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1925 Supreme(SC) 26
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD PHILLIMORE, LORD CARSON, SIR JOHN EDGE, AND MR. AMEER ALI.
RAJENDRA NARAIN DHANJ - Appellant
Versus
GANGANANDA SINGH - Respondents
On appeal from the High Court at Patna.
Decided On : May. 13. 1925.
Solicitors for appellant:Barrow, Rogers & Nevill. Solicitor for respondents: H. S. L. Polak.
Established that immemorial custom regarding river boundaries (shekust pywust) governs alluvial land disputes regardless of the cause of the river's change in course, and that hearsay evidence is admissible to prove the immemorial nature of such customs.
Headnote:(A) Bengal Regulation XI of 1825 - Section 2 - Alluvial land - Customary law - Shekust pywust - Boundary disputes - Whenever any clear and definite usage of shekust pywust 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 contiguous estates divided by a river, the usage so established shall govern the decision of all claims and disputes relative to alluvial land between the parties. (Para 13)
(B) Evidence of Custom - Immemorial usage - After the existence of a custom for some years has been proved by direct evidence, it can, as a rule, be shown to be immemorial by hearsay evidence, which is allowable as an exception to the general rule. (Para 17)
(C) Application of Custom - Cause of river change - A custom governing the boundary of estates divided by a river applies regardless of the specific cause of the river's swelling or change in course, including the overflow of one river into another, provided the resulting diluviation and alluvion are associated with the river forming the boundary. (Para 14)
Facts of the case:
Two contiguous estates were divided by a river. Due to the encroachment of another river and subsequent flooding, land belonging to one estate was washed away and later reappeared. The owner of the estate on the southern bank took possession of the reappeared land, claiming that by immemorial custom, the middle line of the river bed formed the constant boundary between the estates, regardless of changes in the river's course. The lower courts disagreed on whether the custom existed and whether it applied given the specific cause of the flooding.
Findings of Court:
The court found that a general usage existed whereby the main channel of the river formed the constant boundary between the estates. It held that the cause of the flooding—the overflow of one river into another—did not prevent the application of the established custom, as the resulting diluviation and alluvion were still associated with the river serving as the boundary.
Issues: Whether a local custom establishing the river's main channel as a constant boundary was proved and whether such a custom applied when the land was diluviated and reformed due to the overflow of one river into another.
Ratio Decidendi: The court ruled that once a custom is established by direct evidence for a period of time, hearsay evidence is admissible to prove it is immemorial. Furthermore, the specific cause of the river's change in course does not invalidate the application of an established boundary custom if the land is recovered from the river that serves as the boundary.
Result: Appeal allowed, with costs, the decrees of both Courts set aside, and the suit dismissed with costs.
Legal Category Hierarchy
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property law
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riparian rights
- alluvion and diluvion
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riparian rights
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customary law
- immemorial custom
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practice and procedure
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evidence
- hearsay evidence
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evidence
Judgement
Appeal (No. 126 of 1922) from a decree of the High Court at Patna (March 21, 1919), varying a decree of the Subordinate Judge (Second Court) of Monghyr.
The suit was brought in 1910 by plaintiffs, now represented by the respondents, to recover possession from one Aguilar, now represented by the appellant, and tenants from him, of 709 bighas of alluvial land as part of mauza Mansi of which the first plaintiff was owner and the other plaintiffs tenants. Aguilar was the owner of mauza Rahimpur. The Gandak river, a tributary of the Ganges, had formed the southern boundary of Mansi and the northern boundary of Rahimpur. The defendant Aguilar by his written statement pleaded as follows " This defendant submits that the disputed land is to the south of the present bed of the flowing Gandak, and is either reformation of, or accretion to, mauza Rahimpur, or partly accretion and partly reformation, and justly, lawfully, and according to established usage and custom which have the force of law and the customary law of India from time immemorial, appertain to mauza Rahimpur, and have all along formed part and parcel of it and has been dealt with as such.”
The facts and the terms of s. 2 of Ben. Reg. XI. of 1825 appear from the judgment of the Judicial Committee.
The Subordinate Judge held on the evidence that the Gandak was not by local custom the constant boundary of the two mauzas. After a survey of the land by a Commissioner a decree was made for the recovery of 606 bighas with mesne profits.
An appeal to the High Court by the first defendant was dismissed, and upon cross-objections by the plaintiffs the area of the land recovered was varied in the plaintiffs favour. The view of the High Court appears from the present judgment.
1925. March 17. De Gruyther K.C., and Hyam for the appellant. On the conclusion which the High Court came to as to the existence of a local custom, that Court should have affirmed the decree of the trial judge dismissing the suit. Sect.2 and not s.4 of Ben. Reg. XI. of 1825 applies. There was a change in the course of the river within the meaning of s. 2; it is not material how that change came about.
The custom alleged was the usual custom of the country before the Regulation was enacted see Doss Law of Riparian Rights, p. 178. [Reference was made also to Lopezs case (13 Moo. I. A. 467.) and to Secretary of State for India v. Raja of Vizianagaram . (( 1921) L. R. 49 I.
A. 67.)]
Kenworthy Brown for the respondent The defendant pleaded a custom whereby the river formed the boundary in whatever circumstances a change in its course took place. The evidence did not support that custom; it was conceded that it did not apply to a sudden change. No custom was proved applicable to the particular circumstances of this case. The judgment of the Board in Lopezs case (13 Moo. I. A. 467, 475.) expressly states that the Regulation does not apply so as to effect a gain of territory at the expense of another individual proprietor, but applies only to effect a gain from the public domain. [Reference was made also to Jagjot Singh v. Brijnath (( 1900) L. R. 27 I. A. 79.) and Ritraj Singh v. Sarfaraz Koer . (( 1905) L. R. 32 I. A. 165.)]
De Gruyther K.C. replied.
May 13. The judgment of their Lordships was delivered by
LORD CARSON. The defendant-appellant is the owner of mauza Rahimpur and the plaintiffs-respondents are the owners of mauza Mansi in Pargana Farkia. The river Gandak or Bari Gandak flows between the two villages, mauza Mansi being situated on its northern side, and mauza Rahimpur on its southern side. The river Ganges flows at some distance to the south of the Gandak. In 1899 the Ganges began its encroachment northwards, and ultimately joined with the Gandak, and by the combined action of the two rivers certain of the lands which had formed part of the mauza Mansi were "diluviated," i.e., the surface soil (the cultivable soil) was wholly washed away. In course of time, however, the waters receded, and abou
