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

1. This appeal is directed against an appellate judgment of a D. B. of the Allahabad H. C. dated 8-9-1942 by which the learned Judges reversed a decree made in favour of the pltfs, by the Civil Judge of Bareilly in Original Suit No. 18 of 1934 and dismissed the suit as against defts, 1 to 4.The suit, out of which the appeal arises, was commenced by one Babu Ram as pltf. and it was for a declaration that the lands in suit appertained to a village named Sikha situated in Tehsil Aonla within the Dist. of Bareilly, of which the pltf. was the Zemindar and Lambardar, and that the defts. had no right or title to the same. There was a claim for recovery of possession in case the plts. was found to have been dispossessed from the whole or a portion of the disputed lands with an ancillary prayer for mesne profits. The original pltf. died sometime after the plaint was filed and the suit was continued by his two sons, who were brought on record as his heirs and successors. There were as many as 41 persons impleaded as parties defts. to the suit and they were alleged to have proprietary interest in two contiguous villages named Jhawa Nagla and Gurganwan which lie to the south and east of village Sikha.The allegations as they appear in the plaint, in substance, the that the river Ram Ganga flowed to the south and east at mouza Sikha belonging to the pltf. and according to the custom of Dhar Dhura" or deep stream boundary prevalent in the locality, the main channel of the river constitutes the indisputable, though fluctuating, boundary line between village Sikha on one side and villages Jhawa Nagla and Gurgawan on the other. Up to Fasli year 1340, the course of the river, it is said, changed several times and the Zemindars of the three villages were deriving gains and suffering losses of land on account of these alluvial and diluvial changes. In the Fasli year 1340, the "Dhar or main stream of the river was at the place marked C.D. E, and F in the map attached to the plaint and the pltf. as Zemindar of village Sikha, possessed a tract of land shown on the map to which the dispute now relates and which was situated to the north-west of the stream and stretched on the northern and western side up to the limits of village Sisanua Hazipur and Sheopuri. In the year 1341, the river suddenly changed its course and leaving its old bed altogether began to flow entirely outside the limits of the three villages mentioned aforesaid. The "dabri" or the old bed of the river as it stood in the year 1340 has been shown in the plaint map and constitutes, according to the pltfs. the line of demarcation between Sikha on one side and the two villages Jhawa Nagla and Gurganwan on the other. It is alleged by the pltf. that the custom of "Dhar Dhura" could not create any title in the defts. who are the proprietors of villages Jhawa Nagla and Gurganwan, to the disputed plot, is to the north and west of the main current of the river as it flowed in the year 1940, as the custom applies only when the change in the deep stream is gradual and not sudden and it cannot have any possible appln, when the river leaves the three villages altogether and ceases to flow within them as has happened in the present case. The different proprietors, therefore, should be allowed, according to the pltf. to hold and possess as appertaining to their Zemindary the lands which were in their respective possession in the year 1340; and in law and equity the disputed property should remain in possession of the pltf. as owner of mouza Sikha. As the defts. were threatening to interfere with the pltfs. possession in collusion with the Patwari of the villages, the present suit was instituted.Out of the 41 defts. Written statements were filed by 9 only. Two of them again admitted the pltfs. claim and pleaded that they were made parties to the suit unnecessarily. The suit was really contested by defts. 1 to 4 and 30 and they resisted the pltfs. claim on a number of grounds, most of which are immaterial for our present purpose. The substantial case made by the contesting defts. was that the custom of "Dhar Dhura" applied to every sort of change in the deep stream of the river irrespective of the fact whether the change was gradual or sudden, or whether the river flowed within or outside the villages; and as the river had receded to the north, the defts, were according to this custom entitled to the lands which had been joined to the 1ands of their villages up to the main channel of the river. It was asserted that the "dabri" or the old bed of the river could not be treated as the demarcating line between the three villages.Thus the existence of the custom of "Dhar Dhura" was affirmed by both the parties. The difference between them was as regards the extent of the custom. According to the plfts., the custom was restricted in its operation to gradual accretion and did not extend to cases where old formations were suddenly severed by fluvial action without destroying their identity or preventing recognition of the land so removed. The second point raised by the pltf. was that the custom could not apply when the main stream had shifted entirely beyond the villages between which it was to form the boundary line.On the first point, the decision of the trial Ct. was adverse to the pltfs., but on the other point the Ct. decided in their favour. The result was that the pltfs. claim was allowed and a decree was passed in accordance with the prayers made in the plaint. Against this decision the defts, 1 to 4 took an appeal to the H. C. of Allahabad. The appeal was heard by a D. B. consisting of Allsop and Verma JJ. who allowed the appeal to this extent that the pltfs. claim was dismissed as against defts. 1 to 4 who had filed the appeal, though as regards the rest of the defts. the decision of the trial Judge was kept intact. It is against this judgment that the pltfs. got leave to appeal to the P. C. and the appeal has now come up for hearing by this Ct. It has been brought to our notice that of the two pltfs. who filed the appeal, one has since then compromised the suit with the contesting defts and the appeal is being prosecuted before us on behalf of pltf. 1 alone.

Reasoning: 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.