dedol-hf/india-case-legal-rag huggingface dataset:
JUDGMENT:
    CIVIL  APPELLATE  JURISDICTION :  Appeal  (Civil  Appeal
No.  41  of 1949)  against the judgment and  decree  of  the
Allahabad   High  Court  (Allsop and Verma  JJ.)  dated  8th
September,  1942, in First Appeal No. 473 of  1936,  arising
out of the decree of the Civil Judge, Bareilly,  dated  30th
September,  1936, in Original Suit No. 18 of 1934.
    Walter Dutt (P.S. Safeer, with him) for the  appellants.
P.I. Banerjee (Baleshwar Prasad, with him) for the
respondents.
    1951. March 19. The judgment of the Court was  delivered
by
    MUKHERJEA J.--This appeal is directed against an  appel-
late  judgment  of a Division Bench of  the  Allahabad  High
Court  dated September 8, 1942, by which the learned  Judges
reversed  a  decree made in favour of the plaintiff  by  the
Civil Judge of Bareilly in Original Suit No. 18 of 1934  and
dismissed the suit as against defendants 1 to 4.
The  suit out of which the appeal arises, was  commenced
by one Babu Ram as plaintiff and it was for
372
a  declaration that the lands in suit appertained to a  vil-
lage  named Sikha situated in Tehsil Aonla within  the  dis-
trict  of Bareilly, of which the plaintiff was the  Zemindar
and Lambardar, and that the defendants had no right or title
to  the same.  There was a claim for recovery of  possession
in  case the plaintiff 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  plaintiff
died  sometime after the plaint was filed and the  suit  was
continued by his two sons, who were brought on the record as
his heirs and successors.  There were as many as 41  persons
impleaded  as parties defendants to the suit and  they  were
alleged  to  have  proprietory 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  sub-
stance, are that the river Ram Ganga flowed to the south and
east of mouza Sikha belonging to the plaintiff and according
to  the custom of Dhar Dhura or deep stream boundary  preva-
lent in the locality, the main channel of the river  consti-
tutes  the indisputable, though fluctuating,  boundary  line
between  village Sikha on one side and villages Jhawa  Nagla
and  Gurganwan  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 plaintiff, as  Zemin-
dar 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  north-
ern  and western side up to the limits of villages  Sisauna,
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 above.  The "dabri" or the old bed of the river as
it stood in the year 1340
373
has been shown in the plaint map and constitutes,  according
to the plaintiffs, 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 plaintiff that the custom of
Dhar Dhura could not create any title in the defendants, who
are  the proprietors of villages Jhawa Nagla and  Gurganwan,
to the disputed plot, which is to the north and west of  the
main current of the river as it flowed in the year 1340,  as
the  custom applies only when the change in the deep  stream
is  gradual and not sudden and it cannot have  any  possible
application  when the river leaves the three villages  alto-
gether and ceases to flow within them as has happened in the
present case. The different proprietors therefore should  be
allowed, according to the plaintiff, 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  plaintiff  as owner of mouza Sikha. As  the  defendants
were  threatening to interfere with the plaintiff's  posses-
sion  in  collusion with the Patwari of  the  villages,  the
present suit was instituted.
    Out of the 41 defendants, written statements were  filed
by 9 only.  Two of them again admitted the plaintiffs' claim
and pleaded that they were made parties to the suit unneces-
sarily.  The suit was really contested by defendants 1 to  4
and  30 and they resisted the plaintiffs' claim on a  number
of  grounds,  most of which are immaterial for  our  present
purpose. The substantial case made by the contesting defend-
ants 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 wheth-
er  the river flowed within or outside the villages; and  as
the  river  had receded to the north,  the  defendants  were
according  to  this custom entitled to the lands  which  had
been  joined to the lands of their villages up to  the  main
channel  of the river.  It was asserted that the "dabri"  or
the old bed of the
374
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
plaintiffs,  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  plaintiffs
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 court  was
adverse to the plaintiffs, but on the other point the  court
decided  in  their favour.  The result was that  the  plain-
tiffs' claim was allowed and a decree was passed in  accord-
ance  with  the  prayers made in the  plaint.  Against  this
decision  the defendants 1 to 4 took an appeal to  the  High
Court  of  Allahabad.  The appeal was heard  by  a  Division
Bench  consisting of Allsop and Verma JJ. who   allowed  the
appeal  to this extent that the plaintiffs' claim  was  dis-
missed  as against defendants Nos. 1 to 4 who had filed  the
appeal,  though  as regards the rest of the  defendants  the
decision of the trial judge was kept intact.  It is  against
this judgment that the plaintiffs got leave to appeal to the
Privy Council and the appeal has now come up for hearing  by
this  court.  It has been brought to our notice that of  the
two  plaintiffs  who filed the appeal, one  has  since  then
compromised the suit with the contesting defendants and  the
appeal is being prosecuted before us on behalf of  plaintiff
No. 1 alone.
