JUDGMENT
John Edge, Kt., C.J. and Blair, J.
1. This case really turns upon the construction of Clause 1 of Section 4 of Regulation XI of 1825. It appears that the Rapti flowed at one time between the land of the plaintiffs and the land of the defendants; that over a series of years it gradually encroached upon the land of the plaintiffs and threw up correspondingly land which became alluvion and adjoined the defendants’ land, and that this went on gradually contracting the area of the plaintiffs’ land, which was submerged and subsequently re-appeared adjoining the lands of the defendants. The parties during that course of years seem to have had no doubt of the application, as we read it, of Clause 1 of Section 4 of Regulation XI of 1825, for, as the land appeared on the defendants’ side of the river, they obtained possession of it, cultivated it and treated it as their land. That in our opinion they were entitled to do by reason of Clause 1 of Section 4. That land became by gradual accession from the recession of the river Rapti an increment to the tenure of the defendants. So matters continued until 1893, when the Rapti suddenly altered its course, and cut off from the defendants’ side the lands which had gradually accreted in the manner we have described and left them on the plaintiffs’ side of the river. The plaintiffs brought their suit for possession, not only of the land which had accreted in the manner described to the defendants, and of which they had obtained possession more than twelve years before suit and had hitherto maintained possession, but also of the land which had accreted to the defendants, and of which they had obtained possession within twelve years of the suit. In our opinion limitation in this case has nothing to do with the question, except in so far as it would strengthen the title to those portions of the lands of which the defendants have had possession for more than twelve years before suit. In our view of the case the title to all the land which accreted in the way we have described vested on the gradual accretion in the defendants upon the same title as that upon which they held their original lands. The Subordinate Judge dismissed the suit. The District Judge on appeal by the plaintiffs confirmed the decree of the Subordinate Judge, dismissing the suit so far as it related to accreted lands of which the defendants had been in possession for twelve years and gave the plaintiff’s a decree for the whole of the accreted lands of which the defendants bad not had twelve years possession before suit. His view of the law was that, when lands were capable of being identified, although they might gradually have accreted, Clause 1 of Section 4 of the Regulation did not apply. That view was apparently based upon a misconception of the judgment of their Lordships of the Privy Council in the case of Felix Lopez v. Maddan Thakoor 5 B.L.R. 521. The Judge failed to notice that in the case which was before their Lordships of the Privy Council there had been no gradual accretion at all. The village of Lopez the plaintiff was entirely submerged, remained under water for a considerable period, and on its re-appearance was promptly seized upon by the defendants. It comes to this, that, if the view of the District Judge were correct, and the correctness of that view has been vigorously upheld by Mr. Bam Prasad in this Court on behalf of the respondents, Clause 1 of Section 4 of Regulation XI of 1826 could only apply to infinitesimal accretions caused by the recession of a river. So long as lands were capable of identification by lines drawn from one place which had not been submerged to another, Clause 1 could never apply according to that view; and indeed, on that view of the construction of Clause 1 of Section 4, it is difficult to understand what would have been the necessity of enacting Clause 2. We must put a natural construction upon Clause 1, and we hold that, whether the accreted lands are capable of identification or not, the clause applies where the lands have been gained by gradual accession by the recession of the river. It does seem rather hard in this case that lands undoubtedly belonging to these plaintiffs should, by the perverse course which the river Rapti chose to take, become vested in the defendants, but we have to apply the law as we find it. It was unfortunate for the plaintiffs that the river was not as accommodating to them as to the defendants, but suddenly altered its course. We set aside the decree of the Lower Appellate Court, and restore the decree of the first Court with costs in all Courts, and dismiss the respondents’ objections with costs.
