Ram Dhan Lal And Others vs Radhe Sham And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 41 of 1949

Decision Date: 19 March 1951

Coram: B.K. Mukherjea, Saiyid Fazal Ali, N. Chandrasekhara Aiyar

In the matter titled Ram Dhan Lal and Others versus Radhe Sham and Others, the Supreme Court of India delivered its judgment on 19 March 1951. The opinion was authored by Justice B. K. Mukherjea, who sat on the bench together with Justice Saiyid Fazal Ali and Justice N. Chandrasekhara Aiyar. The petitioners were Ram Dhan Lal and several others, while the respondents were Radhe Sham and others. The citation of the decision appears as 1951 AIR 210 and 1951 SCR 370. The case concerned the application of the Bengal Alluvion and Diluvion Regulation, XI of 1825, specifically sections 2 and 4, and examined the custom known as dhar dhura. The headnote explained that the custom of dhar dhura regarded the deep channel of a river as a permanent boundary between villages, irrespective of any changes in the river’s course, and that the custom was expressly recognised in section 2 of Regulation XI of 1825. The Court noted that determining whether the custom applied to sudden alterations in a river’s course, as opposed to gradual alluvial changes, required an assessment of the evidence presented in each case. The burden of proving the custom’s applicability to sudden changes rested on the party asserting it, but the Court observed that such a custom was not unreasonable and could be established through cogent evidence, similar to any other custom. The Court upheld the High Court’s finding that, in the villages involved, the custom applied even when the stream altered its course abruptly. The judgment further clarified that for the custom to operate, the main stream of the river had to flow within the limits of the villages; when the river shifted so far that it lay outside the village boundaries and no longer divided them, the rights of riparian owners had to be determined according to the provisions of Regulation XI of 1825. In an obiter observation, the Court stated that although a riparian owner could not claim land under the dhar dhura custom while the river flowed outside the villages, the owner’s rights would revive once the river again flowed within the village limits. The case was an appeal (Civil Appeal No. 41 of 1949) from a decision of the Allahabad High Court, rendered by Justices Allsop and Verma on 8 September 1942, which had affirmed a decree of the Civil Judge, Bareilly dated 30 September 1936 in Original Suit No. 18 of 1934. Counsel for the appellants included Walter Dutt, assisted by P. S. Safeer, while P. I. Banerjee, assisted by Baleshwar Prasad, appeared for the respondents.

On 19 March 1951 a judgment was delivered by Justice Mukherjee. The judgment concerned an appeal filed against a decision of a Division Bench of the Allahabad High Court dated 8 September 1942. In that decision the learned judges set aside a decree that had been entered in favor of the plaintiff by the Civil Judge of Bareilly in Original Suit No. 18 of 1934, and they dismissed the suit as against defendants numbered one through four. The suit that gave rise to the present appeal had originally been instituted by a man named Babu Ram, who sought a declaration that the lands identified in the suit belonged to the village of Sikha, situated in Tehsil Aonla of the Bareilly district, and that he, as both Zemindar and Lambardar of that village, possessed exclusive title to the lands, while the defendants purportedly had no right, title, or interest in them. In addition, the plaint prayed for a declaration that the plaintiff could recover possession of the lands should he have been dispossessed of any part or the whole of the disputed area, and it also included an ancillary claim for mesne profits. After the plaint was filed, the original plaintiff died, and the suit was continued by his two sons, who were entered as his heirs and successors. The suit named as defendants a total of forty-one persons, each alleged to claim proprietary interests in two adjoining villages, Jhawa Nagla and Gurganwan, which lie to the south and east of village Sikha. According to the allegations set out in the plaint, the River Ram Ganga flowed to the south and east of the mouza of Sikha owned by the plaintiff, and, under the local custom known as Dhar Dhura— a deep-stream boundary custom—the main channel of the river formed an unmistakable, although occasionally shifting, boundary line separating the village of Sikha on one side from the villages of Jhawa Nagla and Gurganwan on the other. It was further asserted that up to Fasli year 1340 the river’s course had altered several times, causing the Zemindars of the three villages to experience both gains and losses of land because of these alluvial and diluvial movements. In Fasli year 1340 the main stream, or Dhar, was located at the points marked C, D, E and F on the map annexed to the plaint. At that time the plaintiff, as Zemindar of Sikha, owned a tract of land shown on the same map, a tract that formed the centre of the present dispute, lying to the north-west of the stream and extending northward and westward up to the boundaries of the villages of Sisauna, Hazipur and Sheopuri. In the following year, 1341, the river is alleged to have abruptly altered its course, abandoning its former bed entirely and flowing outside the limits of the three villages. The “dabri”, or former riverbed as it existed in 1340, has been depicted in the plaint’s map and, according to the plaintiff, constitutes the

