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PETITIONER: RAM DHAN LAL AND OTHERS.

       Vs.

RESPONDENT: RADHE SHAM AND OTHERS

DATE OF JUDGMENT: 19/03/1951

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. FAZAL ALI, SAIYID AIYAR, N. CHANDRASEKHARA

CITATION:  1951 AIR  210            1951 SCR  370

ACT:     Bengal  Alluvion and Diluvion Regulation (XI  of  1825), ss.  2, 4 --Custom of dhar  dhura-Incidents--River  changing course suddenly--River flowing entirely outside the villages which    it   divided-Whether   custom   applies--Onus    of proof--Reasonableness  of custom Regulation  XI--Revival  of dhar dhura rights.

HEADNOTE:     The meaning of the custom of dhar dhura is that the deep stream or channel of a river is to be regarded, irrespective of its changes, as the constant boundary between two or more villages, and such a custom is expressly recognised in s.  2 of Regulation XI of 1825.     Whether  such  custom applies even to  cases  of  sudden changes in the course of a stream or only to gradual alluvi- al  action is a matter which has to be determined  upon  the evidence adduced in each case.  The onus of proving that the custom  applies to sudden changes also is on the person  who sets  it up, but such custom is not unreasonable and can  be established like any other 371 custom  by  cogent evidence.  (Their  Lordships  upheld  the finding  of the High Court that under the custom  prevailing in the villages in question it was applicable also to  cases of the stream suddenly altering its course.)     As the custom of dhar dhura implies that the deep stream of the river irrespective of the changes in its course,  is. to be regarded as a fixed boundary line between two or  more village.  s,  it is necessary for the  application  of  this custom  that the main stream of the river must  flow  within the  limits  of these villages. When the river  changes  its course  so  widely that it oversteps the boundaries  of  the villages concerned and ceases to divide these villages,  the rights of the riparian properties can be determined only  in accordance with the provisions of Regulation XI of 1825.     Obiter.  Though a riparian owner  cannot  claim a   land under  the custom of dhar dhura so long as the  river  flows outside  the limits of the villages  concerned,  his  rights under  the  custom would revive as soon as the  river  again flows within the villages.

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JUDGMENT:     CIVIL  APPELLATE  JURISDICTION :  Appeal  (Civil  Appeal No.  41  of 1949)  against the judgment and  decree  of  the Allahabad   High  Court  (Allsop and Verma  JJ.)  dated  8th September,  1942, in First Appeal No. 473 of  1936,  arising out of the decree of the Civil Judge, Bareilly,  dated  30th September,  1936, in Original Suit No. 18 of 1934.     Walter Dutt (P.S. Safeer, with him) for the  appellants.     P.I. Banerjee (Baleshwar Prasad, with him) for the respondents.     1951. March 19. The judgment of the Court was  delivered by     MUKHERJEA J.--This appeal is directed against an  appel- late  judgment  of a Division Bench of  the  Allahabad  High Court  dated September 8, 1942, by which the learned  Judges reversed  a  decree made in favour of the plaintiff  by  the Civil Judge of Bareilly in Original Suit No. 18 of 1934  and dismissed the suit as against defendants 1 to 4.     The  suit out of which the appeal arises, was  commenced by one Babu Ram as plaintiff and it was for 372 a  declaration that the lands in suit appertained to a  vil- lage  named Sikha situated in Tehsil Aonla within  the  dis- trict  of Bareilly, of which the plaintiff was the  Zemindar and Lambardar, and that the defendants had no right or title to  the same.  There was a claim for recovery of  possession in  case the plaintiff was found to have  been  dispossessed from  the whole or a portion of the disputed lands  with  an ancillary prayer for mesne profits.  The original  plaintiff died  sometime after the plaint was filed and the  suit  was continued by his two sons, who were brought on the record as his heirs and successors.  There were as many as 41  persons impleaded  as parties defendants to the suit and  they  were alleged  to  have  proprietory interest  in  two  contiguous villages  named Jhawa Nagla and Gurganwan which lie  to  the south and east of village Sikha.     The  allegations as they appear in the plaint,  in  sub- stance, are that the river Ram Ganga flowed to the south and east of mouza Sikha belonging to the plaintiff and according to  the custom of Dhar Dhura or deep stream boundary  preva- lent in the locality, the main channel of the river  consti- tutes  the indisputable, though fluctuating,  boundary  line between  village Sikha on one side and villages Jhawa  Nagla and  Gurganwan  on  the other.  Up to Fasli  year  1340  the course  of the river, it is said, changed several times  and the Zemindars of the three villages were deriving gains  and suffering  losses of land on account of these  alluvial  and diluvial changes.  In the Fasli year 1340, the Dhar or  main stream of the river was at the place marked C, D, E and F in the map attached to the plaint and the plaintiff, as  Zemin- dar of village Sikha, possessed a tract of land shown on the map to which the dispute now relates and which was  situated to the north-west of the stream and stretched on the  north- ern  and western side up to the limits of villages  Sisauna, Hazipur  and Sheopuri.  In the year 1341 the river  suddenly changed its course and leaving its old bed altogether  began to  flow entirely outside the limits of the  three  villages mentioned above.  The "dabri" or the old bed of the river as it stood in the year 1340 373 has been shown in the plaint map and constitutes,  according to the plaintiffs, the line of demarcation between Sikha  on