    The  learned Counsel appearing in support of the  appeal
has pressed for our consideration both the two points  which
were  put forward in support of the plaintiff's case in  the
courts below.  It has been contended in the first place that
the  evidence  adduced in this case does not  establish  the
custom of Dhar Dhura in
375
such extreme form as would create a change of ownership even
when  there is transfer of lands by a sudden change  in  the
course of the deep stream.  It is urged  that even if such a
custom is proved to exist, it should be held to be unreason-
able  and hence unenforceable in law.  The other  contention
raised is that in any view there is no scope for application
of the custom in the present case where the river has  over-
stepped  the limits of the three villages and has ceased  to
be the dividing line between them.
    As  regards the first point, it seems to us that on  the
facts admitted and proved, it is not possible for us to take
a  view different from that taken by both the Courts  below.
The meaning of the custom Dhar Dhura is 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 section  2
of Regulation XI of 1825 which lays down that "whenever  any
clear and definite usage  ......  may have been immemorially
established for determining the rights of the proprietors of
two  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  estab-
lished shall govern the decision of all claims and  disputes
relating  to alluvial lands between the parties." That  such
custom  prevails in the locality is proved by  the  "Wazibu-
larz" prepared at the last settlement of Mouza Sikha and the
custom is there recorded as follows:--
    "The river Ram Ganga flows on the boundary line of  this
village.  The  custom of Dhar Dhura  prevails  between  this
village  and  Gurganwan, Jhawa Nagla  and  Rakhara,  Pargana
Aonla. If any piece of land is included in the area of  this
village  on account of the alluvial action of the river,  we
the  Zemindars shall be the owners thereof and if any  piece
of  land of this village is washed away, it shall  be  owned
and  possessed  by the Zemindars of the village  wherein  it
appears' in the
376
same way in which we were in possession thereof." The record
thus  speaks of change by alluvial action of the  river.  It
does not say whether such alluvial action should be  gradual
or  sudden; by itself, therefore, it does not indicate  with
precision  the  ambit of the right that is connoted  by  the
custom. This is a matter which has got to be determined upon
the evidence adduced by the parties and the onus of proof is
undoubtedly on the person who sets up a custom at   variance
with  the  general law.  We are in agreement with  the  view
expressed by Oldfield J.  in Sibt Ali v. Muniruddin (1) that
the court should "scrutinise with care evidence in regard to
a  custom  which would have the effect of passing  from  one
owner to another land long held and enjoyed and of which the
character  is  in no way altered by river  action";  but  if
cogent and satisfactory evidence is forthcoming, there is no
reason why the existence of such custom could not be  estab-
lished  like any other fact.  Apart from the  oral  evidence
that has been adduced in this case there are two Rubkaris of
the Collectorate and one judgment by a Civil Court to all of
which   the   predecessors  of the  parties to  the  present
litigation were parties and they show clearly that  demarca-
tion of the lands of the three villages has always been made
with  reference  to the position of the deep stream  of  the
river  at different times and it was regarded as  immaterial
whether  the change in the stream happened gradually or  all
on a sudden. From the Rubkari (Ex. H. 27) it appears that in
1283  Fasli  the river suddenly altered its course  and  cut
away not only the vacant accretion to Sikha but also a  part
of  the mouza as it existed at the date of settlement.   The
land thus cut off was treated as an increment to Jhawa Nagla
and Gurganwan and fresh settlement was made with the  Zemin-
dars  of  these  villages.  It is stated  by  the  Assistant
Collector of Bareilly in this Rubkari that the existence  of
the custom was proved by careful local investigation and  it
was to the effect that the bed of the river should always be
held to be the boundary and that it should
(1) I. L. R. 6 All. 479 at 481.
