Case: Ram Dhan Lal And Others Vs. Radhe Sham And Others

by the learned counsel for the applts. that such custom is unreasonable and should for that reason be held to be unenforceable in law.It cannot be denied that the appln. of the deep stream rule might work injustice in certain cases as the gain or loss of property is made to depend upon accidental and uncertain phenomena or mere caprice of nature; but, on the other hand, the custom affords a convenient and effective way of avoiding boundary disputes which might otherwise be a fruitful source of strife and contention between riparian proprietors. A custom must not certainly be against reason, but the reason referred to here is not to be understood as meaning every unlearned mans reason but artificial and legal reason warranted by authority of law :Vide Cokeon Littleton 62 (a). It is sufficient if no good legal reason can be assigned against it. Prevention of quarrels and disputes between contiguous villages and estates is certainly an object beneficial to the community and judged by this test, the custom ofDhar Dhuracannot be held to be unreasonable.It may be pointed out in this connection that in some shape or other this deep stream rule has been recognised in India from very early times as convenient mode of settling boundary disputes and Brihaspati, the Hindu Smriti writer, enunciates the rule in almost identical terms which has been referred to in the writings of later commentators as pointed out by Lal Mohan Doss in his Tagore Law Lectures on the Law of Riparian Rights :VideDoss on the Law of Riparian Rights p. 178. The first contention of the applt., therefore cannot be accepted.10. The other contention put forward by the applt. raises the question as to whether the custom ofDhar Dhuracould have any appln. to the facts of the present case where the river is not flowing within the villages at all. On this point, we think that the correct view has been taken by the learned Subordinate Judge and the reasons and the conclusion of the H. C. upon it do not appear to us to be sound.11. If, as the custom ofDhar Dhuraimplies, the deep stream of a river irrespective of the changes in its course, is to be regarded as a fixed boundary line between two or more villages, it is absolutely necessary that the main stream of the river must flow within the limits of these villages. It is only for the purpose of determining the boundary between certain villages and estates that the custom ofDhar Dhuracan be invoked; and unless the river actually divides the villages or estates, there can be no question of its being regarded as a boundary line between them and in such circumstances the deep stream rule cannot possibly have any meaning.A custom which defeats or has no relevancy to the very object for which it came into existence cannot under any circumstance be regarded as valid. We are not satisfied also that the evidence in the record establishes the existence of such custom at all. S. 2, Regulation XI of 1825, makes it perfectly clear that a custom contrary to the provisions of the Regulation would be enforceable only when it is a custom for determining the rights of proprietor of two or more contiguous estates divided by the river.When the river ceases to divide the estates, the rights of the riparian proprietors can be determined only in accordance with the provisions made in the Regulation itself.It has been argued by Mr. Banerjee, appearing for the resps. that assuming that the custom ofDhar Dhuracould not be invoked by the defts. when the river had receded beyond the limits of mouza Sikha, still the pltf. in order to succeed in the suit must have to show how he acquired title to the tract of land lying to the north and west of the "dabri" or the old water course, which is the subject-matter of the claim in the present suit. The answer to this argument would clearly be that when the main current of the river was at the place where the "dabri" stands at present the entire stretch of land lying to the north-west of the main stream came to the pltf. under the custom of Dhar Dhura. In the year 1341 Fasli the river suddenly changed its course and as it shifted to the north and west beyond the limits of mouza Sikha, the custom of Dhar Dhurawould no longer govern the rights of the parties and the titles to the plot of land, which is the subject matter of dispute, must be determined in accordance with the provisions of the Regulation itself. As the change in the course of the river was sudden and not gradual and the character and identity of the land have remained intact, the pltf. would clearly be entitled to possess the land on the strength of his original title as provided for in S. 4 cl. (2) of Regulation XI of 1825. In our opinion, therefore, the decision of the learned Judges of the H. C. on this point is not correct and should be reversed.12. Mr. Banerjee argues further that even if his clients cannot claim the disputed land under the custom of Dhar Dhuraso long as the river flows outside the limits of the village, their rights under the custom should revive as soon as the river comes down within the limits of mouza Sikha. This position certainly has got to be admitted but as we are concerned with the state of affairs existing at the date of the institution of the suit and there is no evidence on the record as to the position of the river at the present moment, the pltf. will be entitled to a decree in the form as it was given by the trial Judge, it being clearly understood that the rights declared in this suit would be subject to the custom of Dhar Dhurawhich the defts. may invoke if and when the proper occasion arises.