been referred by the learned pleader for the Appellants to Regulation XI of 1825 and the cases of Maharani Odhiranee v. The Nawab Nazim of Bengal 4 W. R. 41 (1865) and Nobin Kishore v. Jogesh Proshad 14 W. R. 352 (1870) and to the decision of their Lordships of the Privy Council in the case of Nagendra Chandra Ghosh v. Mahomed Esoff 18 W. R. 113 (1872) in support of his contention that the Subordinate Judge has erred in law in not coming to a distinct finding on the point raised and in concluding that all the lands fell under the head of accretions without deciding that point. 11. In the last case their Lordships of the Privy Council have pointed out the distinction between lands gained by gradual accession (i.e. alluvion in the proper sense of the word) and lands gained by dereliction of a river or sea, and have pointed out that while as regards the first class the rights of the parties must be determined by the 1st clause of sec. 4 of the Act (XI of 1825) the latter falls in the class described in cl. 5 of the section and in deciding who is entitled to them the Courts must be guided by local usage, if any be established as applicable to the case, and if not by general principles of equity and justice. It was clearly necessary in this case where the question was raised whether the lands were formed by alluvion, i.e., gained by gradual and imperceptible accretion, or by the dereliction of the river, that the lower Courts should have distinctly decided in which class the lands in suit fell. 12. It has further been contended that the lands claimed as accretions do not fall under that description because it has not been found that the lands had by accretion risen above high water mark in such a way as to be fit for cultivation and that until that had been found to be the case they must be held to have been a portion of the bed of the river, and as such public property which the Government could settle with Defendant No. 2 [See the decision referred to Maharani Odhiranee v. The Nawab Nazim of Bengal 4 W. R. 41 (1865) and Nobin Kishore v. Jogesh Proshad 14 W. R. 352 (1870)]. This contention is in our opinion sound. The important point to be settled for the purpose of determining the question raised in the plea put forward for the defence was whether the lands were formed by natural or by artificial causes and to decide that question it would be necessary to consider whether the lands had in fact risen above the level of the river by natural accretion or whether there had been a dereliction of the river which had resulted in the appearance as to dry land of what was in fact a portion of the bed of the river. If the lands had been formed by natural causes, that is to say, by alluvion, the right to them would be with the Plaintiff subject to the payment of such additional revenue as Government might assess on them. If, on the other hand, the lands had appeared owing to artificial causes the Plaintiffs could claim no title to them under cl. 1 of sec. 4 of Reg. XI of 1825 and it would be for the Court to determine in accordance with the provisions of cl. 5 of that section whether they were not public property and whether the settlement of them by Government with the Defendant No. 2 could be disturbed. 13. The determination of these questions cannot be arrived at without a consideration of questions of fact as well as of law and as we are of opinion that the lower Appellate Court has not satisfactorily dealt with the real point at issue between the parties as regards the land claimed by accretion the judgment and decree of that Court must be set aside so far as it allows the claim of the Plaintiffs to the laud alleged to be formed by alluvion and the appeal must be sent back in order that it may be decided what, if any, of the lands claimed, are accretions to the taluk by alluvion formed by natural causes, and what, if any, of the lands claimed have been formed by the dereliction of the river Sankha resulting from the excavation of the Brumohora khal, that is to say, by artificial causes. To those forming the first class, the Plaintiffs will be entitled under cl. 1 of sec. 4 of Act XI of 1859. To those forming the first class, the Plaintiffs will be entitled under cl. 1 of sec. 4 of Act XI of 1859. To those falling in the latter class the Plaintiff could claim no such title, and it will be for the Court to determine whether having regard to the provisions of cl. 5 of sec. 4 of the Act, the right is not in the public, and whether on that account the settlement with the Defendant No. 2 cannot be disturbed. 14. Three minor points were raised in the appeal. It was first suggested that the taluk being a Noabad taluk the sale for arrears of revenue could not be held under the provisions of Act XI of 1859, but when the attention of the learned pleader was drawn to the provision of Act VII (B. C.) of 1868 and it was found that in the proclamation of sale the two Acts were mentioned this point was not pressed. 15. It was next urged that the lower Courts had erred in deciding the plea raised by Defendant No. 2, that the suit was barred by the doctrine of res judicata, In our opinion this contention has no weight and the lower Courts are correct in holding that the auction-purchaser at a revenue sale of an entire estate cannot be considered to be the successor in interest of the defaulting proprietor so as to be bound by a judgment passed in a suit previous to the sale to which the defaulting proprietor was a party. 16. On behalf of the Respondents it was contended that as the Secretary of State, Defendant No. 1 has not appealed, the Defendant No. 2 had no locus standi to prosecute the appeal as his lease expired in 1899. It appears, however, that the suit was in fact instituted in September 1898 and that Defendant No. 2 had obtained from Government a renewal of the settlement made with him for 20 years in 1873. This point therefore fails. 17. The appeal will accordingly be sent back to the lower Appellate Court to be dealt with as directed in this judgment. Costs will abide the result.