JUDGMENT
1. This appeal by the plaintiffs arises out of a suit for recovery of possession of 111 bighas and odd of land described in schedules I and It of the plaint.
2. The question, which it raises for determination, is, whether these lands in suit, which, on the finding of the Court below, are reformations on the old site, which is clearly identifiable as being part of village Salha on the southwestern bank of river Bakeya belonging to the plaintiffs, now, by reason of the flowvial action of the river, on its north-eastern bank, attached to village Hasanpur Khurd, belonging to the defendants, still belongs to the plaintiffs.
3. The facts, which are no longer in dispute, are these; river Bagmati or Bakeya, as it is known in the locality, flows between villages Salha Tauzi Nos. 618 and 16072 belonging to the plaintiffs, and Hasanpur Khurd Tauzi No. 2704 belonging to the defendants. The mid-stream line of the river was the boundary line between the two villages, Salha and Hasanpur Khurd, at the time of the revenue survey in 1846, and, it appears that the whole of Schedule II lands and a part of schedule I lands were, then, on the north-eastern bank of the river and within the boundary of Hasanpur Khurd. River Bakeya seems to have shifted its course slowly and gradually towards north-east, and at the time of the cadastral survey in 1900, the entire schedule I land, consisting of 76 bighas and odd, was on the south-western bank of the river appertaining to village Salha, and was surveyed as part of that village. The whole of Schedule II land, consisting of 35 bighas and odd, was, at that time, on the north-eastern bank of the river appertaining to village Hasanpur Khurd and was surveyed as part of that village. The mid-stream line of the river Bakeya was shown in the map prepared by the cadastral survey as being the boundary between the two villages. It appears, further, that the river Bakeya kept on shifting its course slowly and gradually towards north, in consequence of which, the last mentioned in Schedule II diluviated from the Hasanpur aide and alluviated on the Salha side, and was taken possession of by the plaintiffs sis having accreted to their estate without any objection whatsoever on the part of the maliks of Hasanpur Khurd. There was a partition between the maliks of Salha in the year 1914-15 and the lands mentioned both in schedules I and II were partitioned amongst them as appertaining to their village Salha.
4. There is no dispute between the parties regarding the position which the river occupied up to the year 1915. The difference arises in regard to the time when, and the manner in which the river shifted its course thereafter. According to the plaintiffs, there was slow and gradual shifting of the course of this river towards west and south which led to 10 bighas of land out of the disputed lands being cut away and accreted to the land of Hasanpur Khurd on the north-east. Three or four years after, the plaintiffs allege, the river shifted again to the north and the east, and thus the 10 bighas of land came back to the Salha side, and the river Bakeya began to flow close to the north-east of the disputed land mentioned in schedule II of the plaint. The position thus occupied by the river in 1923, which, according to the case of the plaintiffs, remained fixed and unchanged until 1934, when as a result of the great earthquake and severe flood following in the wake of it, the levels in the locality having become disturbed, there was a sudden change in the course of the river shifting it to the west and south of Hasanpur Khurd throwing the lands in dispute on the north-eastern bank of the river and attaching them to Hasanpur Khurd. According to the case of the defendants, on the other hand, there was no change in the course of the river after the earthquake of 1934. According to them, after the partition of village Salha in 1914-15 the river began to shift slowly and gradually towards the west and south. The lands on the Salha side began slowly and gradually to diluviate and similarly to alluviate on the side of Hasanpur Khurd. This process went on from 1915 to 1923 when the entire area mentioned in schedules I and II slowly and gradually came over to the side of Hasanpur Khurd, and was taken possession of by them as accretion to, and part of, and within the boundary of, their village Hasanpur Khurd Tauzi No. 2704, the mid-stream line of the river being by custom the boundary between the two villages Salha and Hasanpur Khurd. According to them, there has been no appreciable change in the course of the river since 1923 up till now, and the present course of the river which runs just to the west and south of the entire disputed land has been the course of the river since 1923.
5. The plaintiffs base their claim to the land in dispute, on its having been cut off from their village by sudden change in the course of the river, and having reformed on the original site and being identifiable as part of the land appertaining to the village Salha, which was in their possession and which belonged to them before the river suddenly changed its course. They deny that there was slow and gradual shifting of the course of river from 1915 to 1923 from north-eastern side to the west-southern side of the disputed land as alleged by the defendants.
6. The defendants, on the other hand, assert their right to retain possession of these lands on account of their having accreted on the lands of their village Hasanpur Khurd Tauzi No. 2704, slowly and gradually as also on account of a custom which, they plead, is prevalent in the locality, namely, the deep stream of the river being always the boundary between the two villages on either side of the river irrespective of the position that the course of the river may occupy at a particular time.
7. The main questions of fact, therefore, which fell to be decided by the Court below were : (1) Whether the river Bakeya which ran just to the north and the east of the disputed lands, shifted all of a sudden its course in 1934 on account of the earthquake, to the south and the west of the disputed lands, or whether the position which the course of the river at present occupies, is the result of slow and gradual shifting of its course from the north and the east to the south and west of the disputed lands during the period, 1915 to 1923 ; (2) Whether the lands in dispute now on the north-eastern side of the river are reformations on the original site, which is identifiable as having been previously on its south-western side appertaining to village Salha; and (3) whether the custom of the mid-stream being the constant boundary between the two villages Salha and Hasanpur Khurd, as alleged by the defendants, in para. 10 of the written statement, has been made out.
