1. This is a first appeal against a decree of the Sub-Judge of Ghazipur dismissing their suit for possession of 199.34 acres of culturable land and 68.30 acres of unculturable land, total 267.74 acres of land, situated on a map attached to the plaint and designated by the letters ABCD, claimed as part of mauza Malsa Khas, and also for 56.38 acres of culturable land and 15 acres, also stated to be cultur-able land but probably intended to be unculturable land, total 71.38 acres of land, situated on the map and designated by the letters EFGH and claimed to be part of mauza Malsa Khurd. The plaintiffs are the zamindars of the two villages, Malsa Khas and Malsa Khurd, which lie on the east bank of the Ganges in the district of Ghazipur. The defendants are the owners of mauzas Jaitpura and Baipur, villages which lie on the west bank of the Ganges in the same district of Ghazipur and are opposite the two villages of the' plaintiff's. The plaint sets forth that all the four villages lay before 1840 on the banks of the Ganges. In para. 2 of the plaint as revised it is- stated that in 1840 a settlement of Ghazipur was made by Mr. Duncan and that certain areas were recorded for the villages in question. In para. 4 it is set out that in 1882, at a revision of the settlement of Ghazipur and a little before that, a portion of the area of villages Malsas was washed away by the action of the Ganges and was covered with water and sand, and although a portion of the area of mauzas Malsas re-appeared along with a portion of the area of mauzas Jaitpura and Baipur and was measured as such, yet in those days the said area was not fit to be possessed, occupied and cultivated. It is not alleged that there was any further accretion after the year 1882 of the villages of the de-fendants. Para. 5 of the plaint set out that the custom of deep-stream boundary, alluvial and diluvial action of the river and the frontage does not prevail-as between the villages Malsas, Jaitpura and Baipur and that the area of Malsa Khas and Khurd, which had. been cut away by the fluvial action of the river and re-appeared towards vil-lages Jaitpura and Baipur, was not cut away or reclaimed under Regulation 11 of 1825 or gradually. Para. 7 sets out that about 700 bighas had been taken from the villages of the plain tiffs and added to the villages. of the defendants. The cause of action al-leged to have arisen in November 1920, when the quinquennial settlement in respect of the plots in dispute was. for the last time made with the defendants, and in November 1925, when the plots in dispute re-appeared from,, the water and became culturable and. when, on demand being made by the plaintiffs, the defendants refused to deliver possession of it. It may be-noted that it is not alleged in the plaint that it was:
a case in which a river by a sudden change of its course may break through and intersect an. estate without any gradual encroachment, or may by the violence of its stream separate a consider-able piece of land from one estate and join it to. another estate without destroying the identity and preventing the recognition of the land so. removed,
as dealt with in Regulation 11 of 1825-S. 4, part 2. In the written statement of the contesting defendants, who are-defendants first party, it was alleged, that the claim of the plaintiffs was-barred by time, that the plots in dispute have continued to be reclaimed, from before 1872 and Government has been realising Government revenue-from the defendants; with regard to-the custom of the deep-stream boundary, that there is a deep-stream boundary custom between the villages in; suit and further, in para. 9 of the-written statement that:
after the Ganges changed its course several times, the plots in dispute, which had, for a long, time, been covered with water, by and by, with-out any distinction, continued to be recovered'; from the Ganges towards Jaitpura and Baipur and' to be included as part of the land of the said villages, and these defendants and their predecessors continued to come into possession of the . said land as they continued to be reclaimed by-right of former ownership and the custom of deep stream boundary.
2. It was further contested that the-areas given from settlement by the plain-tiffs were incorrect and that the plots, in dispute were by no means lands-of villages of Malsas but that they-were actually part of mauza Jaitpura,, the property of these defendants, and that the defendants were exclusive owners of the property in dispute, known as mahal Gangbarar-dawami, which had been settled with the defendants for more than 50 years. Further, reference was made to the 'dauldahsani' papers and the settlement of Mr. Duncan which was the permanent settlement, and it was pleaded that the area in possession of the plaintiff was now 150 bighas in excess of their area at the permanent settlement.
3. A number of issues were struck by the lower Court, and the lower Court has dismissed the suit of the plaintiffs on the finding that the custom of 'dhurdhara' or deep-stream rule has been established and that the accretion was gradual and imperceptible. The lower Court has found for the plaintiffs on the question of limitation, holding that because there was occasional sub mergence of the area, the defendants did not have continuous adverse pos-session, and the lower Court has also found for the plaintiffs on issue 6 to the effect that the area of the settlement of 1790 was incorrectly given then and that the correct area was that ascertained in 1840. (After considering the' evidence his Lordship held that the case for the plaintiffs that their property had become less by the action of the river from the time of the permanent settlement was a case which was not established by the evidence on the record and proceeded.) The next issue to which we direct our attention is issue 9: 'Have' the lands in suit accreted towards the defendants' village gradually and imperceptibly?' The learned Counsel for the appellants laid before us a number of rulings dealing with the meaning of these words 'gradually' and 'imperceptibly.' We have noted that it is not alleged in the plaint that the change was sudden, nor have any of the witnesses produced for the plaintiffs alleged that the change was sudden. On the contrary, we find among the witnesses for the plaintiffs a statement on p. 51, line 27, in the evidence of Deoki Rai, that:
the Ganges occupied its present position gradually within a period of 50 years.
