1. The circumstances out of which this present appeal has arisen are as follows :
2. The village of Purnian, which belongs to the plaintiffs-respondents, and the village of Chatrapar, which belongs to the defendants-appellants, are situated in the northern part of the Basti District. What is known as the Bilar Nadi flowed between them and at the last Settlement formed the boundary.
3. A reference to the Settlement Report and the maps attached thereto shows that what is called the Bilar river is really a bed of the Burhi Rapti, which falls into the larger Rapti river.
4. The Banganga, a hill torrent, flows into the Burhi Rapti and it apparently forced the latter river into another and more direct channel towards the Rapti. From the junction of the Banganga the old course of the Burhi Raoti is called the Bilar Nadi. At the time of the last Settlement, however, it was notcid that Burhi Rapti after its junction with the Banganga was sending a greater part of its volume of water down the Bilar Nadi, The result of this has been that in places the Bilar has been cutting away its banks and altering its course.
5. This admittedly has happened in that portion of its course which lies between the two villages in the present case.
6. The plaintiffs have filed a map, which fairly accurately shows the position as regards these two villages which the river occupied at the time of Settlement and on the date of suit. One point will be noticed, that is that at Settlement time the boundary between the two villages was the mid-stream and that it was Ifot a short one.
7. The plaintiffs case is as follows:
8. (1) that by custom the boundary between the two villages has always been the midstream line of the river, any land cut away from either village by a change in the course going to the owner of the other village;
9. (2) that the river has been gradually encroaching on the lands of Chatrapar and adding laud to Purnian;
10. (3) that out of a total area of 43 bighas 9 biawas and 15 dhurs thus added to their village, an, area of 26 Bighas 2 Iriswas and 6 dfiurs of land were added up to 1304 Fasli and 17 btghas 7 biswas 9 dhurs have been added since 1304 Fasli;
11. (4) that the land in question has been in the proprietary and adverse possession of the plaintiffs as of right;
12. (5) that the Revenue Authorities have surveyed the land and have held that a part of it is in possession of the defendants, and have passed an order adverse to the plaintiffs;
13. (6) that the plaintiffs being still in possession are entitled to a declaration of their title as proprietors, and if they be found not to be in possesion, possession may be awarded to them
14. The defendants pleaded;
15. (1) that they, and not the plaintiffs, were in possession;
16. (2) that the lands in question had been suddenly cut away in the year 1314 Fasli;
17. (3) that there was no such custom, as alleged by the plaintiffs, under which the mid-stream was always the boundary between the villages;
18. (4) that the Bilar is not a navigable river and that rules of law as to alluvion and diluvion did not apply in the case of such a small shallow stream.
19. The Court below held as follows:
20. (1) that the plaintiffs were in possession;
21. (2) that the custom alleged by the plaintiffs was not proved;
22. (3) that the provisions of Section 4, Clause I, Regulation XI of 1825, were applicable to the case and that the land in dispute had been gradually cut away from Chandrapar and added to Purnian and, therefore, the plaintiffs in law were the owners thereof. Accordingly the suit was decreed as to the declaration.
23. The defendants appeal. The first ground of appeal is not pressed.
24. The points pressed are:
25. (1) that the plaintiffs have failed to prove possession;
26. (2) that the law laid down in Regulation XI of 1825 does not apply to the case of a small shallow stream like the Bilar and that the land, being within the boundaries of the mahal settled with the defendants, is their property;
27. (3) that the area in quesion has not been shown to have been added to the plaintiffs' village by gradual slow and imperceptible means and, therefore, the plaintiffs at no time acquired title.
28. On behalf of the respondents it is admitted that the custom of Dhar-dhura' cannot be pressed but it is pleaded:
29. (1) that the plaintiffs' possession is established;
30. (2) that Regulation XI of 1825 applies;
31. (3) that the accretion has been gradual and imperceptible and the plaintiffs have thus acquired title;
32. (4) that in any event the plaintiffs have been in adverse possession and have acquired a title by prescription.
33. In regard to the application of Regulation XI of 1825, we shall assume for the purposes of this appeal that the lav? as laid down therein does apply. In the view that we take of the facts it is unnecessary for us to decide the question,
34. We cannot agree with the Court below that the plaintiffs have proved either their possession or that the accretion has been by slow, gradual and imperceptible means as contemplated by Section IV of the Regulation.
35. Furthermore, in the circumstances disclosed by the evidence of the plaintiffs' own witnesses, the plaintiffs could not have acquired title by prescription. In regard to possession we must point out that the burden was on the plaintiffs. The land in dispute admittedly lies within the ambit of the defendants' zemindari, and the land revenue assessed thereon has been paid by the defendants. The plaintiffs do not pretend to have ever paid any Government dues for it. They claim that land which at Settlement time was in the defendants' mahal is now in their possession and belongs to them, simply by reason of the action of the river. The burden is heavily on them to prove their possession.
36. Both sides called witnesses who swear in favour of those who have called them and as the lower Court has observed, the oral evidence one the one side is just as good as that on the other and it is not possible to come to a satisfactory conclusion as to which side is telling the truth, unless there is something else to guide the Court.
37. Documentary evidence as to possession there is nil. The villages are not subject to quinquennial Settlement. The palwari of Purnian has never recorded these lands in his records. The patwari of Chandrapar has recorded them as having been cut away by the river. It is highly probable that little heed has been paid until recent years to the lands, as they were sandy waste at first and have only slowly become culturable; and then the dispute arose in the Revenue Courts.
