JUDGMENT Ghose, J. - The question raised in these two appeals relates to the jalkar right in a certain river, Ghaghat. It is a non- tidal and non-navigable stream. The two Plaintiffs in the two suits, out of which these two appeals arise, each own eight annas share in Mouzah Thansingpore, and two annas share in a contiguous Mouzah Mukhtipur. The Defendants have no interest in Thansingpore, but they own a 12 anna share in the other village Mukhtipur. At the time of the Thakbust operations, the river Ghaghab flowed through Mukhtipur, and it was surveyed as part of that property. Both the properties, however, as we gather from the proceedings in these suits, are permanently settled estates; and we may take it that the permanent settlement included in each of the two properties all the waters that then flowed through it. The two Plaintiffs, as part owners of Mukhtipur, owned the jalkar right in the river Ghaghat to the extent of four annas share; but recently the river has gradually encroached upon Thansingpore, and is now partly flowing through it. The two Plaintiff's claim to exercise jalkar right over that portion of the river which covers Thansingpore to the extent of their proprietary interest in that property, that is to say, eight annas each. The Defendants contend that, the river having gradually encroached upon Thansingpore by slow and imperceptible process, they as part owners of the old bed of the river, are entitled to exercise jalkar right in the river, as it now exists, to the same extent as they did when it flowed entirely through Mukhtipur, notwithstanding that it now covers a part of Thansingpore. 2. The case before us, as treated in the judgment of the lower Appellate Court, is one of "territorial fishery; that is to say, that right of fishery in the river is incidental to, and a component part of, the ownership of the soil;" and it would, therefore, seem that, by reason of the encroachment by the river on a part of the soil of Thansingpore, the owners of that property are entitled to claim the right of fishery in that portion of the river which now covers the soil of that property. But it has been argued before us by the Defendants-Appellants, on the authority of the case of Foster v. Wright L.R. 4 C.P.D. 438 (1878), that, the encroachment upon Thansingpore having been slow and imperceptible, the owners of the old bed of the river have become the owners of that portion of Thansingpore which has now fallen into the river and that necessarily the right of the Plaintiffs in the jalkar should be limited to their share in Mukhtipur. 3. Let us examine, in the first place, the facts of the case upon which so much reliance has been placed by the Appellants. The Plaintiff in the case was the Lord of a manor. The manor formerly belonged to the Crown, and it was granted to the predecessors in title of the Plaintiff with the right to fish in all the waters in it. At that time the river Lune was locally situated within the manor. Subsequently, certain lands of the manor, but not abutting on the river, were enfranchised, and thus became the property of the Defendant. After the enfranchisement, the manor became forfeited to the Crown; but it was re-granted with free liberty of fishing in all its waters to the predecessors in title of the Plaint ill. The deed of enfran chisement reserved to the Lord of the manor whatever rights of fishing he had in any water flowing through or bounding the lands enfranchised. Since the re-grant of the manor to the Lord, the course of the river gradually changed, and its bed gradually approached nearer and nearer to the Defendant's land, and some portion of that land thus became part of the river-bed; and the question that was raised in the case was whether the Plaintiff's exclusive right of fishing extended over so much of the water as flowed over the land which could be identified as formerly part of the Defendant's property; and it was held that it did. Lindley, J., in the course of his judgment, after examining, amongst others, the cases of Rex v. Yarborough 3 B. & Cr. 91 (1824); 5 Bing. 163 (1828) and In re Hull and Selby Ry. 5 Mee. & Wel. Lindley, J., in the course of his judgment, after examining, amongst others, the cases of Rex v. Yarborough 3 B. & Cr. 91 (1824); 5 Bing. 163 (1828) and In re Hull and Selby Ry. 5 Mee. & Wel. 327 (1839)., put the case in two ways; first that, supposing the Plaintiff's right to fish in the river depended upon his ownership of the soil of the river-bed, he was of opinion that the Plaintiff had that right, for being the owner of the old bed of the river, he gradually and imperceptibly became the owner of its new bed; and, secondly, that supposing the Plaintiff's right of fishing did not depend upon his ownership of the soil, but that he had only the right of fishing in the river, he was of opinion that the Plaintiff had acquired the right of fishing in the river in its new bed as he had of fishing in its old bed. The observations of Lindley, J., read by themselves, no doubt, go to support the contention of the Appellants but bearing in mind what the facts of the case were, and the terms of the grant from the Crown and those of the deed of enfranchisement granted to the Defendant, the said observations admit of a different view. But however that may be, it will be found that Lord Coleridge, C.J., did not quite agree with Lindley, J., in the view he expressed; and he preferred to put his judgment upon the language as to fishery in the grants themselves. He observed as follows : The safer ground appears to me to be that the language as to the fishery in both the earlier and the later grants conveys, what it expresses, a right to take fish and to take it irrespective of the ownership of the soil over which the water flows and the fish swim. The words appear to me to be apt to create a several fishery, that is, as I understand the phrase, a right to take fish in alieno solo and to exclude the owner of the soil from the right of taking fish himself; and such a fishery, I think, would follow the slow and gradual changes of a river such as the changes of the Lune in this case are proved or admitted to have been. 4. 