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Raja Audendra Partap Singh Sahai Vs. Daman Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All137; 29Ind.Cas.543
AppellantRaja Audendra Partap Singh Sahai
RespondentDaman Singh and ors.
Excerpt:
criminal procedure code (act v of 1898), section 145 - dispute as to land between two channels--boundary--province of agra and oudh--deep stream of ghagra--magistrate--jurisdiction. - - for the reasons given, i find no good cause for interference and dismiss this application......side and on the fyzabad side of the river with regard to possession of a portion of this alluvial land, a magistrate of the first class exercising jurisdiction in the district of basti took cognizance of the dispute under section 145 of the code of criminal procedure, and after issuing notice to the parties and conducting a formal inquiry has passed certain orders. the point taken in the application before me, and the only point with which i have to deal, is that the magistrate's proceedings were without jurisdiction because the land in dispute was situated in, and formed part of, the fyzabad district. the first question is as to the criterion to be applied. the magistrate has discussed this point, and in reliance on the statements made by the parties before him and also on the records.....
Judgment:

Piggott, J.

1. This is an application in revision arising out of a riparian dispute. The river Ghagra flows between the District of Fyzabad in the Province of Oudh and the District of Basti in the Gorakhpur Division in the Province of Agra. It appears that at a certain point between these two districts the river divides into two disinct channels, northern and southern, leaving an island of alluvial soil between the two. A dispute having broken out between the proprietors of villages situated respectively on the Basti side and on the Fyzabad side of the river with regard to possession of a portion of this alluvial land, a Magistrate of the first class exercising jurisdiction in the District of Basti took cognizance of the dispute under Section 145 of the Code of Criminal Procedure, and after issuing notice to the parties and conducting a formal inquiry has passed certain orders. The point taken in the application before me, and the only point with which I have to deal, is that the Magistrate's proceedings were without jurisdiction because the land in dispute was situated in, and formed part of, the Fyzabad District. The first question is as to the criterion to be applied. The Magistrate has discussed this point, and in reliance on the statements made by the parties before him and also on the records of custom found by him in the village papers, he has held that the deep stream of the river Ghagra, as it exists at any given point, forms the boundary line between the Districts of Fyzabad and Basti. In this I have no doubt that the Magistrate was right. The reasons given by him for his decision may be confirmed and strengthened by another consideration. The boundary in question is not merely between two districts, but between two provinces. In a case which came before me in the Judicial Commissioner's Court in Lucknow, the same question was raised. I was referred to a notification of the Governor-General in Council fixing the deep stream of the river Ghagra as the boundary between the Province of Oudh and what is now the Province of Agra at this point. I have mislaid the reference for the moment, but my recollection is clear as to the fact. The next question is whether According to this rule the land in dispute is in fact situated in the District of Basti. The Magistrate had to determine on which side of this land the deep stream of the river is situated. In other words, he had to determine whether the northern or the southern of the two streams, of which I have already spoken, could most appropriately be described as the deep stream of the river. He seems to have gone into this matter carefully and to hava based his decision in part on the evidence offered before him, and in part on his own observations in the course of two local inspections, during which he visited the two streams and the alluvial land between them at points separated by an interval of about two miles. The conclusion he has arrived at is that the southern stream represents the deep stream of the river. I'am not sure how far I should be justified in any case in reconsidering this point on the present application for revision, but I am content to say that I find no sufficient reason for dissenting from the conclusion arrived at by the Magistrate. The main point taken in argument before me against that conclusion seems to be that it was arrived at without taking specific measurements of the depth of the two streams, and indeed after an admission that the Magistrate had found it impossible to take such measurements, at any rate on the occasion on which he inspected the two streams at points immediately to the north and south of the land in dispute. As a matter of fact the question, which of two such streams may fairly be regarded as the deep stream of the river, is one to be decided on an inspection of the two streams along their entire separate course, and on a consideration of the appearance and circumstances of the two streams as a whole, including, of coarse, the question of the depth of each of the streams at various points. I gather from the Magistrate's order that what really settled the question to his mind was his inspection of the two streams at a point two miles further up stream from the land in dispute. He there found that the northern stream was fordable and was being easily crossed by people on foot whereas boats were lying along the southern stream. This is in effect a finding, though not based on respective specific measurements as to the depth of the two streams at this point. For the reasons given, I find no good cause for interference and dismiss this application.


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