8. The learned Subordinate Judge held that since 1923 there has been no appreciable change in the course of the river Bakeya, and that the case of the defendants that the lands in dispute came over to the Hasanpur side by slow and gradual shifting of the course of the river was true. He did not accept the case of the plaintiffs, namely, that there was a sudden change in the course of the river by reason of the earthquake in 1934. The learned Subordinate Judge, however, held that the disputed land had re-appeared on its old site which is identifiable as being that which in 1915 formed part of Salha belonging to the plaintiffs. He further held that the evidence adduced on behalf of the defendants that the general custom of the deep stream as being the constant boundary between the two riparian estates wherever river Bakeya flowed was not made out, but, that such a custom was proved to have been prevalent in the locality of the disputed lands. He also held that the disputed lands as they went on accreting to the lands of Hasanpur Khurd between the years 1915 to 1923, were taken possession of by the defendants and had since been in their possession. He, accordingly, held that the defendants were entitled to retain possession of these lands as part of their village, not only by reason of these lands having accreted slowly and gradually to their lands but also, for the reason, that by custom the middle line of the river was to be permanent boundary between these two villages. He held also that for the reason that the defendants had been in possession of these lands for more than 12 years, the plain-. tiffs’ suit was barred by limitation. He, therefore, dismissed the plaintiffs’ suit. Hence, this appeal.
9. Mr. P. R. Das, appearing for the appellants, apart from attacking the finding of the Court below against the appellants on the question of the lands in dispute having been cut away from village Salha on account of the sudden change in the course of the river in 1934, as being erroneous, contends that the Court below, having found that the lands in dispute are identifiable as having reformed on its old site belonging to the plaintiffs, he should have held that the defendants had no title to retain these lands as accretions to their lands by slow and gradual process. He attacks the finding of the Court below in favour of the defendants on the question of custom pleaded by them as being inconsistent and self-contradictory. He contends further that custom to which Section 2 of Regulation XI [11] of 1825 refers applies only to cases of alluvion and diluvion, and not to reformation in situ by sudden change in the course of a river. If, as found, the land claimed by the plaintiffs is reformation on the site which belonged to them, and if it be found that it is so by avulsion, he contends, the case is taken out of the purview of Regulation XI [11] of 1825, and the plaintiffs cannot be deprived of their lands either by reason of any custom or law of accretion, as incorporated in the Regulation. A custom, which in the case of a sudden change in the course of a river, will deprive a man of what is proved to belong to him will be unreasonable, and, as such, not provable under law. He relies on a decision of this Court in he case of Bajrangi Raut v. Janak Prasad, A. I. R. (23) 1936 Pat. 637 : (166 I. C. 198). He further contends that no such custom has been pleaded, much less proved in the case. In regard to the finding of the Court below against the plaintiffs, on the question of limitation, Mr. Das submits that it will be futile to assail that finding, if the finding of the Court below that lands alluviated on the side of Hasanpur Khurd in the manner alleged by the defendants, that is to say, by slow and gradual process between the years 1915 to 1922 is maintained. There is no evidence adduced on behalf of the plaintiffs that as lands went on alluviating on the side of Hasanpur Khurd slowly and gradually between these years, they went on taking possession of these lands. Their evidence is that as the disputed land came out suddenly on Hasanpur side in the year 1924, they took possession of it. If, the case of the plaintiffs that the formation of the land on the side of Hasanpur Khurd was due to a sudden change in the course of the river in 1934 is accepted, no question of limitation arises, as the suit is well within twelve years from that date, and whether the evidence adduced on their behalf that they took possession of the land as it came out suddenly in the year 1934 is believed or not is immaterial.
10. Dr. Mitter, appearing for the respondents in reply, in support of the findings of the learned Subordinate Judge has taken us through the judgment under appeal and has nothing to add to the reasonings on which the judgment rests.
11. For properly dealing with the contentions raised in this appeal, it will perhaps be convenient and useful to state, in as short a compass as possible, the law of alluvion and diluvion as declared and enacted by Regulation XI [11] of 1825, and as interpreted judicially by long chain of decisions beginning from the leading case of Lopez v. Muddun Mohan, 13 M. I. A. 467 : (5 Beng. L. R. 521 P. C.), such as Hursahai Singh v. Lootf Ali Khan, 2 I. A. 28: (14 Beng. L. R. 268 P. C.) and Sardar Jagjot Singh v. Brijnath Kunwar, 27 I. A. 81 : (27 Cal. 768 P. C.) running down to the case of Maharaja Bahadur of Dumraon v. Secy. of State, 54 I. A. 156 : (A. I. R. (14) 1927 P. C. 89) cited at the bar.
