1. This is a plaintiff's appeal against a decree of the learned Subordinate Judge of Ghazipur dismissing the greater portion of the suit of the plaintiff, and decreeing merely a certain area A B C D E F G H I in the map printed after the plaint. The plaint says that the plaintiff, the Maharaja of Dumraon, claimed to be the owner of a certain temple in Ghazipur city on the banks of the Ganges and a garden attached to that temple, and the Court below has granted him a declaration of ownership of this temple and garden. He also claimed in the plaint a considerable area which has been added by the river Ganges by alluvion to this garden and to this temple. It is this portion of his claim which has been disallowed by the lower Court. Now it is admitted that this plot stands in a certain mahal Mianpura in Mauza Amghat, and that the defendants are the co-sharers in that mauza. The plaintiff does not claim to have owned more than the particular plot of land occupied by the temple and the grove, and he does not claim to be a cosharer in Mauza Amghat. In the plaint in para. 5 it was pleaded:
In 1328 Fasli again some land gradually came out of the water in front of the plaintiffs pushtas in continuation of the previously alluviated lands after the rainy season and the plaintiff was entitled to the same by right of frontage under local custom and Regn. 11 of 1825.
2. The claim of the plaintiff therefore was under local custom and Regn. 11 of 1825. The defendants are admittedly in possession of the area added by alluvion, and the plaintiff asked for a declaration and recovery of possession of that portion. Now the question of alluvion was the subject of issue 5, which has been decided, and also of issue 7, which has not been decided. The parties produced evidence of custom, and there are on the record the wajibularzes of the 1840 settlement and of the 1881 settlement, and there is also certain oral evidence in regard to custom. The 1840 settlement contained para. 15, 'of alluvion,' which provides as follows:
Taluka Amghat proper lies on the bank of the Ganges river. If in any year more than 10 bighas of the land as at present surveyed are cut off by the river, its jama will be reduced as per decision of the officer. If more than 10 bighas of land are thrown out by the river, we shall pay an enhanced jama of the same in accordance with the decision of the officer.
3. It will be seen that this paragraph clearly sets out that if more than 10 bighas of land were thrown out by the river, the zamindars agreed to pay an enhanced revenue. There was no provision in this custom that persons who owned particular plots bad any right to land added by the river to their plot, as the plaintiff claims in the present ease. The persons with whom the settlements were made are mentioned on p. 47. In the later wajibularz of 1881-82 there was a provision in para. 10 in regard to alluvion which stated:
The river Ganges runs on the Shamilat of (land common to) all the mahals of this Taluka. on the border of Amghat opposite to Mauza. Goda Mafqudpur, Pargana Zamania, and Rampura alias Golaphat. This river cuts away and throws out land every year. Accordingly the custom of Dhardhura (the rule by which the course of the deep stream of a river is regarded as the boundary in cases of alluvion and diluvion) is observed between the proprietors of this village and the village lying opposite. The custom as observed by the proprietors of this village among themselves is that all the proprietors of the village sustain (loss) in the year in which the area of this village is cut away and that they proportionately divide and are benefited by the alluvial land when it comes out.
4. It may be noted that at that particular time there was a single proprietor. On p. 58 it is shown that the predecessor of the plaintiff, Maharaja of Dumraon, was entered as Maharaja Radha Prasad Singh as the inferior proprietor of a particular plot, area 2 bighas 9 biswas and 14 dhurs. This, it is admitted, is the grove in question. The custom in para. 10 did not give an inferior proprietor in a particular plot any right of alluvion. Now learned Counsel based his argument in appeal entirely on Section 4, Regn. 11 of 1825, which provides as follows:
When land may be gained by gradual accretion, whether from the recess of a river or of the sea, it shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed, whether such land or estate be held immediately from Government by a zamindar or other superior land-holder, or as a subordinate tenure by any description of under-tenant whatever.
