Bajrangi Raut and Others vs Lala Janki Parshad

Wort, J.—This is an appeal by the defendants in an action with regard to 3 bighas 15 kathas 19 dhurs of land. The defendants were in possession. The plaintiff claimed possession on the footing of a custom to the effect that the river Lakhandei was taken to be under all circumstances the boundary between the plaintiff''s village and the defendants'' village. The plaintiff''s village is Semra and the defendants'' Bhabaprasad. Now, in order to come to a conclusion, it is essential to note the manner in which the plaintiff put his case before the Court.

In the plaint he contended in the first instance that the land in dispute accreted to his village; then, later on in his plaint by para. 5, he alleged the custom to which I have already referred. The learned Judge in the Courts below, in my opinion, quite clearly decided the case on the footing of the custom. Issues were settled and the first issue was to this effect:

Whether there is any custom of usage by which the middle of the river Lakhandei has been fixed to be the boundary between the two adjoining villages Semra and Bhabaprasad.

Then deciding the second issue which was:

Whether the river Lakhandei had suddenly changed its course in the year 1902 as alleged by defendant or had gradually shifted and the lands form accretion to plaintiff''s village,

the learned Judge made this observation:

In view of my finding in the previous issue, the determination of this issue is quite immaterial, because the custom will prevail, whether the river changed its course gradually or suddenly.

The learned Judge in the trial Court as well as the learned Judge of the appellate Court decided that the custom has been established. Various documents were relied upon, principally maps, which, showed that invariably the river Lakhandei did in fact form the boundary between the two villages. Although there is a reference in one part of the judgment of the trial Court to the fact that the course of the river was different from time to time, there is no clear finding by either of the Courts below that during, the period covered by the documentary evidence which was relied upon by the Judge that the river had so changed its course. The only definite finding that we have is the one to which I have already referred, namely that the river changed its course suddenly in the year 1902. I have very grave doubts whether a finding as to the custom based on evidence of that description to which I have referred can possibly stand. But there are other considerations which in my judgment dispose of the appeal. The learned Judges of both the Courts appear to have been of the opinion that Regn. 11 of 1825 applied to the case. That regulation is nothing more than a declaratory enactment of the law in England as it stood at the time. In Lopez v. Muddun Mohun Thakoor (1869) 13 MIA 467, Lord Justice James is reported to have stated at p. 474:

The principle of law, so far as relates to accretion has, to some extent, been made part of the positive written law of India and it is on the operation of such positive written law that the defendants'' case is based.

Later on in the course of the judgment he makes an observation which in my opinion is material to this case:

Their Lordships are therefore of opinion that the property now being capable of identification by means of that Tanabundee and otherwise, the property having been the property of the plaintiff when it was submerged, never having been abandoned or derelict, having now emerged from the Ganges, is still his property.

If I understand the observation aright the learned Lord Justice was merely stating the exception to the rule laid down in Regn. 11 of 1825 to the effect that where land was identifiable the rule did not apply. It is also clear from the observation in the case to which I have referred that the Regulation applied only to alluvial land. Now, the plaintiff''s case was, in para. 3 of his plaint that there was a gradual accretion. But that title acquired by accretion was in my judgment clearly made to depend upon the existence of this custom, and the custom alleged was a custom that wherever the bed of the river was found that was the boundary between the two villages. A perusal of the judgment of the Judge in the Court below will bear this out. The learned Subordinate Judge in the Court below in deciding the second point, the second point being ''whether the lands in suit gradually accreted to the land in the plaintiff''s village'' makes this observation:

This point is also decided in favour of the plaintiff as there cannot be any doubt that on account of the shifting of the river Lakhandei from its former position namely the position which it had at the time of the cadastral survey and in which the disputed lands were recorded in the name of the defendants, (it) shifted to its present position by which the disputed lands went to the other side of the village Bhabaprasad.

Now, it is clearly indicated in that observation that what the Judge was depending upon was the decision on the first point, namely whether the custom had been established, and it was upon that that the plaintiff''s case depended as I have already observed. I have no hesitation in saying that it was not a case covered by Regn. 11; it was not a case of diluvion at all, but it was a case which depended upon the position of the river as the boundary of the two villages. Clause 2 of Section 4 may be noticed in this connexion. The Judge in the trial Court had come to the conclusion that the river had suddenly changed its course in 1902 and observed that in a river of the size of Lakhandei a gradual accretion was not to be expected. The decision of the appellate Court on point 2 did not reverse that conclusion. The judgment of both Courts in my judgment proceeded on the footing of this alleged custom; and quite apart from the question whether the evidence relied upon for its proof justified a finding as to its existence, I am clearly of the opinion that the custom alleged was so unreasonable as not to be provable in law. The appeal therefore succeeds and the suit must stand dismissed with costs both in this Court and in the Courts below.

James, J.

I agree.