Judgement Appeal (No. 11 of 1920) from a judgment and decree (November 15, 1916) affirming a decree (September 17, 1913) of the temporary Subordinate Judge of Cococanada. The suit was brought by the respondents against the appellant for a declaration of the title of the plaintiff-respondent, the Raja of Vizianagaram, to an island in the Godavari River of about 1000 acres in extent, and for consequential relief. The river at the point in question was tidal and navigable, its bed being the property of the Government. The case made by the respondents was that land had been added by alluvion to a lanka which had been held to be an accretion in the Rajas riparian lands, and that subsequently the land had by action of the river become an island. The appellant by his written statement pleaded, (1.) that the lands in suit had been formed on the bed of a navigable river, and belonged to the Government, and (2.) that even if the lands in suit had been formed contiguously with any lands belonging to the plaintiff and in such manner as to be governed by the law of accretion, they nevertheless belonged to the Government as a vertical accretion to the bed of the river. The following facts shortly extracted from the judgment of Srinivasa Aiyangar J. in the High Court show the progress of the formation by alluvion. Before 1870 land was formed in the river bed in contact with lanka land, known as Betaru lanka, which formed part of the Rajas village Kotipalli. This land, called the Voota lanka was in 1873 of about three acres, it was then washed away, but in 1870 was reformed, and in 1881 the lanka was of 100 acres. In 1882 most of this land was washed away, but on the subsidence of the floods of 1884, 610 acres were left in contact with Voota. This was the origin of the island. In 1887 floods carried away much of the alluvial land, and formed a channel which left an island of 250 acres. In subsequent years additions were made by alluvion, until at the date of the suit the area was about 1000 acres. The first and second of the issues framed were as follows— 1. In 1887 floods carried away much of the alluvial land, and formed a channel which left an island of 250 acres. In subsequent years additions were made by alluvion, until at the date of the suit the area was about 1000 acres. The first and second of the issues framed were as follows— 1. Whether the lanka to the west of the suit lands marked A in the plaintiffs plan belongs to plaintiff on the ground of its being an accretion to Betaru lanka, or whether the said lanka as well as the suit lands form together an entire lanka and are defendants property on the ground of the said entire lanka having been formed in the bed of a navigable river without any connection with any lands of the plaintiff? 2. Whether the suit lands belong to plaintiff on the ground of their being accretions to, or a part of, the lanka to the west of those lands, or whether even if they are accretions to the above lanka, they belong to defendant on the ground that they form a vertical accretion to the bed of the river ? No direct evidence was called at the trial that the accretion had been "perceptible," but it was contended on the documentary evidence, that it must have been so, and that it was not "gradual." The Subordinate Judge recorded findings in the affirmative in the first part of each of the above issues, and in the negative on the second part of each. He made a decree as prayed. Upon an appeal to the High Court, the learned judges (Ayling and Srinivasa Aiyangar JJ.) affirmed the findings of the trial judge, and after a consideration of the law of accretion in relation to the facts of the case, dismissed the appeal. Ayling J. in the course of his judgment said "The nucleus of the suit lanka is not an island formed vertically in the bed of the Godavari, but an accretion to plaintiffs pre-existing Voota Chiguru lanka, formed in 1883, and severed from the latter about four years later. I do not think we should be justified in refusing to recognise plaintiffs title to the land thus formed on the ground of the comparative rapidity with which the formation took place. I do not think we should be justified in refusing to recognise plaintiffs title to the land thus formed on the ground of the comparative rapidity with which the formation took place. No doubt the reported decisions of the English Courts would seem to indicate that they would refuse to treat such a formation as an accretion if it occurred in an English river; an addition of over 600 acres in the course of a single flood season could not he described as slow and gradual according to the standard of additions by alluvion in English rivers"; he added the further observations set out in the judgment of the Judicial Committee. The appeal to the High Court is reported at I. L. R. 40 M. 1083. 1921. Nov. 3, 4, 7. De Gruyther K.C. and Kenworthy Brown for the appellant. Having regard to the rate" at which the land in suit was formed, as appearing from the documents, it did not become the property of the first respondent by accretion. There being no specific rule of law applicable in Madras, the rule of justice, equity and good conscience is to be applied, that is to say, the English rule of law Wagella Rajsangi v. Masludin. (( 1887) L. R. 14 I. A. 89, 96) The rule in English law is well established, and by that rule a title by accretion is acquired only where the accretion is "gradual, slow, and imperceptible " Rex v. Lord Yarborough ((1824) 3 B. & C. 90; affd. ( 1828) 2 Bli. N. 8. 