5. But this Section 4 will only apply, according to Section 3, where there may be no local usage of the nature referred to in Section 2. Section 2 states that where there is a clear and definite usage of shekust pywust immemorially established for determining the rights of proprietors of two or more contiguous estates divided by a river, then the usage shall govern the decision of all claims and disputes relative to alluvial land between the parties whose estates may be liable to such usage. Learned Counsel argued that although Section 2 bars the application of Section 4 where there is a custom, still that custom should not govern the case like the present where a dispute is between two persons who have rights on the same side of the river. We are under the impression that this view is not correct, and that where the custom is shown to exist, then the Regulation does not apply. Now in the present case the custom of alluvion has been recognized in Ghazipur District by the Courts. In Ram Subhag Rai v. Sheo Sahai Rai First Appeal No. 320 of 1928, decided by a Bench of this Court on 24th January 1933, it was held that the custom of the deep-stream rule applied to Ghazipur District, and a reference was made to the Gazetteer for Ghazipur printed in 1909, at pp. 5 and 6, where it was stated:
Generally the deep stream rule prevails all along the Ganges, and disputes arising from alluvion or diluvion are rare, at all events in comparison with the incessant quarrels which arise from this cause in Ballia, the only exception occurs in the Taluqas of Sherpur-Reotipur, Gahmar, and Bara, Pergana Zaminiah.
6. It may be noted that the city of Ghazipur, with which we are concerned, is not in any of those Taluqas. A reference was also made to the Settlement Report of Ghazipur District at p. 76, para. 149, where it was stated:
The Ganges has a course through this district of about 103 miles; along 84 miles of this distance, the deep-stream is without contest the dividing line between mauzas and mahals, and it is in consequence the guiding rule in conducting all inquiries into cases of alluvion or diluvion, with a view to summary settlement or remission of revenue. The transfers of ownership caused by the deep stream rule are often of enormous extent, as for instance, on the west face of pargana Zamania, which has gained from pargana Karanda a tract about six miles long by from half a mile to two miles broad.
7. We may also point out that the existence of a custom is admitted in the plaint in para. 5, where the plaintiff stated that he claimed the accretion 'by right of frontage under local custom and Regulation No. 11 of 1825.' As has been pointed out, if there is a local custom, then Regulation No. 11 of 1825 does not apply. The custom of the deep-stream rule, and the accretion of alluvion to the zamindars, has been recognized by Government, as is shown on p. 68 by the quinquennial settlement with the defendants zamindars on 30th November 1925. Learned Counsel for the plaintiff desired to alter his case, and to argue that there was no custom which would fulfil the requisites of being ancient, invariable and immemorial. He referred for his point to a ruling reported in Badruddin v. Tej Ram 1929 ALJ 380, dealing with the Bareilly District. That ruling however did not state that no custom existed in that case, but a remand was made to the trial Court to come to a finding on whether the custom which existed would cover the case of a sudden avulsion which had occurred in that case. In the present case there does not arise any question whether the accretion was sudden, because in para. 5 of the plaint it is admitted:
In 1328 Fasli again some land gradually came out of the water in front of the plaintiff's Pushtas in continuation of the previously alluviated lands.
8. In the written statement of the defendants zamindars it was pleaded as regards para. 5 of the plaint that it was admitted that some land was thrown out of the water. There is no suggestion in the written statement that there had been any sudden avulsion, and the evidence of the parties was to the effect that the accretion was gradual. The ruling therefore on which learned Counsel for the appellant relies does not apply. From the evidence which we have mentioned, we consider that it is clearly proved by evidence on both sides, and admission on both sides, and the judgment of this Court, and the wajibularzes, and the Gazetteer and Settlement Report, that the custom of the deep-stream rule, and accretion belonging to the zamindars, is proved to exist in the present case. We therefore consider that Section 4 of Regulation 11 of 1825 has no application to the present case as is provided by that Regulation in Section 3. On this view of the case the accretion in question belongs to the zamindars, and the plaintiff has no right whatever to the accretion which has been thrown up by the river. We therefore dismiss the appeal of the plaintiff with costs. A cross-objection has been filed by the defendants against the declaration which has been granted by the lower Court in favour of the plaintiff.
