JUDGMENT : Banerji, J. This and the connected appeals arise in suits brought by the plaintiffs who are cultivators in the village Kudhara to recover certain plots of land which are in the possession of the defendants who are tenants in the adjoining village of Khawaspur. That village lies to the south of Kudhara, About the year 1882 the river Ganges used to flow between the two villages and formed the boundary between them. It subsequently receded towards the north submerging portions of the village Kudhara. In 1889, the river suddenly changed its course and now flows to the south of Khawaspur. That village formerly appertained to the district of Shahabad in Bengal, but as the Ganges now flows to the south of it, the village has been transferred by order of Government, to the district of Ballia, in which Kudhara lies. The owner of both the villages is the same person, namely, the Maharani of Dumraon. The plaintiff alleged in his plaint that the land in dispute began to submerge gradually in 1297 Fasli, that it remained under water up to 1299 Fasli, and, re-appeared at its former site as a sandy tract in the year 1300 Fasli, that the plaintiff had all along been in possession of the said land, and that in 1898, when it became culturable, the defendants took possession of it. “The plaintiff asserts that he is entitled to possession of the land according to law and custom. No particular custom is, however, alleged in the plaint. The defendants denied that the land claimed by the plaintiff was his cultivatory holding or had ever belonged to the village Kudhara. They alleged, that the said land appertained to their village Khawaspur, and had all along remained in their possession. The court of first instance dismissed the claim upon various grounds into which it is unnecessary to enter at present. Upon appeal the learned Judge refused to consider the oral and documentary evidence which was on the record. He says that the provisions of Regulation XI of 1825 apply to the case, and he is of opinion that the plaintiff is not entitled to contend that the land having re-appeared on its old site, he is entitled to the possession of it. He says that the provisions of Regulation XI of 1825 apply to the case, and he is of opinion that the plaintiff is not entitled to contend that the land having re-appeared on its old site, he is entitled to the possession of it. He observes that it was conceded before him that the lands in question were not subject “to the custom of mahaz embodied in the above quoted Regulation,” and that the contention before him was that the said land was subject to “the absolute principle of fixed boundary.” The learned Judge thought that the plaintiff had changed front in the appellate court, and he therefore refused to allow the plaintiff to put forward the contention to which he referred. What the learned Judge means by “the absolute principle of fixed boundary” I am unable to understand. The plaintiff did not certainly base his claim upon the ground that, the river Ganges had gradually receded to the south, and that the land claimed was a gradual accretion to the village Kudhara. His case, as I have stated above, was that upon the recession of the river to the south, his land, which had formerly been submerged, re-appeared on its former site, and that he was consequently entitled to the possession of it. That is also the case which he put forward in the appellate court. The Munsif was of opinion that the Ganges had gradually receded towards the north and that when it did so, the lands cultivated by the plaintiff accreted to the village of Khawaspur, and the defendants acquired those lands. For this view he referred So the provisions of the first paragraph of section 4 of Regulation XI of 1825, which provides that when land is gained by gradual accession, whether from the recess of a river or of the sea, it shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed. This also appears to have been the view of the Collector, Mr. Campbell, when he settled the disputes which arose after the transfer of the village Khawaspur from the district of Shahabad to that of Ballia. Consequently the Munsif held that as the defendant had acquired the land in suit, and as the river had subsequently taken a sadden course towards the south, their right to the land continued. Campbell, when he settled the disputes which arose after the transfer of the village Khawaspur from the district of Shahabad to that of Ballia. Consequently the Munsif held that as the defendant had acquired the land in suit, and as the river had subsequently taken a sadden course towards the south, their right to the land continued. This view of the provisions of section 4 of Regulation XI of 1825 is not accurate. The question was considered by the Privy Council in the well-known case of Lopez v. Maddun Mohan Thakoor, [1870] 13 M.I.A., 467. Their Lordships said: “In truth, when the whole words are looked at, not merely of that clause, but of the whole Regulation, it is quite obvious that what the then Legislative authority was dealing with, was the gain which an individual proprietor-might make in this way from that which was part of the public territory, the public domain not usable in the ordinary sense, that is to say, the sea belonging to the State, a public river belonging to the State; this was a gift to an individual whose estate lay upon the river or lay upon the sea, a gift to him of that which, by accretion, became valuable and usable, out of that which, was in a state of nature, neither valuable nor usable.” “And on the very words of the section itself, if the ownership of the submerged site remained as it was (and there seems nothing to take it away), it is difficult to see why a deposit of alluvion directly upon it, is not at least as much an accretion an annexation vertically to the site as it would be an accretion and annexation longitudinally to the river frontage of the adjoining property.” 2. Their Lordships held that land which had been washed away and which re-appeared afterwards on the old ascertained site was not land gained by increment within the meaning of the Regulation, and such land would continue to be the property of the original owner. This view was affirmed by their Lordships in Radha Prashad Singh v. Ram Coomar Singh, [1878] I.L.R., 3 Cal., 796. This view was affirmed by their Lordships in Radha Prashad Singh v. Ram Coomar Singh, [1878] I.L.R., 3 Cal., 796. In that case their Lordships further held that if an indefeasible title had been acquired by long adverse possession after the reformation of the land on its original site, such title would not be defeated merely by the fact that the diluviated land had reformed on the original site. I may also refer to the case of Ram Charan Tiwari v. Jasai Pandey, [1882] A.W.N., 8. Having regard to these rulings what the Courts below ought to have considered was whether as alleged by the plaintiff, the land in dispute was originally the occupancy holding of the plaintiff, and whether it had reformed on its original site, and whether or not the defendants had, since its reformation, been in possession adversely to the plaintiff for such a length of time as to confer on them an indefeasible right. 3. If, as alleged by the plaintiff, the land has reformed on its old site, he is entitled to it unless his title has been extinguished by the adverse possession of the defendants. This is the case which the plaintiff set up in his plaint, and I am unable to agree with the learned Judge that he sought to establish a new and different case in appeal. In my judgment the learned Judge ought to have tried the case upon the merits, and he was wrong in dismissing it upon the preliminary ground to which he refers in his judgment. I accordingly allow the appeal, set aside the decree of the court below and remand the case to that court under the provisions of section 562 of the Code of Civil Procedure, with directions to re-admit the appeal before it under its original number in the register, and to determine it on its merits. Costs will follow the event.