4. As I read the case, the law as to the right of fishery being in, or acquired by, the Lord of the manor, was laid down with reference to the grants made by the Crown and the reservation of the right of fishery when the enfranchisement was made. But however that may be, it will be found that the two cases of Rex v. Yarborough 3 B. & Cr. 91 (1824); 5 Bing. 163 (1828) and In re Hull and Selby Ry. 5 Mee. & Wel. 327 (1839). relied upon by Lindley, J., in the case of Foster v. Wright L.R. 4 C.P.D. 438 (1878), an also the English law bearing upon the question of acquisition of land from sea or river by gradual and slow or imperceptible means, were considered by the Privy Council in the case of Lopez v. Muddan Mohun Thakoor 13 M.I.A. 467 (1870).; and it was observed by the Judicial Committee that it had never been judicially determined to what extent the rule laid down in those cases would be carried in India if there were existing certain means of identifying the original bounds of the property by landmarks or otherwise. The case had reference to the land acquired from the bed of a navigable and public river, and the law was considered with special reference to Reg. XI of 1825. But some of the remarks could well be applied to lands forming part of the bed of other rivers and to the right of fishery in such rivers, and where the principle ought to be one of equity and justice. The Judicial Committee in terms overruled the decision of this Court in the case of Kattemoneey Dossee v. Rani Monmohini Dabee 3 W.R. 51 (1865), where it was held that all gradual accessions from the recess of a river or the sea are an increment to the estate to which they are annexed without regard to the site of the increment, and a distinction was drawn between the case where the surface of the soil was wholly lost and absorbed, and a useless site was left at the bottom of the river, and the case where the surface was not wholly lost. And their Lordships held that there was no such distinction between surface and site. And their Lordships held that there was no such distinction between surface and site. They said as follows:-- The site is the property and the law knows no difference between a site covered by water and a site covered by crops, provided the ownership of the site be ascertained;" and in an earlier part of the judgment, the Judicial Committee referring to the case of Imam Bandi v. Hur Govind Ghose (6), which they approvingly quoted, said :--In that case, it was held as follows:--"The question then is, to whom did this land belong before the inundation ? Whoever was the owner there remained the owner while it was covered with water and after it became dry. This authority appears to their Lordships conclusive in the present case. 5. Following then the principle which underlies the case of Lopez v. Muddan Mohun Thakoor 13 M.I.A. 467 (1870), it seems to be clear enough that the portion of the site of Thansingpore which is now covered with the water of the river Ghaghat still belongs to the owners of that property, notwithstanding the fact that by gradual and imperceptible encroachment the river has submerged that portion of Thansingpur; and if this is so, it is difficult to see how the owners of Mukhtipur can have acquired the right of fishery in that portion of the river which now covers Thansingpore. There is no law that we are aware of, under which such a right could be asserted. If, as already stated, the right of fishery in the river is incidental to and a component part of the ownership of the soil, the Plaintiffs as owers of Thansingpore may justly say:--The soil is ours, and, therefore, the water that now covers the soil is ours too. We have, therefore, the right of fishery in it. 6. Turning once more to Reg. XI of 1825 which embodies the law of accretion in this country, it will be found that the Regulations, after laying down in cls. 1 to 4 of sec. 4 how lands may be gained by gradual accretion from the sea or a river, and the law as regards the right to churs thrown up in rivers, in cl. (5) of the section, states that, in all other cases, the Courts of Justice would be guided by general principles of equity and justice. 1 to 4 of sec. 4 how lands may be gained by gradual accretion from the sea or a river, and the law as regards the right to churs thrown up in rivers, in cl. (5) of the section, states that, in all other cases, the Courts of Justice would be guided by general principles of equity and justice. And applying such rules of equity and justice--rules which ought to govern a ease like the present--we are of opinion that the Plaintiffs as owners of Thansingpore are entitled to the use of the water of that portion of the river which covers their property for the purpose of fishing, and that the owners of Mukhtipur have no such right in themselves. The result is that these appeals are dismissed with costs. Pargiter, J. This appeal is one of much difficulty, not because of its intrinsic characteristics, but because the case of Foster v. Wright L.R. 4 C.P.D. 438 (1878). on which the Appellants rely strongly, presents much similarity to the present case. If that case should prevail, the Appellants would undoubtedly be entitled to succeed; but it must be noted that the learned Judges who decided it while agreeing in their conclusion based it on different grounds, and Lord Coleridge, C.J., in particular, dealt with the case purely as a matter of construction of the grant. No doubt the law regarding alluvion and diluvion is much the same in this country as in England, as noticed by the Privy Council in the case of Lopez v. Muddan Mohun Thakoor 13 M.I.A 467 (1870), but there are other considerations to be weighed as mentioned by my learned brother, and having regard to them I agree with him that the decision of the lower Court is right and that the appeals should be dismissed.