12. For land on the bank of a river belonging to one proprietor to be cut off from one side and carried to the other and get attached to land belonging to another proprietor is of common occurrence. The process by which this transference of land from one side of the river to the other takes place may be : (1) that the bed of a river keeps on shifting slowly and gradually from one side to another, and it is only in course of years that any perceivable change takes place in the position of the bed of the river, and it is discovered that there has been diluvation of land on one side and alluviation of land on the other, and that the bed of, the river has come to occupy a position different than what it originally did, (a) it being impossible, in some cases, to ascertain as to what the original site of the land so gained was : whether it has been gained from out of the bed of the river or out of the land on the high bank on the other side which is the property of a private individual; (b) it being possible, in some cases, to determine with the help of maps and ancient documents the site on which land has reformed as being the site, which it originally occupied and which was the property of another although by long submergence of the land all external marks and means of identification have been obliterated ; (2) that there is a sudden change in the course of a river and the channel shifts in such a way that a portion of riparian estate is cut off without destroying the land-marks and the : estate so cut off reforms on a clearly identifiable site of the diluviabed property.
13. The process last described is known as ‘avulsio’ or avulsion, meaning that which is being detached from the land of one person by open violence of a river becomes afterwards united with the land of another, as distinct from that, which is slowly and gradually added to land by what is called (alluvio) or alluvion first mentioned.
14. Clause 1, Section 4 of Regulation XI [11] of 1825 indicates that
“when land may be gained by gradual accession, whether from the recess of a river or o£ the sea, it shall be considered an increment to the tenure o£ the person to whose land or estate it is thus annexed, whether such land or estate be held immediately from Government by a zemindar or other superior landholder, or as a subordinate tenure, by any description of undertenant whatever.”
15. This rule is subject to an all important overriding proviso introduced by Courts of justice guided by the “principle of equity and justice” described by Clause 5 of Section 4 of the Regulation.
16. That proviso may be shortly stated thus
“Where land is formed on a diluviated but ascertainable site, or where an ascertainable site is discovered by the recession or subsidence of waters, such land or discovered site belongs to him who has a subsisting title thereto.”
17. This is called the doctrine of ‘reformation on original site’, and it rests upon the principle that in contemplation of law, land covered by water is the same as land covered by crops. Law knows no difference between land covered by, water and land covered by crops, provided the ownership of the land can be ascertained. The leading case on the subject is that of Lopez v. Muddun Mohan, 13 M. I. A. 467 : (5 Beng. L.R. 521 P. C.), already mentioned. The principle enunciated therein may shortly be formulated thus : (1) An acquisition of land from the sea or a river must satisfy two conditions, before it can be claimed by an adjoining proprietor under the law of accession ; (a), The acquisition must be by gradual, slow and imperceptible means, (b) The acquisition must be made from that which is part of the ‘public territory’, the ‘public domain’ or the ‘public waste’, as it is sometimes called, and not out of that which is the property of a private individual. (2) A claim founded on the doctrine of ‘reformation on original site” must also satisfy two conditions : (a) The site over which the land reforms must be clearly ascertained to be the property of a private owner. (b) It must be shown that such owner has a subsisting title to the site at the time when he makes the claim.
18. James L. J. who delivered the judgment of the Judicial Committee, assimilates the doctrine of reformation on original site to the law of accretion by alluvion, and describes the latter as ‘an accretion and annexation longitudinally’ to the riparian frontage, and the former as ‘an accretion and annexation vertically’ to the site.
19. The rule which awards alluvial accretion to the owner of the adjoining land is subject to one very important qualification, namely, that the site over which the accretion forms is not proved to belong to another private individual because in determining the right of competing claimants to such accretion the law prefers the owner of the submerged but identifiable site to the owner of the bank. So long as the bed of a navigable river remains covered with water and is not vested in any private individual, it is regarded as ‘public domain’ or ‘public territory’ by means of alluvion. It is only where a portion of such ‘public domain’ adjoining the bank as here is vested in any private individual that the title of the riparian proprietor of accretion yields to the title of the owner of the submerged site by what is called ‘reformation’.
20. In the case of Maharaja of Dumraon v. Secretary of State, 54 I. A. 156 : (A. I. R. (14) 1927 P. C. 89) their Lordships of the Privy Council reviewed all the relevant decisions in the cases of Nogendra Chunder Ghosh v. Md. Esof, 10 Beng L. R. 406 : (18 W. R. 113 p. c.), Hursahai Singh v. Lootf Ali Khan, 2 I. A. 28 : (14 Beng. L. R. 268 p. c.), Sarat Sundari v. Surya Kant, 25 w. R. 242, Radha Proshad v. Ram Coomar, 3 Cal. 796 : (1. C. L. R. 259), Jaggot Singh v. Rani Brijnath Kunwar, 27 I. A. 81 : (27 Cal. 768 P. c.) and while re-affirming the principles enunciated in Lopez v. Muddun Mohan, 18 M. I. A. 467 : (5 Beng. L. R. 521 P. C.), held, that the principle applied even where the question arose, as here, between two riparian owners, who owned property on either side of the river and where the land was washed away from one side of the’ river and reformed on the other side on the old ascertained site.
21. The rules relating to alluvion and diluvion as well as the doctrine of reformation on old site just stated, are subject again, to one sweeping exception enacted by Section 2 of the Regulation, which lays down:
“Whenever any clear and definite usage of shikast and paiwast respecting the disjunction and junction of land by the encroachment or recess of a river may have been imimemorially established for determining the rights of the proprietors of two or more contiguous, estates divided by a 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 enoroachment on one side and accession on the other), the usage so established shall govern the decision of all claims and disputes relative to alluvial land between the parties whose estates may be liable to such usage.”