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one  side and the two villages Jhawa Nagla and Gurganwan  on the other. It is alleged by the plaintiff that the custom of Dhar Dhura could not create any title in the defendants, who are  the proprietors of villages Jhawa Nagla and  Gurganwan, to the disputed plot, which is to the north and west of  the main current of the river as it flowed in the year 1340,  as the  custom applies only when the change in the deep  stream is  gradual and not sudden and it cannot have  any  possible application  when the river leaves the three villages  alto- gether and ceases to flow within them as has happened in the present case. The different proprietors therefore should  be allowed, according to the plaintiff, to hold and possess  as appertaining  to  their Zemindary the lands  which  were  in their respective possession in the year 1340;and in law  and equity the disputed property should remain in possession  of the  plaintiff  as owner of mouza Sikha. As  the  defendants were  threatening to interfere with the plaintiff’s  posses- sion  in  collusion with the Patwari of  the  villages,  the present suit was instituted.     Out of the 41 defendants, written statements were  filed by 9 only.  Two of them again admitted the plaintiffs’ claim and pleaded that they were made parties to the suit unneces- sarily.  The suit was really contested by defendants 1 to  4 and  30 and they resisted the plaintiffs’ claim on a  number of  grounds,  most of which are immaterial for  our  present purpose. The substantial case made by the contesting defend- ants was that the custom of Dhar Dhura applied to every sort of  change in the deep stream of the river  irrespective  of the fact whether the change was gradual or sudden, or wheth- er  the river flowed within or outside the villages; and  as the  river  had receded to the north,  the  defendants  were according  to  this custom entitled to the lands  which  had been  joined to the lands of their villages up to  the  main channel  of the river.  It was asserted that the "dabri"  or the old bed of the 374 river  could not be treated as the demarcating line  between the three villages.     Thus  the  existence  of the custom of  Dhar  Dhura  was affirmed  by both the parties.  The difference between  them was  as regards the extent of the custom. According  to  the plaintiffs,  the custom was restricted in its  operation  to gradual  accretion  and did not extend to  cases  where  old formations  were suddenly severed by fluvial action  without destroying  their identity or preventing recognition of  the land so removed.  The second point raised by the  plaintiffs was that the custom could not apply when the main stream had shifted entirely beyond the villages between which it was to form the boundary line.     On  the first point the decision of the trial court  was adverse to the plaintiffs, but on the other point the  court decided  in  their favour.  The result was that  the  plain- tiffs’ claim was allowed and a decree was passed in  accord- ance  with  the  prayers made in the  plaint.  Against  this decision  the defendants 1 to 4 took an appeal to  the  High Court  of  Allahabad.  The appeal was heard  by  a  Division Bench  consisting of Allsop and Verma JJ. who   allowed  the appeal  to this extent that the plaintiffs’ claim  was  dis- missed  as against defendants Nos. 1 to 4 who had filed  the appeal,  though  as regards the rest of the  defendants  the decision of the trial judge was kept intact.  It is  against this judgment that the plaintiffs got leave to appeal to the Privy Council and the appeal has now come up for hearing  by this  court.  It has been brought to our notice that of  the two  plaintiffs  who filed the appeal, one  has  since  then