In the suit, the plaintiffs described the line that separated their village of Sikha from the two neighboring villages of Jhawa Nagla and Gurganwan. They asserted that the local custom known as Dhar Dhura could not give the defendants—who owned the villages of Jhawa Nagla and Gurganwan—a title to the disputed tract of land that lay to the north-west of the main river channel as it existed in the Fasli year 1340. According to the plaintiffs, the custom of Dhar Dhura is operative only when the river’s deep stream changes its course gradually and not when the change occurs suddenly. Moreover, they maintained that the custom cannot be invoked when the river completely abandons the three villages and ceases to flow within their limits, which is exactly the situation in the present case. On this basis, the plaintiffs contended that each landowner should be permitted to retain and possess those lands that were in their possession in the year 1340 as part of their zemindari rights. Consequently, under both law and equity, the disputed parcel should remain in the possession of the plaintiff, who is the recognized owner of mouza Sikha. The plaintiffs further explained that the defendants, in concert with the village patwari, threatened to interfere with their possession, prompting the filing of the present suit.

The suit named forty-one defendants, but only nine of them filed written statements. Two of those nine subsequently admitted the plaintiffs’ claim and pleaded that they had been improperly made parties to the suit. In reality, the suit was contested by defendants numbered 1 to 4 and defendant 30, who opposed the plaintiffs’ claim on several grounds, most of which the court considered irrelevant to the issues under consideration. The principal argument put forward by the contesting defendants was that the custom of Dhar Dhura applied to every kind of alteration in the river’s deep channel, regardless of whether the change was gradual or sudden, and irrespective of whether the river continued to flow within the villages or had moved outside them. They argued that, because the river had receded to the north, the custom entitled them to claim the lands that had become contiguous with their villages up to the new main channel of the river. The defendants also asserted that the “dabri,” or the former riverbed, could not be regarded as the demarcating line between the three villages. Both parties therefore accepted the existence of the custom of Dhar Dhura, but they differed on its scope. The plaintiffs maintained that the custom was limited to gradual accretion and did not extend to situations where pre-existing landforms were abruptly severed by a flood without destroying their identity or preventing recognition of the displaced land. A second point raised by the plaintiffs was that the custom could not be invoked when the main river stream had moved entirely beyond the villages that it originally separated. The trial court ruled against the plaintiffs on the first point, holding that the custom covered sudden changes, but it decided in favour of the plaintiffs on the second point, concluding that the custom did not apply when the river had entirely abandoned the villages.

The trial court ruled in favour of the plaintiffs, allowing their claim and granting a decree that corresponded with the relief sought in the plaint. Dissatisfied with that decision, defendants numbered one through four appealed to the High Court of Allahabad. The appeal was heard by a division bench comprising Justices Allsop and Verma. That bench set aside the trial court’s judgment only with respect to defendants one to four, dismissing the plaintiffs’ claim against those appellants, while leaving the original decision unchanged as to the remaining defendants. The plaintiffs subsequently obtained leave to take the matter to the Privy Council, and the present appeal before this Court arises from that leave. It has been brought to the attention of the Court that, of the two plaintiffs who originally filed the appeal, one has since entered into a compromise with the opposing defendants; consequently, the appeal is now being pursued solely on behalf of plaintiff number one.

The counsel appearing for the appellant has urged the Court to consider the two principal arguments that were advanced in support of the plaintiffs’ case in the lower courts. The first argument contends that the evidence presented does not establish the custom of Dhar Dhura in such an extreme form that it would effect a change of ownership when land is transferred as a result of a sudden alteration in the course of the river’s deep channel. It is further submitted that, even if such a custom were proven to exist, it should be regarded as unreasonable and therefore unenforceable under the law. The second argument maintains that, in the present circumstances, there is no basis for applying the custom because the river has moved beyond the limits of the three villages and no longer serves as the dividing line among them.