9. This was to the effect that the plaintiff's claim for declaration that he was owner in possession of the land marked by the letters A B C D E F G H I in the plaint may be decreed. This portion of the plaint map facing page 16 comprises the thakurdwara,' or temple, and the courtyard and 'thakurbari,' or grove, and pushta. This is a property which has been all along in possession of the plaintiff and the temple, as distinct from the remainder of the property in the plaint, which was an accretion added by alluvial action. Now the cross, objection merely asks that the plaintiff's suit should be dismissed in toto and it is set out in ground No. 1 that the property in dispute belongs to the zamindars, and the plaintiff or his predecessors have no right in it. In ground No. 3 there is an absolute contradiction of this as it is alleged that the plaintiff has no cause of action because the defendants never made any assertion or denial in regard to this property. Put forward at the same time that the assertion and denial are made, the argument is somewhat illogical. We do not find that the defendants have anywhere made an intelligible statement of what they consider are the rights of the plaintiff in this property. Examination of the written statement on pp. 12 to 15 does not disclose any intelligible pleading of the nature of the occupation of the plaintiff; nor has learned Counsel for the defendants been able to make any intelligible statement on this point. Finally he contended that the occupation was in the nature of the occupation of a ryot; presumably he meant the occupation of a house in an agricultural village by a ryot. That occupation is a mere right of residence which terminates when the building falls down, and the right of occupation cannot be transferred without the consent of the zamindars.
10. Now there are several difficulties in applying such a theory to the present case. In the first place, Ghazipur is not an agricultural village; it is a city. In the second place, the Maharaja of Dumraon has never been a tenant, and does not cultivate any land in the village. In the third place, the building is not a residential house; it is a temple. Now the presumption in the case of an agricultural Village has to be made, where the origin of the tenure is unknown and the zamindar has allowed ryots to build residential houses in the 'abadi,' and one incident of such a tenure is that the tenure will terminate when the house falls down. But we do not consider that any such presumption could be drawn from the occupation of a site in a town by a temple. Even if it be assumed that at some stage the zamindars may have allowed the building of this temple, the presumption in our opinion would be that the zamindars had made a gift of the site. One distinction between a residential house in a village and a temple is that the temple is not a building which will fall down, and of which the site will be abandoned. The intention is that the temple should stand there as a permanent structure. We do not consider that any presumption can be drawn that the site of this temple or this garden belongs to the zamindars. We now turn to the actual evidence on the record in regard to this area. For the defendants stress is laid on the entry at p. 99 in the Survey Khasra of Ghazipur for the year 1840. In this it is shown that the Thakurdwara occupied an area of 5 bighas 18 biswas, and the Thakurdwara is shown under the heading name of tenant.' The name of the owner in Col. 2 actually happens to be blank and for the defendants-respondents we are asked to draw the presumption that the word likewise' is intended, so that it should be read as if the name in the previous entry, Shah Mansur Alam, also applied to No. 2, but even if we make this presumption, we do not think that this document means any more than that for the mahal in which this thakurdwara was situated, the owner of the mahal, or a portion of the mahal, was Shah Mansur Alam. The thakurdwara, standing on an isolated plot, could not be entered in any manner otherwise than in the manner in which it is entered. There is a similar entry in a later document, but the same reasoning will apply. Now there is also an entry on page 104, in the Survey Khasra for the City of Ghazipur of 1856. This shows that 2 biswas 10 bighas and 5 dhurs area was the grove of Babu Sheo Sahai, possessed by the Maharaja of Dumraon. The name of the proprietor was given 'as above,' and the name above is not printed. This relates to the zamindars of the village.
