1. This is an appeal by the first four defendants against a decree for possession of the lands claimed and for certain mesne profits passed by the civil Judge of Bareilly on 30th September 1936. The dispute which gave rise to this litigation was brought into existence by the vagaries of a river called the Bam Ganga. The suit was instituted by one Babu Ram who was the zamindar and lambardar of a mauza called Sikha. Some time after instituting the suit Babu Ram died and his two sons, Ram Dhan Lal and Banwari Lal, were substituted for him as his legal representatives, and they are the principal respondents to this appeal.
2. There were numerous defendants. On the record as it stood at the date of the decree of the Court below defendants 1 to 25 were persons who owned various shares in a neighbouring village called Jhawa Nagla, and defendants 26 to 41 were cosharers of another neighbouring village called Gurgan-wan. The plaintiff's case was that the defendants had interfered with his possession of land of which he was in lawful possession. The opening sentences of para. 7 of the plaint seem to indicate that the real grievance of the plaintiff was against the co-sharers of village Jhawa Nagla, but in the second half of that paragraph it is alleged that 'the defendants' were 'ready to interfere in the possession and ownership of the plaintiff and create trouble . . . .' The Court below decreed the suit for possession and mesne profits against all the defendants. This appeal as already stated, has been brought only by defendants 1 to 4 who are four of the cosharers of mauza Jhawa Nagla. The relief which they seek to obtain by the appeal is that the suit of the plaintiff be dismissed 'as against the appellants.' The other defendants have not appealed. The appellants have impleaded as respondents to this appeal the two plaintiffs and the cosharers of village Jhawa Nagla other than themselves. The cosharers of village Gurganwan--defendants 26 to 41--have not been impleaded.
3. It was alleged in the plaint that the river Ram Ganga used to flow to the south and east of the plaintiff's village, Sikha and the villages of Jhawa Nagla and Gurganwan then lay on the opposite bank of the river, in other words, to its south and east. It was then averred that 'the custom of dhar dhura (deep stream boundary) prevailed between Sikha on one side and those two villages on the other,' and that 'this custom stands recorded in the wajib-ul-arz prepared at the time of the last settlement of mauza Sikha.' The relevant paragraph of the wajibu-ul-arz was reproduced. It was next stated that
the river Ram Ganga continued to change its dhar (course) up to 1340 fasli and the zamindars of all the three villages aforesaid gained and lost land according to the fluvial action of the river.
4. It may be mentioned that the fasli year 1340 corresponded with 1932-1933 A. D. It was then alleged, in para. 4 of the plaint, that the course of the river in 1940 Fasli was as shown id a plan attached to the plaint and that the plaintiff, as the zamindar of village Sikha, was, at that time, in possession of a certain area of land, shown on the plan, to the north-west of the stream 'up to the boundary line of mauza Sisauna, Hajipur and Sheopuri.' It was then stated that in the year 1341 Fasli (=1933-1934 A. D.) the river changed its course and began to flow entirely outside the limits of the villages Sikha, Jhawa Nagla and Gurganwan and that 'the dabri (old water-course)' which was marked on the plan, was 'now the line of demarcation between Sikha (on one side) and Jhawa Nagla and Gurganwan on the other.' It may be mentioned that it is common ground that at the time of the institution of the suit the river was flowing to the extreme north, and just beyond the northern boundary, of the plaintiff's village, Sikha, and possibly on land 'which formed part of village Sisauna. Paragraph 6 of the plaint is important. It is stated there that the defendants wanted to take possession of the land which had been in possession of the plaintiff up to the time when the river changed its course, in other words, the land which before the change in the course of the river had lain to its north-west and of which, according to the allegations contained in para. 4 of the plaint, the plaintiff had been in possession in 1340 Fasli. It is pleaded in this paragraph of the plaint that the defendants had no right 'to the land on the other side of the dabri in the direction of Sikha.' It was then alleged that the custom of dhar dhura did not apply 'to such a disappearance of the course of the river.' (It may be mentioned that the word 'sudden' which the translator has put within brackets just before the word 'disappearance' does not find a place in the original plaint. When this was pointed out to the translators concerned, they agreed that the introduction of that word was a mistake and stated that they had cut out that word in their original translation but that it had been printed by mistake. They have corrected the mistake.) It was further averred in this paragraph that the change which took place in the course of the river in the year 1341 fasli ought to be taken to be on the same footing as if the river had completely dried up and had ceased to flow 'on account of any terrestrial and celestial calamities.' It was then pleaded that
in such a case the custom of dhar dhura would not apply to the villages nor should it apply according to law and justice,
the boundaries of the villages and the possession of the zamindars shall be, and ought to be, maintained under the present circumstances according to law and justice.