Regarding the first contention, the Court finds that, based on the facts that have been admitted and proven, it cannot adopt a view that differs from that of the lower courts. The custom of Dhar Dhura, as understood, treats the deep stream or channel of a river as a permanent boundary between two or more villages, irrespective of any changes in the river’s course. This principle is expressly recognised in section 2 of Regulation XI of 1825, which provides that whenever a clear and definite usage has been immemorially established for determining the rights of proprietors of contiguous estates divided by a river — for example, the rule that the main channel of the river shall remain the constant boundary between the estates regardless of encroachment on one side or accretion on the other — such usage shall govern the resolution of all claims and disputes relating to alluvial lands situated between the parties.

In the present case, the custom known as Dhar Dhura was shown to be in force in the area by the Wazibularz drawn up at the most recent settlement of Mouza Sikha. The document records the custom in the following terms: “The river Ram Ganga flows on the boundary line of this village. The custom of Dhar Dhura prevails between this village and Gurganwan, Jhawa Nagla and Rakhara, Pargana Aonla. If any piece of land becomes part of this village because of the alluvial action of the river, we the Zemindars shall be the owners thereof, and if any piece of land of this village is washed away, it shall be owned and possessed by the Zemindars of the village in which it now appears, in the same manner in which we were in possession thereof.” The record therefore acknowledges that the river may change the location of land by alluvial action, but it does not specify whether such action must be gradual or sudden. Consequently, the document does not precisely define the scope of the right conferred by the custom. The Court held that this question must be resolved on the basis of the evidence placed before it, and that the party who seeks to rely on a custom that departs from general law bears the burden of proving it.

The Court agreed with the observation of Oldfield J. in Sibt Ali v. Muniruddin that the tribunal must “scrutinise with care evidence in regard to a custom which would have the effect of passing from one owner to another land long held and enjoyed and of which the character is in no way altered by river action.” However, the Court added that if the evidence is clear and convincing, the custom may be established in the same manner as any other fact. In addition to the oral testimony presented, the Court considered two Rubkaris issued by the Collectorate and a civil-court judgment, all of which involved the ancestors of the present parties. These documents demonstrate that the demarcation of the lands belonging to the three villages was consistently based on the position of the deep channel of the river at various times, and that it was regarded as irrelevant whether the river’s change was gradual or sudden. The Rubkari recorded as Exhibit H-27 shows that in the year 1283 Fasli the river abruptly altered its course, cutting away not only the vacant accretion belonging to Sikha but also a portion of the mouza as it stood at the time of settlement. The land thus severed was treated as an addition to Jhawa Nagla and Gurganwan, and a fresh settlement was made with the Zemindars of those villages. The Assistant Collector of Bareilly, in the same Rubkari, stated that a careful local investigation had proved the existence of the Dhar Dhura custom, and that it required the river bed to be regarded as the permanent boundary, whether the river’s alteration was sudden or gradual.

In the record, the custom was held that the river bed should constitute the boundary, and that this principle applied whether the river altered its course suddenly or gradually. The Peshkar appointed to investigate cited several instances in the thirty years preceding the date of the report where the river had shifted its course in both directions. The Rubkari containing these observations was dated 8 November 1876. A later document, identified as Exhibit D-1, was a judgment of the Subordinate Judge of Bareilly dated 29 July 1907; it arose from a suit filed by the proprietor of mouza Sikha against the owner of Jhawa Nagla. The issue before the Subordinate Judge was whether a parcel of land belonging to mouza Sikha that had become detached because of a sudden change in the river’s course and that now lay within the limits of Jhawa Nagla could be claimed by the plaintiff. The judge answered in the negative, basing the decision entirely on the custom of Dhar Dhura, which was held to be applicable even when the change in the river’s course was sudden. The submissions and the cited judgments therefore provide clear proof that the custom covers situations where the river abruptly alters its channel and cuts off blocks of land from villages situated on either side of its flow. In light of this clear and definite evidence of usage, the lower courts’ decisions on this point could not be said to be erroneous. Counsel for the appellants argued that the custom was unreasonable and, for that reason, should be deemed unenforceable. While it cannot be denied that applying the deep-stream rule may, in certain circumstances, produce injustice because gain or loss of property depends on accidental and uncertain natural phenomena, the custom also offers a convenient and effective means of avoiding boundary disputes that might otherwise generate strife between riparian owners. A custom must not be contrary to reason, where “reason” is understood not as the subjective judgment of any layperson but as the artificial and legal reason justified by the authority of law, as noted in legal commentary. It is sufficient that no good legal reason can be assigned against the custom, a principle reflected in the observations of Coke on Littleton. Preventing quarrels and disputes between adjoining villages and estates serves the community’s interest, and judged by that standard the custom of Dhar Dhura cannot be labeled unreasonable. It may also be observed that a rule similar to the deep-stream principle has been recognized in India from very early times as a practical method for settling boundary disputes, and the Hindu Smriti writer Brihaspati enunciated the rule in terms almost identical to those later cited by legal commentators.