147.) ; Attorney-General of 8. Nigeria v. Holt & Co. ([ 1915] A. C. 599, 613.) The accretion in this case did not comply with that test. Ben. Reg. XI. of 1825 which refers to " gradual accession," even if applicable here, also includes only cases of incrementum latens Nogender Chunder Ghose v. Mahomed Esop. (( 1872) 10 Ben. L. R. (P. C.) 406.) That was recognized also in Lopez v. Muddun Mohun (( 1870) 13 Mod. I. A. 467.), although that case was decided on the different principle of reformation in situ. There is no distinction between the principles applicable in England and in India, in each the progress must be imperceptibly slow. The High Court attached too much weight to the observations in Srinath Roy v. Dinabandhu Sen (( 1914) L. R. 411. I. A. 467.), although that case was decided on the different principle of reformation in situ. There is no distinction between the principles applicable in England and in India, in each the progress must be imperceptibly slow. The High Court attached too much weight to the observations in Srinath Roy v. Dinabandhu Sen (( 1914) L. R. 411. A. 221.) which case was dealing with a different question. [Reference was also made to Hursuhai Singh v. Lootf Ali Khan (( 1874) L. R. 2 I. A. 28.) ; Balsu Ramalaks-mamma v. Collector of Godavari District (( 1899) L. R. 26 I A. 107.); Sardar Jagjot Singh v. Brijnath (( 1900) L. R. 27 I. A. 81.); Ritraj Koer v. Sarpuraz Koer (( 1905) L. R. 32 I. A. 165.); Rai Krishan Chandra v. Saidan Bibi(( 1905) I. L. R, 28 A. 256.); and Narendra Bahadur Singh v. Achhaibar Shukul. (( 1906) I. L. R. 28 A. 647.)] Upjohn K.C., Sir George Lowndes K.C., and E. B. Raikes for the respondents. The question now argued is not open to the appellant; no issue was framed as to it nor evidence called. But in any case the facts found show that this was a case of gradual accretion. The " gradual accession " test laid down in Ben. Reg. XI. of 1825 applies in Madras Balsu Ramalaksmamma v. Collector of Godavari District. (5) The regulation merely embodies that which was the law equally in Madras and Bengal. The true test, whether in India or in England, is that the accretion must be due to the ordinary action of the river; but alluvion which might be extraordinary in English rivers would be ordinary in the large rivers of India. That distinction is clearly laid down by the Board in Srinath Roys Case (L. R. 41 I. A. 221, 245.), and is indicated in Balsu Ramalaksmammas Case. (L. R, 26 I. A. 107, 112.) The onus was on the appellant Haidar Khan v. Secretary of State for India, (( 1908) I. L. R. 36 C. 1, 17.) De Gruyther K.C. in reply referred to Secretary of State for India v. Kadirikutti. (( 1890)I. L. R, 13 M. 369.) Dec. 19. The judgment of their Lordships was delivered by LORD CARSON. (( 1890)I. L. R, 13 M. 369.) Dec. 19. The judgment of their Lordships was delivered by LORD CARSON. The question in dispute in this action is as to the ownership of a certain lanka formed by alluvion in the bed of the River Godavari. It consists at the present .time of an island being surrounded on all sides by the river, and in extent consists of about 1000 acres. At the place where this lanka is situated the Godavari is both navigable and tidal, and it is not disputed that the bed of the river at that place belongs to the Government of India. The extent of the river and the operation of its currents in forming alluvial tracts during the flood season must be borne in mind with reference to questions arising in this case. A description of this river will be found at I. L. R. 22 M. 465. The Maharaja of Vizianagaram, the first respondent, has for some years been in possession of this property; the other respondent is a trustee of the Vizianagaram estates. The defendant (appellant), as representing the Government of India, treating the Maharaja and his tenants as being in unlawful occupation of the lands in question, proceeded to levy penal assessment in respect of them amounting to Rs.9029. This sum the Maharaja paid under protest and has brought the present action claiming a declaration of title to the said lands and repayment of this penal assessment. The main questions raised by the pleadings and issues, and to which the evidence was directed in the trial Court before the temporary Subordinate Judge, were whether the lanka in question was an accretion formed laterally as an adjunct to or in continuity with any lanka or other property belonging to the Maharaja and became his property, or was formed vertically as an island in the bed of the Godavari and was therefore the property of the Government. The Subordinate Judge before whom the action was tried held that the lanka in question was formed by alluvion in contiguity with the Maharajas land and was subsequently separated therefrom by the river, and gave a decree for the respondents. The Subordinate Judge before whom the action was tried held that the lanka in question was formed by alluvion in contiguity with the Maharajas land and was subsequently separated therefrom by the river, and gave a decree for the respondents. On appeal the High Court of Judicature at Madras, on November 15, 191G, confirmed the decree of the Lower