5. On these allegations the plaintiff claimed a declaration that he was the owner in possession of the land of which he had been in possession before the river changed its course in 1341 Fasli, 'i.e., the land to the north-west of the old water-course of the Ram Ganga up to the boundaries of villages Sisauna, Hajipur and Sheopuri,' and in the alternative, he asked for possession and mesne profits. It appears from the judgment of the Court below that at the trial the plaintiffs explained their case by contending that the
custom of dhar dhura, which according to the allegations made in the plaint, prevailed in these villages, applied only when the change in the course of the river was gradual and did not apply when the change was sudden. They further contended that the custom did not apply 'if the river left these villages altogether.'
6. Some of the defendants did not appear. Those who did agreed with the plaintiff that the custom of dhar dhura prevailed in these three villages, but they did not admit the limitation, which the plaintiff sought to put upon it. Their case, put shortly, was that the custom of dhar dhura, in other words, a custom prescribing that the main channel of the river shall be the constant boundary between these villages whatever changes may take place in the course of the river by encroachment on one side and accession on the other--prevailed and was applicable whatever the nature of the change in the course of the river was. Their contention was that, as the river had receded to the north, the defendants were, according to the custom entitled to the lands, which had been joined to the lands of their own villages, lip to the main channel of the river. They denied that what was alleged by the plaintiff to be the dabri or old water-course could be treated as a boundary. The only issues which we need mention were issues 5, 6 (a) and (b) and 1 (a). They were as follows:
5. What are the incidents of the custom of dhar dhura prevailing between the village Sikha on the one side and Gurganwan and Jhawa Nagla on the other side?
6. (a) Whether the deep stream (dhar) of Bam Ganga flows between the said villages or not?
(b) What will be the effect of the finding on part (a) of this issue?
7. (a) Whether the plaintiffs are the owners of the land in suit?
7. The Court below observed in its judgment on issue 5 that it was common ground that the custom of dhar dhura applied when the change in the course of the river was gradual and that the points which arose for consideration were whether the custom was that the rule of dhar dhura was to be applied (1) when the change in the course of the river was sudden, and (2) when the river changed its course in such a manner as to go entirely out of these three villages. Its finding on the first of these questions was in favour of the defendants. It was held that the custom of dhar dhura was applicable even to a case of a sudden change in the course of the river. The finding of the Court on the second question was in favour of the plaintiffs, and it was held that the defendants had failed to prove that the custom of e dhar dhura applied even when the river left these three villages altogether. Issues 6 (a) and (b) and 7 (a) were taken up together. The finding on part (a) of issue 6 was that at or about the time of the institution of the suit the deep stream of the river was beyond the limits of the villages in question and that in January 1936 (during the pendency of the suit) the deep stream (dhar) was between Sisauna and Sikha (i.e., only a very small area was in the deep stream).
8. The finding on part (b) of issue 6 and on part (a) of issue 7 was expressed thus:
As the deep stream did not flow at the time of the institution, or during the pendency, of the suit between Sikha on the one side and Jhawa Nagla, or Gurganwan, on the other side, and as the defendants have failed in proving that the custom of dhar dhura applies even if the river leaves these villages altogether, the plaintiffs shall be deemed to be the owners of the land in dispute.
9. It has been argued on behalf of the appellants that the Court below had fallen into an error in arriving at the conclusion at which it has arrived on the second question mentioned above. The argument is that, it being admitted that the custom of dhar dhura prevailed and it having been found that according to this custom the main channel of the river dividing Sikha, on the one side, and Jhawa Nagla and Gurganwan, g on the other, was the constant boundary between them, not only when the change in the course of the river was gradual--as admitted by the plaintiff--but also when the change was sudden there was nothing further for the defendants to prove, and that the second of the two questions formulated by the Court below, mentioned above, should have been decided in favour of the defendants, as that conclusion flowed necessarily and inevitably from what had already been found in favour of the defendants. It is stressed that the Court found that the custom which prevailed in these villages was that the main channel of the river would be the constant boundary between them whether the change in the course of the river was gradual or sudden, and it is contended that the meaning of the rule prescribed by this custom was that--so far as the proprietors of these three villages were concerned--if the river went to the South-East, the proprietor of Sikha became entitled to the lands thus newly joined to Sikha, right down to the spot where the main channel of the river happened to be as a result of the change, and if the river went to the North and West the proprietors of Jhawa Nagla and Gurganwan became entitled to the lands which came to be newly joined to their estates, right up to the spot where the main channel of the river might happen to be, it is pointed out that it is not denied--in fact it is admitted in para. 3 of the plaint--and is also clear upon the evidence, that whenever the river changed its course in the past either by going to the South or to the North, the parties to this litigation always acted- upon the rule mentioned above and took possession, without any let or hindrance, of the lands which became joined to their respective estates in consequence of the change in the course of the river.
