1. This is a second appeal by the plaintiff in a suit which he brought for a declaration that he was the owner and in possession of certain lands. In the alternative he prayed for possession and any other relief to which he might be found entitled.
2. He is the owner of a -/13/3 share and the mortgagee in possession of a -/2/9 share in Mauza Dhanaura. The defendants are the owners of Mauza Bhad, the adjoining village to the east of Dhanaura. At the time of the last Settlement (1887-1888) the river Ban Ganga formed the boundary between the two villages, its course being a deep curve.
3. The plaintiff's case was that in the rainy seasons of 1307 and 1308 Fasli (1900 A.D.) owing to excessive floods a nullah was partly scoured out which tended to straighten the river. The nullah was entirely in the Dhanaura lands. The river, however, retained its old bed until the year 1312 F., when another flood occurred. As a result the river suddenly changed its course and flowed through the nullah, leaving a large area of the Dhanaura village on its eastern bank. The area in dispute is 186 bighas, I biswa, i.e., just over 100 acres.
4. According to the plaintiff he remained in possession of the lands. The defendants, however, by fraudulent proceedings in the Revenue Court procured entries in the revenue papers of Mauza Bhad, to the effect that the lands were within the boundary of Mauza Bhad, and having secured these entries, had begun to interfere with the tenants. This was in October 1914 and the plaintiff then became aware of what had been done. Hence his present claim for a declaration or in the alternative for possession.
5. Various defences were raised, but for the purposes of this appeal it is necessary to mention only three.
6. The defendants pleaded (1) that they had held adverse possession for over twelve years; (2) that there had been no sudden diversion of the course of the river but that on the contrary it had slowly and gradually out away the land of Mauza Dhanaura and had added to it Mauza Bhad and that, therefore, they had legally become the owners thereof; (3) that in any case there was a general custom in force in all the villages lying on the banks of this stream (and also in the two villages in question) that no matter how the river behaved, the deep stream was always the boundary, land taken from one village and added to another besoming the property of the owners of the latter.
7. On the first point both the Courts below have held against the defendants, that they have not been in adverse possession for over twelve years. The other two contentions were embodied by the first Court in a somewhat complex issue wbich ran as follows: 'Whether the land in dispute went from the plaintiff's side to the defendants' side by slow and gradual shifting of the river or, as the plaintiff says, in 1312 (owing to the river piercing its way through the alleged khmrroh) all of a sudden? Who is legally the owner of the land in dispute? Does any special custom govern the parties' rights?'
8. The Court found that there had been a gradual transfer of the land from one side to the other and that the plaintiff's story of a sudden diversion was untrue.
9. It also found (to quote the words of the judgment) that: 'No custom had been proved that the owner of the opposite bank will be, by virtue of it, the owner of land gone over to his side, not by graual accretion but by the jumping course of the river, i.e., by the river suddenly ceasing to flow through its channel and piercing a new channel through, transferring the land en bloc from one bank of it to the other.'
10. In view of its decision on the first part of the issue, it dismissed the plaintiff's suit. The plaintiff appealed.
11. Naturally he took no exception to the finding On the point of custom. He urged, among other pleas, (1) that the land in dispute had not been slowly and gradually cut away and added to the other side within the meaning of Regulation XI of 1825; and that even if it had, the Regulation did not apply in the case of so small a stream as the Ban Ganga. (2) That on the evidence it was proved that the river had suddenly changed its course. The lower Appellate Court in its judgment set forth four points for determination. We are not now concerned with the first three, one of which related to the title claimed on the basis of prescription.
12. The fourth was 'whether the defendants have acquired title to the land in suit by the custom of Dhardhura or by means of its accretion to their land or the plaintiff is still the owner thereof.
13. It held that there had been no sudden change in 1312F, as alleged by the plaintiff, but that there had been a gradual diluvion year by year since 1887, up to the year 1307F. (1900), that as the total area out away was 185 bighas, 15 biswas, 8 dhurs, the accretion to the defendants' land, though gradual), had been neither slow nor imperceptible, amounting to an annual average of 15 bighas odd, and that this class of accretion gave the defendants no title.
14. But it held on the evidence that the custom of Dhardhura alleged by the defendants had been established, under which the deep stream was the boundary.
15. It accordingly dismissed the appeal. Before us, the plaintiff urges that the question of the eastern was not raised or discussed in the Court below and ought not to have been decided against him; and that the decision of the Court is incorrect and ought to be set aside, inasmuch as the Court has misconstrued the documents on which it has relied and has drawn wrong inferences, and the evidence as it stands is not sufficient to establish the alleged custom.
16. On behalf of the respondents it is urged that the question of custom must have been urged and discussed in the Court below; that that Court's finding on the point is a finding of fact which is binding on us in second appeal and we cannot go behind it.
17. It is further attempted to support the decree of the Court below on the point decided by that Court against the respondents, i.e, it is urged that as the accretion to the ' respondents' village was gradual and not sudden, the respondents have acquired title under Regulation XI of 1825, even if no custom has been established. As to whether or not the question of custom was urged or discussed in the Court below, the appellant has caused an affidavit to be filed by one of the Pleaders who appeared in that Court and who from his memory, refreshed by his notes, has stated that the point was not discussed. This statement is now made, some three years after the appeal was heard in the Court below, and we find it difficult to believe that the point was not touched. It is, however, Unnecessary to come to any decision on this, seeing that in our opinion the lower Court's decision on the question of custom is not supported by the evidence on which that decision is based and we propose to set it aside.
