Here appeal arises out of title suit No.

90 of 1956 of the Second Court of Munsif, sadar, Chittagong, and

has been preferred by the province of East Pakistan, the defendant. The subject-matter of the suit is a
small strip of land out of R. S. plot No. 2709 ,which in a khal known as Kumarkali Khal witha in mouza
Madhyo-halishahar. The plaintiff claim to be the owner of R.S. plots No. 5215 and 5216 of the saidid
mouza in raiyat right. The suit land is alleged to be an accretion to the plaintiffs said R. S. plots 5215 and
5216 formed on account of gradual recess of the adjoining Kumarkhali Khali. It is admitted in the plaint
that R. 8. plot No. 5215 is held by the defendants in under raiyats’ right under the plaintiffs. There. fore,
the plaintiffs subsequently amended the second schedule of the plaint confining their claim to so much of
the suit land as it contiguous to their R.S. plot No. 5216.The plaintiffs' case is that about 20 years ago the
Kumarkhali Khal started receding with the result that the suit land coming out of the said khal because an
accretion to their land of R. S. plot No. 5216. They claimed to be in actual possession of the suit land as
an accretion for about 20 years, but the defendants threatened them with dispossession .There upon the
plaintiffs brought the suit for declaration of their title to the suit land and for confirmation of possession.

The issue for a court to decide might be whether the plaintiff can gain that land by accretion or
dismissed his suit with proper legal ground.

Under the Bengal Alluvion and Diluvion Regulation 1825 sec 4 "Gain" mean gain from a public river.The
broad principle leid down in the lopezs cases is that the gain contemplated by section 4 of Reglstion of
1825 must be gain from a public river and not a river the bed of which is a private property.

When an accretion can he claimed by a reprain owner if the land to which the right is asserted as an
accretion is a part of public property or with in public domain

East Bengal State Acquisition and Tenancy act As -Secs. 87(1) & 82(2)

The word "raiyat" occurring in section 87(1) means the raiyats’ as defined in section 82(2)

The province of East Pakistan. This defendant took the defence that the Kumarkhali Khal bearing R. S.
plot No. 4709 is its private property; that it is not a river but a small village outlet draining out the surplus
water of the neighbouring fields and that the lend forming out of it cannot be an accretion to any land of
any one. The further contention of this defendant is that the suit land is not an accretion as the result of
gradual and imperceptible alluvial deposits, but has been brought about by tho plaintiffs by artificial
means.A local investigation was held in this case. As the result of the loos! investigation, the pleader
commissioner found that the Ku-markhali Khal is tidal but not navigable as it dries up leaving 8" to 9"
inches of water at the lowest ebb.The Court dismissed the suit holding that the suit land is not an
accretion to the plaintiffs' land either in fact or in law. According to that Court, the level of the suit land
was raised by the plaintiffs artificially. The trial Court farther took the view that the Kumarkhali Khal
being the private property of the Province of East Pakistan, any land formed out of it cannot be an
accretion to the land of a reparian owner. On appeal by the plaintiffs, the lower appellate Court reversed
the judgment of the trial Court and decreed the suit holding that the suit land is an accretion to the
plaintiffs' raiyati land. In the opinion of that Court, the Khal in question is a public Khal and not the
private property of the Government and that the suit land was gained by gradual accession from the recess
of the Khal. The present appeal by the defendant is from the said decision of the lower appellate
Court.Mr.T.H khan ,submits the learned assistant government pleader ,submits that the plaintiffs can not
clain a suit land as an accretion to their land even if formed out of the bed the khal by natural process.
After that Judicial Committee or the Privy Council observed in the Lopez’s case (13 MA, I. A. 467), as
follows:In truth, when the whole words are Looked at, not merely of that clause, bus of the whole
Regulation, it is quite obri! ous that what the then legislative authority was dealing with, was the gain
which an individual proprietor might make in this way from that which was part of the public territory,
the public domain not usable in the ordinary sense, that 18 to say, the sea belonging to the state, a public
river belonging to the State; this was gift to an individual whose estate If upon the river or lay upon the
Sea, a git to him of that which, by accretion, became valuable and usable out of that which was in a state
of nature neither valuable nor usable?".The broad principle laid down in the Lopes As is that the 'gain'
contemplated by section 4 of regulation XI of 1825 must be gain from a public river and not a river of the
bed of which is a private property . The principle was followed by superior Courts in a number of
cases .The High court followed the same principle in the case of Satya Sudhir Ghoshal vs Suendra Lal
Depal and the case of Abdul Jabbar vs Beni Madhab Gupta.The learned Judges deciding that case came to
the conclusion; The Government stands ID the same position as an ordinary zamindar in respect of
Noabad lands." As far as I am ware, this has been the acknowledged position the Government throughout
with regard to Noabad lands which lie only in tho district of Chittagong Thus, tho Kumarkhali Khat do
recorded in rights exibits in the provide property of the Provincial Government. Therefore following the
principle laid down by reaffirmed by their lordships of supreme court.

Supreme Court cited here that it must be held that as Kumarkhali Khal appertains the bed of that khal can
not be claimed as an accewtion to the plaintiff’s contagious land under the provisions of the Bengal
Regulation XI of 1825.