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 about 58