22. The question may arise whether the custom mentioned in the section, just quoted,, will apply irrespective of whatever the nature of the change in the course of a river may be, whether it be sudden, or whether it be gradual, whether the channel shifts in such a way as to cut off a portion of the riparian estate, the cultivated fields, trees and houses and all other landmarks remaining intact, or whether it encroaches upon a riparian estate so completely that portions of it reform on the opposite bank on the clearly identifiable side of the diluviated property.
23. A decision of this Court in the case of Bajrangi Raut v. Janak Prasad, A. I. R. (23) 1936 Pat. 617 : (166 I. C. 198) cited on behalf of the appellants, holds that such a custom which will deprive a man of what is proved to belong to him in the case of sudden change in the course of a river will be unreasonable and is not provable under law. Dr. Mitter for the respondents has drawn our attention to a decision of the Allahabad High Court to the contrary id the case of Radhey Shyam v. Ram Dhan Lal, A. I. R. (30) 1943 ALL. 68 : (205 I. C. 505) which holds:
“Where the custom of the dhura is proved to exist between the proprietors of two villages whereby the main channel of the river dividing the villages was to be the constant boundary between them when the change in the course of the river was gradual and also when it was sudden, then even if the river left the villages altogether and went to the extreme limit of any of the villages, that fact can make no difference to the observance of the custom. Such a custom is not unreasonable and can be enforced.”
24. The question, however, does not fall to be determined in the present case for, as it will be seen presently, the custom pleaded by the defendants is limited to a transference of land from one side of the river to the other, by slow and gradual recession of the bed of the river, and it is not alleged that it applies also to such transference of land by sudden change in the course of the river, that is, by avulsion.
25. In view of the principles applicable as between different riparian owners being that, unless well established and invariable custom to the contrary is proved, the title to the land, which re-appears in situ, is always in the original owner, and, in view of the finding of the Court below, which has not been challenged in this Court, that the lands in dispute have reformed on their original ascertained site, which, if held to belong to the plaintiffs, the defendants can resist the claim of the plaintiffs in the suit only if they succeed in establishing, as pleaded by them in their defence (1) that the lands in dispute alluviated and got annexed to their land by slow and gradual process between the years 1915 and 1922, and (2) that by an established immemorial and invariable usage and custom, the mid-stream line of the river is the constant boundary between villages Salha and Hasanpur Khurd, whatever changes may take place in the course of the river from time to time, excluding an enquiry as to whether the land so alluviating is a reformation on a site ascertainable and identifiable as the original one.
26. The Court below, as already stated, has come to the finding that the case of the defendants, namely, that of slow and gradual accretion has been made out, and that the custom of the midstream line of river Bakeya as being the constant boundary between the two estates in the locality has also been proved.
27. What, therefore, falls to be determined in this appeal is whether the learned Subordinate Judge has erred in coming to these findings and they can be set aside.
28. We take up, first, the question of slow and gradual accretion. (After discussing evidence their Lordships came to the following conclusion.) We are inclined to rely on the evidence of these (plaintiffs’) witnesses and come to the, conclusion that it has been proved that the appearance of the disputed land on the side of Tauzi 2704, Hasanpur Khurd, on its original identifiable site belonging to the plaintiffs has been occasioned by sudden change in the course of the river in 1934, and is a case of reformation in situ by avulsion and not a case of slow and gradual alluviation. The finding of the learned Subordinate Judge to the contrary-is erroneous and must be set aside.
29. ‘We would next take up the question of custom. The custom pleaded by the defendants,, even if held as proved, and the finding of the Court below is affirmed in that respect, it will not avail the defendants in the present case because they have not pleaded nor attempted to prove that mid-stream line of the river Bakeya was to be the boundary between the two estates ever in the case of transference of land from one side to the other by sudden change in the course of the river. The witnesses examined on behalf of the defendants depose to the custom of midstream line as the boundary between the two estates in cases of alluvion by slow and gradual process. The finding, therefore, that there was sudden change in the course of the river in 1934 and the transference of the land on the side of Hasanpur Khurd was due to such a change in the course of the river, which we have reached,, is sufficient to dispose of this appeal, but as the finding on the question of custom in favour of the defendants has been given by the Court below and has been assailed on behalf of the appellants, it is necessary to consider it.
30. The ground on which this finding has: been attacked, in the first place, is, as already stated, that the Court below has come to conclusions in this regard which are self-contradictory. The custom pleaded by the defendants as contained in para. 10 of the written statement is :
“That in mauza Salha and Hasanpur Khurd and their other neighbouring villages there has been, from time immemorial, a custom and usage to the effect that the river Bakeya, which is also known as Bagmati may shift its coarse wherever it may, but the middle line of the bed of the said river will be the constant boundary limit between both the villages lying on either side of the river.”