18. Coming now to the alleged custom. we note that it is the custom which is mentioned as an example in Section 2 of Regulation XI of 1825, i.e., 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 vernacular word 'Dhardhura' exactly expresses this and is employed by the defendants in their written statement and the. lower Court in its judgment.
19. The first Court's judgment in respect to the alleged custom was brief and did not discuss the evidence. The lower Appellate Court discussed the matter at considerable length. The defendants produced both oral and documentary evidence. As to the former, the Court below remarked that it was very meagre and unsatisfactory and it based its decision solely on the documentary evidence. This consists of (a) copies of extracts from the wajib ul-arzes of the two villages prepared at the Settlement of 1863; (b) the Settlement maps of 1833, 1863 and 1887-88 of these two villages, and some copies of village papers.
20. Clause 16 of each wajib-ul-arz contains an entry relating to diluvion and alluvion (Gang Shikast and Gang Barar). The clause in the document relating to Mauza Dhanaura sets forth that the village is on the banks of the Ban Ganga and that if by chance alluvion occurs and the accession amounts to more than 10 per cent, of the entire area of the village, whatever revenue the Collector assesses with the sanction of his superior authorities, the owners will pay.
21. The clause in the case of Mauza Bhad is similarly worded.
22. The learned Additional District Judge in respect to these two entries remarks: 'This is not amounting to an express record of any custom of Dhardhura but implies it.' We agree that there is no record here of the custom of Dhardhura.' We cannot possibly agree that it implies any such custom. The bare statement that alluvion and diluvion occur does not imply that when they do occur the custom of 'Dhardhura' will apply. There is not the slightest suggestion of any such custom or of any custom at all in the language of these two documents.
23. The learned Judge, however, goes on to say that the copies of the village papers show that whatever land had been actually separated by the action of the river between the Settlement of 1863 and that of 1887 from one side of the river to the other, had gone to the village Bhad and in the Settlement of 1887 it was so recorded, evidently without objection by the proprietors of Mauza Dhanaura. He then adds: 'This may have been done owing to a custom that the river Ban Ganga was the settled boundary between the two villages.' It is only necessary to point out that it might equally have been done under the operation of the ordinary rule laid down by Regulation XI of 1825 without the existence of any special custom at all. There is nothing to show what actually happened between the years 1863 and 1887, except that in the course of that period (24 years) some area was transferred from one village to the other by reason of the river shifting its position.
24. The Court below, then, comparing the maps of the three Settlements of 1833, 1863 and 1887, points out that in 1863 the river bad moved to the west as compared with 1853 and that a further similar move had occurred by 1887 and as in both 1863 and 1887 the river was accepted as the boundary, draws the inference that this mast have been done because the custom of 'Dhardhura' was in existence. If this custom was the only possible explanation the inference might legitimately have been drawn, but it is not the only possible explanation. The same result might have occurred by reason of that gradual transfer contemplated in Regulation XI of 1825. The areas transferred are not given.
25. The Additional District Judge remarks: 'it appears that the parties did not press this matter of custom before the Court of first instance and that the plaintiff evaded entering into the custom and did not attempt to produce any evidence to the contrary,' but the burden of proving the custom was on the defendants who alleged it and if they did not press it, there could be only one decision on the point.
26. From the fact that the words 'Gangshikast' and 'Gang Barar' (diluvion and alluvion) are used in the wajib -ul-arzes mentioned above, the Judge infers that the custom was referred to in those documents. These words, he says, imply that what was taken from one village was always added to the other village and this is also the meaning of the custom of Dhardhura. He has lost sight of the different ways in which the liver might take land from one side and throw it upon the other.
27. It is to us clear that the Court below has read into these documents something that is not there and has drawn an unjustifiable inference from the maps.
28. It is urged that we cannot go behind his finding as it is a finding of fact, but with this we cannot agree. A wrong construction of a document, coupled with a wrong inference from certain facts, constitutes an error of law, where there is no other evidence accepted by the Court.
29. It is urged that the first Court's judgment shows that it was admitted that the midstream had always been the boundary between the two estates. No attempt has been made to show us any such admission, nor could there have been any such for it would have sufficed for the decision of the case without proceeding any further. The first Court has used the word 'admittedly' in a somewhat loose manner and has remarked 'now admittedly the midstream of the river Ban Ganga' 'is (not has always been) the boundary line.'
30. There remains the plea that as the lower Court has found that the accretion to the defendants' estate was 'gradual,' it ought to have held that title in the land had passed to the defendants. It is urged that Section 4 of Regulation XI of 1825 does not use the words 'slow and imperceptible,' The meaning of the word gradual as used in Section 4 of the Regulation has, it is admitted, been explained by their Lordships of the Privy Council and that meaning has been applied by the Courts in India over a long course of decisions, and we can see no reason to give way to the plea now raised.
31. The lower Appellate Court has shown that on the average the annual accretion to the respondents' estate was considerable. In twelve years more than 100 acres was thus transferred and we agree that the accretion was not slow and certainly not imperceptible. The plaintiff, in our opinion, is entitled to succeed and as possession has been found to be in the defendants' hands, he is entitled to a decree for possession.
32. There is no claim for mesne profits. We, therefore, allow the appeal. The plaintiff's suit for possession Of the lands mentioned and described in the plaint is decreed together with costs in all Courts.