1951 Supreme(SC) 24

SUPREME COURT OF INDIA
Saiyid Fazal Ali, B.K. Mukherjea, N. Chandrasekhara Aiyar, JJ.
 
Ram Dhan Lal and others – Appellant
Versus
Radhe Sham and others – Respondent
Appeal No. 41 of 1949
Decided On : 19-03-1951

Headnote:Bengal Alluvion and Diluvion Regulation (XI of 1825) Ss. 2, 4-Dhar Dhura or deep stream boundary custom-Incidents of-Effect of river changing course suddenly and flowing entirely outside the villages which it divided-Custom whether applicable-Onus of proof - CustOQl not unreasonable.

       A sued for a declaration that the lands in suit appertained to a village of which he was the zamindar and lambardar, and that the defendants had no right or title to the same. There was a claim for recovery of possession in case A was found to have been dispossessed from the whole or a portion of the disputed lands with an ancillary prayers for mesne profits. It was alleged by the plaintiff that according to the custom of Dhar Dhura or deep stream boundary prevalent in the locality. the main channel of the river constitutes the indisputable though fluctuating

       1. The High Court quoted the following observations of Blackburn J. in The Queen v.

       The Justices of Kent (1846) L.R. 8 Q. B. 305, 307) :

       "No doubt at common Jaw, where a person authorises anolher to sign for him, the signature of the person so signing is the signature of the person authorising it ; nevertheless there may be cases in which a statute may require personal signature,"boundary line between the plaintiffs viJlage and the villages of the defendants, that in the Fasli year 1340 the plaintiff was in possession of the land in suit according to this custom, that 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 plaintiffs village as well the defendants villages, that the custom of Dhar Dhura could not create any title in the defendants to the disputed land, as the custom applies only when the change in the deep stream is gradual and not sudden, that it cannot have any possible application when the river leaves the three villages altogether and ceases to flow within them as happened in this case, and that therefore the different proprietors should be allowed to hold and possess as appertaining to their zamindary the lands which were in their respective possessions in the year 1340. The villages are in Tehsil Aonla of district Bareilly and the river is Ram Ganga.

       The defendants alleged that the custom of Dhar Dhura applied to every sort of change in the deep steam of the river irrespective of the fact whether the change was gradual or sudden, or whether 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 also asserted that the "dabri" or the old bed of the river could not be treated as the demarcating line between the three viJlages.

       The trial court aJlowed plaintiffs claim. Defendants 1 to 3 appealed to the High Court in which the plaintiffs claim was dismissed 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. There was further appeal with leave by the plaintiffs.

       Held (allowing the appeal)!; (1) The meaning of the custom Dhar Dhura is that the deep stream or channel of a river is to be regarded, irrespective of the changes, as the constant boundary between two or more villages. Such custom is expressly recognised in section 2 of Regulation XI of 1825.2 That such custom prevails in the locality is proved by the Wajib-ul-arz, prepared at the last settlement of the village. The record 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.

       (2) The court should "scrutinise with care evidence in regard to a custom which would have the effect of passing from one owner to another

       1.From Radhey Shyam v. Ram Dhan Lal, A.I.R. 1943 All. 68. 2. Regulation XI of 1825, S. 2 is to the following effect:

       "Whenever any clear and definite usage of Shikast Paiwast, respecting the disjunction and junction of land by the encroachment or recess of a river, may have been immemorially established. for determining the rights of the proprietors of two or more continuous estates divided by a river (such as the main channel of the river dividing the estate shall be the constant boundary between them, whatever chan~es may take place in the course of the river, by encroachment on one side and accession on the other), the usage so established shall (unless and until a boundary is fixed under the provisions of section IOI-A of the Punjab Land Revenue Act, 1887, as amended by the Punjab Riverain Boundaries Act, 1899), govern the decision of all claims and disputes relative to alluvial land between the parties whose eStates may be

       liable to such usage." .lan<~ long held and enjoyed and of which the character is in no way altered by river action":1 but if cogent and satisfactory evidence is forth~ coming, there is no reason why the existence of such custom could not be established like any other fact. On evidence it must be held that under the custom prevailing in the villages in question it was applicable also to cases of the stream suddenly altering its course.

       (3) The custom of Dhar Dhura is not unreasonable. It cannot be denied that the application of the deep stream rule might work injustice in f-ertain 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 fruitful source of strife and contention between reparian proprietors. A custom must not certainly be against reason, but the reason referred to here is not to be understood as meaning every unlearned mans reason but artificial and legal reason warranted by authority of law.2 It is sufficient if 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 held to be unreasonable.

       (4) 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 vilJages. It is only for the purpose of determining the boundary between certain vilJages and estates that the custom of Dhar Dhura can be invoked; and unless the river actually divides the vilJages or estates, there can be no question of its being regarded as a boundary line between them and in such circumstances the deep steam rule carmot possibly have any meaning. When the river ceases to divide the estates, the rights of the reparian proprietors can be determined only in accordance with the provisions made in the Regulation itself. As the change in the course of the river was sudden and not gradual and the character of identity of the land have remained intact, the plaintiff would clearly be entitled to possess the land on the strength of his original title as provided for in S. 4 CI. (2) of Regulation XI of 1825.3

       1.Sibt Ali v. Muniruddin, I.L.R. 6 All. 479 (481) approved.

       2.Vide Coke on Littleton-62 (a).

       3. Clauses (1) and (2) of S. 4 of Regulation XI of 1825 read as follows:

       •First.-When land may be gained by gradual accession, whether from the recess of a river or of the sea it shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed, whether such land or estate be held immediately from Government bv a zamindar or other superior, or as a subordinate tenure, by any description of under-tenant whatever:

       Provided that the increment ofland thus obtained shall not entitle the person in possession of the estate or tenure to which the land may be annexed to aright of property or permanent interest therein beyond that possessed by him in the estate or tenure to which the land may be annexed, and shaH not in any case be understood to exempt the holder of it from the payment to Government of any assessment for the public revenue to which it may be liable under the provisions of Regulations II of 1819 or of any other Regulation in force.

       Second.-The above rule shall not be considered applicable to cases in which a river, by a sudden change of its course, may break ~hrough and intersect an estate without any gradual encroar.hment, or may by the VIolence of stream separate a considerable piece of land from one estate, and join it to another estate without destroying the identity, and preventing the recognition, of the land so removed.

       In such cases the land, on being elearly recognised. shall remain the property of its original owner." (5) Obiter: Even though the defendants cannot claim the displ,lted land under the custom of Dhar Dhura so long as the river flows outside the limits of the village, their rights under the custom should revive as soon as the river comes down within the limits of the plaintiffs village. Custom of Dhar Dhura-Proof-Bengal Alluvion and Diluvion Regulation (XI of 1925), Ss. 2,4(2)., Sections 101 to 10-Custom of Dhar Dhora-Bengal Alluvion and Diluvion Regulation, 1925, Ss. 2, 4 (2).