JUDGMENT
1. Both these appeals arise out of the same suit. The plaintiff is the Secretary of an
institution known as Yatimkhana Anjuman Khadimul Islam, Patna City. He instituted the suit, out of which these two appeals arise, on behalf of the institution, for declaration of its title to and for confirmation or, in the alternative, recovery of posession over about 10 Bighas of land described at the foot of the plaint by letters A, B, C and D. The claim of the plaintiff is that municipal plots Nos. 407, 408, 409 and 410 of ward No. 26, within Patna Municipal Corporation, having an area of 1 Bigha 5 Kathas, belonged to it, and the suit land, measuring about 10 bighas, lying adjacent north of these plots, has vested in it as having been annexed to them by gradual and imperceptible accretion. As the defendants interfered with the possession of the plaintiff, the plaintiff had to institute the suit for the reliefs stated above.
The suit was mainly contested by defendants 11 to 13 and defendants 14 and 15. Both sets of the defendants filed separate written statements, but their pleas in defence were practically the same. Their picas, so far as are relevant for the purposes of these appeals, are that the lands had come out of the water suddenly and it was a case of reformation in situ, and that the lands lie in the district of Muzaffarpur and the Civil Court a Patna had no jurisdiction to try the suit. The Courts below rejected these pleas and, accepting the case of the plaintiff, decreed the suit. At the trial it was further contended by these defendants that the plaintiff had no title to plots Nos. 407 to 410 and, therefore, the plaintiff did not acquire any title over the suit land. The Courts below held that the plaintiff had title over plots Nos. 408 to 410 and a portion of plot No. 407. They therefore, held that the plaintiff was entitled to the accreted land. Defendant No. 14 preferred a second appeal in this Court, being Second Appeal No. 34 of 1956 and defendants 11 and 12 filed a separate second appeal, being Second No. 54 of 1956. Second Appeal No. 34 of 1956 was heard by a learned Single Judge of this Court and was dismissed on the 18th February, 1959. Leave for appeal under the Letters Patent was granted, and defendant No. 14 has filed Letters Patent Appeal No. 43 of 1959. Second Appeal No. 54 of 1956 and Letters Patent Appeal No. 43 of 1959 have, therefore, been heard together as the questions at issue in both the cases are the same, and this judgment will govern them both.
2. Mr. Sharma has appeared for the appellant in L. P. A. No. 43 of 1959 and Mr. T. K. Prasad has appeared for the appellants in Second Appeal No. 54 of 1956. Both of them have advanced separate arguments, but the points raised in their arguments are practically the same.
3. Three points have been raised by Counsel for the appellants in support of their case. They are:
(1) The plaintiff has not established its title to a portion of plot No. 407 and. as such, the lands accreting to that portion of plot No. 407 could not belong to the plaintiff.
(2) The Patna Court had no jurisdiction to try the suit.
(3) To the north of plot Nos, 407 to 410, there is a Pushta wall and, as such, the alluviated lands could not be said to have accreted to the lands lying to the south of the Pushta wall.
4. So far as the first point, namely, that the plaintiff has not established its title to a portion of Plot No. 407, is concerned, it may be noted that the title of the plaintiff was not denied in the written statements filed by the appellants of the two appeals. The plaintiff clearly stated in paragraph 3 of the plaint that its own lands bearing municipal survey plots Nos. 407, 403, 409 and 410 in Ward No.
26, Sheet No. 242, the area whereof is about 1 bigha 5 kathas. The defendants 11 to 13 did not deny in their written statement the correctness of the averment made by the plaintiff referred to above. Defendants 14 and 15, however, in paragraph 7 of their written statement, with reference to the averment in the plaint about the ownership of the said plots only stated that they denied the allegations made in Paragraphs 2, 3 and 4 of the plaint. This denial is no denial of averment in law. Order VIII, rule 3 of the Code of Civil Procedure, states that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which ha does not admit the truth, except damages. There should, therefore, have been a specific denial of the title of the plaintiff with regard to the plots referred to above, and the Lower Appellate Court has rightly observed that the title of the plaintiff over these plots had not been denied in the pleadings. There being no denial of the title of the plaintiff with respect to these plots, it must be assumed that its title to these plots was admitted in the pleadings.
Evidence was, however, adduced with respect to want of title in the plaintiff in regard to a portion of plot No. 407, inasmuch as there was a litigation between the plaintiff and its vendor with respect to this plot, and the decision in that litigation was that the entire plot had not been transferred to the vendee. Whatever may be said with respect to the title of the plaintiff ever a portion of plot No. 407 as against its vendor, the question has to be decided in the present case as between the plaintiff and the appellants on the materials available on the records of this case. As already stated, the title of the plaintiff has not been denied in the pleadings. That being so, any evidence adduced in this regard could not be taken into consideration and should have been ignored, as held by various authorities. If necessary, reference may be made to the case of Siddik Mahomed Shah v. Mt. Saran, AIR 1930 P.C. 57 (1), in which it has been laid down that where a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. The same view was taken in the case of Hem Chand V. Pearey Lal, AIR 1942 P.C. 64 The appellants were, therefore, not entitled to dispute the title of the plaintiff with respect to plots Nos. 407, 408,409 and 410, and we have to proceed on the assumption that these plots belonged to the plaintiff. This point, therefore, fails.
5. The second question is with regard to the jurisdiction of the Patna Civil Court. It is contended on behalf of the appellants that the accreted land formed part of the Muzaffarpur district, whereas, according to the plaintiff-respondent, it was within the Patna district and as such, within the territorial jurisdiction of the Patna Civil Court. The courts below, after considering the various maps produced before them, have come to the conclusion that the suit land was within the district of Patna and the civil court at Patna had jurisdiction to try the suit. The question whether a particular land lay in one district or another is a question of fact to be determined on the evidence on record, and this Court, sitting in second appeal, will not interfere with that finding, unless the same has been reached on some wrong principle of law.