38. The lower Court has given some curious reasons for holding that the plaintiffs' case must be a true one:
39. (1) that the land having been gradually cut away and removed to the other side of the river, it is far more likely that the people on the other side should cultivate rather than that the people of Chandrapar should take the trouble to cross the river with their ploughs and oxen.
40. In the first place as, the plaintiff's own village putwari shows, during the rainy season the land is under water and not culturable and during the (rest of the year the stream is shallow and fordable nearly everywhere. During the rains both sets of zemindars work their own ferries and the village of Chatrapar is at no greater distance? appreciably from the spot than that of Purnian. A great deal of the land is even now uncultivated and the rest must have come very slowly under cultivation. Seeing how tenaciously these zemindars cling to their lands and how often riots take place over such cases, we can see no reason to hold that it is far more probable that the Purnian men cultivated than that the Chatrapar men did so. There was no great trouble involved in fording a shallow stream. Next, the Court below considers that because there has been no riot, therefore the Purnian rcen must have cultivated without let or hindrance. There is no reason to hold that the Purnian men are less law-abiding than the Chatrapar men.
41. Lastly, the lower Court considers that because in other similar cases in other villages along the Banganga and one or two on the Bilar the people of the villages to which land has been added have been allowed to retain such lands, therefore this must have been done in the present case.
42. As evidence of actual possession these instances are quite inadmissible; they were put forward simply as evidence of the custom of Dhar-dhura.'
43. In our opinion there are no circumstances outside the oral evidence which go to show that the plaintiffs rather than the defendants are in possession. The presumption is that the real owners, the defendants, who are paying the revenue are in possession. The oral evidence to prove the plaintiffs possession is unsatisfactory and we, therefore, hold that the plaintiffs have failed to satisfactorily establish their possession.
44. The next point is the question of the manner in which the land has been cut away from the one village and thrown up on the other side of the river. The burden of proof is on the plaintiffs to show that the accretion to their tenure has been of the nature contemplated by the law as laid down in the Regulation mentioned and unless they can prove this satisfactorily, they cannot be said to have proved their title.
45. Their case is that the accretion commenced in 1295 Fasli and then up to 1304 Fasli, i.e. in 10 years, an area of 26 bighas 2 bittwas and 6 dhurs was added to their village and that from 1304 Fasli up to 1315 Fasli, i.e. in 11 years, an area of 17 bighas 7 Usivas and 9 dhurs has been added. The average accretion according to this was 2 liigha odd per annum for the whole period. In the period from 1295 Fasli the average was a little higher and in the second period somewhat lower.
46. There is no documentary evidence to show what area was added in any or each of the years in question, as apparently no measurements were ever made until the dispute arose in the Revenue Court. The plaintiffs have to depend on oral evidence only. They have called their patifrari and some cultivators and neighbours, who state in a general way that the river has gradually cut away its banks and that each year an area of from one to four bighas has been thrown up on the other side; they cannot state what area accreted in any one year.
47. The pativari has only held his post as such for a period of 13 years and he found a considerable area on the Purnian side at the time of his appointment. The evidence of several witnesses is to the effect that the river has shifted its bed every year, but the extent of its movement in any one year is not given.
48. One fact is clear. It is, only during the three months of the rainy season that the erosion takes place. At other periods the river is shallow and fordable and flows in a very gentle stream.
49. The boundary between the two villages at Settlement time was but a short one, judging by the map. Its exact length has' not been proved, but neither of the villages is larse in area. They are roughly speaking about 500 Government bighas each. If the boundary between the two villages had been of considerable length and the villages of any great size, then the cutting away of a narrow long strip and its addition to the other village might well be said to be an accretion by gradual slow and imperceptible means, the area thus added being but a few G-ovenment Irighas per annum.
50. But where the villages are small in area and their common boundary but short in length, the removal of only a few bighas per annum can hardly be said to be by-gradual, slow and imperceptible means. The erosion takes place only in the rainy season. There is not a constant, slow, daily cutting away, spread over a long period. As each flood has confe and receded, the area cut away and added to the other side must in the case of these two small villages have been very perceptible. The proportion cut away each year is considerable, though the actual area is not great. Such an area would be of little consequence in the case of large estates on the banks of great rivers containing large volumes of water all through the year. In the present case we have a small river, shallow and fordable, which at one season of the year is liable to sudden floods, cutting away portions from small estates.
51. We find it impossible to hold that the accretion in this case has been that gradual slow and imperceptible accretion contemplated by the Regulation.
52. There remains the question of title acquired by prescription. Even assuming that the plaintiffs have cultivated those portions of the land which became culturable, we have it from the mouth of their own pa' wari that the land is only culturable in the rabi season, that it is every year covered with the flood water. While the floods are over the land, the plaintiffs cannot be said to have remained in possession. They have been then dispossessed by vis major and in the eyes of the law, the possession during flood time will be deemed to have been.in the defendants who had title. To acquire a title by prescription the plaintiffs must hold continuously for a period of 12 years. In the circumstances it has been impossible for them to do this and, therefore, impossible for them to acquire title by adverse posession for a period of 12 years.
53. The law on this point is covered by a decision of their Lordships of the Privy Council and is not contested before us. In our opinion the plaintiffs have failed to prove any title to the land. The contom alleged has not been pressed before us and the lower Court has decided that point in favour of the appellants. We, therefore, allow the appeal, set aside the decree of the Court below and dismiss the suit with costs in both Courts, including in this Court fees on the higher scale.