Court and dismissed the appeal, concurring with the finding of the temporary Subordinate Judge that the land in dispute was formed as a lateral extension of the Maharajas lanka, or at least of the site of his lanka. There are therefore concurrent decisions upon this the main question raised, and their Lordships see no reason for dissenting from the conclusion arrived at. The further question, however, and indeed the main one argued on behalf of the appellant before this Board, was that even if the lands in question were accretions to lands of the Maharaja the process of accretion was not such as to give him title to them. In dealing with the great rivers in India and comparing them with the rivers in this country, it is necessary to bear in mind the comparative rapidity with which formations and additions take place in the former. It is claimed by the appellants counsel that by the settled law of England, which he argued was the law applicable to Madras, land to be an accretion must be formed by gradual, slow and imperceptible degrees as laid down in the case of Rex v. Yarborough (3 B. & C. 91.), and other English authorities, and he alleged that the accretions in the present case were not formed by " gradual, slow and imperceptible degrees." On the other hand, the Board were referred to s. 4 of Ben. Reg. XI. of 1825, the only requirement of which is that this accretion should be " gradual "—not that it should be slow or imperceptible. That regulation was promulgated to be in force throughout the Provinces subject to the Presidency of Fort William, and did not apply to the Presidency of Madras. It has, however, been contended that this regulation embodies the law of accretion as applicable generally to the rivers of India. That regulation was promulgated to be in force throughout the Provinces subject to the Presidency of Fort William, and did not apply to the Presidency of Madras. It has, however, been contended that this regulation embodies the law of accretion as applicable generally to the rivers of India. Their Lordships do not find it necessary to decide whether the law as to accretions promulgated in the Bengal Regulation coincides with the law as to accretions in the Presidency of Madras or elsewhere in India, nor to discuss the exact meaning of the word " imperceptible " in the English rule which provides that all accretions must be " gradual, slow and imperceptible," for assuming the applicability of the English rule, " slow" and " imperceptible" are only qualifications of the word "gradual," and this word with its qualifications only defines a test relative to the conditions to which it is applied. In other words, the actual rate of progress necessary to satisfy the rule when used in connection with English rivers is not necessarily the same when applied to the rivers of India. The application of the rule is, in their Lordships opinion, correctly laid down in the judgment of Ayling J. in the present case when he says 44 It seems to me the recognition of title by alluvial accretion is largely governed by the fact that the accretion is due to the normal action of physical forces ; and the conditions of Indian and English rivers differ so much that what would be abnormal and almost miraculous in the latter is normal and commonplace in the former, as pointed out by their Lordships of the Privy Council in Srinath Roy v. Dinabandhu Sen. (L. R. 41 I. A. 221, 243 et seq.) Their Lordships observe that neither in the plaint nor the defendants written statement, or what is still more important in the issues as settled, is there any question raised as to the accretions being "gradual," "slow" or "imperceptible." Further, in their memorandum of appeal to the High Court, the Government did not make the decision on this point a ground of objection. An examination of the evidence given before the trial judge shows that, although several of the witnesses proved that the said lankas or parts of them "arose gradually" or increased "gradually," or "gradually extended" or " had been gradually growing in size," no question challenging this evidence was put upon cross-examination, nor was any evidence given on behalf of the appellant to attempt to displace such evidence. Some attempt was made to show by a comparison of farm leases and accounts of different years (which were put in evidence on behalf of the Maharaja to prove contiguity) that there must have been extensive accretions at a particular date, but such a comparison does not when examined show the contents of the lanka but only what land-in the-place was cultivated in each year. Further, the judgment of Srinivasa Aiyangar J. has pointed out that throughout the long dispute which has led to the present suit the Government had never suggested that the land in question “was not an accretion in the sense of a gradual formation." Their Lordships doubt whether under these circumstances it is open to the appellant to raise the contention under consideration, but assuming that it is, their Lordships see no reason to doubt that, applying the principles already explained, the accretion must be held to have been "gradual, slow and imperceptible," and to be the property of the Maharaja. The order appealed for must therefore be confirmed, and this appeal dismissed with costs. Their Lordships will humbly advise His Majesty accordingly.