377
be so held whether the river suddenly altered its course  or
gradually  encroached  on any mouza.  The Peshkar,  who  was
deputed  to make an enquiry, quoted ' a number of  instances
where the river altered its course both ways within the last
30  years  prior  to this date. This Rubkari, it  is  to  be
noted, is dated the 8th November, 1876. Ex. D-1 is a  -judg-
ment of the Subordinate Judge of Bareilly dated the 29th  of
July,  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  apper-
taining 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 plaintiff.  The answer  was
given  in the negative, and the decision was based  entirely
upon the custom of Dhar Dhura which was held to be  applica-
ble  even when the change was sudden.  These documents  fur-
nish  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
of the courts below on this point is wrong.
    It  is urged by the learned counsel for  the  appellants
that such custom is unreasonable and should for that  reason
be held to be unenforceable in law. It cannot be denied that
the  application of the deep  stream rule might work  injus-
tice  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  man's   reason but  artificial and  legal  reason
warranted by authority of law (1).  It is  sufficient if
(1) Vide Coke on Littleton
49
378
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 of Dhar Dhura cannot  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 a
convenient mode of settling boundary  disputes and   Brihas-
pati,   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 C)- The first contention of the appellant, therefore,
cannot be accepted.
    The other contention put forward by the appellant raises
the  question as to whether the custom of Dhar  Dhura  could
have any application 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  con-
clusion of the High Court upon it do not appear to us to  be
sound.
    If, as the custom of Dhar Dhura implies, 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 of Dhar  Dhura
can  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 circum-
stances the deep stream rule cannot possibly have any  mean-
ing.  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
    (1) Vide Doss on the Law of Riparian Rights p. 15, 178
379
in  the record establishes the existence of such  custom  at
all.  Section 2 of Regulation XI of 1825 makes it  perfectly
clear that a custom contrary to the provisions of the  Regu-
lation  would  be enforceable only when it is a  custom  for
determining the rights of proprietors of two or more contig-
uous 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 respondents, that assuming  that
the custom of Dhar Dhura could not be invoked by the defend-
ants  when the river had receded beyond the limits of  mouza
Sikha,  still the plaintiff 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
plaintiff  under the custom of Dhar Dhura. In the year  1341
Fasli the river suddenly changed its course and as it shift-
ed  to the north and west beyond the limits of mouza  Sikha,
the  custom of Dhar Dhura would no longer govern the  rights
of  the parties and the title to the plot of land, which  is
the subject matter of dispute, must be determined in accord-
ance  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 plaintiff would clearly be entitled to  possess
the  land on the strength of his original title as  provided
for in section 4, clause (2), of Regulation XI of 1825.   In
our  opinion, therefore. the decision of the learned  Judges
of the High Court on this point is not correct and should be
reversed.
    Mr.  Banerjee  argues further that even if  his  clients
cannot  claim  the disputed land under the  custom  of  Dhar
Dhura so long as the river flows outside the limits
380
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 plaintiff 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 Dhura which  the
defendants  may  invoke  if and  when  the  proper  occasion
arises. Subject to this observation, we allow the appeal and
restore the judgment of the trial judge.  The plaintiff  No.
1 will be entitled to his costs.
                             Appeal allowed.
   Agent for the appellants: R.S. Narula.
   Agent for the respondents: Tarachand Brijmohan Lal.
PETITIONER:
THE STATE OF MADRAS
        Vs.
RESPONDENT:
SRIMATHI CHAMPAKAM DORAIRAJANandTHE STATE OF MADRASv.C.R. SR
DATE OF JUDGMENT:
09/04/1951
BENCH:
DAS, SUDHI RANJAN
BENCH:
DAS, SUDHI RANJAN
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
BOSE, VIVIAN
MUKHERJEA, B.K.