10. It is said that even if the river had never before gone to the extreme limit of any of these villages, that fact should make no difference in the observance of the rule prescribed by the custom. The argument is that the clear meaning of the rule enjoined by the custom, by which the conduct of the parties was admittedly to be regulated, was that the extent of the estate of the proprietor or proprietors of each of these three villages was always to be determined by the position of the main channel of the river, wherever it happened to be on any particular occasion, and that therefore, if the river happened to go to the extreme north the proprietors of the south eastern villages, Jhawa Nagla and Gurganwan, must be held to be entitled to the lands annexed to their estates, even if it meant the deprivation for the time being, of the proprietor of Sikha of the entire lands which had been in his possession, and that similarly, if the river at any time happened to go to the extreme south or east--this is, to the extreme limit of the southern and eastern boundary of Jhawa Nagla and Gurganwan--the proprietor of Sikha would become entitled to all the lands annexed to his estate, even if it meant the disappearance, for the time being of Jhawa Nagla and Gurganwan. It is contended that the fact that on any particular occasion the land which was annexed to the estate of any of these proprietors happened to be large in extent ought not to be allowed to interfere with the application of the rule by which the parties admittedly have always been governed.
11. On behalf of the plaintiffs-respondents, it has been argued that the finding of the Court below, that the custom of the main channel being the constant boundary applied also to the case of a sudden change in the course of the river, was wrong. It has then been contended that the decision of the Court below that the custom could have no application when the river no longer flowed within the limits of these villages was correct. It would be convenient to deal here with the first argument of the plaintiffs-respondents. Learned Counsel for the parties have taken us through the evidence, oral and documentary, bearing on the point. The Court below has summarised that evidence in it judgment on issue 5 under the heading: 'As to the point l, Sudden Change.' Upon an examination of that evidence, we have no hesitation in agreeing with the finding of the Court below and with the reasons given by it for that finding. In our judgment, the evidence clearly establishes that the custom which prevails in these three villages applies whether the change in the course of the river by which lands are transferred from one side to the other is gradual or sudden. The entries in the wajib-ul-arzes are clear. We are satisfied that when the proprietors of Sikha and Jhawa Nagla stated in 1870-1871 before the authorities at the time of the preparation of the wajib-ul-arzes of their respective villages that the custom, of dhar dhura prevailed, they did not mean to say that the custom was confined only to gradual and imperceptible changes. We see nothing in para. 15 of the wajib-ul-arz of Sikha, EX. 1, to justify any such conclusion; on the contrary, the language shows that the custom embraced all kinds of changes. It is clearly stated in this paragraph of the wajib-ul-arz of Sikha that
in case any land of this village is carried away, the zamindars of whichever village the said land is added to shall become the owners in possession thereof like ourselves.
13. This is precisely what the appellants are contending for. It is not shown by the plaintiffs that on any occasion in the past the proprietor or proprietors whose land had been cut off by the river and had been annexed to the estate on the other side had denied the right of the proprietor or proprietors of the latter estate to take possession of the land so cut off and annexed on the ground that the nature of the change in the course of the river was such as to make the custom inapplicable. That the river used to change its course, practically every year even before 1341 Pasli is clear from para. 3 of the plaint and from the evidence adduced by the plaintiffs themselves. For example, plaintiffs' witness, Lila Dhar states that 'this dhar changes up to 50 to 100 bighas every year.' It is, as already stated, admitted in para. 3 of the plaint that the zamindars of all the three villages aforesaid gained and lost land according to the fluvial action of the river.
It may further be pointed out that it is open to serious doubt whether the plaintiffs are entitled to put forward the argument that the custom is not applicable to a sudden change, for the plaintiff's own witnesses state that the change in 1341 Fasli was gradual. Lila Dhar, who gave evidence in August 1936, makes the following statement:
The dhar of the river is now in Sisauna. There is no dhar now between Jhawa Nagla and Sikha since three years. Since then the dhar is in Sisauna. The change in the deep stream was gradual.
