Judgement

Consolidated Appeals (Nos. 187 and 188 of 1919) from a judgment and four decrees of the High Court (May 22, 1918), [@ page LRIA 566] modifying, in favour of the first respondent, three decrees of Subordinate Judge of Burdwan (July 9, 1913) and reversing a decree of the District Judge of Bankura (July 14, 1913) the second respondents suit.

The consolidated appeals arose out of four suits, of which three were instituted by the first respondent, the Maharaja of Burdwan, in the Court of the Subordinate Judge of Burdwan; the fourth suit was instituted by the second respondent in the Court of the Subordinate Judge of Bankura.

By his plaints in the first three suits the Maharaja contended that his zamindari, comprising the districts of Burdwan, Hooghly and Bankura, included the bed of the river Damodar from Theraut to Gurchumbook; that he was the owner of the whole bed of that river as well as of all the chars that have been or might be formed therein ; that the entire Government revenue had been permanently settled in respect of the whole of his zamindari by the permanent settlement, and that the Crown has no right or title to the chars. The same case was made by the second respondent in respect of the chars formed in the river Damodar, where it flowed through his zamindari. The Maharaja also made the same claim to chars formed in the river Darakeshwar within the ambit of his village Khatnagar. The plaintiffs asserted that the Government had no right under Act IX. of 1847, or under any other law, to survey and settle the chars which have been formed in the beds of the two rivers, and that settlements so made by the Government were void and inoperative.

The defence in each suit was substantially the same and reference to the written statement filed in the Burdwan suit is sufficient to indicate it. It was contended that neither the bed of the river Damodar, nor any portion of it, was included within any estate or zamindari held by the plaintiff at the time of the permanent settlement; that the plaintiff had no title to the bed of the river or to the chars in question, and that the settlement made by the Government under Act IX. of 1847 was valid and binding on the plaintiff. It was [@ page LRIA 567] admitted that the river Darakeshwar was not navigable, but it was pleaded that the river Damodar was navigable in all seasons of the year, and consequently its bed could not have been included in the permanently settled estate of the plaintiffs. It was pleaded that even if the plaintiffs were held to be the owners of the chars in question, the Government was entitled to assess them to revenue, and to make settlements in respect of them in case the plaintiffs refused to pay the revenue assessed. There were further pleas not material to the present report.

The material facts appear from the judgment of the Judicial Committee.

The Subordinate Judge of Burdwan heard together the three suits brought by the Maharaja. He held that the beds of the rivers and the chars formed thereon were the property of the Maharaja where the rivers flowed through the zamindari, and ad medium filum aquae where the Damodar formed the boundary of the zamindari. In his opinion the zamindari had been settled as one compact estate. He held that the Government was not entitled to assess the chars formed where the rivers flowed through the zamindar, but that the Government was entitled to assess the chars formed in the river where it was the boundary, since it was only by implication that the bed ad medium filum was part of the estate. He found that the river Damodar was and always had been non-navigable. He made decrees accordingly.

The fourth suit was tried by the Subordinate Judge of Bankura, who decided it in favour of the plaintiff, but his decision was reversed on an appeal to the District Judge and the suit dismissed. The District Judge was of opinion that the plaintiff had failed to establish that the bed of the river Damodar, which formed the northern