The evidence adduced in the case in support of the custom pleaded in the written statement is that the mid-stream is the boundary between the two villages not only in all the places where river Bakeya runs but such a custom is prevalent in all the places where other rivers, such as, Gandak and Lakhandei flow. The Court below came to the definite finding that the evidence of these witnesses could not be accepted in regard to the custom being prevalent in all the places where the river Bakeya runs or in all the places where Gandak and Lakhandei flow. Relying on the same evidence, it is pointed out, the Court came to the contradictory conclusion that it was proved that the mid-stream line of the river Bakeya was the constant boundary between the villages Salha and Hasanpur Khurd, whatever changes there may be from time to time in the course of the river.
31. Secondly, it is urged that of the documentary evidence, which has been relied upon by the Court below for the finding survey maps of 1847 and cadastral survey maps of 1898 have been misread and misconstrued by the learned Subordinate Judge. It is pointed out that the revenue survey maps and the cadastral survey maps showing mid-stream line of the river as boundary between the two villages Salha and Hasanpur indicate nothing more than that half the bed of the river was measured as part of each of the two villages at the time those maps were prepared, and that it is not permissible to draw therefrom an inference in regard to that line being the constant boundary between the two villages. The revenue survey maps and cadastral survey maps of the villages just below and above the two villages in question unmistakably show that mid-stream line has not always been taken as boundary between the villages on either side of the river. At some places adjacent to the locality in question, the river has been measured as wholly within the boundary of the village on one side. At places the river cuts the villages in two parts and runs through the villages. The contention on behalf of the appellants that these maps do not therefore afford any evidence in regard to the custom pleaded by the defendants must be accepted. It has not been shown that the land gained on one side and treated as part of the village on that side was not addition to that village by reason of alluviation by slow and gradual process, and, therefore, apart from any question of custom, was an accretion within the meaning of Regulation XI [11] of 1825, and the person to whose village it got annexed was entitled to retain it as part of that village. It is common ground that whatever accretions took place either to village Salha or to village Hasanpur up to 1915 were by process of slow and gradual alluvion. That being so, the proprietors of Hasanpur Khurd were entitled to treat the transference of small bits of land by such process as alluvial accretions. It is again clear therefore that mere proof of the fact that plaintiffs omitted to claim such lands from the defendants or the defendants did not claim such lands from the plaintiffs in the past, does not prove that by reason of the custom pleaded by the defendants claims to those lands were not made. It may well be that the parties, whose lands were so cut, could not identify that they were reformations on the original site, and, therefore, the maliks of the villages to whose lands they got attached were considered entitled to retain it. Something more indeed is required to be proved than mere abstention from laying claim to such lands on the part of the parties affected, before such conduct on their part can be considered adequate to prove the custom of the mid-stream line alleged by the defendants. It is justifiably urged that the conclusion of the learned Subordinate Judge in favour of this custom based on what he misconstrued as conduct of the plaintiffs themselves is erroneous.
32. Thirdly, it is urged that the witnesses for the defendants state that the custom of mid-stream of the river being the constant) boundary between the two estates prevailed in regard to the villages Hasanpur Buzurg on the south-west and Hasanpur Khurd on the northeast of the river. The revenue survey maps as well as the cadastral survey maps of these two villages belie this statement. The learned Subordinate Judge did not accept the evidence of these witnesses in this regard. The maliks of the other tauzis of Hasanpur Khurd, such as, D. Ws. 4, 7,10, 14,15, 26, 33, 34, 42 and 45 to whose evidence our attention was specifically invited by Dr. Mitter also state not only that the custom of deep stream is prevalent in the locality of Hasanpur Buzurg and Hasanpur Khurd, contiguous to the locality in dispute, but that this custom is prevalent in respect of all the villages on the banks of river Bakeya. These statements were not accepted by the learned Subordinate Judge as they were not supported by the revenue and cadastral survey maps of those villages. One fails to see how the learned Subordinate Judge came to rely upon the evidence of these witnesses for coming to the finding that the custom alleged was at any rate proved to have been prevalent in the disputed locality. We are inclined to concede to the contention urged on behalf of the appellants that the evidence of custom adduced was of a nature too wide to prove the custom alleged and this evidence having been discarded, there was practically no material on which the finding, viz., that so far as the disputed locality was concerned, the custom was made out, could be based. Mr. P.R. Das referred us to Hals-bury’s Laws of England (Hailsham Edition) vol. 10, P. 12 and the cases of Hammerton v. Money, (1876) 24 W. R. 603 and Farquahar v. Newbury Rural Council, (1908) 2 Schedule 586 for the proposition that
“the user whereby it is sought to prove the custom must not be of a nature too wide to support the custom alleged.”
In Hammcrton v. Honey, (1876-24 W. R. 603) Jessel, M. R. at p. 604 referring to the nature of the user necessary to support a custom said:
“It must not only be consistent with the custom alleged, but, if I may use the expression, not be too wide. For instance, if you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody else in the world who chose danced and played cricket, you have got beyond your custom.” In Farquahar v. Newbury Rural Council, (1908) 2 Schedule 586 at p. 589, Warrington J. found that the user of a roadway was too wide to support an alleged customary churchway confined to the inhabitants of the parish. In the case of Maharaja of Dumraon v. Secretary of State, 54 I. A. 156 : (A. I. R. (14) 1927 P. C. 89) where the pleading was that by reason of an immemorial custom in the locality in question by which land adhering by gradual alluvion to a riparian village becomes a part of the village to which it accretes, and evidence called for the defendant was directed to show that there was a custom by which accretions to the Sahabad side vested in the Shahabad Zamindar ”
the deep stream of the Ganges being the constant boundary between the districts of Shahabad on the south and Ballia on the north of the river, their Lordships observed :
“The first thing to be noted is that the custom which the Maharaja by his witnesses attempted to prove was not the custom pleaded.”