14. To the same effect is the evidence given by the witness Syed Ali who was examined on the same day as Lila Dhar. In any event, as has already been stated, the finding of the Court below is in our opinion perfectly correct. Learned Counsel for the plaintiffs-respondents has cited certain rulings and has contended that they show that a custom of dhar dhura which applied to sudden changes in the course of the river was unreasonable and should not be recognized and enforced. To begin with, he has referred us to the well-known decisions of their Lordships of the Privy Council in Lopez v. Muddun Mohun ('70) 13 M.I.A. 467 and Keshava Prasad Singh v. Secy. of State . But a question of custom did not arise in either of these cases, and they were both concerned with questions arising under Section 4 of the Alluvion and Diluvion (Bengal) Regulation, 11 of 1825. They are therefore not applicable to the case before us.
15. The next case cited is Kunj Behari Lal v. Jai Mal Singh : AIR1928All399 The dispute there was between the zemindars of the villages of Mittersenpur and Ujhainia which lay on opposite side of a river called Deoha. It is stated in the judgment of the Full Bench that there existed between the zemindars of these two villages the custom of accepting the deep stream of the river, wherever it might happen to be, as the boundary between the villages. It is further stated in the judgment that between the years 1898 and 1909 the area of Ujhainia had increased from 189 acres to 360.33 acres in consequence of the action of the river. The land thus gained by Ujhainia had been cut off from Mittersenpur. In 1910 Ujhainia gained a further 17 acres. During the next two years the river gave back to Mittersenpur an area of 33 acres. In 1913 Ujhainia again gained 72 acres. By 1915 the area of Ujhainia stood at 465.56 acres. During the next few years the river took away some of the land which it had given to Ujhainia and the area of that village had dropped to 425.18 acres by 1919. It is then stated in the judgment that in 1922 the river entirely altered its course and cut across from one point to another with the result that that added to the Mittersenpur side of the river an area of no less than 360 acres. As far as we can gather from the judgment, the suit which gave rise to the appeal before the High Court had been instituted by the zemindar of Ujhainia, claiming the 360 acres which had gone over to Mittersenpur as the result of the change in the course of the river in 1922.
16. The contention of the plaintiff would appear to have been that the custom which prevailed, in the two villages did not apply to the sort of change that had taken place in 1922. The defendant, the zemindar of Mittersenpur, apparently alleged that the custom applied to such a change also and that he was entitled to the land which had come over to his side of the river and had become annexed to his estate. The plaintiff had stated before the trial Court that 'never before had the river suddenly changed its course.' It is stated in the judgment of the Pull Bench that the defendant adduced no evidence to rebut that statement of the plaintiff. The trial Court had decreed the suit apparently on the ground that, as there was no evidence at all to show that the river had ever before 'cut a completely new channel,' the custom of dhar dhura could not be held to apply to such a change, for, it had never happened before. The defendant--the zamindar of Mittersenpur--appealed and the appeal was dismissed on the ground that there was
no evidence that such an event ever before happened as the complete abandonment of the old channel and the making of a new one by the river.
17. In the case before us there is ample evidence. Learned Counsel has next cited a decision reported in Badruddin v. Tej Ram : AIR1929All233 The Bench had before it a group of four second appeals which were heard together and were decided by one judgment. Learned Counsel has placed strong reliance upon the observation in the judgment that
there is no charm in the term 'dhar dhura' and that, the mere allegation of the existence of the custom of 'dhar dhura' cannot be taken to mean that the custom applies so as to confiscate what was, the day before, the property of another man.
18. He has, however, contended that the learned Judges who decided that case were wrong in holding that
an immemorial custom may be one applicable even to a case of a sudden change in the course of the river, as this Court had before it in Gulab Rai v. Girwar Singh : AIR1927All221 .
18. The learned Judges went on to hold that 'such a custom which has a very far-reaching consequence must be established by clear and cogent evidence.' Finding that the evidence adduced in the case before them did not come up to that standard, they set aside the decrees of the two Courts below and remanded the suits to the Court of first instance with the directions that they were to be re-tried after giving the parties a further opportunity to adduce evidence and the Court was directed to examine the evidence and to decide the cases, bearing in mind the observations made by this Court. It does not appear to us that there is anything in this judgment which supports the contention of the plaintiff-respondents' learned Counsel. As we have already held, in agreement with the Court below, the evidence in the case before us proves that the custom prevailing in these three villages is applicable to sudden changes in the course of the river. The cases in Shohrat Singh v. Ghulam Ezid ('20) 7 A. I. R. 1920 All. 82 and Mahadeo v. Baleshwar Prasad : AIR1939All626 have also been mentioned, but they clearly have no application to the case with which we are dealing. The last case cited is that in Ram Subhag Rai v. Sheo Sahai Rai : AIR1933All376 . Reliance is placed on certain observations in col. 2 at p. 379 of the report. Learned Counsel, however, frankly admits that those observations were obiter. Apart from that, the facts of that case are different from those of the case before us and the decision is no authority for the proposition put foward by the learned Counsel for the plaintiffs.
