Judgement Appeal from a decree of the High Court (June 29, 1909) reversing a decree of the District Judge of Noakhali (December 6, 1906). The suit was one to eject the first respondent from certain char lands, covering an area of about six square miles, and was brought under the following circumstances. The first respondent held a patni taluq in lands of which the appellant was zamindar. The taluq was Law. Rep. 41 Ind. App. 32 ( 1913- 1914) Arun C handra Singh V. Kamini Kumar Bardhan 139 created in 1837 on the terms contained in a daul kabuliyat and was situated on a river, the lands consequently being subject to alluvion and diluvion by the stream. The land granted comprised two kismats, namely, Algi and Paniar Tek, and the area, after deduction of waste, was stated as 2 drones 12 kanis 16 gandas net, assessable with rent at Rs.48 (sicca) per drone amounting to Rs.134.6.8. The following condition was contained in the kabuliyat—" If me lands be found to be more on measurement by nal prevalent according to the custom of the pergunnah, I shall separately pay the rent thereof at this rate; if it be found to be less, I shall get remission therefor." In a suit in 1843 in the Court of the Deputy Commissioner of Bhulua the zamindar obtained a decree fixing the rent at Rs.386.10.6. It appeared from the robukari of the Court that the zamindar caused the land to be measured in 1840 and 1841, on notice to the patnidar, and it was then found that the area was over 7 drones and that the claim was made "under the terms of the daul and according to the present measurement." Subsequently diluvion took place, the river encroaching on the land, and the patnidar, in consequence, in 1877, 1886, and 1889 obtained decrees for proportional abatement of the rent. In 1890 the river began to recede again, and land was gradually reformed on the site of kismat Algi. This land was the char in dispute. In 1890 and in 1894 the zamindar let the land so formed for grazing. In 1901 the char became fit for cultivation and the first respondent leased it to a number of raiyats, who were the other respondents, and put them into possession. This land was the char in dispute. In 1890 and in 1894 the zamindar let the land so formed for grazing. In 1901 the char became fit for cultivation and the first respondent leased it to a number of raiyats, who were the other respondents, and put them into possession. On January 21, 1906, the predecessor in title of the appellant commenced a suit in the Court of the Subordinate Judge of Noakhali. He claimed the char as part of the zamindari and alleged that he had been in possession by his grazing tenants since its reformation. He also prayed that, in the event of his claim for ejectment being dismissed as against the raiyats, a decree might be made as against them for a fair and equitable rent. The first respondent pleaded that upon the reformation of the char upon the original site he was entitled to it, and he further pleaded that the suit was barred by limitation. The suit was transferred to the District Judge, who, on December 6, 1906, delivered judgment for the plaintiff, granting him ejectment as against the first respondent and a decree for a fair and equitable rent against the other respondents, the raiyats. The High Court by their judgment on appeal, delivered on June 29, 1909, allowed the taluqdars appeal and dismissed the suit. The learned judges (Sharfuddin and Coxe JJ.) were of opinion that, upon the authorities, s. 4 of Regulation XL of 1825 did not apply, the land not having been "gained" from the river within the meaning of that section, and further that the defendant could not claim the char under the general law as a reformation in situ since he had thrice applied for and obtained remission of rent upon diluvion. They held, however, that the terms of the kabuliyat, taken with the subsequent conduct of the parties, shewed that the whole of Algi was let and that the intention was that the rent should be enhanced or abated according as the area available for cultivation was increased or diminished by the river; it followed that the char formed part of the defendants taluq and that the suit failed. The learned judges differed as to the limitation defence, but agreed that the title by adverse possession raised by the plaintiff had not been established. De Gruyther, K.C., and Dunne, for the appellant. The learned judges differed as to the limitation defence, but agreed that the title by adverse possession raised by the plaintiff had not been established. De Gruyther, K.C., and Dunne, for the appellant. The inferences drawn by the High Court from the conduct of the parties and the terms of the kabuliyat were erroneous. Upon its true construction the kabuliyat did not contemplate that the rent should vary from time to time as the area available for cultivation increased or diminished. At the time the tenure was created the area was uncertain, and the provision as to measurement was inserted in order to give the zamindar the right subsequently to measure the land and to fix an increased rent upon that measurement. This took place in 1843. The abatements of rent obtained in 1877, 1886, and 1889 were obtained, not under the terms of the grant, but under Act VIII. of 1869 (Bengal), s. 19. The High Court rightly held that s. 4 of Regulation XI. of 1825 did not apply Felix Lopez v. Muddun Mohun Thakoor (( 1870) 13 Moo. Ind. Law. Rep. 41 Ind. App. 32 ( 1913- 1914) Arun C handra Singh V. Kamini Kumar Bardhan 140 Ap. 467.); and that the effect of obtaining the remissions of rent, in respect of the lands taken away by diluvion, was to cut those lands out from the tenure Hemnath Dutt v. Ashgur Sindar(( 1879) I. L. R. 4 Calc. 894.); Saligram Singh v. Paluk Pandey. (( 1906) 6 Calc. L. J. 149.) The decision, to the contrary effect, in Mazhar Rai v. Ramgat Singh (( 1896) I. L. R. 18 Allah. 