On a proper analysis of the evidence called for the defendants, it will be found that what has been attempted to prove is that the mid-stream of the Bakeya wherever it runs forms the boundary of the riparian estates, and, is consequently, the boundary between Salha and Hasanpur Khurd. There is no evidence to the effect that although the mid-stream of the river may not be the boundary of the riparian estates in other localities, it is so by custom in the locality in question, which in substance, is the custom pleaded. The contention of Mr. Das, therefore, that the learned Subordinate Judge has found the custom alleged by the defendants as proved on practically no evidence to that effect is well founded. The learned Subordinate Judge has at p. 235 of his judgment drawn a sketch showing-the course of the river in question as it runs from north to south and has noted the riparian villages on its either side. At pp. 236 and 237, he has detailed the riparian estates where the survey and cadastral survey maps show the mid-stream as the boundary as also those, where they do not. From a mere look at the sketch it will appear that the places where the mid-stream is not shown as the boundary between the two estates, are those, where the river abandoning its straight course from north to south, makes a sudden loop either to the east or to the west, as for instance, between Pandaul and Kalujar, between Ugra and Tira, between Dath and Mankauli and between Aliabad and Rasulpur. At places, such as, village Jatmalpur the river cuts it into two parts and flows through the village. It appears, therefore, that except where the river runs is an even course from north to south, the midstream line is not adhered to as the boundary between the riparian estates specially so, where the river takes a sudden turn making a loop either to the west or to the east like the one it makes to the west in the locality in question.
33. When the attention of the learned Subordinate Judge was drawn to the fact that the witnesses called for the defendant deposed falsely to the existence of the custom of deep-stream being the constant boundary between Hasanpur Buzurg and Hasanpur Khurd and in other places where the mid-stream line was not shown as the boundary line between riparian estates, he made the following observation:
“This is no doubt true, but merely on this ground the entire evidence of the defendants cannot be rejected as contended by the learned lawyer for the plaintiffs so far as their statements regarding all those places where the mid-stream line forms the boundary line is concerned. They are supported not only by the survey maps but there is practically no evidence adduced by the plaintiffs to show that in places within the Darbhanga district or even outside the Darbhanga district there was any departure from the custom where the mid-stream line of the river is shown in the survey maps as the boundary line.”
It will be clear from the observation of the learned Subordinate Judge, just quoted, that his finding that the custom alleged was proved is not really based on the oral evidence called by the defendants but on the survey maps showing the mid-stream of the river in question as the. boundary of the riparian estates. In relying upon the survey map for this purpose, the learned Subordinate Judge was, as already pointed out, in error in that he failed to appreciate that what was intended by drawing the mid-stream line in the survey maps was to indicate that the bed of the river in question was the property of the riparian proprietors and not a public domain. At places where the bed of the river formed part of the riparian estates on either side half and half, the mid-stream line was drawn and at places it formed a part wholly of one estate either on one side or the other, such line was not drawn. The learned Subordinate Judge clearly failed to realise that the drawing of such a line in these maps had nothing to do with the custom alleged. The finding of the learned Subordinate Judge regarding the existence of the custom in the disputed locality not being based on his appreciation of the evidence of the witnesses examined before him, we feel no hesitation in coming to a conclusion on the question of custom contrary to that arrived by the learned Subordinate Judge who had the opportunity of seeing those witnesses.
34. The documents, apart from the maps which were relied upon on behalf of the defendants in proof of the custom alleged were Exs. Y series, compromise petitions, in cases which arose between the maliks of the riparian estates close to the locality, in question. Exhibit Y is a compromise petition between the maliks of Sarisherpur lying on the west of Morojairam on the east of the river in question ending a litigation between them regarding the lands having slowly and gradually alluviated on the side of Morojairam. Exhibit Y-1 is a similar compromise ending a similar litigation between the maliks of Rupauli and Mankhauli. Exhibit Y-2 is a compromise petition between the maliks of Sarisherpur and Godhaura ending a similar litigation between the proprietors of these riparian estates. The custom of midstream of the river as the constant boundary between the two estates was recognised by those compromises. As to the evidentiary value of these documents, we need only cite the following passage from the decision of their Lordships of the Privy Council in the case of Mahomed Ibrahim Rowther v. Sheikh Ibrahim Rowther, A.I.R. (9) 1922 P. C. 59 at p. 62 : (45 Mad. 308) :
“The documents on which the defendants rely for proving the usage, begin, in order of time with a decree of the Madras High Court in O. S. 5 of 1887, Ex. XII in which James J. decided in its favour. There was, however, an appeal from his decree which ended in a compromise, a circumstance which deprives his decision of much of its evidentiary value.”