4. The learned Counsel argued at considerable length that the witness used the word 'gradually' and did not use the words slowly and imperceptibly, which have been added to the word 'gradually' by their Lordships of the Privy Council in a number of rulings. The Regulation 11 of 1825 itself uses the word 'gradually' in Section 4, part 1, when it states 'when land may be gained by gradual accession.' We consider therefore that the words slow and imperceptible are intended by their Lordships to be explanatory of the meaning of the word 'gradual' and we consider that, where the witness uses the word 'gradual,' this word is tantamount to the same word used in the section (After discussing the evidence of both sides, the judgment proceeded). Accordingly we find on this issue that there has been a case of gradual, slow and imperceptible accretion of the land in dispute to the land of the defendants.
5. The next issue with which we deal is the custom of 'dhardhura,' and it has also been considered by the lower Court under issue 9. (After considering all the evidence documentary and oral the judgment proceeded). We consider in this case that the evidence of the wajibularzes and the evidence of the oral witnesses for defence, the passages in the settlement report and the Gazetteer of Ghazipur District and the recognition of the custom in judicial decisions are quite sufficient to prove that the custom does exist in the present case and the custom is that the deep-stream forms the boundary between the villages in question. For the present case it does not appear to us necessary to go further into the question of exactly what the custom is and how far it would apply to cases of sudden variation of the stream, because we hold that in the present case there has been gradual accretion.
6. Another argument which was addressed to us is that Section 2, Regulation 11 of 1825 would not apply to the present case,, because the Ganges was a large navigable river in Ghazipur and the bed therefore belonged to the Crown, and the two estates are therefore not contiguous within the meaning of Section 2. No authority was shown for this proposition. If it were correct then Section 2 would only apply to smaller rivers, but it is exactly in the case of larger rivers that we would expect the custom' of the rule of the deep stream to exist; because such a custom would arise from the difficulty experienced by persons residing on one bank cultivating land on the other bank as cultivators, or managing fields on the other bank, as this would require frequent crossing. There would be no point in limiting the, application of the custom to smaller rivers, and the use of the word 'contiguous' does not so limit it. The context of the word in the section is 'two or more contiguous estates divided by a Tiver.' If a strict and literal interpretation is to be given, it would mean that the river is something separate from the estates and that the rule would therefore only apply where there was a river, the bed of which did not form part of either estate. This is exactly the opposite of the appellant's argument. We consider however that the words are to be interpreted in a natural sense and that they would include either case. A variation was made on this argument by the learned Counsel for the appellants by suggesting that some land intervenes between Jaitpura village and the bed of the river. This suggestion was based on a single sentence in the evidence of a single witness, the plaintiff Raja Rai, who said about the Malsa villages
to the west of those villages is the 'karara' thigh bank) of the Ganges, above which is situate the village 01 Jaitpura.
7. The learned Counsel argued that this implied that the 'karara' or high bank did not belong to the villages of the parties but belonged to some one else, possibly to Government. We do not think that the witness intended to convey such an idea. Probably the witness referred to houses of the village by the word 'village,' which the map shows are close to the river, and the witness did not use the word 'village' to mean mauza or the land of the village. In the plaint para. 2 says all the four villages in suit in 1840 lay on the bank of the Ganges. This negatives the contention of the learned Counsel for the plaintiffs-appellants. We do not accept the argument.
8. The learned Counsel referred to the following rulings. His argument was that it was necessary for the defendants, in setting up a custom of the deep stream as boundary, to prove the custom precisely. The learned Counsel 'referred to Balbhaddar Prasad v. Hat Narayan Das A.I.R 1923 Oudh for the proposition that 'dhardhura' may not mean that the deep stream is always to be the boundary between two estates; but we have found that the accretion here was gradual and that there was no sudden change of the stream. The ruling ' would imply that the deep-stream rule i would apply to such circumstances. | The learned Counsel next referred to Naseeruddeen Ahmad v. Mt. Oomedee (1868) 3 Agra 1, and the rule laid down in that ruling is similar. He next referred to Felix Lopez v. Muddun Mohun (1868) 3 Agra 1. We desire to point out, as clearly stated in the report of this case in 5 Beng. L. Rule 521 [Felix Lopez v. Muddun Mohun (1869) 13 MIA 467], that the two villages in that case were on the same side of the Ganges; so the ruling did not deal with the question of the deep stream rule, which can only apply where the villages are on opposite sides of a river. He next referred to Rai Krishan Chandra v. Saidan Bibi (1905) 28 All 256. That ruling stated on p. 257: 'It is admitted that no custom exists as regards alluvion.' The ruling was on Section 4, Regulation 11 of 1825, wherea? in the present case we are dealing with Section 2. A similar admission was made in Ritraj Kunwar v. Sarfaraz Kunwar (1904) 27 All 655 at p. 661, line 9, and in Keshava Prasad Singh v. Secy, of State AIR, 1927 PC 89, and there was no question of a custom of the deep stream rule. None of the rulings cited for the appellants show any reason why the custom of the deep stream rule, proved in the present case, should not apply to the facts proved in the present case.
9. The only other point which we may mention is the question of limitation. This has been decided by the lower Court in favour of the plaintiffs. The lower Court went on the ground that the diara in question was submerged during the rains, a question which was the subject of contradictory evidence consisting of witnesses for defence on the one hand, who said that it was not submerged, and the expert evidence of an engineer for the plaintiffs. On that ground the lower Court held that the defendants had failed to prove that they maintained their title by adverse possession. This question has not been argued before us either on the facts or on the law, and therefore we do not come to any conclusion as to the correctness of the finding of the learned Judge on this issue dealing with limitation. We consider that the case is disposed of by our findings on other issues. Accordingly we' hold that the decree of the Court below was correct and we dismiss this appeal with costs to the defendants-respondents.