290.) was wrong and should not be followed. Kenworthy Brown, for the respondents, was not called upon. The judgment of their Lordships was delivered by MR. AMEER ALI The sole question involved in this appeal, which is from a judgment and decree of the High Court in Bengal, relates to the title to certain lands that had been washed away some years ago by the river Siddhi in the Noakhali district and have since reformed in consequence of a change in the course of the stream. The plaintiffs, appellants, are the owners of a zamindari called pergunnah Bhulua, situated in that district. The plaintiffs, appellants, are the owners of a zamindari called pergunnah Bhulua, situated in that district. Within this zamindari lies a patni tenure called Talu Ram Saran Pal, created so long ago as 1837 by one of the predecessors in title, of the present zamindars. The taluq is now owned by the first and second defendants, respondents in this appeal. The-remaining numerous defendants are raiyats placed on the land, by the patnidars, since its reformation. The daul kabuliyat executed by the patnidar in respect of the tenure shews that it comprises parts of two kismats or subdivisions of villages named respectively kismat Paniar Tek and kismat Algi; and the area included in the taluq was evidently given approximately, for the lease contains the following covenant " If the land be found to be more on measurement by nal prevalent according to the custom of the pergunnah, I shall separately pay the rent thereof at this rate; if it be found to be less, I shall get remission therefor." Their Lordships have little doubt that the reason for the approximate statement of the area and the particular provision regarding the variation of the rent in certain probable contingencies was due to the fact, which has not been seriously controverted, that a strong tidal river flowed close to the boundaries of the taluq in question. It is in evidence that in 1843 the plaintiffs obtained a decree in the Revenue Courts for increased rent on the ground that additional land was found upon measurement to be in the patnidars possession. Later, considerable parts of the Algi lands having been washed away by the action of the river, the defendants obtained, under the provisions of s. 19 of the Bengal Council Act VIII. of 1869, a proportionate remission of rent. The last proceeding in this respect was in 1889. Since then the diluviated lands have reappeared and admittedly reformed in situ. With their reappearance disputes arose between the parties; the plaintiffs claimed that the lands in question formed part of their zamindari, whilst the defendants contended that they were accretions to the taluq. Each party attempted to exercise rights of ownership in order to create evidence of adverse possession against the other side. Their Lordships agree with the High Court that the evidence on this point is wholly inconclusive. Each party attempted to exercise rights of ownership in order to create evidence of adverse possession against the other side. Their Lordships agree with the High Court that the evidence on this point is wholly inconclusive. The suit was brought by the plaintiffs, the zamindars, in June, 1906, to obtain khas or direct and exclusive possession of the lands in question by a declaration of their title, the usual form of relief asked for in the Indian Courts in these cases. In the alternative they urged that if their claim to khas possession failed, it might be declared that the defendants were entitled to hold the land subject to the payment of proper rent for the same. The defendants, besides pleading that the lands in suit were accretions to their taluq, urged that the zamindars were only entitled to rent, but not to khas possession. Law. Rep. 41 Ind. App. 32 ( 1913- 1914) Arun C handra Singh V. Kamini Kumar Bardhan 141 The District Judge made a decree in the plaintiffs favour, substantially on the ground that as the defendants had obtained abatement of rent in respect of the lands that had been washed away by the river, they had lost all title to the reformed lands. On appeal the High Court has taken a different view. It has held in substance that, having regard to the terms of the contract and the conduct of the parties, the plaintiffs had no right to eject the defendants from lands which originally formed part of kismat Algi and had been washed away by the river. They accordingly dismissed the plaintiffs suit. In their Lordships opinion the learned judges were right in holding that the lands do not come within the provisions of s. 4 of Regulation XI. of 1825, and cannot be claimed by either party as accretions to their respective property. The learned judges of the High Court appear, however, to have laid too much stress on the terms of the kabuiiyat and the evidence of intention deducible from the various proceedings in respect of additional rent and abatement of rent. They evidently felt pressed by an older ruling of the Calcutta High Court in Hemnath Dutt v. Ashgur Sindar. (I. L. R. 4 Calc. 804.) Their Lordships, however, do not find themselves in accord with the rule of law expressed in that case. They evidently felt pressed by an older ruling of the Calcutta High Court in Hemnath Dutt v. Ashgur Sindar. (I. L. R. 4 Calc. 804.) Their Lordships, however, do not find themselves in accord with the rule of law expressed in that case. They think that the principle applicable to this class of cases is correctly enunciated in Mazhar Rai v. Ramgat Singh. (I. L. R. 18 Allah. 290.) In the present case there is nothing to shew that, by claiming or accepting remission of rent in respect of lands washed away from time to time by the action of the river, the defendant abandoned, or agreed to abandon, his rights to such lands on their reformation in situ, as is admittedly the case here. The diluviated lands formed part of a permanent, heritable, and transferable tenure; until it can be established that the holder of the tenure has abandoned his right to the submerged lands, it remains intact. In the result their Lordships are of opinion that this appeal should be dismissed with costs, and they will humbly advise His Majesty accordingly. This decree, however, will be no bar to any proceeding on the part of the plaintiffs authorized by law to recover proper rent in respect of the reformed lands.