19. On the other side, learned Counsel for the appellants had cited and strongly relied upon the case in Gulab Rai v. Girwar Singh : AIR1927All221 . The decision ' in that case is clearly applicable to the point under discussion. It may be pointed out that the Full Bench in Kunj Behari Lal v. Jai Mal Singh : AIR1928All399 did not throw any doubt on the correctness of that decision, nor did the learned Judges who decided the case in Badruddin v. Tej Ram : AIR1929All233 dissent from the views expressed in the judgment of that case. We entirely agree with those views.
20. We come now to the second argument of the learned Counsel for the plain tiffs-respondents. As already stated, the finding of the Court below on that point is in his favour and is the main basis of the decree which has been granted to the plaintiffs. We may state at once that in our opinion the arguments of the appellants' learned Counsel are perfectly sound and must be accepted. We have already stated those arguments in detail in an earlier part of this judgment, and it is not necessary to repeat them. Learned Counsel for the plaintiffs-respondents has not been able to show how he can get over the logic of those arguments. The position must, in our opinion, be as is contended for by the appellants' learned Counsel. We may also point out that the argument put forward on behalf of the appellants is supported, not only by a finding of the Court below, but also by the evidence given by one of the plaintiff's own witnesses. The Court below has held that the oral and documentary evidence proves
that the deep-stream of the river left altogether that part of Sikha, to which the custom of dhar dhura applies, in 1320, 1323 and 1328 Fasli.
21. It may be explained that it is common ground that the Court below, when it says 'that part of Sikha to which the custom of dhar dhura applies,' means that part of Sikha with which the present litigation is concerned. It is a matter of admission that there is an area of land lying further to the east, and possibly to some extent to the south, which too is known as Sikha, and that it is entirely separated from the main village of Sikha which alone is in dispute in this case by the lands of Gurganwan and possibly Jhawa Nagla and other villages. It has not been explained -- and it was not necessary to explain -- how this separation between the two areas of land, both known as Sikha, came about. Learned Counsel for the plaintiffs-respondents has attempted to impugn the finding mentioned above, but has entirely failed to show that the finding is incorrect. On the contrary, it is in view of the materials on the record, perfectly correct. Now, when that finding is taken in conjunction with the statement made in para. 3 of the plaint--that
the river Ram Ganga continued to change its dhar (course) up to 1340 Fasli and the zamindars of all the three villages aforesaid gained and lost land according to the fluvial action of the river,
the conclusion is inevitable that the zamindars of these villages took possession of the lands annexed to their estates in accordance with the custom of dhar dhura even in the years 1320, 1323 and 1328 Falsi when the river
changed its course so as to go entirely out of the village of Sikha. Then we have this statement of the plaintiffs' witness Sukkhan Khan:
The custom of dhar dhura has been prevailing in Sikha and Jhawa Nagla since long. The lands to the south and east of the river have always been in the possession of the zamindars of Jhawa Nagla.
22. We have not the slightest doubt that the zamindars of these villages have in the past always regulated their conduct in accordance with the position which is contended for by the appellants and that the dispute raised by the plaintiffs on the present occasion was in defiance of what has always been the rule and was not honest. Lastly, it was suggested on behalf of the plaintiffs-respondents that, if the present appeal is allowed, conflicting decrees would come into existence as only four of the cosharers of Jhawa Nagla had appealed and the rest had acquiesced in the decree of the Court below, and Dhandei Kuar v. Fatma Zohra : AIR1939All698 . has been cited. The facts of that case are wholly different and the decision is not at all applicable to the case before us. It is not denied that the various groups of cosharers owned separate and independent shares. The appellants apparently belong to one family and have nothing to do with the remaining cosharers of Jhawa Nagla, who belong to different castes, and the relief sought by the appeal, as already stated, is that the decree of the Court below may be set aside and the suit of the plaintiffs be dismissed 'as against the appellants.' There is no question of conflicting decrees coming into existence in this case. The result is that we allow the appeal and set aside the decree of the Court below so far as it is against the appellants. The suit shall stand dismissed as against the appellants who shall have their costs in both Courts.