11. The same reasoning applies, and the ownership of the isolated grove could not be shown in a Survey Khasra in any other manner than the manner in which it is shown. The entry does not indicate that the grove was not owned by the Maharaja of Dumraon. There is always a difficulty in recording in revenue records the entry of an isolated plot, the ownership of which is acquired by a person who is not a co-sharer in the village, and there is properly no place in which that ownership of isolated plots can be shown except in the khewat, under the heading 'haqqiat mutafarriqa.' There is, as we have already noted, in the Wajibularz of 1882, printed on page 58, an entry that the Maharaja Radha Prasad Singh, that is, the Maharaja of Dumraon, was the inferior proprietor of a certain plot, 2 bighas 9 biswas 14 dhurs. This is apparently the grove. And again on page 84 there is the entry of the Maharaja 'Radha Singh' of Dumraon for a similar area in the khewat of Mauza Amghat for 1881-1882.
12. Now learned Counsel for the defendants desires us to draw the conclusion from these entries that in those plots there exists not only the inferior proprietor, but also the superior proprietor, and the superior proprietors are the zamindars. He is quite unable to explain the origin of this particular tenure, which is a tenure peculiar to the province of Oudh, and does not apply in the province of Agra. There are, no doubt, cases in the province of Agra where there are in a mahal several persons possessing separate, heritable and transferable proprietary interests, such interests being of different kinds, as is provided in Section 75, Land Revenue Act (Act 3 of 1901). It is there provided that the settlement officer shall determine which of such persons shall be admitted to engage for the payment of the revenue, due provision being made for securing the rights of others, and the manner and proportion in which the net profits of the mahal shall be allotted to the several persons possessing separate interests as aforesaid for the term of the settlement. This section deals with the case of a whole mahal in which there are inferior and also superior proprietors. The present case could not come under that section because it is not suggested that the Maharaja of Dumraon has an inferior proprietary interest in the whole mahal. It is only suggested that he has an inferior proprietary interest in a particular plot. Such a case is not known to the Land Revenue Act.
13. In Section 4(15) of that Act there is a definition as follows: 'Under-proprietor' means in Oudh a person possessing a heritable and transferable right in land who is, or but for a judicial decision or contract would be, liable to pay rent therefor. Now in the province of Agra it is by no means uncommon for certain persons to acquire proprietary interest in a particular plot in a mahal. Such an acquisition usually arises where there is a desire to erect a building, and the plot is either purchased from the zamindars or given by the zamindars. Such a case does not give rise to any inferior proprietary rights. On the contrary, as regards the plot, the person who acquires the ownership of that plot is the owner of that plot. The ordinary presumption in a case like the present is that such facts have brought into existence the fact that this building, which is a temple, and the garden attached, are owned and possessed by the Maharaja of Dumraon; and this is rendered more probable by the fact that the temple and garden stand in a city area. There are certain records produced which confirm this view. On page 45 there is a sale-certificate of 23rd March 1855 in favour of Janki Prasad, Mukhtar, who, it is stated,
purchased for himself the rights and interests of Babu Sheo Sahai, in a garden with four brick walls, chabutra, i.e., the stone pushta on the bank of the river in the city of Ghazipur and the land appertaining thereto, bounded on the east by the door of the thakurdwara (temple) facing the east....
14. Evidence is given that this sale-certificate was really acquired in the interest of the plaintiff. On page 46 there is a sale-certificate, dated 12th March 1855, where there was a purchase for Munshi Ganga Prasad in an auction-sale of the rights and interests of Babu Sheo Sahai, defendant, in a sugar-factory consisting of three sections, facing the west, the south and the north of the thakurdwara temple in Mohalla Mianpura. It is stated in evidence that both the sale-certificates relate to the property in question, and that by the sale-certificates the property in question was acquired for the plaintiff. It will be noted that the language used in each case is 'the rights and interests of Babu Sheo Sahai, defendant.' Now it is not shown that the rights and interests of Babu Sheo Sahai were anything less than the proprietary interests in this area. We, therefore, think that it has not been shown that the Court below was incorrect in granting a declaration to the plaintiff that in regard to this area A B C D E F G H I the plaintiff was the owner in possession. We, therefore, dismiss the cross-objection with costs.