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compromised the suit with the contesting defendants and  the appeal is being prosecuted before us on behalf of  plaintiff No. 1 alone.     The  learned Counsel appearing in support of the  appeal has pressed for our consideration both the two points  which were  put forward in support of the plaintiff’s case in  the courts below.  It has been contended in the first place that the  evidence  adduced in this case does not  establish  the custom of Dhar Dhura in 375 such extreme form as would create a change of ownership even when  there is transfer of lands by a sudden change  in  the course of the deep stream.  It is urged  that even if such a custom is proved to exist, it should be held to be unreason- able  and hence unenforceable in law.  The other  contention raised is that in any view there is no scope for application of the custom in the present case where the river has  over- stepped  the limits of the three villages and has ceased  to be the dividing line between them.     As  regards the first point, it seems to us that on  the facts admitted and proved, it is not possible for us to take a  view different from that taken by both the Courts  below. The meaning of the custom Dhar Dhura is that the deep stream or channel of a river is to be regarded, irrespective of its changes,   as   the  constant boundary between two  or  more villages.  Such custom is expressly recognised in section  2 of Regulation XI of 1825 which lays down that "whenever  any clear and definite usage  ......  may have been immemorially established for determining the rights of the proprietors of two  or  more contiguous estates divided by river  (such  as 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 usage  so  estab- lished shall govern the decision of all claims and  disputes relating  to alluvial lands between the parties." That  such custom  prevails in the locality is proved by  the  "Wazibu- larz" prepared at the last settlement of Mouza Sikha and the custom is there recorded as follows:--     "The river Ram Ganga flows on the boundary line of  this village.  The  custom of Dhar Dhura  prevails  between  this village  and  Gurganwan, Jhawa Nagla  and  Rakhara,  Pargana Aonla. If any piece of land is included in the area of  this village  on account of the alluvial action of the river,  we the  Zemindars shall be the owners thereof and if any  piece of  land of this village is washed away, it shall  be  owned and  possessed  by the Zemindars of the village  wherein  it appears’ in the 376 same way in which we were in possession thereof." The record thus  speaks of change by alluvial action of the  river.  It does not say whether such alluvial action should be  gradual or  sudden; by itself, therefore, it does not indicate  with precision  the  ambit of the right that is connoted  by  the custom. This is a matter which has got to be determined upon the evidence adduced by the parties and the onus of proof is undoubtedly on the person who sets up a custom at   variance with  the  general law.  We are in agreement with  the  view expressed by Oldfield J.  in Sibt Ali v. Muniruddin (1) that the court should "scrutinise with care evidence in regard to a  custom  which would have the effect of passing  from  one owner to another land long held and enjoyed and of which the character  is  in no way altered by river  action";  but  if cogent and satisfactory evidence is forthcoming, there is no reason why the existence of such custom could not be  estab-

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lished  like any other fact.  Apart from the  oral  evidence that has been adduced in this case there are two Rubkaris of the Collectorate and one judgment by a Civil Court to all of which   the   predecessors  of the  parties to  the  present litigation were parties and they show clearly that  demarca- tion of the lands of the three villages has always been made with  reference  to the position of the deep stream  of  the river  at different times and it was regarded as  immaterial whether  the change in the stream happened gradually or  all on a sudden. From the Rubkari (Ex. H. 27) it appears that in 1283  Fasli  the river suddenly altered its course  and  cut away not only the vacant accretion to Sikha but also a  part of  the mouza as it existed at the date of settlement.   The land thus cut off was treated as an increment to Jhawa Nagla and Gurganwan and fresh settlement was made with the  Zemin- dars  of  these  villages.  It is stated  by  the  Assistant Collector of Bareilly in this Rubkari that the existence  of the custom was proved by careful local investigation and  it was to the effect that the bed of the river should always be held to be the boundary and that it should (1) I. L. R. 6 All. 479 at 481. 377 be so held whether the river suddenly altered its course  or gradually  encroached  on any mouza.  The Peshkar,  who  was deputed  to make an enquiry, quoted ’ a number of  instances where the river altered its course both ways within the last 30  years  prior  to this date. This Rubkari, it  is  to  be noted, is dated the 8th November, 1876. Ex. D-1 is a  -judg- ment of the Subordinate Judge of Bareilly dated the 29th  of July,  1907, and it was passed in a suit instituted  by  the proprietor of mouza Sikha against the owner of Jhawa  Nagla. The  question raised was whether a quantity of  land  apper- taining to mouza Sikha which was detached by a sudden change in  the  course of the river and thrown on the  Jhawa  Nagla village  could be claimed by the plaintiff.  The answer  was given  in the negative, and the decision was based  entirely upon the custom of Dhar Dhura which was held to be  applica- ble  even when the change was sudden.  These documents  fur- nish  clear  proof of the custom being  held  applicable  to cases of the river suddenly altering its course and  cutting off  blocks of land from villages situated on one  or  other side of its channel.  In the face of this clear and definite proof  of the usage, we are unable to say that the  decision of the courts below on this point is wrong.     It  is urged by the learned counsel for  the  appellants that such custom is unreasonable and should for that  reason be held to be unenforceable in law. It cannot be denied that the  application of the deep  stream rule might work  injus- tice  in  certain cases as the gain or loss of  property  is made  to depend  upon accidental and uncertain phenomena  or mere  caprice  of nature; but on the other hand  the  custom affords a convenient and effective way of avoiding  boundary disputes  which  might  otherwise be a  fruitful  source  of strife  and  contention  between  riparian  proprietors.   A custom must not certainly be against reason, but the  reason referred  to here is not to be understood as  meaning  every unlearned  man’s   reason but  artificial and  legal  reason warranted by authority of law (1).  It is  sufficient if (1) Vide Coke on Littleton 49 378 no good legal reason can be assigned against it.  Prevention of  quarrels and disputes  between contiguous  villages  and estates  is certainly an object beneficial to the  community and judged by this test, the custom of Dhar Dhura cannot  be