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. As regards the first point, it seems to us that on the facts admitted and proved, it is impossible for us to take a view different from that taken by both the Cts. below. The meaning of the customDhar Dhurais that the deep stream or Channel of a river is to be regarded, irrespective of its changes, as the constant boundary between two or more villages. Such custom is expressly recognised in S. 2, Regulation XI of 1825 which lays downany clear and definite usage .. . .. may have been immemorially established for determining the rights of the proprietors of law or more contiguous estates divided by river (such as that the main channel of the river dividing the estates shall be the constant boundary between them whatever changes may take place in the course of the river by encroachment on one side and accession on the other), the usage so established shall govern the decision of all claims and disputes relating to alluvial lands between the parties.Ex. D 1 is a judgment of the Subordinate Judge of Bareilly dated 29- 7-1907 and it was passed in a suit instituted by the proprietor of mouza Sikha against the owner of Jhawa Nagla. The question raised was whether a quantity of land appertaining to mouza Sikha which was detached by a sudden change in the course of the river and thrown on the Jhawa Nagla village could be claimed by the pltf. The answer was given in the negative, and the decision was based entirely upon the custom ofDhar Dhurawhich was held to be applicable even when the change was sudden. These documents furnish clear proof of the custom being held applicable to cases of the river suddenly altering its course and cutting off blocks of land from villages situated on one or other side of its channel. In the face of this clear and definite proof of the usage, we are unable to say that the decision at the Cts. below on this point iscannot be denied that the appln. of the deep stream rule might work injustice in certain cases as the gain or loss of property is made to depend upon accidental and uncertain phenomena or mere caprice of nature; but, on the other hand, the custom affords a convenient and effective way of avoiding boundary disputes which might otherwise be a fruitful source of strife and contention between riparian proprietors. A custom must not certainly be against reason, but the reason referred to here is not to be understood as meaning every unlearned mans reason but artificial and legal reason warranted by authority of law :Vide Cokeon Littleton 62 (a). It is sufficient if no good legal reason can be assigned against it. Prevention of quarrels and disputes between contiguous villages and estates is certainly an object beneficial to the community and judged by this test, the custom ofDhar Dhuracannot be held to be unreasonable.It may be pointed out in this connection that in some shape or other this deep stream rule has been recognised in India from very early times as convenient mode of settling boundary disputes and Brihaspati, the Hindu Smriti writer, enunciates the rule in almost identical terms which has been referred to in the writings of later commentators as pointed out by Lal Mohan Doss in his Tagore Law Lectures on the Law of Riparian Rights :VideDoss on the Law of Riparian Rights p. 178. The first contention of the applt., therefore cannot beanswer to this argument would clearly be that when the main current of the river was at the place where the "dabri" stands at present the entire stretch of land lying to the north-west of the main stream came to the pltf. under the custom of Dhar Dhura. In the year 1341 Fasli the river suddenly changed its course and as it shifted to the north and west beyond the limits of mouza Sikha, the custom of Dhar Dhurawould no longer govern the rights of the parties and the titles to the plot of land, which is the subject matter of dispute, must be determined in accordance with the provisions of the Regulation itself. As the change in the course of the river was sudden and not gradual and the character and identity of the land have remained intact, the pltf. would clearly be entitled to possess the land on the strength of his original title as provided for in S. 4 cl. (2) of Regulation XI ofIn our opinion, therefore, the decision of the learned Judges of the H. C. on this point is not correct and should beposition certainly has got to be admitted but as we are concerned with the state of affairs existing at the date of the institution of the suit and there is no evidence on the record as to the position of the river at the present moment, the pltf. will be entitled to a decree in the form as it was given by the trial Judge, it being clearly understood that the rights declared in this suit would be subject to the custom of Dhar Dhurawhich the defts. may invoke if and when the proper occasion arises.