The only document which is a decision in favour of the custom alleged is Ex. W-2, judgment of the Subordinate Judge of Darbhanga in a dispute between the maliks of Gangaura, a village to the north of Salha and Morojairam, situated north of Hasanpur Khurd, regarding lands diluviated from Morojairam and alluviated in Gangaura on account of the gradual recession of the river Bakeya from its original bed. At the time the present suit was heard in the Court, below this judgment was pending in appeal before this Court. The appeal was heard by a Bench of this Court and the judgment of the learned Subordinate Judge was upheld. The judgment of this Court has been filed before us. It no doubt holds that the custom of the deep stream being the boundary between riparian estates was proved so far as that case was concerned. The decision of custom in that case-appears to have been specifically limited to the locality in dispute in that case. Imam J., who. delivered the judgment of this Court guarded himself by observing :
“For the purposes of this appeal I am not prepared to go so far as to hold that there is a custom that the midstream of the river Bakeya is in all circumstances the boundary line between the villages Morojairam and Gungaura. Harving already found that the change in the course of the river Bakeya was slow and gradual I am satisfied on a consideration of the entire evidence that the plaintiffs have at least proved the custom that when the river Bakeya changes its course gradually the lands which alluviate belong to the village to which they accrete.”
It will be seen, therefore, that the decision does, not go so far as to hold that even if the lands in dispute are reformations on the original site they will by custom belong to the village to. which they accrete. The evidence afforded by the judgment also is inadequate to prove the custom on which the defendants rely in the present case. The decision at any rate is not a, decision showing an assertion of the custom alleged in respect of the locality in dispute in the present case. It will be seen that this dispute related to the villages on the banks of that, part of the stream which was known as Lakhandei, and the river Bakeya had not at the time when the lands in question in that suit alluviated, ceased to run into Lakhandei. The custom alleged and proved in that case was in respect of river Lakhandei and not Bakeya., Bakeya, as already found in the earlier part of the judgment, no longer runs into Lakhandei, and as a result of the diversion of river Bagmati through Nandna Baha in Bulandpur the-stream which was known as river Bakeya and used to meet Lakhandei just to the north of Gangaura at Tirmohanighat has completely dried up. The judgment of this Court, therefore, relating to a dispute between Gangaura and Morojairam can be of no assistance in deciding the custom regarding the locality in the present case. Reliance was also placed on Ex. D-1 a notice issued by the case revaluation officer to the defendants as maliks of Hasanpur Khurd Tauzi No. 2704 for the lands which on the report of the supervisor (Ex. C) was supposed to have diluviated from Salha and accreted to that tauzi. The notice no doubt .mentioned that
“the custom of that locality is that the land which is accreted towards either aide of the river belongs to the proprietor who is on that side.”
There is nothing to show as to how and on what information the case revaluation officer came to make this statement. It appears that the case revaluation officer was more concerned with fastening the liability for the payment of that amount of case, which the Salha maliks were claiming to be deducted from the amount of case payable by them in respect of lands which had become submerged. The statement in this notice can hardly be said to possess any evidentiary value for the purpose of proving the custom alleged in the present case.
35. It appears that in support of his finding that the lands in dispute accreted to Hasanpur Khurd as alleged by the defendants between the years 1920 to 1923, and the defendants went on taking possession as the, lands went on accreting in accordance with the custom pleaded by them, the learned Subordinate Judge has also relied upon the fact that the dispute regarding possession of these lands between the defendants and the plaintiffs arose in the year 1940 and not immediately after 1934. He says :
“It the disputed land had remained in Salha side upto 1934 and if by the creation of a phat by the earthquake the course of the river Bakeya there was diverted from the north and eastern side of the disputed land to the west and southern side, the defendants must have tried to take possession of that land immediately thereafter in 1934 on the basis of the custom and the dispute would have arisen at that time. There is absolutely no reason why the defendants would try to take possession of the land in 1940 as alleged by the plaintiffs.”
The learned Subordinate Judge in the reasoning adopted by him has committed two obvious errors. The dispute regarding possession of these lands did not commence in 1940 but in the year 1938 when the plaintiffs were finally restrained by a notice under Section 144, Criminal P. C. dated 4-12-1938. Another error which he “has committed is that he has failed to realise that the lands in dispute could not possibly have been culturable immediately on their re-appearance and must have remained water ‘logged for a year or so as stated in the Flood Report already mentioned. He should have seen, to the contrary, that the fact that the dispute regarding possession of these lands arose during the cultivating season of 1938 is more consistent with the lands having come out suddenly towards the end of 1934, as alleged by the plaintiffs, than with the case of the defendants that it had alluviated slowly and gradually by the year 1923. To use the reasoning adopted by the learned Subordinate Judge, it has to be observed that there is no explanation for the dispute regarding possession of these lands to have arisen as late as 1938, if, as alleged by the defendants, these lands had alluviated in 1923, and the defendants had taken their possession peacefully in accordance with the custom alleged by them, without any obstruction on the part of the plaintiffs. The immediate cause for the dispute in regard to these lands between the plaintiffs and the defendants assigned on behalf of the defendants as being the dispute between the maliks of Gangaura and one Abdul Rahman of village Moro whose house and the masjid of the Musalmans had been cut away, and the site on which they stood had re-appeared on the side of Gangaura, is too thin to be accepted.