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held  to  be  unreasonable. It may be pointed  out  in  this connection   that  in some shape or other this  deep  stream rule has been recognised in India from very early times as a convenient mode of settling boundary  disputes and   Brihas- pati,   the  Hindu  Smriti writer, enunciates  the  rule  in almost  identical  terms which has been referred to  in  the writings  of later commentators as pointed out by Lal  Mohan Doss  in  his  Tagore Law Lectures on the  Law  of  Riparian Rights C)- The first contention of the appellant, therefore, cannot be accepted.     The other contention put forward by the appellant raises the  question as to whether the custom of Dhar  Dhura  could have any application to the facts of the present case  where the  river  is not flowing within the villages at  all.   On this point, we think that the correct view has been taken by the  learned Subordinate Judge and the reasons and the  con- clusion of the High Court upon it do not appear to us to  be sound.     If, as the custom of Dhar Dhura implies, the deep stream of a river irrespective of the changes in its course, is  to be  regarded  as a fixed boundary line between two  or  more villages, it is absolutely necessary that the main stream of the river must flow within the limits of these villages.  It is only for the purpose of determining the boundary  between certain  villages and estates that the custom of Dhar  Dhura can  be invoked; and-unless the river actually  divides  the villages  or estates, there can be no question of its  being regarded as a boundary line between them and in such circum- stances the deep stream rule cannot possibly have any  mean- ing.  A custom which defeats or has no relevancy to the very object  for  which it came into existence cannot  under  any circumstance  be  regarded as valid.  We are  not  satisfied also that the evidence     (1) Vide Doss on the Law of Riparian Rights p. 15, 178 379 in  the record establishes the existence of such  custom  at all.  Section 2 of Regulation XI of 1825 makes it  perfectly clear that a custom contrary to the provisions of the  Regu- lation  would  be enforceable only when it is a  custom  for determining the rights of proprietors of two or more contig- uous estates divided by the river. When the river ceases  to divide the estates, the rights of ’the riparian  proprietors can  be  determined only in accordance with  the  provisions made  in the Regulation itself.  It has been argued  by  Mr. Banerjee, appearing for the respondents, that assuming  that the custom of Dhar Dhura could not be invoked by the defend- ants  when the river had receded beyond the limits of  mouza Sikha,  still the plaintiff in order to succeed in the  suit must have to show how he acquired title to the tract of land lying to the north and west of the "dabri" or the old  water course,  which  is the subject matter of the  claim  in  the present suit.  The answer to this argument would clearly  be that  when  the main current of the river was at  the  place where  the "dabri" stands at present, the entire stretch  of land lying to the north west of the main stream came to  the plaintiff  under the custom of Dhar Dhura. In the year  1341 Fasli the river suddenly changed its course and as it shift- ed  to the north and west beyond the limits of mouza  Sikha, the  custom of Dhar Dhura would no longer govern the  rights of  the parties and the title to the plot of land, which  is the subject matter of dispute, must be determined in accord- ance  with the provisions of the Regulation itself.  As  the change in the course of the river was sudden and not gradual and  the character and  identity of the land  have  remained intact,  the plaintiff would clearly be entitled to  possess

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the  land on the strength of his original title as  provided for in section 4, clause (2), of Regulation XI of 1825.   In our  opinion, therefore. the decision of the learned  Judges of the High Court on this point is not correct and should be reversed.     Mr.  Banerjee  argues further that even if  his  clients cannot  claim  the disputed land under the  custom  of  Dhar Dhura so long as the river flows outside the limits 380 of the village, their rights under the custom should  revive as soon  as the river comes down within the limits of  mouza Sikha.   This position certainly has got to be admitted  but as  we are concerned with the state of affairs  existing  at the  date  of the institution of the suit  and there  is  no evidence  on the record as to the position of the  river  at the  present  moment, the plaintiff will be  entitled  to  a decree  in the form as it was given by the trial  judge,  it being  clearly understood that the rights declared  in  this suit would be subject to the custom of Dhar Dhura which  the defendants  may  invoke  if and  when  the  proper  occasion arises. Subject to this observation, we allow the appeal and restore the judgment of the trial judge.  The plaintiff  No. 1 will be entitled to his costs.                              Appeal allowed.    Agent for the appellants: R.S. Narula.    Agent for the respondents: Tarachand Brijmohan Lal.