In this case, the Court observed that the first contention presented by the appellant could not be accepted. The second contention raised by the appellant concerned whether the custom of Dhar Dhura could be applied to the facts of the present suit where the river does not flow within the villages at all. The Court disagreed with the view taken by the learned Subordinate Judge and found that the reasons and conclusion of the High Court on this point were not sound. The Court explained that, if the custom of Dhar Dhura implies that the deep stream of a river, irrespective of changes in its course, is to be regarded as a fixed boundary line between two or more villages, it is essential that the main stream of the river actually flow within the limits of those villages. The custom may be invoked only for the purpose of determining the boundary between certain villages and estates; unless the river actually divides the villages or estates, there can be no question of it being treated as a boundary line between them, and in such circumstances the deep-stream rule cannot have any meaning. A custom that defeats or is irrelevant to the very object for which it was created cannot be regarded as valid. The Court also expressed that it is not satisfied that the evidence on record establishes the existence of such a custom, referring to Doss’s commentary on the law of riparian rights. Section 2 of Regulation XI of 1825 makes it clear that a custom contrary to the provisions of the Regulation would be enforceable only when it is a custom for determining the rights of proprietors of two or more contiguous estates divided by the river. When the river ceases to divide the estates, the rights of the riparian proprietors can be determined only in accordance with the provisions made in the Regulation itself. Counsel for the respondents argued that, even assuming that the custom of Dhar Dhura could not be invoked by the defendants when the river had receded beyond the limits of Mouza Sikha, the plaintiff would still have to show how he acquired title to the tract of land lying to the north and west of the “dabri” or the old water course, which forms the subject matter of the present suit. The Court answered that when the main current of the river was at the place where the “dabri” now stands, the entire stretch of land lying to the north-west of the main stream came to the plaintiff under the custom of Dhar Dhura. In the year 1341

In this case the Court observed that when the Fasli river abruptly altered its course and moved north-westward beyond the boundaries of mouza Sikha, the customary rule known as Dhar Dhura ceased to regulate the parties’ rights. Consequently, the ownership of the disputed parcel of land had to be settled according to the provisions contained in Regulation XI of 1825. The Court further noted that because the river’s shift was sudden rather than gradual and because the nature and identity of the land remained unchanged, the plaintiff was entitled to retain possession based on his original title, which was protected by section 4, clause (2) of the same Regulation. On this basis, the Court held that the judgment of the High Court judges on this issue was erroneous and required reversal. Counsel for the respondents submitted an additional argument that, even if the respondents could not rely on the Dhar Dhura custom while the river flowed outside the village limits, their customary rights would revive should the river later return within mouza Sikha. The Court accepted that this argument was theoretically possible, but it emphasized that the dispute must be decided according to the circumstances existing at the time the suit was instituted. As there was no evidence on record concerning the present position of the river, the Court concluded that the plaintiff should receive a decree identical to that granted by the trial judge, subject to the condition that the declared rights would remain subordinated to the Dhar Dhura custom should the appropriate situation arise for the defendants to invoke it. Accordingly, the Court allowed the appeal, restored the trial court’s judgment, and ordered that the first plaintiff recover his costs. The appeal was allowed. The agents for the parties were identified as R.S. Narula for the appellants and Tarachand Brijmohan Lal for the respondents.