36. In view of these considerations, we have no hesitation in setting aside the finding of the learned Subordinate Judge that the defendants have been able to prove that, apart from the law of accretion which awards to the proprietors of the villages to which lands accrete by slow and gradual alluviation, contained in Regulation XI [11] of 1825, such accretions, although reformations on their original site and identifiable as such, can be claimed by the proprietors of riparian estates by reason of the custom of the deep stream being the constant boundary, as contemplated by Section 2 of the Regulation. We hold that the defendants have failed to prove the custom alleged.
37. It should be stated again that regard being had to the finding which has been reached in the present case that the lands in dispute were transferred to the side of Hasanpur Khurd by a sudden change in the course of the river in the year 1934, the custom as alleged, even if proved, would not have entitled the defendants to resist the claim of the plaintiffs to such portion of the lands in dispute admitted or proved to be reformations on the side which belonged to them and to which their title is still subsisting.
38. The question for consideration, which now arises, is as to whether on the findings arrived at, the plaintiffs can be held to have proved a subsisting title to the whole of the lands in dispute covered by Schedule I and it of the plaint.
39. It is common ground that only a portion of Schedule I land is reformation on the site, which was part of Salha, as it existed at the time of the revenue survey in 1846. A part of land of that schedule is on the site of Hansanpur Khurd Tauzi No. 2704, as it existed in 1846. By slosw and gradual diluviation the land on this site accreted to lands of Salha between the years 1846 and 1898 and was measured as part of Salha at the time of cadastral survey and remained in possession of the plaintiffs till it started diluviating in 1915, according to the defendants, or was suddenly cut away in 1934 and got attached to Hasanpur Khurd, according to the plaintiffs. It is clear, however, that even the site which originally belonged to Hasanpur Khurd and the land on which site accreted to the lands of Salha before 1898, remained in possession of the plaintiffs for a sufficiently long time to have given them indefeasible title to it by adverse possession, before it diluviated. The plaintiffs are, therefore, entitled to the whole of Schedule I land on the finding that it has reformed on the site of Salha as it existed at the time of the cadastral survey in the year 1898.
40. Different considerations, however, are applicable to the lands covered by Schedule II which are reformations on the site which was originally the part of Hasanpur Khurd Tauzi No. 2704 before the lands on this site slowly and gradually diluviated between the years 1898 and 1915. Although the plaintiffs do not accept that the Schedule II lands wholly diluviated, and slowly and gradually accreted to Hasanpur Khurd between the years 1920 to 1923, but they do admit, as the fact is, that the lands adjacent to the river in question on the side of Salha used to be submerged every year and were not fit for cultivation. The case re-valuation papers establish beyond doubt that the lands close to the river were submerged, and the plaintiffs claimed reduction of case in respect of 77 bighas of land on that account. Thirty five bighas covered by Schedule II alluviated to Salha long after alluviation of Schedule I lands. The land of Schedule II was last to alluviate and is admittedly close to the river. It is clear, therefore, that the plaintiffs have” not shown and cannot show that they have been in actual cultivating possession of Schedule II lands continuously for 12 years to have given them indefeasible title to the site covered by this land which admittedly was originally part of Hasanpur Khurd and belonged to the defendants before it was cut away in 1934. The Schedule II lands having reformed on their original site of Hasanpur Khurd to which the plaintiffs had not acquired title by adverse possession before they diluviated, and to which the title of the defendants is still subsisting, the defendants must be held entitled to retain them. It will be seen that on the doctrine in Lopez v. Muddun Mohan, 13 M. I. A. 467 : (5 Beng. L. R. 621 P. C.) as affirmed in the case of Maharaja of Dumraon v. Secy. of State, 54 I A. 156 : (A. I. R. (14) 1927 P. C. 89) while the defendants are entitled to retain the land covered by Schedule II as reformed on the old site which is their property, they are not entitled to retain possession of that part of Schedule I land which is also reformation on the old site of their village, because in those lands an indefeasible title has been acquired by the plaintiffs by long adverse possession. In the case of Radha Prasad Singh v. Ram Kumar Singh, 3 cal. 796 : (1 C. L. R. 259), their Lordships of the Privy Council held that the doctrine in Lopez v. Muddun Mohan, (13 M. I. A. 467 : 5 Beng. L. R. 521 P. C.) that diluviated lands, reforming on their old site remain the property of their original owner, does not apply to lands in which after their reformation an indefeasible title has been acquired by long adverse possession, or otherwise.
41. It may be stated that Mr. P. R. Das conceded that the appellants were not on strong ground in respect of their claim to Schedule II lands.
42. It is clear that, as submitted by Mr. Das on the finding that the land in dispute was transferred to Hasanpur in 1934, no question of limitation arises. The suit is clearly within time.
43. In the result, the appeal is allowed in part, the decree passed by the learned Subordinate Judge is varied, the plaintiff’s title to lands covered by schedule I of the plaint is declared and it is ordered that they do recover possession of the same and the defendants be evicted therefrom. The plaintiffs’ suit in respect of lands covered by Schedule II is dismissed, and the decree passed by the Court below to that extent is affirmed. The appellants are entitled to costs in this Court and the Court below proportionate to their success in the appeal.