Mr. T. K. Prasad, appearing for the appellants in the second appeal, has drawn our attention to
the judgment of the Lower Appellate court in this regard where it has observed that the surveyors transgressed their limit in the matter of extending the southern boundary of village Sukhwarpur right up to Patna. It may be noted that, according, to the appellants, the suit lands lay in Sukhwarpur village, which is within the district of Muzaffarpur. It has been urged that the finding of the Lower Appellate Court in this regard is vitiated as the correctness of some of the maps filed on behalf of the appellants has been rejected due to error of law. In support of this contention, our attention has been drawn to Section 115A of the B. T. Act and to several provisions laid down in the Bihar Survey, and Settlement Manual. But, in our opinion, they have no relevancy in the present case. Thefinding ot the learned Subordinate Judge is not based only on the observation about the surveyors having transgressed their limit, but has been reached after a full consideration of the different maps prepared at different times and the District Gazetteer of the Muzaffarpur and Patna District. The finding of the learned Subordinate Judge is not vitiated on account of any error of law. Apart from that, Mr. Lal Narayan Sinha, appearing for the plaintiff-respondent in the Letters Patent Appeal, has referred to section 21 of the Code ot” Civil Procedure which states that no objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there-has been a consequent failure of justice. Thus, even though the suit lands lay in Muzaffarpur district) the Judgments and decrees of the Courts below cannot be set aside on that ground, as nothing has been brought to our notice to show that there has been a consequent failure of justice by the suit haying been tried in the Civil Court at Patna. This point also, therefore, fails.
6. The third question relates to the existence of the Pushta wall demarcating municipal Survey plots Nos. 407 to 410 from the accreted? lands. The contention raised on behalf of the appellants is that where the lands alleged to have accreted can be demarcated from the lands to which they are alleged to have accreted, there is, in law, no accretion so as to give any advantage of the Bengal Alluvion and Diluvion Regulation, 1825 (Bengal Regulation 11 of 1825) — hereinafter to be referred to as ‘the Regulation’-to the owner of the lands to which the accretion is alleged. The argument is that the lands which are said to have accreted to the plots in question form a separate block and are identifiable and have not annexed to the plots in question, having been prevented by the pushta wall. The case that was before the Courts below is whether there was a gradual accretion within the meaning of the first paragraph of section 4 of the Regulation, or it was reformation in situn, as contemplated by the second paragraph of that section. Both the Courts below, on a consideration of the evidence, have come to the conclusion that, in fact, the accretion was gradual and that it was not a case of reformation in situ. The finding on this point is a finding of fact, and this Court in second appeal, cannot interfere with that finding.
But the point that has been raised is that the decision on this point is vitiated due to non-consideration of the effect of the existence of the pushta wall. We do not find any force in this argument. The lands have accreted to the lands over which the pushta wall exists, and not to the pushta wall itself. Therefore, they have become the property of
the owner of the lands over which the pushta wall is in existence. There is nothing in the first paragraph of Section 4 of the Regulation to show that any distinction has been made between a land which is only culturable and a land over which a wall or building stands, nor is there any thing in the section to indicate that, if demarcation could be possible, it would not be a case of gradual accretion. In support of his contention, however, counsel for the appellants has relied on a Bench decision of the Allahabad High Court in Sri Krishna Dutt v. Mt. Ahmadi Bibi AIR 1935 All 187. The principle laid down in that case seems to be that, if the land which has gradually accreted to the estate of one of the riparian proprietors can be identified as the land belonging to another proprietor, the latter shall be deemed to continue to be the owner thereof in spite of gradual accretion. In the present case, the above principle of law has no application, because it has not been shown that the accreted lands could be identified to be the land of the defendants or any other proprietor. Reference in this connection may be made to the Privy Council decision in the case of Secretary of State v. Foucar and Co. Ltd. AIR 1934 PC 17, in which it was held as follows:
“The principle, that gradual accretion enures to the land which attracts it, is one that has been recognized from very early times. The rule is of general convenience and security and is necessary for the mutual adjustment and protection of property. The general principle of accretion applies even where the former boundaries of the land on the waterfront are known or capable of ascertainment.”
7. Section 4 of the Regulation runs as follows:
“4. Lands gained lay gradual accession from recess of river or sea. First-When land may be gained by gradual accession, whether from the recuse 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, whether such land or estate be held immediately from the Government by Zamindari or other superior land-holder, or as a subordinate tenure by any description of under-tenant whatever ………
Second- when river by sudden change of course intersects estate- The above rule shall not be considered applicable to cases in which a river, by a sudden change of its course, may break through and intersect an estate, without any gradual encroachment, or may by the violence of stream separate a considerable piece of land from one estate and join it to another estate, without destroying the identity and preventing the recognition of the land so removed. In such cases the land, on being clearly recognized, shall ramain the property of its original owner.”
8. Thus, the second paragraph of section 4 of the Regulation itself makes a distinction of identification from a case governed by the first paragraph of that section. The expression “without destroying the identity and preventing the recognition of the land so removed” is absent from the first paragraph of the section. That itself shows that the question of identity is of no importance in a case coming under the first paragraph of section 4. There is thus no merit in the third contention also.
9. No other point has been raised.
10. There is thus no merit in these appeals which are accordingly, dismissed with costs payable by the appellants of the two appeals to the plaintiff-
respondent. There will, however, be only one set of hearing fee.