KAPILDEO RAI Vs. HAR NARAIN AHIR AND OTHERS

JUDGEMENT

(1.) JUDGEMENT These are eighteen connected appeals arising out of eighteen connected and consolidated suits. The trial court disposed of the suits by a common judgment and the appeals against the judgments and decrees of the trial court were likewise disposed of by a common judgment by the court of first appeal. I also propose to deal with these appeals by a common judgment.

(2.) THE suits were filed by Zamindars and tenants of village Indarpur against the residents of village Cheruiyan for perpetual injunction restraining the defendants from interfering with the plaintiffs possession over certain plots of agricultural land and in the alternative for possession, village Indarpur lies to the east while village Cheruiyan, lies to the west of river Sarju, in the district of Ballia. It was alleged by the plaintiffs that the land in. dispute which was formerly on the eastern side or river sarju and which used to remain submerged under water of the river during rainy season was transferred to the western side as a result of a sudden change in the course of the river in 1941. The land, however, remained identifiable and continued to be in possession of the plaintiffs. in November 1952 the defendants started causing interference in the possession of the plaintiffs and that, according to the plaintiffs, led to the institution of the suits. The defence in all the suits was the same. The defendants pleaded that under an immemorial custom river Sarju was the constant boundary between villages Indarpur and Cheruiyan and whatever land was thrown upon the western side of the river on account of its fluvial action accreted to village n Cherulyan and the plaintiffs lost their rights to it.

(3.) AT the hearing of these appeals, the findings of the learned Civil Judge that the land in dispute originally formed part of village Indarpur and that there was no custom under which river Sarju was to be the constant boundary between villages Indarpur and Cheruiyan, were not challenged, and the learned counsel for the parties addressed their arguments accepting these findings as correct. The conclusion that flows from these findings inevitably is that the land appearing on the side of village Cheruiyan as a result of the action of the river would still remain the property of the plaintiffs if it is identifiable as having belonged to the plaintiff when it was on Indarpur side of the village, unless the plaintiffs have lost their rights by limitation or the defendants have acquired rights under some statutory provisions. This conclusion is not dependant in any manner upon whether the change in the course of the river was abrupt or gradual. The law on this matter may now be taken as settled in view of the two Division Bench decisions of this Court in Sri Krishna Dutt Dube v. Ahmadi Bibi, 1935 All LJ. 235 : (AIR 1935 All 187) and Mahadeo v. Bajeshwar Prasad, 193S All LJ. 708 : (AIR 1939 All (626); in the latter case Niamatullah, J. after referring to the Privy Council decision in Maharaja of Dumraon v. Secretary of State, ILR pat 481 : (AIR 1927 PC 89) and to the Division Bench decision of this Court in 193C All LJ 235 : (AIR 1935 All 187) observed as follows :