CITATION:
 1951 AIR  226            1951 SCR  525
 CITATOR INFO :
 F          1954 SC 561  (14,16)
 F          1958 SC 731  (12)
R          1958 SC 956  (8)
 R          1959 SC 648  (26)
 R          1962 SC1621  (73,108)
 R          1963 SC 649  (17)
 RF         1967 SC1643  (22,164,227)
 E          1968 SC1379  (2)
 R          1970 SC2079  (16)
 RF         1972 SC1375  (81)
 RF         1973 SC1461  (506,648,1704,1714,1901,1918)
 RF         1975 SC 563  (13)
 O          1976 SC 490  (67,69,71,159)
 R          1979 SC  83  (5)
 RF         1980 SC1789  (115)
 RF         1985 SC1495  (8)
 RF         1988 SC 305  (7)
ACT:
Constitution  of  India,  Arts.  13.  16  (4),  29  (2),
46--Admission  to educational institutions--Executive  Order
fixing number of seats for particular communities--Invalidi-
ty--Fundamental  right  against discrimination on the ground
of    religion   only--Directive   principles    of    State
policy--Value of.
HEADNOTE:
    With regard to admission of students to the  Engineering
and  Medical Colleges of the State, the Province  of  Madras
had issued an order (known as the Communal G. O.) that seats
should  be filled in by the selection committee strictly  on
the following basis, i.e., out of every 14 seats, 6 were  to
be allotted to Non-Brahmin (Hindus), 2 to Backward Hindus, 2
to  Brahmins, 2 to Harijans. 1 to Anglo-Indians  and  Indian
Christians and 1 to Muslims:
    Held by the Full Court (Kania C.J., Fazl Ali,  PatanJali
Sastri,  Mehr  Chand  Mahajan,  Mukherjea,   S.R.  Das   and
Vivian  Bose  JJ.).--that the Communal  G.O.  constituted  a
violation  of the fundamental right guaranteed to the  citi-
zens  of India by Art. 29 (2) of the  Constitution,  namely,
that "no citizen shall be denied admission to any education-
al institution maintained by the State or receiving aid  out
of the State funds on grounds only of religion, race, caste,
language  or any of them and was therefore void  under  Art.
13.
The directive principles of State policy laid down in   Part
IV  the Constitution cannot in any way override  or  abridge
the fundamental rights guaranteed by Part III.  On the other
hand  they have to conform to and run as subsidiary  to  the
fundamental rights laid down in Part III.
Judgment of the Madras High Court affirmed.
JUDGMENT:
    CIVIL APPELLATE JURISDICTION.--Cases Nos. 270 an d 27  1
of 1951,
526
    Appeals under Art. 132 (1) of the Constitution of  India
from  the Judgment and Order dated 27th July, 1950,  of  the
Madras High Court in certain applications under Art. 226  of
the Constitution for protection of the fundamental rights of
the  petitioners  under Art. 15 (1) and Art. 29 (2)  of  the
Constitution and praying for the issue of a writ of mandamus
or other suitable prerogative writ restraining the State  of
Madras  and all officers and subordinates thereof  from  en-
forcing,  observing, maintaining or following the  order  of
the  Government known as the Communal G.O. which  laid  down
rules  to  be  observed by the selection  committee  in  the
matter of admission of students to the Medical and Engineer-
ing Colleges of the State.
    V.K.T.  Chari,  Advocate-General, Madras  (R.  Ganapathy
Iyer, with him) for the appellant.
    Aliadi Krishnaswami Aiyar (Alladi Kuppuswami Aiyar, with
him) for the respondents.
    1951, April 9.  The Judgment of the Court was  delivered
by
DAS J. --This judgment covers both Case No. 9.70 of 1951
(State of Madras v. Srimathi Champakam Dorairajan) and  Case
No.  271 of 1951 (State of Madras v. C.R. Srinivasan)  which
are  appeals from the judgment passed by the High  Court  of
Judicature  at  Madras  on July 27, 1950,  on  two  separate
applications under article 226 of the Constitution complain-
ing  of breach of the petitioners' fundamental right to  get
admission  into educational institutions maintained  by  the
State.
The   State of Madras  maintains four  Medical  Colleges
and only 330 seats are available for students in those  four
Colleges.  Out of these 330 seats, 17 seats are reserved for
students  coming  from outside the State and  12  seats  are
reserved  for discretionary allotment by the State  and  the
balance of the seats available are apportioned between  four
distinct groups of districts in the State.
527
    Likewise, the State of  Madras maintains four  Engineer-